Thursday, July 26, 2007

Relevant Law

NOTE: As of July 31, 2007, I have recreated 53 message board posts and emails that have been bugged with tracking images used to secretly obtain the reader's IP address, location and potentially employer.

Pen Register Statute

TITLE 18 > PART II > CHAPTER 206 > § 3121Prev | Next

§ 3121. General prohibition on pen register and trap and trace device use; exception

(a) In General.— Except as provided in this section, no person may install or use a pen register or a trap and trace device without first obtaining a court order under section 3123 of this title or under the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.).
(b) Exception.— The prohibition of subsection (a) does not apply with respect to the use of a pen register or a trap and trace device by a provider of electronic or wire communication service—
(1) relating to the operation, maintenance, and testing of a wire or electronic communication service or to the protection of the rights or property of such provider, or to the protection of users of that service from abuse of service or unlawful use of service; or
(2) to record the fact that a wire or electronic communication was initiated or completed in order to protect such provider, another provider furnishing service toward the completion of the wire communication, or a user of that service, from fraudulent, unlawful or abusive use of service; or (3) where the consent of the user of that service has been obtained.
(c) Limitation.— A government agency authorized to install and use a pen register or trap and trace device under this chapter or under State law shall use technology reasonably available to it that restricts the recording or decoding of electronic or other impulses to the dialing, routing, addressing, and signaling information utilized in the processing and transmitting of wire or electronic communications so as not to include the contents of any wire or electronic communications.
(d) Penalty.— Whoever knowingly violates subsection (a) shall be fined under this title or imprisoned not more than one year, or both.

USA Patriot Act of 2001

Section 216 Pen Register and Trap and Trace Statute

The pen register and trap and trace statute (the "pen/trap" statute) governs the prospective collection of non-content traffic information associated with communications, such as the phone numbers dialed by a particular telephone. Section 216 updates the pen/trap statute in three important ways: (1) the amendments clarify that law enforcement may use pen/trap orders to trace communications on the Internet and other computer networks; (2) pen/trap orders issued by federal courts now have nationwide effect; and (3) law enforcement authorities must file a special report with the court whenever they use a pen/trap order to install their own monitoring device (such as the FBI’s DCS1000) on computers belonging to a public provider. The following sections discuss these provisions in greater detail. (This section is not subject to the sunset provision in Section 224 of the Act).

A. Using pen/trap orders to trace communications on computer networks

Previous law: When Congress enacted the pen/trap statute in 1986, it could not anticipate the dramatic expansion in electronic communications that would occur in the following fifteen years. Thus, the statute contained certain language that appeared to apply to telephone communications and that did not unambiguously encompass communications over computer networks.3 Although numerous courts across the country have applied the pen/trap statue to communications on computer networks, no federal district or appellate court has explicitly ruled on its propriety. Moreover, certain private litigants have challenged the application of the pen/trap statute to such electronic communications based on the statute’s telephone-specific language.

Amendment: Section 216 of the Act amends sections 3121, 3123, 3124, and 3127 of title 18 to clarify that the pen/trap statute applies to a broad variety of communications technologies. References to the target "line," for example, are revised to encompass a "line or other facility." Such a facility might include, for example, a cellular telephone number; a specific cellular telephone identified by its electronic serial number; an Internet user account or e-mail address; or an Internet Protocol address, port number, or similar computer network address or range of addresses. In addition, because the statute takes into account a wide variety of such facilities, amendments to section 3123(b)(1)(C) now allow applicants for pen/trap orders to submit a description of the communications to be traced using any of these or other identifiers.

Moreover, the amendments clarify that orders for the installation of pen register and trap and trace devices may obtain any non-content information – all "dialing, routing, addressing, and signaling information" – utilized in the processing and transmitting of wire and electronic communications. Such information includes IP addresses and port numbers, as well as the "To" and "From" information contained in an e-mail header. Pen/trap orders cannot, however, authorize the interception of the content of a communication, such as words in the "subject line" or the body of an e-mail. Agents and prosecutors with questions about whether a particular type of information constitutes content should contact the Office of Enforcement Operations in the telephone context (202-514-6809) or the Computer Crime and Intellectual Property Section in the computer context (202-514-1026).

Trap or Trace Device Defined

Further, because the pen register or trap and trace "device" often cannot be physically "attached" to the target facility, Section 216 makes two other related changes. First, in recognition of the fact that such functions are commonly performed today by software instead of physical mechanisms, the amended statute allows the pen register or trap and trace device to be "attached or applied" to the target facility. Likewise, Section 216 revises the definitions of "pen register" and "trap and trace device" in section 3127 to include an intangible "process" (such as a software routine) which collects the same information as a physical device.


"Remember that PATRIOT amended existing laws. To see the amended laws, you need to know the title and sections affected. For example, the EPIC article links directly to Cornell's US Code archive, e.g., Pen Register and Trap and Trace Statute or Interception and disclosure of wire, oral, or electronic communications prohibited, aka "The Wiretap Act." Alternatively, visit the Office of the Law Revision Counsel of the House of Representatives and search to find 18USC3121 or 18USC2511. Notice these laws don't just apply to the government -- they affect everyone."

Utah Law

76-9-403. Communication Abuse.

(1) A person commits communication abuse if, except as authorized by law, he:
(a) Intercepts, without the consent of the sender or receiver, a message by telephone, telegraph, letter, or other means of communicating privately; this paragraph does not extend to:
(i) Overhearing of messages through a regularly installed instrument on a telephone party line or on an extension; or
(ii) Interception by the telephone company or subscriber incident to enforcement of regulations limiting use of the facilities or to other normal operation and use; or
(b) Divulges without consent of the sender or receiver the existence or contents of any such message if the actor knows that the message was illegally intercepted or if he learned of the message in the course of employment with an agency engaged in transmitting it.
(2) Communication abuse is a class B misdemeanor.

77-23a-4. Offenses -- Criminal and civil -- Lawful interception.

(1) (a) Except as otherwise specifically provided in this chapter, any person who violates Subsection (1)(b) is guilty of an offense and is subject to punishment under Subsection (10), or when applicable, the person is subject to civil action under Subsection (11).
(b) A person commits a violation of this subsection who:
(i) intentionally or knowingly intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire, electronic, or oral communication;
(ii) intentionally or knowingly uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication, when the device is affixed to, or otherwise transmits a signal through a wire, cable, or other like connection used in wire communication or when the device transmits communications by radio, or interferes with the transmission of the communication;
(iii) intentionally or knowingly discloses or endeavors to disclose to any other person the contents of any wire, electronic, or oral communication, knowing or having reason to know that the information was obtained through the interception of a wire, electronic, or oral communication in violation of this section;...

77-23a-6. Seizure and forfeiture of intercepting devices.

Any electronic, mechanical or other device used, sent, carried, manufactured, assembled, possessed, sold, or advertised in violation of Sections 77-23a-4 and 77-23a-5, may be seized and forfeited to the State of Utah.


See Also:

Significance of web bugs