For instance, the Court noted that law enforcement could not determine whether the phone call was completed, the identity of the callers, or the “purport” of any communication.
Those who support greater protections against surveillance point out that Smith assumed that pen/trap information was very limited. The Justice Department often cites Smith as the legal basis for there being no constitutional protection for to/from information. Maryland the Court held that there was no “reasonable expectation of privacy” in to/from information. The Supreme Court in 1979 made clear that to/from information was not as sensitive as the contents of a phone call. Court orders under this statute are called “Title III” orders because the wiretap rules were in Title III of an omnibus crime control law passed in 1968. Congress followed this case by passing a strict wiretap law for the contents of phone calls. The Fourth Amendment thus required a warrant before the police could wiretap the call. United States that there is a “reasonable expectation of privacy” in the content of a phone call made from a phone booth when the caller had closed the door. There has been a longstanding consensus that this sort of to/from information about phone calls is less sensitive than the content of phone calls.
It then “traces” the call back to its point of origin. Surveillance technology “traps” a particular call as one that is going to the target phone. Although technology has changed, we still call the list of phone numbers dialed a “pen register.” The term “trap and trace” covers all of the calls to a particular phone. Police could then read off the numbers dialed on the phone. At one point, the surveillance technology for wiretapped phones was based on the fact that rotary clicks would trigger movements of a pen on a piece of paper. The term “pen register” comes from the old style for tracking all of the calls originating from a single telephone.
That way, the proposals could be studied more carefully before they become a permanent part of our surveillance law. If Congress decides that time is of the essence, then at a minimum any legislation rushed through now should have a two year sunset. Ideally, the Congress should hold hearings and study the complex legislative language. This essay provides some basic background information on pen/trap orders and how changing technology indeed supports further legislative actions in this area, including proposals dealing with: emergency trap and trace actions without a court order nationwide scope for trap and trace orders updating outdated telephone language to apply to the Internet and providing a more effective way for law enforcement to help system owners who are under computer attack.īased on my experience working on these issues in the last Administration, I believe that while additional legislation is warranted, the current proposals need further work in the Congress before they are enacted. At this writing, the Senate Judiciary Committee is considering the Administration proposal together with an alternative package put forward by Senator Leahy. On October 1, 2001, the House Judiciary Committee adopted much of what the Administration proposed, but toned down some of the other provisions of the larger proposal. One of the key components of Administration’s counter-terrorism legislative package is to enhance the government’s authority to obtain and place so-called “pen register” and “trap and trace” orders (“pen/trap orders”).
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