Pen Registers and Trap and Trace Devices, codified at 18 U.S.C. §§ 3121–3127

The so-called “Pen/Trap” statute regulates the collection of non-content information related to electronic communications in real time.  Pen registers and trap and trace (“PR/TT”) orders authorize the government to obtain communications metadata, such as the phone numbers associated with incoming and outgoing calls, or the email addresses of a sender and recipient.[1]  The Pen Register Act requires a federal court to “enter an ex parte order authorizing the installation and use of a pen register or trap and trace device” on a facility or other service belonging to a wire or electronic communication service provider.[2]  In order to obtain the order, the government must certify that “the information likely to be obtained by such installation and use is relevant to an ongoing criminal investigation.”[3]  Pen register/trap and trace orders are sealed and accompanied by a gag order directing the communication service provider not to disclose the existence of the order.  The Attorney General’s policy on obtaining records of members of the news media applies to PR/TT orders.