Order Code RL33424
Government Access to Phone Calling Activity and
Related Records: Legal Authorities
Updated August 20, 2007
Elizabeth B. Bazan, Gina Marie Stevens, and Brian T. Yeh
Legislative Attorneys
American Law Division

Government Access to Phone Calling Activity and
Related Records: Legal Authorities
Summary
Media disclosures regarding an alleged National Security Agency (NSA)
program designed to collect and analyze information on telephone calling patterns
within the United States have raised interest in the means by which the Government
may collect such information. The factual information available in the public domain
with respect to any such alleged program is limited and in some instances
inconsistent, and the application, if at all, of any possibly relevant statutory
provisions to any such program is likely to be a very fact specific inquiry. It is
possible that any information provided to the NSA from the telephone service
providers was provided in response to a request for information, not founded on a
statutory basis. If this were the case, such a request would not necessarily be limited
by the statutory structures discussed below, but in some instances, depending upon
the facts involved, might expose the telephone companies to some civil remedies or
criminal sanctions. In addition, a request, not founded upon a statutory scheme,
would appear to lack a means of compelling production of the information requested.
This would seem to be consistent with the statement in the USA Today article of May
11, 2006, that one of the companies refused to comply with NSA’s request for calling
detail records, while at least one other company appears to have complied.
Numerous lawsuits have been filed by civil liberties groups against several
telecommunications companies on behalf of their customers and subscribers, for their
alleged cooperation with the NSA program that have harmed the plaintiffs’
constitutional and statutory rights. One case, Hepting v. AT&T Corp., was filed in
January 2006 and is based in part on evidence of participation in the NSA program
by the defendant provided by a former AT&T employee, whereas all the other
lawsuits were filed after the publication of the USA Today article and are based
largely on the factual allegations made therein. These cases, originally filed
throughout the country, have since been transferred to the Northern District of
California and assigned to U.S. District Judge Vaughn R. Walker for coordinated or
consolidated pre-trial proceedings, In Re: National Security Agency
Telecommunications Records Litigation
, MDL-1791. In May 2006, the United States
government moved to intervene as a defendant in the Hepting case and moved to
dismiss the action based on the “state secrets” privilege. In July 2006, Judge Walker
allowed Hepting to proceed by rejecting the government’s state secrets claim. The
U.S. Court of Appeals for the Ninth Circuit heard arguments in the interlocutory
appeal of the district court’s ruling on August 15, 2007, in which the government
again requested that the case be dismissed on the basis that litigating the case would
reveal highly classified information that would cause the nation “grievous injury.”
As of August 20, 2007, no decision by the appellate court has been announced.
This report summarizes statutory authorities regarding access by the
government, for either foreign intelligence or law enforcement purposes, to
information related to telephone calling patterns or practices. Where pertinent, it
also discusses statutory prohibitions against accessing or disclosing such information,
along with relevant exceptions to those prohibitions.

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Statutory Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
50 U.S.C. § 1842 — Pen Registers and Trap and Trace Devices for
Foreign Intelligence and International Terrorism Investigations
Under FISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
18 U.S.C. § 3121-3123 — Pen Registers or Trap and Trace Devices
Generally, and for Use in an Ongoing Criminal Investigation . . . . . . . 9
50 U.S.C. § 1861 — Access to Business Records for Foreign
Intelligence and International Terrorism Investigations . . . . . . . . . . 10
18 U.S.C. § 2701 et seq. — Access to Stored Electronic
Communications and Transactional Records . . . . . . . . . . . . . . . . . . . . 11
47 U.S.C. §§ 222, 501-503 — Communications Act of 1934 . . . . . . . . . . . 14

Government Access to Phone Calling
Activity and Related Records:
Legal Authorities
Introduction
Media disclosures regarding an alleged National Security Agency (NSA)
program designed to collect and analyze information on telephone calling patterns
within the United States have raised interest in the means by which the Government
may collect such information. According to the information in the USA Today news
story from May 11, 2006, the NSA is alleged to have sought and obtained records of
telephone numbers called and received from millions of telephones within the United
States from three telephone service providers, while a fourth had refused to provide
such records.1 Several days after the publication of that news article, two of the three
service providers originally reported to have provided calling records denied that they
provided such records.2 The USA Today article indicated that no names or addresses
were obtained in connection with these telephone calls, nor were the contents of these
telephone calls sought or obtained. The USA Today story also stated that one
telephone service provider had refused to provide the NSA access to such
information because of concerns about the legality of such disclosures. The USA
Today
story indicated that this information was being compiled in a database and
being used for pattern analysis. The President, in his weekly radio address on May
13, 2006, while discussing his nomination of General Michael V. Hayden to head the
Central Intelligence Agency, has responded to the news reports of NSA’s alleged data
mining activities:
This week, new claims have been made about other ways we are tracking down
al Qaeda to prevent attacks on America. It is important for Americans to
understand that our activities strictly target al Qaeda and its known affiliates. Al
Qaeda is our enemy, and we want to know their plans. The intelligence activities
I have authorized are lawful and have been briefed to appropriate members of
Congress, both Republican and Democrat. The privacy of all Americans is
1 Leslie Cauley, NSA Has Massive Database of Americans’ Phone Calls; 3 Telecoms Help
Government Collect Billions of Domestic Records
, USA TODAY, May 11, 2006, at 1A.
The story alleged that Verizon, BellSouth, and AT&T provided calling records in response
to the NSA’s inquiry or production demand, while Qwest did not.
2 In a “note” to its readers on June 30, 2006, USA Today issued a partial retraction of its
original story, stating that it “has now concluded that while the NSA has built a massive
domestic calls record database involving the domestic call records of telecommunications
companies, the newspaper cannot confirm that BellSouth or Verizon contracted with the
NSA to provide bulk calling records to that database.” A Note To Our Readers, USA
TODAY, June 30, 2006, at 2A.

CRS-2
fiercely protected in all our activities. The government does not listen to
domestic phone calls without court approval. We are not trolling through the
personal lives of millions of innocent Americans. Our efforts are focused on
links to al Qaeda terrorists and its affiliates who want to harm the American
people.
Americans expect their government to do everything in its power under our laws
and Constitution to protect them and their civil liberties. That is exactly what we
are doing. And so far, we have been successful in preventing another attack on
our soil....

The factual information available in the public domain with respect to any such
alleged program is limited and in some instances inconsistent, and the application,
if at all, of any possibly relevant statutory provisions to any such program is likely
to be a very fact specific inquiry. It is possible that any information provided to the
NSA from the telephone service providers was provided in response to a request for
information, not founded on a statutory basis. If this were the case, such a request
would not necessarily be limited by the statutory structures discussed below, but in
some instances, depending upon the facts involved, might expose the telephone
companies to some civil remedies or criminal sanctions. In addition, a request, not
founded upon a statutory scheme, would appear to lack a means of compelling
production of the information requested. This would seem to be consistent with the
statement in the USA Today article that one of the companies refused to comply with
NSA’s request for calling detail records, while at least one other company appears
to have complied.
Numerous lawsuits have been filed by civil liberties groups against
telecommunications companies on behalf of their customers and subscribers, for their
alleged cooperation with the NSA program that have harmed the plaintiffs’
constitutional and statutory rights. One case, Hepting v. AT&T Corp.,3 was filed in
January 2006 and is based in part on evidence of participation by the defendant in the
NSA program provided by a former AT&T employee, whereas all the other lawsuits
were filed after the publication of the USA Today article and are based largely on the
factual allegations made therein. On August 9, 2006, pursuant to 28 U.S.C. § 1407,
the Judicial Panel on Multidistrict Litigation transferred 17 civil actions that were
pending throughout the country, including Hepting, to the Northern District of
California, and assigned them to Judge Walker for coordinated or consolidated
pretrial proceedings, In Re: National Security Agency Telecommunications Records
Litigation
, MDL-1791. Another 26 cases were treated as potential tag-along actions
under the multidistrict litigation rules.4 The panel of five federal trial and appellate
court judges found that all these class actions share “factual and legal questions
regarding alleged Government surveillance of telecommunications activity and the
participation in (or cooperation with) that surveillance by individual
telecommunications companies,” and thus centralization of the cases “is necessary
in order to eliminate duplicative discovery, prevent inconsistent pretrial rulings
3 No. C:06-cv-0672-VRW (N.D. Cal. 2006),
4 Rule 1.1 of the Rules of Procedure for Multidistrict Litigation defines a “tag-along action”
as referring “to a civil action pending in a district court and involving common questions
of fact with actions previously transferred” under 28 U.S.C. § 1407.

CRS-3
(particularly with respect to matters involving national security), and conserve the
resources of the parties, their counsel and the judiciary.”5
On May 13, 2006, the United States government moved to intervene as a
defendant in the Hepting case and moved to dismiss the action or, in the alternative,
for summary judgment in favor of AT&T, based on the “state secrets” privilege, a
common law evidentiary rule that protects information from civil discovery when
disclosure would harm national security. U.S. District Judge Vaughn R. Walker
allowed the Hepting case to proceed by rejecting the government’s state secrets claim
because of the public disclosures about the litigation’s subject matter by AT&T and
the government.6 The judge also denied AT&T’s motion to dismiss the case on the
basis of its claim of qualified immunity from liability for assisting the government.
On November 7, 2006, the U.S. Court of Appeals for the Ninth Circuit granted the
defendants’ petition for interlocutory review of Judge Walker’s ruling.7 On March
14, 2007, Judge Walker entered an order staying all proceedings in cases currently
pending in MDL-1791, except for Hepting, until 30 days after the Ninth Circuit
resolved the interlocutory appeal of the district court’s rejection of the government’s
state secrets privilege.8 Oral argument before the Ninth Circuit was held on August
15, 2007, in which the government again requested that the case be dismissed
because, it argued, the state secrets privilege precludes disclosure of highly classified
information necessary to adjudicate the case.9 As of August 20, 2007, the appellate
court has yet to issue a decision on the interlocutory appeal.
This report summarizes statutory authorities regarding access by the
Government, for either foreign intelligence or law enforcement purposes, to
information related to telephone calling patterns or practices. Where pertinent, it also
discusses statutory prohibitions against accessing or disclosing such information,
along with relevant exceptions to those prohibitions.
Background
The Supreme Court, in Smith v. Maryland, 442 U.S. 735 (1979), in a pen
register case, has held that there is no Fourth Amendment protected reasonable
expectation of privacy in records of telephone calls in the hands of third party
providers, where contents of those calls is not intercepted. The Fourth Amendment
to the United States Constitution guarantees:
5 Transfer Order, MDL Docket No. 1791, In Re: National Security Agency
T e l e c o m m u n i c a t i o n s R e c o r d s L i t i g a t i o n
,
a v a i l a b l e a t
[http://www.jpml.uscourts.gov/MDL-1791-TransferOrder.pdf].
6 Hepting v. AT&T Corp., 439 F. Supp. 2d 974, 994 (N.D. Cal. July 20, 2006).
7 Hepting v. United States, Nos. 06-80109, 06-80110 (9th Cir. 2006) (order granting appeal).
8 Stipulation and Order Staying All Cases (Except Hepting) Against AT&T Defendants, In
Re: National Security Agency Telecommunications Records Litigation,
MDL No. 06-1791-
VRW (March 13, 2007).
9 Karl Vick, Judges Skeptical of State-Secrets Claim, WASH. POST, Aug. 16, 2007, at A04.

CRS-4
The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause, supported by Oath or affirmation,
and particularly describing the place to be searched, and the persons or things to
be seized.10
Whether the use of a pen register is a “search and seizure” within the meaning
of the Fourth Amendment determines if the government, in compliance with the
Constitution, must secure a warrant or court order prior to its installation. In 1979,
the United States Supreme Court decided this question in Smith v. Maryland,11
holding that the Fourth Amendment does not prohibit the use of pen registers without
a warrant. Writing the majority opinion joined by four other justices, Justice Harry
Blackmun drew a distinction between the acquisition of contents of telephone
communications using electronic listening devices, which the Court in Katz v.
United States
12 had deemed to be a “search” under the Fourth Amendment, and the
capture of electronic impulses that identify the numbers dialed on a telephone using
a pen register device. According to the majority in Smith, it is a constitutionally
significant difference that pen registers do not record the contents of
communications, in contrast to the listening devices employed in Katz.13 The Court
explained that the Fourth Amendment does not apply to the use of pen registers
because individuals do not have a legitimate expectation of privacy against invasion
by government action, concerning the numbers dialed into a telephone system:
All telephone users realize that they must “convey” phone numbers to the
telephone company, since it is through telephone company switching equipment
that their calls are completed. All subscribers realize, moreover, that the phone
company has facilities for making permanent records of the numbers they dial,
for they see a list of their long-distance (toll) calls on their monthly bills. In fact,
pen registers and similar devices are routinely used by telephone companies “for
the purposes of checking billing operations, detecting fraud, and preventing
violations of law.”14
The Court stated that telephone customers, by voluntarily conveying phone
numbers to the telephone company and “expos[ing] that information to its equipment
in the ordinary course of business,” assume the risk that the company may disclose
such information to law enforcement.15 Because there is no actual or legitimate
expectation of privacy in the numbers dialed from a telephone, the installation and
use of a pen register is not a “search” requiring a warrant under the Fourth
Amendment, the Court ruled.16
10 U.S. CONST. amend. IV.
11 442 U.S. 735 (1979).
12 389 U.S. 347 (1967).
13 Smith, 442 U.S. at 741 (emphasis in original).
14 Id. at 742 (quoting United States v. New York Tel. Co., 434 U.S. 159, 174-75 (1977)).
15 Id. at 744.
16 Id. at 745-46.

CRS-5
The dissenting opinions in Smith believed that telephone numbers dialed from
a phone are entitled to the same constitutional protection that telephone conversations
receive under Katz because such numbers are not without “content” - they “reveal the
identities of the persons and the places called, and thus reveal the most intimate
details of a person’s life.”17 Furthermore, the dissenters objected to the majority’s
characterization that the use of a telephone involves an assumption of risk on the part
of the customer that telephone dialing information might be disclosed to the
government; assumption of risk generally requires there to have been a choice to
engage in the activity, and “as a practical matter, individuals have no realistic
alternative” to the use of a telephone.18
There are, however, a number of statutes enacted since 1979, which both permit
access by the Government, for foreign intelligence or law enforcement purposes, to
information relating to telephone numbers dialed from or received by a particular
telephone number, as well as duration and usage, and which impose limitations as to
how such information may be accessed and under what circumstances it may be used.
Some of these statutes also provide criminal penalties for violations of their
provisions and provide civil remedies to those adversely impacted by such violations.
In addition, the Communications Act of 1934, as amended, addresses protections to
customer proprietary network information, and provides civil and criminal penalties
for violations of its provisions or implementing regulations.
Statutory Provisions
Summary
Information regarding telephone calling patterns, duration, usage, and length of
service may be sought by the government either directly through the use of pen
registers19 or trap and trace devices,20 or indirectly by seeking telephone toll or
17 Id. at 747-48 (Stewart, J., dissenting).
18 Id. at 749 (Marshall, J., dissenting).
19 Under 50 U.S.C. § 1841(2), which cross references the definition in 18 U.S.C. § 3127(3),
the term “pen register” “means a device or process which records or decodes dialing,
routing, addressing, or signaling information transmitted by an instrument or facility from
which a wire or electronic communication is transmitted, provided, however, that such
information shall not include the contents of any communication, but such term does not
include any device or process used by a provider or customer of a wire or electronic
communication service for billing, or recording as an incident to billing, for communications
services provided by such provider or any device or process used by a provider or customer
of a wire communication service for cost accounting or other like purposes in the ordinary
course of its business.”
20 Under 50 U.S.C. § 1841(2), which cross references the definition in 18 U.S.C. § 3127(4),
the term “trap and trace device” “means a device or process which captures the incoming
electronic or other impulses which identify the originating number or other dialing, routing,
addressing, and signaling information reasonably likely to identify the source of a wire or
(continued...)

CRS-6
transactional records from third party providers. Statutory provisions authorizing,
pursuant to court order, the use of pen registers and trap and trace devices exist in
both the Foreign Intelligence Surveillance Act (FISA), 50 U.S.C. § 1841 et seq., and,
for law enforcement purposes, in 18 U.S.C. § 3121 et seq.
FISA’s “business records” provision, 50 U.S.C. § 1861, provides for authority,
pursuant to court order, for requests for production of “any tangible thing” relevant
to collection of foreign intelligence information not concerning a U.S. person, or
relevant to an investigation into international terrorism or clandestine intelligence
activities. Under 50 U.S.C. § 1861, an investigation concerning a U.S. person may
not be based solely on First Amendment protected activities.
Access to stored electronic communications is addressed in 18 U.S.C. § 2701
et seq. 18 U.S.C. § 2702 prohibits voluntary disclosure of customer communications
records by a service provider unless it falls within one of several exceptions.
Required disclosure of customer records to the government under certain
circumstances is addressed under 18 U.S.C. § 2703, including, among others,
disclosure pursuant to a warrant or grand jury or trial subpoena. 18 U.S.C. § 2709
is a national security letter provision, under which a wire or electronic service
provider21 must provide subscriber information and toll billing records information,
or electronic communication transactional records in its custody or possession in
response to a request by the Director of the Federal Bureau of Investigation (FBI) if
the Director of the FBI, or his designee in a position not lower than Deputy Assistant
Director at Bureau headquarters or a Special Agent in Charge designated by the FBI
Director in a field office, certifies that the records or information sought is relevant
to an authorized investigation to protect against international terrorism or clandestine
intelligence activities, provided that such an investigation of a U.S. person is not
conducted solely on the basis of First Amendment protected activities. In addition,
Section 222 of the Communications Act of 1934, as amended, 47 U.S.C. § 222,
provides protections to customer proprietary network information, and violations of
pertinent provisions of law or regulation may expose service providers to criminal
provisions, civil penalties and forfeiture provisions, 47 U.S.C. §§ 501-503. There
follows a more detailed description of these provisions.
20 (...continued)
electronic communication, provided, however, that such information shall not include the
contents of any communication.”
21 Under 18 U.S.C. § 2709(f), “A library (as that term is defined in section 213(1) of the
Library Services and Technology Act (20 U.S.C. 9122(1)), the services of which include
access to the Internet, books, journals, magazines, newspapers, or other similar forms of
communication in print or digitally by patrons for their use, review, examination, or
circulation, is not a wire or electronic communication service provider for purposes of this
section, unless the library is providing the services defined in section 2510(15) (“electronic
communication service”) of this title.” Subsection (f) was added by P.L. 109-178, § 5.

CRS-7
50 U.S.C. § 1842 — Pen Registers and Trap and Trace
Devices for Foreign Intelligence and International Terrorism
Investigations Under FISA

Under this provision,22 the Attorney General or a designated attorney for the
Government may apply for an ex parte court order authorizing the use of a pen
register or trap and trace device to a Foreign Intelligence Surveillance Court (FISC)
judge or to a U.S. magistrate judge designated by the Chief Justice of the United
States to have the power to hear applications or grant orders approving installation
and use of a pen register or trap and trace device on behalf of an FISC judge. The
application must be approved by the Attorney General or a designated Government
attorney; must identify the Federal officer seeking to use the pen register or trap and
trace device; and must include a certification that the information likely to be
obtained is foreign intelligence information23 not concerning a U.S. person24 or that
the information is relevant to an ongoing investigation to protect against international
terrorism or clandestine intelligence activities. An investigation of a U.S. person may
not be conducted solely on the basis of First Amendment protected activities.
The order must specify the identity of the person who is the subject of the
investigation, if known. If known, the order must identify the person to whom the
telephone line or other facility to which the pen register or trap and trace device is to
be attached is leased or in whose name it is listed. In addition, the order must list the
attributes of the communications to which it applies, such as the number or other
identifier and, if known, the location of the telephone line or other facility involved.
In the case of a trap and trace device, the order must also identify the geographic
limits of the trap and trace order.
22 Other provisions of this chapter deal with authorization for pen registers or trap and trace
devices during emergencies, 50 U.S.C. § 1843, authorization during time of war, 50 U.S.C.
1844, use of information gathered under a FISA pen register or trap and trace device, 50
U.S.C. § 1845, and congressional oversight, 50 U.S.C. § 1846.
23 Under 18 U.S.C. § 1801(e), “foreign intelligence information” is defined to mean
information that relates to, and if concerning a United States person is necessary to, the
ability of the United States to protect against actual or potential attack or other grave hostile
acts of a foreign power or an agent of a foreign power, sabotage or international terrorism
by a foreign power or an agent of a foreign power, or clandestine intelligence activities by
an intelligence service or network of a foreign power or by an agent of a foreign power; or
information with respect to a foreign power or foreign territory that relates to, and if
concerning a United States person is necessary to the national defense or the security of the
United States or the conduct of the foreign affairs of the United States.
24 Under 50 U.S.C. § 1801(i), “United States person” means a citizen of the United States,
an alien lawfully admitted for permanent residence (as defined in section 1101(a)(20) of
Title 8), an unincorporated association a substantial number of members of which are
citizens of the United States or aliens lawfully admitted for permanent residence, or a
corporation which is incorporated in the United States, but does not include a corporation
or an association which is a foreign power, as defined in subsection (a)(1), (2), or (3) of this
section.

CRS-8
Such an order, at the request of the applicant, also directs the provider of the
wire or electronic service, landlord, custodian, or other person, to furnish any
information, facilities, or technical assistance needed to accomplish the installation
and operation of the pen register or trap and trace device in a manner that will protect
its secrecy and minimize interference with the services provided. In addition, the
order directs the provider, landlord, custodian, or other person not to disclose the
existence of the investigation or the pen register or trap and trace device to anyone
unless or until ordered to do so by the court. Records concerning the pen register or
trap and trace device or the aid furnished are to be kept under security procedures
approved by the Attorney General and the Director of National Security under 50
U.S.C. § 1805(b)(2)(C).
The order also directs the applicant for the order to provide compensation for
reasonable expenses incurred by the provider, landlord, custodian or other person in
providing information, facilities, or technical assistance.
Upon the request of the applicant for the court order, the court shall direct the
wire or electronic service provider to provide the federal officer using the pen register
or trap and trace device with the name; address; and the telephone number,
instrument number or subscriber number or identifier of the customer or subscriber
using the service covered by the order for the period specified by the order, including
temporarily assigned network address or associated routing or transmission
information. The service provider must also provide, if so ordered by the court upon
the applicant’s request, information on length of service of the customer or
subscriber, as well as local or long distance telephone records of the subscriber or
customer, and, if applicable, any records on periods of usage by the customer or
subscriber. Further, the court, at the applicant’s request, may order disclosure by the
service provider of any mechanisms and sources of payment for the service (i.e.,
credit card, bank account).
If the information is available with respect to any customer or subscriber of
incoming or outgoing communications to or from the service covered by the order,
the court, upon the request of the applicant for the order, is to direct the wire or
electronic service provider to provide the name; address; telephone number,
instrument number or other subscriber number or identifier, of such customer or
subscriber, as well as length of service provided to and types of serviced utilized by
the subscriber or customer.
In general, the duration of an order issued under this section is not to exceed 90
days, with the possibility of extension for periods of not more than 90 days.
However, if the applicant for the order certifies that the information likely to be
obtained is foreign intelligence information not concerning a United States person,
then an extension may be for up to a year. No cause of action may be brought against
any wire or electronic service provider, landlord, custodian, or other person that
furnishes information, facilities, or technical assistance pursuant to an order issued
under this provision. Unless otherwise ordered by the judge, the results of the pen
register or trap and trace device are to be provided to the authorized Government
official or officials at reasonable intervals.

CRS-9
18 U.S.C. § 3121-3123 — Pen Registers or Trap and Trace
Devices Generally, and for Use in an Ongoing Criminal
Investigation

18 U.S.C. § 3121 prohibits the installation and use of a pen register or trap and
trace device without first obtaining a court order under FISA or under 18 U.S.C. §
3123. This prohibition does not apply to use by an electronic or wire service provider
relating to the operation, maintenance and testing of a service or protection of the
rights or property of the service provider; the protection of users of the service from
abuse or unlawful use of the service; to recording of the fact that a wire or electronic
communication was initiated or completed to protect the service provider, another
provider furnishing service toward completion of the wire communication, or a user
of the service from fraudulent, unlawful or abusive use of the service; or to use where
the consent of the user of the service has been obtained. A government agency
authorized to install and use a pen register or trap and trace device under the
provisions of this chapter of Title 18, U.S.C., or under state law must 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 in a manner
that does not include the contents of that communication.
An application for a court order authorizing a pen register or trap and trace
device under this chapter must be made pursuant to 18 U.S.C. § 3122 in writing
under oath or affirmation to a court of competent jurisdiction. Such an application
must include the identity of the attorney for the Government or the state law
enforcement or investigative officer making the application and the identity of the
law enforcement agency conducting the investigation, as well as a certification by the
applicant that the information likely to be obtained is relevant to an ongoing criminal
investigation being conducted by that agency. Under 18 U.S.C. § 3123, the court
shall enter an ex parte order authorization installation and use of a pen register or trap
and trace device anywhere in the United States if the court finds that the applicant for
the order has made such a certification. An order may authorize installation and use
of a pen register or trap and trace device for a period of up to 60 days, which can be
extended by court order for additional periods of no more than 60 days. The order
must also direct that the order be sealed until otherwise ordered by the court, and
must prohibit the person owning or leasing the line or other facility to which the pen
register or trap and trace device is attached or applied, or who is obligated by the
order to assist the applicant, from disclosing the existence of the pen register or trap
and trace device or of the investigation to the listed subscriber or to any other person
unless or until the court orders otherwise.25
25 18 U.S.C. § 3124 addresses assistance in installation and use of the pen register or trap
and trace device; while 18 U.S.C. § 3125 deals with emergency installation of a pen register
and trap or trap and trace device. 18 U.S.C. § 2136 provides for annual reports to Congress
by the Attorney General on the number of applications by law enforcement agencies of the
Department of Justice for pen registers or trap and trace devices orders, as well as certain
details with respect to court orders issued in response to such applications.

CRS-10
50 U.S.C. § 1861 — Access to Business Records for Foreign
Intelligence and International Terrorism Investigations

Under 50 U.S.C. § 1861, the Director of the Federal Bureau of Investigation
(FBI) or a designee of the Director, whose rank shall not be lower than Assistant
Special Agent in Charge, may apply to the FISA court for an order granting the
government access to any tangible item (including books, records, papers,
documents, and other items) for an investigation to obtain foreign intelligence
information not concerning a United States person, or to protect against international
terrorism or clandestine intelligence activities. Such an investigation of a United
States person may not be conducted solely upon the basis of activities protected by
the first amendment to the Constitution.
The application for such an order must include a statement of facts
demonstrating that there are reasonable grounds to believe that the tangible things
sought are relevant to an authorized or preliminary investigation to protect against
international terrorism or espionage, or to obtain foreign intelligence information not
concerning a U.S. person.26 However, certain tangible items are deemed
presumptively relevant to an investigation if the application’s statement of facts
shows that the items sought pertain to a foreign power or an agent of a foreign power,
the activities of a suspected agent of a foreign power who is the subject of such
authorized investigation, or an individual in contact with, or known to, a suspected
agent of a foreign power who is the subject of such authorized investigation.
The FISA court judge shall approve an application for an order under 50 U.S.C.
§ 1861, as requested or as modified, upon a finding that the application complies
with statutory requirements. The order must contain a particularized description of
the items sought, provide for a reasonable time to assemble them, and be limited to
things which may be obtained under a grand jury subpoena or an order of a U.S. court
for production of records or tangible things.27 The order to produce the tangible
things (production order) is also accompanied by a nondisclosure requirement
(nondisclosure order) that prohibits the recipient from disclosing to any other person
that the FBI has sought the tangible things described in the order, with limited
exceptions.28 The recipient may immediately challenge the legality of the production
order by filing a petition with the FISA court; however, the recipient must wait one
year before challenging the nondisclosure order.29 A FISA court judge considering
the recipient’s petition to modify or set aside the production order may do so only if
the judge finds that the order does not meet statutory requirements or is otherwise
26 50 U.S.C. § 1861(b)(2)(A).
27 50 U.S.C. § 1861(c).
28 A recipient of a FISA order under this section may disclose its existence to persons to
whom disclosure is necessary to comply with the order, to an attorney to obtain legal advice
with respect to the production of things in response to the order, as well as to other persons
approved by the FBI. 50 U.S.C. § 1861(d)(1).
29 50 U.S.C. § 1861(f)(2)(A).

CRS-11
unlawful.30 A nondisclosure order may be modified or set aside if the judge finds
that there is no reason to believe that disclosure may endanger the national security
of the United States; interfere with a criminal, counterterrorism, or
counterintelligence investigation; interfere with diplomatic relations; or endanger the
life or physical safety of any person.31 If, at the time the individual files the petition
for judicial review of a nondisclosure order, the Attorney General, Deputy Attorney
General, an Assistant Attorney General, or the Director of the FBI certifies that
disclosure may endanger the national security of the United States or interfere with
diplomatic relations, then the FISA judge must treat such government certification
as conclusive unless the judge finds that the certification was made in bad faith.32
18 U.S.C. § 2701 et seq. — Access to Stored Electronic
Communications and Transactional Records

Access to stored electronic communications and transactional records is
addressed in 18 U.S.C. § 2701 et seq. Under 18 U.S.C. § 2702, voluntary disclosure
of customer communications records by a service provider is prohibited unless it falls
within one of several exceptions, including, among others, disclosure as authorized
in 18 U.S.C. § 2703; disclosure with the lawful consent of the customer or
subscriber; or disclosure to a governmental entity, if the provider, in good faith,
believes that an emergency involving danger of death or serious physical injury to
any person requires disclosure without delay of information relating to the
emergency.33 Under 18 U.S.C. § 2703, a provider of electronic communication
service or remote computing service shall disclose to a government entity the name,
address, local and long distance telephone connection records, or records of session
times and durations, length of service and types of service utilized, telephone
instrument number or other subscriber number or identity, including temporarily
assigned network address, and means and source of payment for such service
pursuant to: a warrant; a court order based upon specific and articulable facts
showing that there are reasonable grounds to believe that the contents of a wire or
electronic communication or the records or other information sought are relevant and
material to an ongoing criminal investigation; customer or subscriber consent; or a
written request from the governmental entity relevant to a law enforcement
investigation regarding telemarketing fraud; or pursuant to an administrative
subpoena authorized by federal or state statute, or a federal or state grand jury
subpoena or trial subpoena. A governmental entity receiving such records or
information is not required to provide notice to a subscriber or customer. Nor does
any cause of action lie against any service provider of wire or electronic
communication service, its officers, employees, agents, or other specified persons for
30 50 U.S.C. § 1861(f)(2)(B).
31 50 U.S.C. § 1861(f)(2)(C)(i).
32 50 U.S.C. § 1861(f)(2)(C)(ii).
33 This language was added by P.L. 109-177, Title I, § 107(b)(1)(B). It replaced an
exception which covered “disclosure to a governmental entity if the provider reasonably
believes that an emergency involving immediate danger of death or serious physical injury
to any person justifies disclosure of the information.”

CRS-12
providing information, facilities, or assistance in accordance with the terms of a court
order, warrant, subpoena, statutory authorization or certification under this chapter.
18 U.S.C. § 2706 requires a government entity obtaining records or other
information under §§ 2702 or 2703 to reimburse the costs reasonably necessary and
directly incurred in searching for, assembling, reproducing or otherwise providing
such information. The amount of payment is to be mutually agreed upon by the
government entity and the person or entity providing the information, or, in the
absence of an agreement, determined by the court issuing the production order. The
reimbursement requirement does not apply to records or other information
maintained by a communications common carrier that relate to telephone records and
telephone listings obtained under 18 U.S.C. § 2703 unless a court orders payment
upon a determination that the information required is unusually voluminous in nature
or otherwise caused an undue burden upon the provider.
Under 18 U.S.C. § 2709, a national security letter provision, wire or electronic
service providers34 must provide subscriber information and toll billing records
information, or electronic communication transactional records in its custody or
possession in response to a request by the Director of the Federal Bureau of
Investigation (FBI) if the Director of the FBI, or his designee in a position not lower
than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge
designated by the FBI Director in a field office, certifies that the records or
information sought is relevant to an authorized investigation to protect against
international terrorism or clandestine intelligence activities, provided that such an
investigation of a U.S. person is not conducted solely on the basis of First
Amendment protected activities. Under 18 U.S.C. § 2709(b), if the Director of the
Federal Bureau of Investigation, or his designee, certifies that otherwise there may
result a danger to the national security of the United States, interference with a
criminal, counterterrorism, or counterintelligence investigation, interference with
diplomatic relations, or danger to the life or physical safety of any person, no wire or
electronic communications service provider, or officer, employee, or agent thereof,
shall disclose to any person (other than those to whom such disclosure is necessary
to comply with the request or an attorney to obtain legal advice or legal assistance
with respect to the request) that the Federal Bureau of Investigation has sought or
obtained access to information or records under this section.35 The FBI must notify
34 Under 18 U.S.C. § 2709(f), “A library (as that term is defined in section 213(1) of the
Library Services and Technology Act (20 U.S.C. 9122(1)), the services of which include
access to the Internet, books, journals, magazines, newspapers, or other similar forms of
communication in print or digitally by patrons for their use, review, examination, or
circulation, is not a wire or electronic communication service provider for purposes of this
section, unless the library is providing the services defined in section 2510(15) (“electronic
communication service”) of this title.” Subsection (f) was added by P.L. 109-178, § 5.
35 P.L. 109-177, § 116(a), rewrote subsection (c) of 18 U.S.C. § 2709, which formerly read,
“No wire or electronic communication service provider, or officer, employee, or agent
thereof, shall disclose to any person that the Federal Bureau of Investigation has sought or
obtained access to information or records under this section.” P.L. 109-178, § 4(b), rewrote
subsection (c)(4), as amended by P.L. 109-177, § 116(a), which formerly read, “At the
request of the Director of the Federal Bureau of Investigation or the designee of the
(continued...)

CRS-13
the person or entity to whom a §2709(b) request is made where such a nondisclosure
requirement is applicable. A recipient of such a request who notifies those to whom
notice is necessary for compliance with the request or who notifies an attorney to
obtain legal advice or legal assistance with respect to the request must also advise
them of the nondisclosure requirement. At the request of the Director of the Federal
Bureau of Investigation or the designee of the Director, any person making or
intending to make a disclosure under this section shall identify to the Director or such
designee the person to whom such disclosure will be made or to whom such
disclosure was made prior to the request, except that nothing in this section shall
require a person to inform the Director or such designee of the identity of an attorney
to whom disclosure was made or will be made to obtain legal advice or legal
assistance with respect to the request. The FBI may only disseminate records
obtained under this section as provided in guidelines approved by the Attorney
General for foreign intelligence collection and foreign counterintelligence
investigations conducted by the Federal Bureau of Investigation, and, with respect to
dissemination to an agency of the United States, only if such information is clearly
relevant to the authorized responsibilities of such agency. On a semiannual basis, the
Director of the Federal Bureau of Investigation is required to fully inform the
Permanent Select Committee on Intelligence of the House of Representatives and the
Select Committee on Intelligence of the Senate, and the Committee on the Judiciary
of the House of Representatives and the Committee on the Judiciary of the Senate,
concerning all requests made under subsection (b) of this section.
Except as provided in 18 U.S.C. § 2703(e), 18 U.S.C. § 2707 provides a civil
cause of action for any provider of electronic communication service, subscriber, or
other person aggrieved by a knowing or intentional violation of this chapter. The
aggrieved party may receive equitable relief and damages. The damages which may
be assessed by the court are actual damages suffered by the plaintiff plus any profits
made by the violator as a result of the violation. At a minimum, a person entitled to
recover damages must receive no less than $1,000. If a court or appropriate
department or agency determines that the United States has violated this chapter and
that the circumstances surrounding the violation raise questions as to whether a
federal officer or employee acted willfully or intentionally with respect to the
violation, disciplinary action against that officer or employee may also be initiated.
A person aggrieved by a willful violation of this chapter or a willful violation
of 50 U.S.C. § 1845(a), which deals use of information gathered through a pen
register and trap and trace under FISA, may commence a civil action against the
United States in a U.S. district court to receive money damages under 18 U.S.C. §
2712. If the claim is successful in establishing such a violation, the court may assess
actual damages, but not less than $10,000, whichever is greater, plus reasonably
incurred litigation costs. There is a two year statute of limitations applicable to this
35 (...continued)
Director, any person making or intending to make a disclosure under this section shall
identify to the Director or such designee the person to whom such disclosure will be made
or to whom such disclosure was made prior to the request, but in no circumstance shall a
person be required to inform the Director or such designee that the person intends to consult
an attorney to obtain legal advice or legal assistance.”

CRS-14
provision, and this section states that this is the exclusive remedy against the United
States for claims within the purview of the section. The agency or department must
reimburse any award under this section to the U.S. treasury. Administrative
discipline may also be pursued. A proceeding under 18 U.S.C. § 2712 shall be
stayed by the court, upon motion by the United States, if the court determines that
civil discovery will adversely affect the Government’s ability to conduct a related
investigation or prosecution of a related criminal case. Such a stay would toll the
statute of limitations.
47 U.S.C. §§ 222, 501-503 — Communications Act of 1934
Telecommunications carriers are subject to obligations to guard the
confidentiality of customer proprietary network information (CPNI) and to ensure
that it is not disclosed to third parties without customer approval or as required by
law. Section 222 of the Communication Act of 1934, as amended, establishes a duty
of every telecommunications carrier to protect the confidentiality of its customers’
customer proprietary network information.36 Section 222 attempts to achieve a
balance between marketing and customer privacy.
CPNI includes personally identifiable information derived from a customer’s
relationship with a telephone company, irrespective of whether the customer
purchases landline or wireless telephone service. CPNI is defined as
(A) information that relates to the quantity, technical configuration, type,
destination, location, and amount of use of a telecommunications service
subscribed to by any customer of a telecommunications carrier, and that is made
available to the carrier by the customer solely by virtue of the carrier-customer
relationship; and (B) information contained in the bills pertaining to telephone
exchange service or telephone toll service received by a customer of a carrier.37
CPNI includes customers’ calling activities and history (e.g., phone numbers called,
frequency, duration, and time), and billing records. It does not include subscriber list
information, such as name, address, and phone number.
In section 222, Congress created a framework to govern telecommunications
carriers’ use of information obtained through provision of a telecommunications
service. Section 222 of the Act provides that telecommunications carriers must
protect the confidentiality of customer proprietary network information. The Act
limits carriers’ abilities to use customer phone records, including for their own
marketing purposes, without customer approval and appropriate safeguards. The Act
also prohibits carriers from using, disclosing, or permitting access to this information
without the approval of the customer, or as otherwise required by law, if the use or
disclosure is not in connection with the provided service.
36 47 U.S.C. § 222. Section 222 was added to the Communications Act by the
Telecommunications Act of 1996. Telecommunications Act of 1996, P.L. 104-104, 110 Stat.
56 (codified at 47 U.S.C. §§ 151 et seq.).
37 47 U.S.C. § 222(h)(1).

CRS-15
Section 222(a) imposes a general duty on telecommunications carriers to protect
the confidentiality of proprietary information of other carriers, equipment
manufacturers, and customers.38 Section 222(b) states that a carrier that receives or
obtains proprietary information from other carriers in order to provide a
telecommunications service may use such information only for that purpose and may
not use that information for its own marketing efforts.39
The confidentiality protections applicable to customer proprietary network
information are established in section 222(c). Subsection (c)(1) constitutes the core
privacy requirement for telecommunications carriers.
Except as required by law or with the approval of the customer, a
telecommunications carrier that receives or obtains customer proprietary network
information by virtue of its provision of a telecommunications service shall only
use, disclose, or permit access to individually identifiable customer proprietary
network information in its provision of (A) the telecommunications service from
which such information is derived, or (B) services necessary to, or used in, the
provision of such telecommunications service, including the publishing of
directories.40
Section 222(c)(2) provides that a carrier must disclose CPNI “upon affirmative
written request by the customer, to any person designated by the customer.”41
Section 222(c)(3) provides that a carrier may use, disclose, or permit access to
aggregate customer information other than for the purposes described in subsection
(1).42 Thus, the general principle of confidentiality for customer information is that
a carrier may only use, disclose, or permit access to customers’ individually
identifiable CPNI in limited circumstances: (1) as required by law;43 (2) with the
customer’s approval; or (3) in its provision of the telecommunications service from
which such information is derived, or services necessary to or used in the provision
of such telecommunications service.
Exceptions to the general principle of confidentiality permit carriers to use,
disclose, or permit access to customer proprietary network information to (1) initiate,
render, bill, and collect for telecommunications services; (2) protect the rights or
property of the carrier, the customers, and other carriers from fraudulent, abusive, or
unlawful use of, or subscription to, such services; (3) provide any inbound
telemarketing, referral, or administrative services to the customer for the duration of
38 47 U.S.C.§ 222(a).
39 47 U.S.C. § 222(b).
40 47 U.S.C. § 222(c)(1).
41 47 U.S.C. § 222(c)(2).
42 47 U.S.C. § 222(c)(3). The term “aggregate customer information” means collective data
that relates to a group or category of services or customers, from which individual customer
identities and characteristics have been removed. 47 U.S.C. § 222(h)(2).
43 Whether the statutory provisions discussed in this report would fall within this exception
is uncertain.

CRS-16
the call; and (4) provide call location information concerning the user of a
commercial mobile service for emergency.44
Section 222(e) addresses the disclosure of subscriber list information, and
permits carriers to provide subscriber list information to any person upon request for
the purpose of publishing directories. The term “subscriber list information” means
any information identifying the listed names of subscribers of a carrier and such
subscribers’ telephone numbers, addresses, or primary advertising classifications, or
any combination of such listed names, numbers, addresses, or classifications; that the
carrier or an affiliate has published, caused to be published, or accepted for
publication in any directory format.45
Customer Proprietary Network Information (CPNI) Regulations. In
1998, the Federal Communications Commission issued its CPNI Order to implement
section 222.46 The CPNI Order and subsequent orders issued by the Commission
govern the use and disclosure of customer proprietary network information by
telecommunications carriers. When the FCC implemented Section 222,
telecommunications carriers were required to obtain express consent from their
customers (i.e., “opt-in consent”) before a carrier could use customer phone records
to market services outside of the customer’s relationship with the carrier. The United
States Court of Appeals for the Tenth Circuit struck down those rules, finding that
they violated the First and Fifth Amendments of the Constitution.47
Current CPNI regulations require telecommunications carriers to receive opt-in
(affirmative) consent before disclosing CPNI to third parties or affiliates that do not
provide communications-related services.48 However, carriers are permitted to
disclose CPNI to affiliated parties after obtaining a customer’s “opt-out” consent.49
“Opt-Out” consent means that the telephone company sends the customer a notice
saying it will consider the customer to have given approval to use the customer’s
information for marketing unless the customer tells it not to do so (usually within 30
days.)50 Carriers are required, prior to soliciting the customer’s approval, to provide
notice to the customer of the customer’s right to restrict use, disclosure, and access
44 47 U.S.C. § 222(d).
45 47 U.S.C. § 222(e).
46 CPNI Order, 13 FCC Rcd 8061.
47 U.S. West v. FCC, 182 F.3d 1224 (10th Cir. 1999), cert. denied Competition Policy Instit.
v. U.S. West, Inc.
, 530 U.S. 1213 (2000).
48 Except as required by law, carriers may not disclose CPNI to third parties or their own
affiliates that do not provide communications-related services unless the consumer has given
“opt in” consent, which is express written, oral, or electronic consent. 47 C.F.R. §§
64.2005(b), 64.2007(b)(3); 64.2008(e); see also 47 C.F.R. § 64.2003(h) (defining “opt-in
approval”).
49 47 C.F.R. §§ 64.2005(b), 64.2007(b)(1).
50 FCC Consumer Advisory: Protecting the Privacy of Your Telephone Calling Records, at
[http://www.fcc.gov/cgb/consumerfacts/phoneaboutyou.html].

CRS-17
to the customer’s CPNI.51 Carriers are also required to establish safeguards to protect
against the unauthorized disclosure of CPNI, including requirements that carriers
maintain records that track access to customer CPNI records.52 Each carrier is also
required to certify annually its compliance with the CPNI requirements and to make
this certification publicly available.53 The FCC recently proposed $100,000 fines on
telephone companies with inadequate certifications regarding compliance with FCC
rules protecting customer information from disclosure.54
Penalties. Carriers in violation of the CPNI requirements are subject to a
variety of penalties under the Act. Under the criminal penalty provision in section
501 of the Act, 47 U.S.C. § 501, any person who willfully and knowingly does,
causes or allows to be done, any act, matter, or thing prohibited by the Act or
declared unlawful, or who willfully and knowingly omits or fails to do what is
required by the Act, or who willfully or knowingly causes or allows such omission
or failure, shall be punished for any such offense for which no penalty (other than a
forfeiture) is provided by the Act by a fine up to $10,000, imprisonment up to one
year, or both, and in the case of a person previously convicted of violating the Act,
a fine up to $10,000, imprisonment up to two years, or both.
Section 502 of the Act, 47 U.S.C. § 502, punishes willful and knowing
violations of Federal Communication Commission regulations. Any person who
willfully and knowingly violates any rule, regulation, restriction, or condition made
or imposed by the Commission is, in addition to other penalties provided by law,
subject to a maximum fine of $500 for each day on which a violation occurs.55
Under section 503(b)(1) of the Act, 47 U.S.C. § 503(b)(1), any person who is
determined by the Commission to have willfully or repeatedly failed to comply with
any provision of the Act or any rule, regulation, or order issued by the Commission
shall be liable to the United States for a civil money “forfeiture” penalty.56 Section
312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), defines “willful” as “the conscious and
deliberate commission or omission of [any] act, irrespective of any intent to violate”
the law. “Repeated” means that the act was committed or omitted more than once,
or lasts more than one day. If the violator is a common carrier, section 503(b)
authorizes the Commission to assess a forfeiture penalty of up to $130,000 for each
violation or for each day of a continuing violation, except that the amount assessed
for any continuing violation shall not exceed a total of $1,325,000 for any single act
or failure to act.57 To impose such a forfeiture penalty, the Commission must issue
51 47 C.F.R. §§ 64.2008.
52 47 C.F.R. §§ 64.2009.
53 47 C.F.R. §§ 64.2009(e).
54 In the Matter of Cbeyond Communications, LLC, 2006 FCC LEXIS 1902 (April 21,
2006), at [http://www.fcc.gov/eb/Orders/2006/DA-06-916A1.html].
55 47 U.S.C. § 502.
56 47 U.S.C. § 503(b)(1).
57 FCC Forfeiture Proceedings, Limits on the amount of forfeiture assessed, 47 C.F.R. Part
(continued...)

CRS-18
a notice of apparent liability, and the person against whom the notice has been issued
must have an opportunity to show, in writing, why no such forfeiture penalty should
be imposed. The Commission will then issue a forfeiture if it finds by a
preponderance of the evidence that the person has violated the Act or a Commission
rule.
57 (...continued)
1.80(b).