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II.



PROCEDURES FOR AUTHORIZING EMERGENCY INSTALLATION OF PEN
AND TRAP AND TRACE UNDER 18 use. 3125

Justification:

A. A situation where there is: 1) an immediate threat to
life or limb; 2) a threat to national security; 3)
activity characteristic of organized crime; or 4) an
ongoing attack Of a protected computer (one used by

financial institution or U.S. government) where
violation is a felony; AND

B. An order cannot be obtained with an exercise of due
diligence, AND

C. There are grounds upon which an order could be issued
(information sought is relevant to ongoing criminal
activity).

Procedures:

A. Obtain the following, relevant facts: 1) circumstances
giving rise to the emergency situation; 2) who, if

known, is using the target phone/facility; 3) how the
phone/facility was identified; 4) when the
phone/facility was last known to be used; and 5) most

recent criminal activity.

B. Call a Deputy Assistant Attorne General DAAG),
through the Command Center, at 

C. Once approval has been Obtained, call the law
enforcement officer or AUSA back and advise them of the
following: 1) an application and order must be filed
within 48 hours (weekends and holidays included) after
the installation of the equipment has occurred or
begins to occur; and 2) the authorization obtained
applies only to that specific phone/facility - the use
of a pen/trap on any additional phones or facilities

that may be identified during the emergency situation
need to authorized by the DAAG.

Consent: If the request pertains to the victim?s phone or a
phone used by someone who is cooperating with the
investigation, consider whether consent would apply. The
cooperating party may consent tO the installation Of a trap
and trace/pen register on their phone, and with respect to
the victim, consent may be implied depending on the
circumstances. See 18 U.S.C. may consent)



 9

PROCEDURES FOR EMERGENCY REQUESTS FOR CELL SITE DATA
WHEN SOUGHT IN CONNECTION WITH A 

I. Justification: See above

11. Procedures: See above. When advising the AUSA or agent
about filing the application and proposed order, instruct
them to file an application that cites to both the pen
register/trap and trace statute and 18 U.S.C. 2703(d).

111. Invocation of 18 U.S.C. 2702(c)(4) to receive prospective
cell site: Reliance on this provision to allow repeated,
perspective collection of cell site data may be problematic.
Judicious use of this provision is advised. Advise the
field that the more prudent course of action is to obtain a
search warrant under Rule 41 for repeated disclosures of
prospective cell site information because Rule 41 has
prospective effect.

IV. Consent: As with an emergency pen/trap request, consider
whether consent would apply. See 18 U.S.C. 2702(c)(2) 
allowing a provider to disclose a record or other
information with the consent of the "customer or
subscriber."

NOTE: A service provider can voluntarily disclose
historical cell site data under 18 U.S.C. 2702(c)(4),
and follow?up compulsory process is unnecessary.



PROCEDURES FOR EMERGENCY REQUESTS FOR DATA FOR
CELLULAR PHONES, I.E., GPS, E-911, TOWER TRILATERATION

The Department cannot authorize the collection of GPS
(latitude/longitude) data, E?9ll information, or location
information generated through tower trilateration under the

emergency pen/trap statute. (Tower trilateration measures the
signal strength from multiple cell towers to locate the phone and
is relatively accurate.) If law enforcement seeks this

information, they need to obtain a search warrant under Rule 41,
absent an emergency or voluntary disclosure by the service
provider. Again, consent is an option if the target phone
belongs to the victim or someone cooperating with the
investigation.

When advising the field, ascertain if the service provider
can actually produce the information.

Sprint/Nextel: True GPS
T?Mobile: Tower trilateration
Verizon Wireless/Alltel: no GPS, unless the phone

is used to call 911. Typically, these providers
can only pinpoint the location of a cell phone
within the "banana range" from a cell tower.

In addition, GPS data can only be captured when the phone is
on and registering with the network. Providers do not maintain
historical data. One exception is the "kiddie tracker"
phone service.

One final consideration is where to obtain the warrant.
Obtain the warrant where the phone is reasonably believed to be.



PROCEDURES FOR EMERGENCY WIRETAP REQUESTS
PURSUANT TO 18 U.S.C. 2518(7)

I. Justification:

A.

A situation where there is: 1) an immediate threat to
life or limb; 2) conspiratorial activity characteristic
of organized crime; or 3) conspiratorial activity
threatening national security; AND

An order cannot be obtained with an exercise of due
diligence; AND

There are grounds upon which an order could be issued,
i.e. probable cause for a predicate offense and/or
federal felony (usually not an issue) and legal
necessity.

II. Procedures:

A.

lbuma?ucl

  

Obtain the following, relevant facts: 1) circumstances
giving rise to the emergency situation; 2) who, if
known, is using the target phone/facility/location; 3)
how the target phone/facility/location was identified;
4) when the phone/facility/location was last known to
be used; 5) most recent criminal activity; and 6) basis
for belief that phone/facility/location will be used
for communications concerning the crime, i.e. what
evidence is there that the perpetrator is acting in
concert with others what communications will be
obtained.

Call a DAAG, through the Command Center, at(bxemd7xc)
and advise the official of the facts.

Once the DAAG concurs that an emergency situation
exists, call the law enforcement officer or AUSA back
and advise them of the following: 1) the Criminal
Division agrees that an emergency tap may be sought; 2)
the law enforcement officer must proceed up his Chain
of command to seek approval for the emergency tap; and
3) a high?level official of the law enforcement agency
(for example, the Assistant Director or Director of the
FBI) must contact either the AG, the DAG, or the AAG
(Associate Attorney General) to obtain approval to
proceed with the emergency tap.



Once the tap has been authorized by DOJ, the AUSA must
file an application, affidavit, and proposed order
within 48 hours after the interception has occurred or
begins to occur. (Sample pleadings are available on


The affidavit in support of the emergency must contain
only those facts known to the law enforcement officer
at the time the emergency authorization was obtained
from DOJ.

All pleadings must be reviewed by GEO before the AUSA
goes to court.

Any documentation of the emergency authorization would
come from the law enforcement agency and would include
the date and time of the authorization, the identity of
the authorizing official, and a description of the
phone/facility/location that was authorized for
interception, the phone number for the phone, the
email address for the internet account, or the physical
address of the location. This documentation should be
filed with the application. GEO/Criminal
Division does not provide such documentation as we are
not involved directly with the approval process at the
level.

Continued surveillance: If the law enforcement agency
wants to extend interceptions beyond the first 48?hour
period, then:

1. They must seek DAAG authority to do so.

2. The affidavit filed in support of the emergency
request may also include a section that provides
probable cause to extend the interceptions. The

affidavit must clearly differentiate between those
facts in support of the emergency and those in
support of the extension request.

3. Separate applications and orders should be filed
for the emergency and extension requests.





USE OF WITT EQUIPMENT

WITT is a catchall term for equipment that law enforcement
can use to locate a cellular phone. It includes devices called
Wolfpack, Stingray, and Gossamer. WITT equipment emulates a cell
phone tower and can be used to determine which direction the
phone is in and how strong the signal is.

If law enforcement seeks to use their WITT equipment to
locate a cellular phone, they need to obtain a pen register and
trap and trace order for that phone. If they want to use the
WITT equipment in an emergency situation, they must obtain DOJ
approval first. Consent, for the reasons stated herein, may also

apply.



To: 
From: 
Sent: Wed 8/22/2012 1:45:51 PM

Q7: How can law enforcement use its own equipment to obtain location
information for a particular wireless device?

A number of investigative agencies have access to specialized equipment, such as
directional antennae, that can be used to obtain location information about a particular
wireless device, unbeknownst to the device?s user and without the involvement of the
wireless provider. Such equipment may be used to locate, among other things, cell
phones, computers that are accessing open wireless networks, and PC wireless data
cards. For more background information about these kinds of devices, see Chapter XIV
of the Electronic Surveillance Manual (OEO).

 

in order to use this type of equipment, law enforcement needs to obtain the appropriate
legal process. A search warrant will always be sufficient to authorize the use of this
equipment, but other types of legal process may also be available in some situations.

For additional guidance about the es of leal process that are available in a specific
case, please contact 

in certain cases, the equipment described above can also be used to collect identifying
information about the mobile device, such as its electronic serial number (ESN). For
more information about the authorization required to use the equipment for this purpose,
please contact or the latest guidance and go?bys.

Lin-"doj not . de .govkusao?cousa fol c"'115ab00k 5'01 511:" ?lei su.h tm

XIV. Cell Site Simulators/Digital Analyzers/Triggerfish

A cell site simulator, digital analyzer, or a trigger?sh can electronically force a cellular telephone
to register its mobile identi?cation number telephone number) and electronic serial
number the number assigned by the manufacturer of the cellular telephone and
programmed into the telephone) when the cellular telephone is turned on. Cell site data (the
MIN, the ESN, and the channel and cell site codes identifying the cell location and geographical
sub-sector from which the telephone is transmitting) are being transmitted continuously as a
necessary aspect of cellular telephone call direction and processing. The necessary signaling
data channel/cell site codes) are not dialed or otherwise controlled by the cellular
telephone user. Rather, the transmission of the cellular telephone's to the nearest cell
site occurs automatically when the cellular telephone is turned on. This automatic registration



with the nearest cell site is the means by which the cellular service provider connects with and
identi?es the account, knows where to send calls, and reports constantly to the customer's
telephone a read- out regarding the signal power, status and mode.

If the cellular telephone is used to make or receive a call, the screen of the digital analyzer/cell
site simulator/ trigger?sh would include the cellular telephone number (MIN), the cell's incoming
or outgoing status, the telephone number dialed, the cellular telephone's ESN, the date, time,
and duration of the call, and the cell site number/sector (location of the cellular telephone when
the call was connected).

Digital analyzers/cell site simulators/trigger?sh and similar devices may be capable of
intercepting the contents of communications and, therefore, such devices must be con?gured to
disable the interception function, unless interceptions have been authorized by a Title order.

Because section 3127 of Title 18 de?nes pen registers and trap and trace devices in
terms of recording, decoding or capturing dialing, routing, addressing, or signaling
information, a pen register/trap and trace order must be obtained by the government
before it can use its own device to capture the ESN or MW of a cellular telephone, even
though there will be no involvement by the service provider. See discussion below in

Chapter XV.

 



US. Department of Justice, Criminal Division
Office of Enforcement Operations, Electronic Surveillance Unit

1301 New York Ave, NW. . Washington, DC 20530





II.



PROCEDURES FOR AUTHORIZING EMERGENCY INSTALLATION OF PEN
AND TRAP AND TRACE UNDER 18 U.S.C. 3125

Justification:

A. A situation where there is: 1) an immediate threat to
life or limb; 2) a threat to national security; 3)
activity characteristic of organized crime; or 4) an
ongoing attack Of a protected computer (one used by

financial institution or U.S. government) where
violation is a felony; AND

B. An order cannot be obtained with an exercise of due
diligence, AND

C. There are grounds upon which an order could be issued
(information sought is relevant to ongoing criminal
activity).

Procedures:

A. Obtain the following, relevant facts: 1) circumstances
giving rise to the emergency situation; 2) who, if

known, is using the target phone/facility; 3) how the
phone/facility was identified; 4) when the
phone/facility was last known to be used; and 5) most

recent criminal activity.

B. Call a Deputy Assistant Attorney General (DAAG),
through the Command Center, at 

C. Once approval has been Obtained, call the law
enforcement officer or AUSA back and advise them of the
following: 1) an application and order must be filed
within 48 hours (weekends and holidays included) after
the installation of the equipment has occurred or
begins to occur; and 2) the authorization obtained
applies only to that specific phone/facility the use
of a pen/trap on any additional phones or facilities
that may be identified during the emergency situation
need to authorized by the DAAG.

Consent: If the request pertains to the victim?s phone or a
phone used by someone who is cooperating with the
investigation, consider whether consent would apply. The
cooperating party may consent tO the installation of a trap
and trace/pen register on their phone, and with respect to
the victim, consent may be implied depending on the
circumstances. See 18 U.S.C. may consent)





PROCEDURES FOR EMERGENCY REQUESTS FOR CELL SITE DATA
WHEN SOUGHT IN CONNECTION WITH A 

I. Justification: See above

11. Procedures: See above. When advising the AUSA or agent
about filing the application and proposed order, instruct
them to file an application that cites to both the pen
register/trap and trace statute and 18 U.S.C. 2703(d).

111. Invocation of 18 U.S.C. 2702(c)(4) to receive prospective
cell site: Reliance on this provision to allow repeated,
perspective collection of cell site data may be problematic.
Judicious use of this provision is advised. Advise the
field that the more prudent course of action is to obtain a
search warrant under Rule 41 for repeated disclosures of
prospective cell site information because Rule 41 has
prospective effect.

IV. Consent: As with an emergency pen/trap request, consider
whether consent would apply. See 18 U.S.C. 2702(c)(2) 
allowing a provider to disclose a record or other
information with the consent of the "customer or
subscriber."

NOTE: A service provider can voluntarily disclose
historical cell site data under 18 U.S.C. 2702(c)(4),
and follow?up compulsory process is unnecessary.



PROCEDURES FOR EMERGENCY REQUESTS FOR DATA FOR
CELLULAR PHONES, I.E., GPS, E-911, TOWER TRILATERATION

The Department cannot authorize the collection of GPS
(latitude/longitude) data, E?9ll information, or location
information generated through tower trilateration under the

emergency pen/trap statute. (Tower trilateration measures the
signal strength from multiple cell towers to locate the phone and
is relatively accurate.) If law enforcement seeks this

information, they need to obtain a search warrant under Rule 41,
absent an emergency or voluntary disclosure by the service
provider. Again, consent is an option if the target phone
belongs to the victim or someone cooperating with the
investigation.

When advising the field, ascertain if the service provider
can actually produce the information.

Sprint/Nextel: True GPS
T?Mobile: Tower trilateration
Verizon Wireless/Alltel: no GPS, unless the phone

is used to call 911. Typically, these providers
can only pinpoint the location of a cell phone
within the "banana range" from a cell tower.

In addition, GPS data can only be captured when the phone is
on and registering with the network. Providers do not maintain
historical data. One exception is the "kiddie tracker"
phone service.

One final consideration is where to obtain the warrant.
Obtain the warrant where the phone is reasonably believed to be.



PROCEDURES FOR EMERGENCY WIRETAP REQUESTS
PURSUANT TO 18 U.S.C. 2518(7)

I. Justification:

A.

A situation where there is: 1) an immediate threat to
life or limb; 2) conspiratorial activity characteristic
of organized crime; or 3) conspiratorial activity
threatening national security; AND

An order cannot be obtained with an exercise of due
diligence; AND

There are grounds upon which an order could be issued,
i.e. probable cause for a predicate offense and/or
federal felony (usually not an issue) and legal
necessity.

II. Procedures:

A.

Obtain the following, relevant facts: 1) circumstances
giving rise to the emergency situation; 2) who, if
known, is using the target phone/facility/location; 3)
how the target phone/facility/location was identified;
4) when the phone/facility/location was last known to
be used; 5) most recent criminal activity; and 6) basis
for belief that phone/facility/location will be used
for communications concerning the crime, i.e. what
evidence is there that the perpetrator is acting in
concert with others what communications will be
obtained.

a DAAG, through the Command Center, at(bxem47xc)
Wand advise the official of the facts.
Once the DAAG concurs that an emergency situation
exists, call the law enforcement officer or AUSA back
and advise them of the following: 1) the Criminal
Division agrees that an emergency tap may be sought; 2)
the law enforcement officer must proceed up his chain
of command to seek approval for the emergency tap; and
3) a high-level official of the law enforcement agency
(for example, the Assistant Director or Director of the
FBI) must contact either the AG, the DAG, or the AAG

(Associate Attorney General) to obtain approval to
proceed with the emergency tap.



Once the tap has been authorized by DOJ, the AUSA must
file an application, affidavit, and proposed order
within 48 hours after the interception has occurred or
begins to occur. (Sample pleadings are available on


The affidavit in support of the emergency must contain
only those facts known to the law enforcement officer
at the time the emergency authorization was obtained
from DOJ.

All pleadings must be reviewed by GEO before the AUSA
goes to court.

Any documentation of the emergency authorization would
come from the law enforcement agency and would include
the date and time of the authorization, the identity of
the authorizing official, and a description of the
phone/facility/location that was authorized for
interception, the phone number for the phone, the
email address for the internet account, or the physical
address of the location. This documentation should be
filed with the application. GEO/Criminal
Division does not provide such documentation as we are
not involved directly with the approval process at the
level.

Continued surveillance: If the law enforcement agency
wants to extend interceptions beyond the first 48?hour
period, then:

1. They must seek DAAG authority to do so.

2. The affidavit filed in support of the emergency
request may also include a section that provides
probable cause to extend the interceptions. The

affidavit must clearly differentiate between those
facts in support of the emergency and those in
support of the extension request.

3. Separate applications and orders should be filed
for the emergency and extension requests.





USE OF WITT EQUIPMENT

WITT is a catchall term for equipment that law enforcement
can use to locate a cellular phone. It includes devices called
Wolfpack, Stingray, and Gossamer. WITT equipment emulates a cell
phone tower and can be used to determine which direction the
phone is in and how strong the signal is.

If law enforcement seeks to use their WITT equipment to
locate a cellular phone, they need to obtain a pen register and
trap and trace order for that phone. If they want to use the
WITT equipment in an emergency situation, they must obtain DOJ
approval first. Consent, for the reasons stated herein, may also

apply.



The following form is designed for the purpose of identifying an unknown phone that
is, a phone whose identifying attributes are not known being used/carried by a known
individual.

In brief, the technique involves using ?eld equipment owned and operated by the law
enforcement agency to detect all powered-on phones in the immediate vicinity of the subject.
(Carrier assistance is not normally required unless the subject?s location is unknown.) The
survey is repeated at various times and in various locations, ideally at least 3 or 4, in proximity to
the subject. The end product is a list of wireless instruments present and operating at each
location, where the element common to those lists typically a single device represents the
identi?er for the subject?s phone.

Because the objective is simply to identify the unknown device, collection should be
limited to device identi?ers (eg, lMEl, lMSl, MIN, etc). It should not encompass dialed digits,
as that would entail surveillance on the calling activity of all persons in the vicinity ofthe
subject. Once the subject?s phone is identi?ed, you may obtain a conventional pen/trap order or
other legal process addressed to the relevant carrier.

Finally, note that a separate form not this form should be employed for using law
enforcement ?eld equipment to determine the unknown physical location of a known phone.

Questions or comments about this form or the underlying technique may be directed to


Associate Director
Of?ce of Enforcement Operations



  



Rev. 1.3 8-11-08



UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF 
DIVISION

IN THE MATTER OF THE
APPLICATION OF THE UNITED
STATES OF AMERICA FOR AN
ORDER AUTHORIZING THE
INSTALLATION AND USE

OF A PEN REGISTER AND TRAP
AND TRACE DEVICE

Case No.

 

(UNDER SEAL)





This matter comes before the Court pursuant to written and sworn application under 18
U.S.C. 3122(a)(1) and 3127(5) by Assistant United States Attorney [Name] (Applicant), an
Attorney for the Government as de?ned by Federal Rule of Criminal Procedure Rule 
applying for an order authorizing the use of a pen register and trap trace device to identify the
telephone number or other unique information (such as the Electronic Serial Number (ESN),
International Mobile Equipment Identity (IMEI), or Mobile Equipment Identi?er 
identifying the telephone (hereinafter the "Subject Telephone") being used by 
in connection with an ongoing criminal investigation.

Pursuant to 18 U.S.C. 3123(a)(1), Applicant has certified that the information likely to
be obtained by the proposed pen register and trap and trace device is relevant to an ongoing
criminal investigation being conducted by [Investigative Agency] regarding [Offense
Description, such as: 18 U.S.C. by NAME IN (Subject). The
identity of the person to whom is leased or in whose name is listed the telephone line or other
facility to which the pen register or trap and trace device is to be attached or applied is unknown.
The order applies to the wireless telephone believed to be operated by the Subject to transmit
wire or electronic communications. The pen register or trap and trace device is to be applied in
the vicinity of the Subject to determine the number or other identifier of the Subject Telephone.

THEREFORE, IT IS HEREBY ORDERED, pursuant to 18 U.S.C. 3123, that agents of



[Investigative Agency] may install and use a pen register and trap and trace device anywhere in
the United States to record or decode the telephone number or other unique information (such as
the Electronic Serial Number (ESN), International Mobile Equipment Identity (IMEI), or
Mobile Equipment Identi?er necessary to identify the Subject Telephone.
[Investigative agency] shall neither retain nor make af?rmative investigative use of data
acquired beyond that necessary to identify the Subject telephone more fully.

IT IS FURTHER ORDERED THAT this Order shall be effective for sixty (60) days from
the date this Order is signed by the court. 18 U.S.C. 3123(c).

IT IS FURTHER ORDERED THAT pursuant to 18 U.S.C. 3123(d), that the

Application and this Order are herewith SEALED until otherwise ordered by this Court.

Signed on 2008, at

 

United States Magistrate Judge
District of 



UNITED STATES DISTRICT COURT

 

FOR THE DISTRICT OF

IN THE MATTER OF THE 

APPLICATION OF THE UNITED 

STATES OF AMERICA FOR AN Case No.
ORDER AUTHORIZING THE 

INSTALLATION AND USE (UNDER SEAL)
OF A PEN REGISTER AND TRAP 

AND TRACE DEVICE 

APPLICATION

The United States of America, by and through the undersigned Assistant United States
Attorney, applies for an order authorizing the use of a pen register and trap trace device to
identify wireless telephone devices being used by persons suspected of committing federal
crimes. In support of this application, Applicant states the following:

1. Applicant is an "attorney for the Government" as defined by Fed. R. Crim.
P. and, therefore, may apply for an order authorizing the installation and use of a pen
register and trap trace device. 18 USC. 3122(a)(1), 3127(5).

2. Applicant certi?es that [Investigative Agency] is conducting an ongoing criminal
investigation regarding [Offense Description] by (hereafter, "Subject"),
who is using one or more unidenti?ed wireless telephones, and that Subject is known to live at
or frequent the following locations: [Addressl,] [Address2, etc]. The identity of the person to
whom is leased or in whose name is listed the telephone line or other facility to which the pen
register or trap and trace device is to be attached or applied is unknown. The order applies to
wireless telephone communications utilizing GSM, CDMA, TDMA, UMTS, or analog
protocols?which comprise the entirety of all cellular or PCS wireless telephone protocols
currently used in the United States. The number or other identifier of the telephone line or other
facility to which the pen register or trap and trace device is to be attached or applied is unknown
and it is the purpose of the requested order to identify this unknown information, such as the

electronic serial number (ESN), international mobile equipment identity (IMEI), international



mobile subscriber identity (IMSI), or mobile equipment identi?er The information
likely to be obtained from the pen register and trap trace device is relevant to the
aforementioned investigation because it will enable investigators to identify Subj ect?s phone.
18 U.S.C. 3122(b)(1) (2).

3. Pursuant to 18 U.S.C. 3123(a)(l), Applicant requests the Court issue an order
authorizing the installation and use of a pen register and trap and trace device for a period of
sixty (60) days to detect radio signals emitted from wireless cellular telephones in the vicinity of
the Subject that identify the telephones by transmitting the telephone? 5 serial number and
phone number) to the network for authentication. By determining the identifying registration
data at various locations in which the Subject Telephone is reasonably believed to be operating,
the telephone number corresponding to the Subject Telephone can be identified Data
transmitted during autonomous registration is not dialed or otherwise controlled by the telephone
user. It is an autonomous transmission that occurs when the phone is turned on and periodically
thereafter, regardless of whether a call is being made, and in fact, is clearly separate from the
establishment or maintenance of a call.

4. Applicant further requests that this application any order entered in connection
therewith be SEALED until otherwise ordered by the Court. Specifically, disclosure of the
requested order and investigation would likely result in ?ight from prosecution, a modification
of the Subj ect?s activities or the activities of those with whom Subject communicates and
associates, or the destruction or tampering of evidence; and would otherwise seriously jeopardize
the investigation.

I declare under penalty of perjury that the foregoing is true and correct to the best of my

knowledge and belief, and that this declaration was executed on at

 

 

1Any potential interference to service occasioned by use of the Pen Register or Trap and Trace will be minimized so
as to be no more disruptive than might ordinarily occur with cellular service coverage.




Assistant US. Attorney




The following form is designed for the purpose of identifying an unknown phone that
is, a phone whose identifying attributes are not known being used/carried by a known
individual.

In brief, the technique involves using field equipment owned and operated by the law
enforcement agency to detect all powered-on phones in the immediate vicinity of the subject.
(Carrier assistance is not normally required unless the subject?s location is unknown.) The
survey is repeated at various times and in various locations, ideally at least 3 or 4, in proximity to
the subject. The end product is a list of wireless instruments present and operating at each
location, where the element common to those lists typically a single device represents the
identi?er for the subject?s phone.

Because the objective is simply to identify the unknown device, collection should be
limited to device identi?ers IMSI, MIN, etc). It should not encompass dialed digits,
as that would entail surveillance on the calling activity of all persons in the vicinity ofthe
subject. Once the subject?s phone is identi?ed, you may obtain a conventional pen/trap order or
other legal process addressed to the relevant carrier.

Finally, note that a separate form - not this form should be employed for using law
enforcement ?eld equipment to determine the unknown physical location of a known phone.

Questions or comments about this form or the underlying technique may be directed to


Associate Director

Of?ce of Enforcement Operations



Rev. 1.3 8-11-08



UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF 
DIVISION

IN THE MATTER OF THE
APPLICATION OF THE UNITED
STATES OF AMERICA FOR AN
ORDER AUTHORIZING THE
INSTALLATION AND USE

OF A PEN REGISTER AND TRAP
AND TRACE DEVICE

Case No.

 

(UNDER SEAL)





This matter comes before the Court pursuant to written and sworn application under 18
U.S.C. 3122(a)(1) and 3127(5) by Assistant United States Attorney [Name] (Applicant), an
Attorney for the Government as de?ned by Federal Rule of Criminal Procedure Rule 
applying for an order authorizing the use of a pen register and trap trace device to identify the
telephone number or other unique information (such as the Electronic Serial Number (ESN),
International Mobile Equipment Identity (IMEI), or Mobile Equipment Identi?er 
identifying the telephone (hereinafter the "Subject Telephone") being used by 
in connection with an ongoing criminal investigation.

Pursuant to 18 U.S.C. 3123(a)(1), Applicant has certified that the information likely to
be obtained by the proposed pen register and trap and trace device is relevant to an ongoing
criminal investigation being conducted by [Investigative Agency] regarding [Offense
Description, such as: 18 U.S.C. by NAME IN (Subject). The
identity of the person to whom is leased or in whose name is listed the telephone line or other
facility to which the pen register or trap and trace device is to be attached or applied is unknown.
The order applies to the wireless telephone believed to be operated by the Subject to transmit
wire or electronic communications. The pen register or trap and trace device is to be applied in
the vicinity of the Subject to determine the number or other identifier of the Subject Telephone.

THEREFORE, IT IS HEREBY ORDERED, pursuant to 18 U.S.C. 3123, that agents of



[Investigative Agency] may install and use a pen register and trap and trace device anywhere in
the United States to record or decode the telephone number or other unique information (such as
the Electronic Serial Number (ESN), International Mobile Equipment Identity (IMEI), or
Mobile Equipment Identi?er necessary to identify the Subject Telephone.
[Investigative agency] shall neither retain nor make af?rmative investigative use of data
acquired beyond that necessary to identify the Subject telephone more fully.

IT IS FURTHER ORDERED THAT this Order shall be effective for sixty (60) days from
the date this Order is signed by the court. 18 U.S.C. 3123(c).

IT IS FURTHER ORDERED THAT pursuant to 18 U.S.C. 3123(d), that the

Application and this Order are herewith SEALED until otherwise ordered by this Court.

Signed on 2008, at

 

United States Magistrate Judge
District of 



UNITED STATES DISTRICT COURT

 

FOR THE DISTRICT OF

IN THE MATTER OF THE 

APPLICATION OF THE UNITED 

STATES OF AMERICA FOR AN Case No.
ORDER AUTHORIZING THE 

INSTALLATION AND USE (UNDER SEAL)
OF A PEN REGISTER AND TRAP 

AND TRACE DEVICE 

APPLICATION

The United States of America, by and through the undersigned Assistant United States
Attorney, applies for an order authorizing the use of a pen register and trap trace device to
identify wireless telephone devices being used by persons suspected of committing federal
crimes. In support of this application, Applicant states the following:

1. Applicant is an "attorney for the Government" as defined by Fed. R. Crim.
P. and, therefore, may apply for an order authorizing the installation and use of a pen
register and trap trace device. 18 USC. 3122(a)(1), 3127(5).

2. Applicant certi?es that [Investigative Agency] is conducting an ongoing criminal
investigation regarding [Offense Description] by (hereafter, "Subject"),
who is using one or more unidenti?ed wireless telephones, and that Subject is known to live at
or frequent the following locations: [Addressl,] [Address2, etc]. The identity of the person to
whom is leased or in whose name is listed the telephone line or other facility to which the pen
register or trap and trace device is to be attached or applied is unknown. The order applies to
wireless telephone communications utilizing GSM, CDMA, TDMA, UMTS, or analog
protocols?which comprise the entirety of all cellular or PCS wireless telephone protocols
currently used in the United States. The number or other identifier of the telephone line or other
facility to which the pen register or trap and trace device is to be attached or applied is unknown
and it is the purpose of the requested order to identify this unknown information, such as the

electronic serial number (ESN), international mobile equipment identity (IMEI), international



mobile subscriber identity (IMSI), or mobile equipment identi?er The information
likely to be obtained from the pen register and trap trace device is relevant to the
aforementioned investigation because it will enable investigators to identify Subj ect?s phone.
18 U.S.C. 3122(b)(1) (2).

3. Pursuant to 18 U.S.C. 3123(a)(l), Applicant requests the Court issue an order
authorizing the installation and use of a pen register and trap and trace device for a period of
sixty (60) days to detect radio signals emitted from wireless cellular telephones in the vicinity of
the Subject that identify the telephones by transmitting the telephone? 5 serial number and
phone number) to the network for authentication. By determining the identifying registration
data at various locations in which the Subject Telephone is reasonably believed to be operating,
the telephone number corresponding to the Subject Telephone can be identified Data
transmitted during autonomous registration is not dialed or otherwise controlled by the telephone
user. It is an autonomous transmission that occurs when the phone is turned on and periodically
thereafter, regardless of whether a call is being made, and in fact, is clearly separate from the
establishment or maintenance of a call.

4. Applicant further requests that this application any order entered in connection
therewith be SEALED until otherwise ordered by the Court. Specifically, disclosure of the
requested order and investigation would likely result in ?ight from prosecution, a modification
of the Subj ect?s activities or the activities of those with whom Subject communicates and
associates, or the destruction or tampering of evidence; and would otherwise seriously jeopardize
the investigation.

I declare under penalty of perjury that the foregoing is true and correct to the best of my

knowledge and belief, and that this declaration was executed on at

 

 

1Any potential interference to service occasioned by use of the Pen Register or Trap and Trace will be minimized so
as to be no more disruptive than might ordinarily occur with cellular service coverage.




Assistant US. Attorney




Attachment A
TABLE OF TECHNICAL ELSUR TERMINOLOGY AUTHORITIES (v20110912)

PEOPLE ENTITIES: (alphabetical)

 

Attorney for the Government is de?ned by Fed. R. Crim. P. Rule to include US. Attorneys and their
assistants. Pursuant to 18 U.S.C. 3122(applications) Attorney for the Government
may make application for an order [to a federal court of competent jurisdiction] authorizing or approving the
installation and use of a pen register or a trap and trace and a ?State investigative or law enforcement
officer may make ..such. . application. . .to a court of competent jurisdiction of such State.?

Court of Competent Jurisdiction is incorporated into chapter 206 of Title 18 (Pen Registers and Trap Trace
Devices) by 18 U.S.C. de?nitions) and into chapter 121 of Title 18 (Stored Communications 
Transactional Records Access) by 18 U.S.C. de?nitions), where it is de?ned to include any US.
District Court (and their magistrate judges) that has jurisdiction over the offense; or (ii) is in or for a district
where a communications provider or other person/entity subject to the PRTT assistance provisions is located or
where the communications, records or other information is stored; or, is acting pursuant to a request for
foreign assistance. It includes ?a court of general criminal jurisdiction of a State authorized by the law of that State
to enter orders authorizing the use of a pen register or a trap and trace device[ or issue search warrants.]? A federal
court order authorizes installation and use ?anywhere within the United States? whereas a state court order
authorizes the same ?within the jurisdiction of the Because the interception has been federally-determined
to occur both where law enforcement maintains its listening post and at the situs of the device, itself, state
jurisdiction can be lawfully effected under chapter 206 on any provider within the US. irrespective of the provider?s
or the device?s location whenever an interception occurs within the state. US. v. Denman, 100 F.3d 399, 402 (5th
Cir. 1996) and US. v. Tavarez, 40 F.3d 1136 (10th Cir. 1994), both citing, US. v. Rodriguez, 968 F.2d 130 (2d Cir),
cert den 113 139, 140 663 (1992). States are, therefore, con?ned only by their own long-arm statutes or
common law interpretation of where an intercept might otherwise occur.

Fugitive from Justice has been de?ned as person who, having committed a crime, ?ees from [the]
jurisdiction of [the] court where crime was committed or departs from his usual place of abode and conceals
himself Within the district.? Empire Blue Cross Blue Shield v. Finkelsteirz, 111 F.3d 278, 281 (2d Cir.
1997)(quoting Black's Law Dictionary 604 (5th ed. 1979)). See, 18 U.S.C. 1071. A ?igitive from justice
enjoys no protected privacy interest in his physical location. See, e. g, US. v. Jacobsen, 466 US. 109, 113 (1984)(a
"search" occurs "when an expectation of privacy that society is prepared to consider reasonable is infringed") Like
contraband, a fugitive is subject to seizure anytime, anywhere; and may be tracked and arrested into otherwise
private areas, even absent search warrant, with no basis to complain. Steagald v.  451 US. 204, 222
(1981)(Although search warrants are available to aid in locating and capturing a fugitive inside a non-public location
that would otherwise enjoy a reasonable expectation of privacy, no search warrant is necessary to invade the sanctity
of a fugitive?s residence. In contrast, a search warrant to locate a fugitive is available to, and required of, law
enforcement when, absent exigent circumstances, they seek to invade the sanctity of some third party?s residence.
In either case, a fugitive for whom an arrest warrant has issued has no standing to object to the otherwise warrantless
invasion of privacy and arrest in either his own residence or that of another person.) See, also, US. Pringle, 576
F.2d 1114 (5th Cir. 197 8)(use of beeper in tracking package constitutionally permissible, observing that possessors
of contraband have no legitimate expectation of privacy in substances which they have no right to possess at all).

Investigative or Law Enforcement Officer is unde?ned by chapter 206 (Pen Registers and Trap and Trace
Devices) of Title 18 but is de?ned in chapter 119 (colloquially, ??wiretap?) of Title 18 at as
?any of?cer of the United States or of a State or political subdivision thereof, who is empowered by law to conduct
investigations of or to make arrests for offense enumerated in [chapter 119, constituting serious felony offenses],
and any attorney authorized by law to prosecute or participate in the prosecution of such offenses.?

State is de?ned by 18 U.S.C. 3127(6) to include all states, territories or possessions of the United States.

19

Task Force Operating under Special Apprehension Authority means a U. S. Marshals Service (USMS) fugitive
task force operating pursuant to the Attorney General?s 1994 directive to subordinate Department of Justice (DOJ)
agencies and of?ces to establish and coordinate federal, state and local law enforcement task forces to combat
violent crime. See Attorney General?s March 1, 1994 Memorandum to All United States Attorneys, Implementation
of National Anti-Violent Crime Initiative (NAVCI). In 1988, Congress granted the Attorney General authority to
direct agents of the USMS to ?investigate such fugitive matters, both within and outside the United 28
U.S.C. Formal recognition of USMS authority to pursue non-federal fugitives in the absence of a
federal crime (such as  at 18 U.S.C. 1073) is based on a long history of federal fugitive assistance to local
and state authorities both within and beyond the several states? jurisdictional reach. See Department of Justice
Of?ce of Legal Counsel?s February 21, 1995 opinion, Authority to Pursue Non-Federal Fugitives and Department of
Justice Policy on Fugitive Apprehension (Aug. 11, 1988). Congress later authorized and appropriated funding for
the Presidential Threat Protection Act of 2000 (Pub. L. which mandated creation of 
federal, state and local task forces for the speci?c purpose of pursuing and apprehending state fugitives. At the close
of CY 2010, seventy ?ve (75) NAVCI District Fugitive Task Forces, seven (7) PTPA Regional Fugitive Task Forces
and a multitude of national or re gionally-coordinated Fugitive Investigative Strike Team operations (such
as FALCON) operated pursuant these Congressional mandates and Attorney General authorizations. This history,
legislation and funding demonstrates the Congress? clear intent to make the full array of federal authority, expertise
and investigative tools including access to federal judicial process available to the Service when performing its
federal duties in pursuing state fugitives. See, e. g, September 14, 2004 Department of Justice Report to Congress,
Fugitive Apprehension. The assertion that federal legal process is available for the federal investigations of
state fugitives is supported by the fact that, like chapters 121 (Stored Communications) and 206 (Pen Register and
Trap Trace), Federal Rule of Criminal Procedure 41(c)(4)(search warrant for ?a person to be arrested?) does not
require a predicate federal offense. Cf chapter 119 (Wiretap) at 18 U.S.C. a limited set of
federal offenses for which a federal wire communications intercept order may issue) and any ?Federal
felony? as a prerequisite to 5 federal electronic communications intercept order).

 

 

DATA TERMS:
(grouped as pertinent to a Hybrid PRTT introduction and discussion)

Wire Communication is de?ned by 18 U.S.C. 2510(1) and is incorporated into PRTT law by 18 
3127(1) to mean an ?aural transfer [(human voice)] made in whole or in cable or other like
or operated by any? Communications Provider engaged in or ?affectng in interstate or
foreign commerce.? In essence, it is the spoken word carried from one person to another, remotely-located, person
but does not include radio communications.

Electronic Communication is de?ned by 18 U.S.C. 2510(12) and is incorporated into PRTT law by 18 U.S.C. 
3127(1) to mean ?any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature
transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system that affects
interstate or foreign In essence, it is text messages, email, instant messaging, pictures, videos,
documents, attachments, or any other data that is carried across the intemet or transmitted by radio frequency
(including cellular/wireless infrastructure). It does not include wire (aural transfer) or oral (spoken word)
communications, electronic funds transfer information, or any communication through a tone-only pager or made
fr? a tracking device.

Electronic Communications Service is de?ned by 18 U.S.C. 2510(15) and is incorporated into PRTT law by 18
U.S.C. 3127(1). Confusing by its inclusion of the shorter phrase ?electronic communication? (which excludes
wire communications), an electronic communications service includes ?any service which provides to users
thereof the ability to send or receive wire or electronic communications.?

Contents is de?ned by 18 2510(8) and is incorporated into PRTT law by 18 U.S.C, 3127(1) to mean
?any information concerning the substance, purport, or meaning of that communication.? It does not include the
non-content ?transactional records? contemplated for disclosure, retrospectively, under SCA or, prospectively, under
PRTT,



Trap and trace device (or TT) is de?ned by 18 U.S.C. 3127(4) as ?a device or process that 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 electronic communication, provided,
however, that such information shall not include the contents of any 

Pen register (or PR) is de?ned by 18 U.S.C. 3127(3) as 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


Scanning Receiver is de?ned at 18 U.S.C. 1029(e)(8) as ?a device or apparatus that can be used to intercept is to
intercept an electronic serial number, mobile identi?cation number, or other identi?er of any telecommunications
service, equipment, or instrument.? Improper use is punishable under subsection of this same section by up to
15 years con?nement for a ?rst offense. Law enforcement is exempted.

Telecommunication Identifying Information is de?ned at 18 U.S.C. 1029(e)(11) as an ?electronic serial number
or any other number or signal that identi?es a speci?c telecommunications instrument or account, or a speci?c
communication transmitted from a telecommunications instrument.? Improper use or possession of ?hardware or
software, knowing it has been con?gured to insert or modify telecommunication identifying information associated
with or contained in a telecommunications instrument so that such instrument may be used to obtain
telecommunications service without authorization,? is punishable under subsection of this same section by up
to 15 years con?nement for a ?rst offense. Law enforcement is exempted.

?Post cut-through dialed digits,? also called ?dialed digit extraction features,? are any digits dialed from a target
device after the initial call setup is completed; and are necessary to identify, inter alia, the true destination of a call
made with a calling card. The government can ordinarily capture these through use of a PR. By DOJ policy,
pursuant to the limitations of 18 U.S.C. 3121(c) and consistent with the de?nitions in 18 U.S.C. 3127, an
investigative agency 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; implements the pen register and trap and trace unobtrusively while minimizing interference, if
any, with the services that the telecommunications provider accords all of its customers; and, (0) shall neither retain
nor make af?rmative investigative use of any over-collected or non-targeted data. Unless speci?cally requested in
the Application but without conceding the issue, the government does not request an order expressly authorizing
access to post cut-through dialed digits, which may occasionally include communicative content which the
government absent human receipt and review is unable to conclusively distinguish from non-content. In the
Matter of the Application oft/1e US, 622 F.Supp.2d slip 0p, supporting, in part, the USMJ
holdings in 441 F.Supp.2d 816, 818); In the Matter oft/1e Application of the United States of America, No. 06-MJ-
1130 (MD. Fla. June 20, but see, In re US. an Order, 632 F.Supp.2d 202 (E.D.N.Y
2008)(reversing and remanding with instructions to the USMJ to issue an order to include based upon
government?s af?rmative statement that it would delete upon receipt) and 2008 WL 5255815 (same USMJ
who was reversed refusing to follow the remand instruction and yet-denying the application, as he had
previously for similar applications in 515 F.Supp.2d 325).

PRTT is an acronym meaning both a pen register and trap and trace device and PRTT law as de?ned in chapter 206
of Title 18 at 3121-3127. PRTT orders ?shall? issue when the Attorney for the Government (or State
investigative or law enforcement officer, in State court) ?has certi?ed to the court that the information likely to be
obtained by such installation and use is relevant to an ongoing criminal investigation.? In this respect, the court?s
role is ministerial because the government is not required to offer evidence or to present any factual basis. Under 
3123(a)(1), federal PRTT orders are effective ?anywhere within the United States.? Under 3123(a)(2), State
PRTT orders are effective ?within the jurisdiction of the court? thus leaving geographic/long-arm jurisdictional
matters up to the States? own legislative or judicially-imposed constraints.

21

PRTT capabilities and assistance provisions means the capabilities standards and assistance required of
Communications Providers or other persons/entities under the Communications Assistance for Law Enforcement
Act of 1994 in part at 18 U.S.C. 3124). This requires ?all information, facilities, and
technical assistance necessary to accomplish the installation of the pen register unobtrusively and with a minimum
of interference with the services that the person so ordered by the court accords the party with respect to whom the
installation and use is to take place.? Communications Providers will frequently decline to offer certain types of
assistance (such as ?account takeover? continuation of services or assigning a static IP address to a targeted account
or sending records via email) unless expressly required as a component to an order?s assistance provisions.

Communications Provider is used to mean not only the ?telecommunications carriers? initially contemplated under
early PRTT law and CALEA, but also includes any wire or electronic communications service provider. In this
sense, it covers almost any conceivable provider of communications services, including applications providers.

Cell-Site Location Information, or CSLI, means records or other information concerning the antenna (or discrete
tower/sector) of a communications provider?s infrastructure through which a subscriber?s wire or electronic
communication is carried, typically limited to the beginning or end of a call, text message or data session, by virtue
of the ?punch list? speci?cations to capabilities standards. See US. Telecom Ass?n v. FCC,
No. 99-1442, 227 F.3d 450 (DC. Cir. Aug. 15, 2000), affirming FCC Third Report Order (FCC 99-230, Docket
No. 97-213 (Aug. 31, 1999)). When used to refer to prospective CSLI captured as part of a PRTT installation
across a CALEA-compliant connection, this class of information may also be referred to as ?cell site location
routing information? because it identi?es the ?dialing, routing, addressing or signaling? component of a PR or TT.

 

CALEA location caveat means the communications provider disclosure restriction in CALEA, codi?ed at 47
U.S.C. 1002(a)(2)(B), which states: ?with regard to information acquired solely pursuant to the authority for pen
registers and trap and trace call-identifying information shall not include any information that may
disclose the physical location of the Despite this disclosure restriction (creating an authorities
question), cell sites remain within the de?nition, at 18 U.S.C. 3127, of what a pen register and trap and trace device
(as routing information). This is the crux of the Hybrid Theory vs. R.41 debate with respect to CSLI.

SCA means the ?Stored Wire and Electronic Communications and Transactional Records Access? statutes found in
chapter 121 of Title 18 at 2701 2712, which were promulgated by Title II of the 1986 Electronic
Communications Privacy Act (ECPA). The SCA sets three evidentiary tiers for government access to
communications provider records/information: subpoenas may issue without factual basis or court oversight for a
narrowly de?ned set of ordinary business records found in (ii) court orders may issue under 
2703(d) for a ?record or other information? (de?ned in 2703(c) to exclude content unless it is old (de?ned under
2703(3) as older than 180 days) or remotely-stored (as specified in 2703 when the government offers ?speci?c
and articulable facts showing that there are reasonable grounds to believe that the contents. . .or the records or other
information sought, are relevant and material to an ongoing criminal investigation,? and, warrants issue under
authority of 2703(c)(1)(A) ?using the procedures described in the Federal Rules of Criminal Procedure by a court
with jurisdiction over the offense under investigation or equivalent State warrant.? This has been universally
accepted to mean the procedures of Fed. R. of Crim. P. 41 (and its probable cause requirement).

Transactional records means all non-content PRTT or stored ?records or other information? associated with a
communication, such as the origin/destination/parties or routing/signaling g.
switching or IP path or radio frequency/handshake/automated messaging information) associated with wire or
electronic communications. Government access to historical transactional records is governed by SCA while access
to prospective, real-time transactional records (including CSLI) is governed by PRTT law, as further described
below.

Subpoena-class subscriber records de?nes a class of non-content subscriber records for which there is no

constitutionally-recognizable reasonable expectation of privacy and which Congress has made available to the
government, pursuant to 18 U.S.C. upon issuance of a federal or state administrative, grand



jury or trial subpoena. These records are the least protected communications subscriber records under the law and
include: name; (B) address; (C) local and long distance telephone connection records, or records of session
times and durations [under 47 CFR 42.6, for up to the preceding eighteen (18) months]; (D) length of service
(including start date) and types of service utilized; (E) telephone or instrument number or other subscriber number or
identity, including any temporarily assigned network address; (F) means and source of payment for such service
(including any credit card or bank account 

Derivative-class subscriber records means, with respect to unique target identities determined by virtue of the
court order to be originating communications to, or receiving communications from, the listed unique target identity
people communicating with the target), all of the foregoing subpoena-class subscriber records except ?means
and source of payment? but including, pursuant to 18 U.S.C. 2703(c) (d)(requiring a court order based on
submission of ?speci?c and articulable facts? establishing materiality and relevance), date of birth, social security
number, driver?s license number, alternate contact numbers, addresses and employment information. These records
are useful to law enforcement in identifying persons and locations for interview, investigation or surveillance; in
con?rming/completing the addressing and routing of communications originating from or terminating to the targeted
identity; and in identifying prior, additional or subsequent communications identities utilized by the suspect under
investigation. A request for this type of discrete and clearly-de?ned class of records is supported by the holding in
US. v. Fregoso, 60 F.3d 1314, 1321 (8th Cir. 1995)(because the logical ends to a pen register or trap and trace
device installation is to further an investigation by identifying the suspect?s communicants; and, when disclosed
with the trap and trace device, ?acquisition and use of the subscriber information [?revealed to the phone company?
carried ?no legitimate expectation of privacy? and] did not violate federal law?). When the government establishes
that the entire class is relevant and material to the ongoing criminal investigation, such an authorization promotes
judicial economy by eliminating the need to return to the court on a daily basis with a list of derivative
seeking an order for disclosure of otherwise unprotected information. lmportantly, the
USMS lacks administrative subpoena authority and does not have access to grand jury or trial subpoenas. In re
Pedro Archuleta, 432 F. Supp. 583 (S.D.N.Y. 1977); In re Wood, 430 F. Supp. 41 (S.D.N.Y. 1977), a??d sub nom In
re Cueto, 554 F.2d 14 (2d Cir. 1977).

Target-class subscriber records means, with respect to the listed unique target identi?er, the foregoing derivative-
class subscriber records ?means and source of payment? and the additional requirement to identify additional
telephone or instrument numbers/identities on the same account as the targeted identity and any alternate contact
numbers, employment information or other information collected with account registration or maintenance. These
additional records are useful to law enforcement in identifying the suspect?s ?nancial information and activities,
additional or subsequent communications identities utilized by the suspect under investigation, and information
which may have been provided prior to an attempt to conceal information for, or as a result of, criminal activity.

Hybrid Theory means the court-approved use of a prospectively-effective PRTT authorization coupled with an
accompanying/contemporaneous order under SCA (establishing what amounts to ?reasonable suspicion?) for the
?disclos[ure of] a record or other information pertaining to subscriber to or customer of [a communications
provider] (not including the contents of communications) when the governmental entity?obtains a court order for
such disclosure under [18 U.S.C. The premise behind the Hybrid Theory is that the CALEA location
caveat, which prohibits disclosure of cell site location information ?solely pursuant to? PRTT authority, does not
specify what the appropriate statutory/procedural mechanism and evidentiary standard to obtain CSLI actually is.
Because CSLI identi?es the ?rst or last physical path through which wire or electronic communications are carried
through a Provider?s infrastructure to a subscriber, customer or user, CSLI clearly falls within the post-2001 USA
PATRIOT modifying addition to the de?nitions of a ?pen register? and of a ?trap and trace device? (to
include ?addressing, routing, and signaling information?) when received at real (or ?near-real?) time by law
enforcement. Thus, Hybird Theory advocates assert that CSLI remains an incontrovertible component of PRTT 
but that CSLI is simply not available without a PRTT order plus something more. Following the holdings of
United States v. Miller, 425 US. 435 (1976) and Smith v. Maryland, 442 US. 735 (1979), Hybrid Theory advocates
assert that there is no constitutional privacy interest in CSLI because this data is automatically, necessarily,
voluntarily and, arguably, knowingly, disclosed to the third-party communications provider as a necessary and
incident aspect of obtaining and using the wireless communications services to which the subscriber subscribes.



Some Hybrid Theory-endorsing courts make clear that the communications provider must receive/record (if even
for a split-second) the CSLI before transmitting it to the govermnent while others simply permit the SCA to ?ll
the CALEA location caveat void without exerting a great deal of focus on the apparently (although nowhere
expressly stated) retrospective nature. Finally, Hybrid Theory advocates assert that the Congress is and has been
for more than a decade acutely aware that law enforcement has been relying on this theory for as many years; and
that when Congress considered but failed to pass legislation that would have elevated the evidentiary standard for
obtaining prospective CSLI to probable cause, it implicitly approved of the continuing Hybrid Theory practice. 106
H. Rep. 932 (106th Cong, 2d Sess, Oct 4, 2000) on 106 HR. 5018 government should have the ability to
locate suspected there are] no clear legal standards governing when the government can collect
location information from cell phone companies. Law enforcement now uses its authority under 18 U.S.C.
Section(s) obtain location information from mobile phone service providers?) Credible challenges to
the Hybrid Theory are discussed in the Default Warrant Theory, below.

Default Warrant Theory means an approach accepted by courts which reject the Hybrid Theory, either because of
a lack of express Congressional intent or because they do not believe that the SCA has any prospective ef?cacy
(even when combined with a prospectively-effective PRTT order). Default Warrant Theory advocates assert that
unless Congress has expressly articulated otherwise through legislation, obtaining a search warrant under Fed. R. of
Crim. P. 41 is the only way to gain government access to property/information even information n_ot enjoying a
constitutionally-recognized reasonable expectation of privacy when the person or entity whose
property/information at issue is unwilling or unable to disclose it to the government, whether voluntarily or pursuant
to subpoena. As applied to CSLI, advocates of this approach believe that while CSLI enjoys no constitutionally-
recognized reasonable expectation of privacy and remains the property of the communications provider and not the
subscriber, the government is obliged to pursue a search warrant because a communications provider is
prohibited under PRTT from voluntarily disclosing prospective CSLI in the absence of a court or properly-declared
emergency; and, (ii) Congress failed to specify any lesser statutory mechanism by which to overcome the CALEA
location caveat. Proponents of the Default Warrant Theory accept the assertion that nationwide ef?cacy of a
federal district search warrant is appropriate under Rule 41(a)(1)(special circumstances jurisdiction) because both 18
U.S.C. 2703(c)(1)(A)(search warrants under SCA for ?records or other information?) and 3123 (PRTT orders)
confer nationwide jurisdiction. That is, jurisdiction exists under chapter 206 of Title 18, despite that procedure and
the government?s burden of proof are de?ned by Fed. R. Crim. P. 41.

Tracking Device Theory means an approach accepted by courts which reject both the Hybrid Theory and the
Default Warrant Theory because they conclude at the outset that since CSLI is created by an electronic device

cell phone) and loosely ?permits the tracking of the movement of a person or object,? that a strict and literal
reading of 18 U.S.C. 3117 requires treatment of CSLI as a tracking device. The small handful of advocates of this
approach then point to 18 U.S.C. 2510(12)(c) to conclude that CSLI, as a tracking device, becomes expressly
excluded from the de?nition of an electronic communication. .meaning CSLI enjoys no civil/criminal liability
protection or treatment under PRTT law. Tracking Device Theory advocates believe, therefore, that CSLI does not
enjoy a constitutionally-reasonable expectation of privacy unless otherwise-provided under applicable tracking
device common law (generally limited to places not visible to the public; cf Collage REP Theory, below). Thus,
under the Tracking Device Theory, the only reason the government would need an order or warrant would be to
compel Provider disclosure of CSLI if/when a Provider is unwilling to provide such records voluntarily, as there
would otherwise be no prohibition against a Provider?s voluntarily disclosing CSLI to the government or any other
third party. Problems with the Tracking Device Theory include the facts that:

any business record credit card transactions, ATM machines, toll passes, etc.) which creates a
date/time/location stamp instantly becomes something it was not intended to be: a ?tracking
device? (violating the ?primarily useful doctrine? described in United States v. Herring, 993 F.2d
784 (11th Cir. 1993)(in prohibiting unauthorized manufacture, assembly, possession or sale of
intercepting devices under 18 U.S.C. ?2512(1)(b), Congress included a requirement that ?the
design of the device renders it primarily useful for the purpose of the surreptitious interception of
wire, oral, or electronic communications?), cert den 510 US. 933 (1993);



(ii) under 18 U.S.C. 2510(12)(c), only CSLI associated with communications from (the PR side) the
phone become tracking device records, while all communications to (the TT side) the phone
remain electronic communications;

no ?installation? of a ?device? can occur, since the CSLI is generated not by the phone (a device)
but by an electronic communications process (call routing) that predates any court authorization
(in fact, the only ?device? for which a location is captured, stored and recorded correlates not to
the phone handset, but is, instead, to the phone company?s own cell tower);

(iv) because no ?installation? of a ?device? can occur, a federal district court lacks jurisdiction, under
18 U.S.C. 3117(a), to authorize use of the device ?outside that jurisdiction if the device is installed
in that 

there are no statutory criminal/civil penalties associated with a wrongful tracking device
installation (and no reimbursement provision for a lawful installation) as there are under 18 U. SC.
3121 for either a wrongful or proper PRTT installation.

Collage REP Theory means the approach articulated under US. v. Maynard, 615 F.3d 544, 392 US. App. DC. 291
(DC. Cir. 2010), cert. granted, United States v. Jones, 2011 WL 1456728 (June 27, 2011), wherein the
government?s collection of tracking device records, none of which individually violate a person?s reasonable
expectation of privacy, over a substantial and extended period of time (when the government might not reasonably
have been lawfully present the entire time such as the 28 days considered in the Maynard decision) collectively
violate a reasonable expectation of privacy because they paint a ?collage? of the person?s activities not otherwise
reasonably obtainable by the government despite that each record was taken in a public location and might otherwise
stand alone. This approach is adhered to by a small handful of Tracking Device Theory advocates but has been
expressly rejected by the 3rd Circuit as inapplicable to historical CSLI. In re Application of US. for an Order, F.3d
304, 313 (3rd Cir. 2010)(rejecting also, in dicta at 312, any application to prospective CSLI).

 

Device identity or hardware changes means the utility to the criminal element of public identity changes g.
mobile directory number, or MDN, being the lO-digit telephone number that we share with others, or an email
address, etc.), hardware changes g. electronic serial number, mobile equipment identi?er or international mobile
equipment identity, a/k/a and, particularly, ?SIM-swapping? and other network identity changes
g. subscriber identity module/international mobile subscriber identity and mobile subscriber
identity/mobile identi?cation number changes) in addition to the proli?c use of prepay and
anonymous/disposable accounts and phones as an expeditious and inexpensive means of eluding and delaying law
enforcement efforts to timely implement and maintain lawful intercepts. In recognition of rapidly emerging and
changing technologies, the 2001 USA PATRIOT Act amended 18 U.S.C. 3123(b)(1)(C) to require the Court to
specify in the order ?the attributes of the communications to which the order applies, including the number or other
This language mirrors the pre-existing requirement in wiretap law, at 18 U.S.C. 2518(1)(b), for ?a
full and complete statement of the facts and circumstances relied upon by the applicant, to justify his belief that an
order should be issued, including  a particular description of the nature and location of the facilities from which or
the place where the communication is to be intercepted.? When new hardware or network identities are matched (by
the provider) or mated (by the user) to prior hardware or identities and remain directly traceable to hardware or
identities speci?ed in the Order, the Court may authorize the continued intercept of transactions or communications
across these changes. See United States v. Duran, 189 F.3d 1071, 1083-86 (9th Cir. 1999), cert. den 529 US.
1081 (2000) (holding interception of wire communications on a cellular telephone with a changed telephone number
followed by a changed ESN was subsumed within an order authorizing the interception of wire communications 
even though the court order authorizing the wiretap only anticipated a changed telephone number but did not
anticipate a changed ESN). In this respect, the Ninth Circuit af?rmed the trial court?s assessment that ?[t]he original
number to any changed number, to any instrument, is capable of being traced back to the original number, and
therefore, the chain remains The order is broad enough to cover changes in the telephone number, and
changes in the instrument?) A decade later this holding remains unchallenged; and the courts? authority and

 



practice of authorizing law enforcement intercepts to continue across hardware and/or identity mutations has
become an investigative cornerstone to combating an increasingly tech-savvy criminal adversary.

Data-Specific Provisions apply to an Internet service provider (ISP, such as uVerse service, Comcast?s
X?nity service, etc.), Voice over Internet Protocol provider a type of telephony such as provided by Vonage
and other ?digital phone? providers, particularly ISPs), email g. Yahoo or Gmail), Peer-to-Peer provider g.
Skype, a type of that does not typically interconnect to the public-switched telephone network, or PSTN) or
social networking provider g. Facebook, MySpace, Twitter or similar services where people share information
about themselves through online ??portals?). Users of these services must typically ?authenticate? their right to use
the service by username/password or alternate identity g. mobile access control, or MAC, address, which is an
ESN?like unique identi?er assigned to a network appliance). These providers record access and communications
through the data-equivalent to ?toll? or ?call detail records? (CDR includes ?toll,? or per-communication charged
activity, as well as other transactional records) that are called connection and IP logs. A component to a complete
connection or IP log is the port number through which a communication is carried. For example, all standard
internet traf?c passes across port 80 while internet traf?c transits port 443; and wireless
providers may assign a multitude of mobile customers the same IP address, differentiating their network traffic by
port number. Knowing the port number does not disclose the contents of the communication. The destination port
may characterize the types of services utilized while the source port can assist law enforcement in identifying and
resolving to a speci?c subscriber account an IP address identi?ed pursuant to an intercept order.



The following form is designed for the purpose of identifying an unknown phone that
is, a phone whose identifying attributes are not known being used/carried by a known
individual.

In brief, the technique involves using ?eld equipment owned and operated by the law
enforcement agency to detect all powered-on phones in the immediate vicinity of the subject.
(Carrier assistance is not normally required unless the subject?s location is unknown.) The
survey is repeated at various times and in various locations, ideally at least 3 or 4, in proximity to
the subject. The end product is a list of wireless instruments present and operating at each
location, where the element common to those lists typically a single device represents the
identi?er for the subject?s phone.

Because the objective is simply to identify the unknown device, collection should be
limited to device identi?ers (eg, lMEl, lMSl, MIN, etc). It should not encompass dialed digits,
as that would entail surveillance on the calling activity of all persons in the vicinity ofthe
subject. Once the subject?s phone is identi?ed, you may obtain a conventional pen/trap order or
other legal process addressed to the relevant carrier.

Finally, note that a separate form not this form should be employed for using law
enforcement ?eld equipment to determine the unknown physical location of a known phone.

Questions or comments about this form or the underlying technique may be directed to


Associate Director

Of?ce of Enforcement Operations



Rev. 1.3 8-11-08



UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF 
DIVISION

IN THE MATTER OF THE
APPLICATION OF THE UNITED
STATES OF AMERICA FOR AN
ORDER AUTHORIZING THE
INSTALLATION AND USE

OF A PEN REGISTER AND TRAP
AND TRACE DEVICE

Case No.

 

(UNDER SEAL)





This matter comes before the Court pursuant to written and sworn application under 18
U.S.C. 3122(a)(1) and 3127(5) by Assistant United States Attorney [Name] (Applicant), an
Attorney for the Government as de?ned by Federal Rule of Criminal Procedure Rule 
applying for an order authorizing the use of a pen register and trap trace device to identify the
telephone number or other unique information (such as the Electronic Serial Number (ESN),
International Mobile Equipment Identity (IMEI), or Mobile Equipment Identi?er 
identifying the telephone (hereinafter the "Subject Telephone") being used by 
in connection with an ongoing criminal investigation.

Pursuant to 18 U.S.C. 3123(a)(1), Applicant has certified that the information likely to
be obtained by the proposed pen register and trap and trace device is relevant to an ongoing
criminal investigation being conducted by [Investigative Agency] regarding [Offense
Description, such as: 18 U.S.C. by NAME IN (Subject). The
identity of the person to whom is leased or in whose name is listed the telephone line or other
facility to which the pen register or trap and trace device is to be attached or applied is unknown.
The order applies to the wireless telephone believed to be operated by the Subject to transmit
wire or electronic communications. The pen register or trap and trace device is to be applied in
the vicinity of the Subject to determine the number or other identifier of the Subject Telephone.

THEREFORE, IT IS HEREBY ORDERED, pursuant to 18 U.S.C. 3123, that agents of



[Investigative Agency] may install and use a pen register and trap and trace device anywhere in
the United States to record or decode the telephone number or other unique information (such as
the Electronic Serial Number (ESN), International Mobile Equipment Identity (IMEI), or
Mobile Equipment Identi?er necessary to identify the Subject Telephone.
[Investigative agency] shall neither retain nor make af?rmative investigative use of data
acquired beyond that necessary to identify the Subject telephone more fully.

IT IS FURTHER ORDERED THAT this Order shall be effective for sixty (60) days from
the date this Order is signed by the court. 18 U.S.C. 3123(c).

IT IS FURTHER ORDERED THAT pursuant to 18 U.S.C. 3123(d), that the

Application and this Order are herewith SEALED until otherwise ordered by this Court.

Signed on 2008, at

 

United States Magistrate Judge
District of 



UNITED STATES DISTRICT COURT

 

FOR THE DISTRICT OF

IN THE MATTER OF THE 

APPLICATION OF THE UNITED 

STATES OF AMERICA FOR AN Case No.
ORDER AUTHORIZING THE 

INSTALLATION AND USE (UNDER SEAL)
OF A PEN REGISTER AND TRAP 

AND TRACE DEVICE 

APPLICATION

The United States of America, by and through the undersigned Assistant United States
Attorney, applies for an order authorizing the use of a pen register and trap trace device to
identify wireless telephone devices being used by persons suspected of committing federal
crimes. In support of this application, Applicant states the following:

1. Applicant is an "attorney for the Government" as defined by Fed. R. Crim.
P. and, therefore, may apply for an order authorizing the installation and use of a pen
register and trap trace device. 18 USC. 3122(a)(1), 3127(5).

2. Applicant certi?es that [Investigative Agency] is conducting an ongoing criminal
investigation regarding [Offense Description] by (hereafter, "Subject"),
who is using one or more unidenti?ed wireless telephones, and that Subject is known to live at
or frequent the following locations: [Addressl,] [Address2, etc]. The identity of the person to
whom is leased or in whose name is listed the telephone line or other facility to which the pen
register or trap and trace device is to be attached or applied is unknown. The order applies to
wireless telephone communications utilizing GSM, CDMA, TDMA, UMTS, or analog
protocols?which comprise the entirety of all cellular or PCS wireless telephone protocols
currently used in the United States. The number or other identifier of the telephone line or other
facility to which the pen register or trap and trace device is to be attached or applied is unknown
and it is the purpose of the requested order to identify this unknown information, such as the

electronic serial number (ESN), international mobile equipment identity (IMEI), international



mobile subscriber identity (IMSI), or mobile equipment identi?er The information
likely to be obtained from the pen register and trap trace device is relevant to the
aforementioned investigation because it will enable investigators to identify Subj ect?s phone.
18 U.S.C. 3122(b)(1) (2).

3. Pursuant to 18 U.S.C. 3123(a)(l), Applicant requests the Court issue an order
authorizing the installation and use of a pen register and trap and trace device for a period of
sixty (60) days to detect radio signals emitted from wireless cellular telephones in the vicinity of
the Subject that identify the telephones by transmitting the telephone? 5 serial number and
phone number) to the network for authentication. By determining the identifying registration
data at various locations in which the Subject Telephone is reasonably believed to be operating,
the telephone number corresponding to the Subject Telephone can be identified Data
transmitted during autonomous registration is not dialed or otherwise controlled by the telephone
user. It is an autonomous transmission that occurs when the phone is turned on and periodically
thereafter, regardless of whether a call is being made, and in fact, is clearly separate from the
establishment or maintenance of a call.

4. Applicant further requests that this application any order entered in connection
therewith be SEALED until otherwise ordered by the Court. Specifically, disclosure of the
requested order and investigation would likely result in ?ight from prosecution, a modification
of the Subj ect?s activities or the activities of those with whom Subject communicates and
associates, or the destruction or tampering of evidence; and would otherwise seriously jeopardize
the investigation.

I declare under penalty of perjury that the foregoing is true and correct to the best of my

knowledge and belief, and that this declaration was executed on at

 

 

1Any potential interference to service occasioned by use of the Pen Register or Trap and Trace will be minimized so
as to be no more disruptive than might ordinarily occur with cellular service coverage.




Assistant US. Attorney




The following form is designed for the purpose of identifying an unknown phone that
is, a phone whose identifying attributes are not known being used/carried by a known
individual.

In brief, the technique involves using ?eld equipment owned and operated by the law
enforcement agency to detect all powered-on phones in the immediate vicinity of the subject.
(Carrier assistance is not normally required unless the subject?s location is unknown.) The
survey is repeated at various times and in various locations, ideally at least 3 or 4, in proximity to
the subject. The end product is a list of wireless instruments present and operating at each
location, where the element common to those lists typically a single device represents the
identi?er for the subject?s phone.

Because the objective is simply to identify the unknown device, collection should be
limited to device identi?ers (eg, lMEl, lMSl, MIN, etc). It should not encompass dialed digits,
as that would entail surveillance on the calling activity of all persons in the vicinity ofthe
subject. Once the subject?s phone is identi?ed, you may obtain a conventional pen/trap order or
other legal process addressed to the relevant carrier.

Finally, note that a separate form not this form should be employed for using law
enforcement ?eld equipment to determine the unknown physical location of a known phone.

Questions or comments about this form or the underlying technique may be directed to


Associate Director

Of?ce of Enforcement Operations


   

  



Rev. 1.3 8-11-08



UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF 
DIVISION

IN THE MATTER OF THE
APPLICATION OF THE UNITED
STATES OF AMERICA FOR AN
ORDER AUTHORIZING THE
INSTALLATION AND USE

OF A PEN REGISTER AND TRAP
AND TRACE DEVICE

Case No.

 

(UNDER SEAL)





This matter comes before the Court pursuant to written and sworn application under 18
U.S.C. 3122(a)(1) and 3127(5) by Assistant United States Attorney [Name] (Applicant), an
Attorney for the Government as de?ned by Federal Rule of Criminal Procedure Rule 
applying for an order authorizing the use of a pen register and trap trace device to identify the
telephone number or other unique information (such as the Electronic Serial Number (ESN),
International Mobile Equipment Identity (IMEI), or Mobile Equipment Identi?er 
identifying the telephone (hereinafter the "Subject Telephone") being used by 
in connection with an ongoing criminal investigation.

Pursuant to 18 U.S.C. 3123(a)(1), Applicant has certified that the information likely to
be obtained by the proposed pen register and trap and trace device is relevant to an ongoing
criminal investigation being conducted by [Investigative Agency] regarding [Offense
Description, such as: 18 U.S.C. by NAME IN (Subject). The
identity of the person to whom is leased or in whose name is listed the telephone line or other
facility to which the pen register or trap and trace device is to be attached or applied is unknown.
The order applies to the wireless telephone believed to be operated by the Subject to transmit
wire or electronic communications. The pen register or trap and trace device is to be applied in
the vicinity of the Subject to determine the number or other identifier of the Subject Telephone.

THEREFORE, IT IS HEREBY ORDERED, pursuant to 18 U.S.C. 3123, that agents of



[Investigative Agency] may install and use a pen register and trap and trace device anywhere in
the United States to record or decode the telephone number or other unique information (such as
the Electronic Serial Number (ESN), International Mobile Equipment Identity (IMEI), or
Mobile Equipment Identi?er necessary to identify the Subject Telephone.
[Investigative agency] shall neither retain nor make af?rmative investigative use of data
acquired beyond that necessary to identify the Subject telephone more fully.

IT IS FURTHER ORDERED THAT this Order shall be effective for sixty (60) days from
the date this Order is signed by the court. 18 U.S.C. 3123(c).

IT IS FURTHER ORDERED THAT pursuant to 18 U.S.C. 3123(d), that the

Application and this Order are herewith SEALED until otherwise ordered by this Court.

Signed on 2008, at

 

United States Magistrate Judge
District of 



UNITED STATES DISTRICT COURT

 

FOR THE DISTRICT OF

IN THE MATTER OF THE 

APPLICATION OF THE UNITED 

STATES OF AMERICA FOR AN Case No.
ORDER AUTHORIZING THE 

INSTALLATION AND USE (UNDER SEAL)
OF A PEN REGISTER AND TRAP 

AND TRACE DEVICE 

APPLICATION

The United States of America, by and through the undersigned Assistant United States
Attorney, applies for an order authorizing the use of a pen register and trap trace device to
identify wireless telephone devices being used by persons suspected of committing federal
crimes. In support of this application, Applicant states the following:

1. Applicant is an "attorney for the Government" as defined by Fed. R. Crim.
P. and, therefore, may apply for an order authorizing the installation and use of a pen
register and trap trace device. 18 USC. 3122(a)(1), 3127(5).

2. Applicant certi?es that [Investigative Agency] is conducting an ongoing criminal
investigation regarding [Offense Description] by (hereafter, "Subject"),
who is using one or more unidenti?ed wireless telephones, and that Subject is known to live at
or frequent the following locations: [Addressl,] [Address2, etc]. The identity of the person to
whom is leased or in whose name is listed the telephone line or other facility to which the pen
register or trap and trace device is to be attached or applied is unknown. The order applies to
wireless telephone communications utilizing GSM, CDMA, TDMA, UMTS, or analog
protocols?which comprise the entirety of all cellular or PCS wireless telephone protocols
currently used in the United States. The number or other identifier of the telephone line or other
facility to which the pen register or trap and trace device is to be attached or applied is unknown
and it is the purpose of the requested order to identify this unknown information, such as the

electronic serial number (ESN), international mobile equipment identity (IMEI), international



mobile subscriber identity (IMSI), or mobile equipment identi?er The information
likely to be obtained from the pen register and trap trace device is relevant to the
aforementioned investigation because it will enable investigators to identify Subj ect?s phone.
18 U.S.C. 3122(b)(1) (2).

3. Pursuant to 18 U.S.C. 3123(a)(l), Applicant requests the Court issue an order
authorizing the installation and use of a pen register and trap and trace device for a period of
sixty (60) days to detect radio signals emitted from wireless cellular telephones in the vicinity of
the Subject that identify the telephones by transmitting the telephone? 5 serial number and
phone number) to the network for authentication. By determining the identifying registration
data at various locations in which the Subject Telephone is reasonably believed to be operating,
the telephone number corresponding to the Subject Telephone can be identified Data
transmitted during autonomous registration is not dialed or otherwise controlled by the telephone
user. It is an autonomous transmission that occurs when the phone is turned on and periodically
thereafter, regardless of whether a call is being made, and in fact, is clearly separate from the
establishment or maintenance of a call.

4. Applicant further requests that this application any order entered in connection
therewith be SEALED until otherwise ordered by the Court. Specifically, disclosure of the
requested order and investigation would likely result in ?ight from prosecution, a modification
of the Subj ect?s activities or the activities of those with whom Subject communicates and
associates, or the destruction or tampering of evidence; and would otherwise seriously jeopardize
the investigation.

I declare under penalty of perjury that the foregoing is true and correct to the best of my

knowledge and belief, and that this declaration was executed on at

 

 

1Any potential interference to service occasioned by use of the Pen Register or Trap and Trace will be minimized so
as to be no more disruptive than might ordinarily occur with cellular service coverage.




Assistant US. Attorney




The following form is designed for the purpose of identifying an unknown phone that
is, a phone whose identifying attributes are not known being used/carried by a known
individual.

In brief, the technique involves using ?eld equipment owned and operated by the law
enforcement agency to detect all powered-on phones in the immediate vicinity of the subject.
(Carrier assistance is not normally required unless the subject?s location is unknown.) The
survey is repeated at various times and in various locations, ideally at least 3 or 4, in proximity to
the subject. The end product is a list of wireless instruments present and operating at each
location, where the element common to those lists typically a single device represents the
identi?er for the subject?s phone.

Because the objective is simply to identify the unknown device, collection should be
limited to device identi?ers (eg, lMEl, lMSl, MIN, etc). It should not encompass dialed digits,
as that would entail surveillance on the calling activity of all persons in the vicinity ofthe
subject. Once the subject?s phone is identi?ed, you may obtain a conventional pen/trap order or
other legal process addressed to the relevant carrier.

Finally, note that a separate form not this form should be employed for using law
enforcement ?eld equipment to determine the unknown physical location of a known phone.

Questions or comments about this form or the underlying technique may be directed to


Associate Director
Of?ce of Enforcement Operations



  



Rev. 1.3 8-11-08



UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF 
DIVISION

IN THE MATTER OF THE
APPLICATION OF THE UNITED
STATES OF AMERICA FOR AN
ORDER AUTHORIZING THE
INSTALLATION AND USE

OF A PEN REGISTER AND TRAP
AND TRACE DEVICE

Case No.

 

(UNDER SEAL)





This matter comes before the Court pursuant to written and sworn application under 18
U.S.C. 3122(a)(1) and 3127(5) by Assistant United States Attorney [Name] (Applicant), an
Attorney for the Government as de?ned by Federal Rule of Criminal Procedure Rule 
applying for an order authorizing the use of a pen register and trap trace device to identify the
telephone number or other unique information (such as the Electronic Serial Number (ESN),
International Mobile Equipment Identity (IMEI), or Mobile Equipment Identi?er 
identifying the telephone (hereinafter the "Subject Telephone") being used by 
in connection with an ongoing criminal investigation.

Pursuant to 18 U.S.C. 3123(a)(1), Applicant has certified that the information likely to
be obtained by the proposed pen register and trap and trace device is relevant to an ongoing
criminal investigation being conducted by [Investigative Agency] regarding [Offense
Description, such as: 18 U.S.C. by NAME IN (Subject). The
identity of the person to whom is leased or in whose name is listed the telephone line or other
facility to which the pen register or trap and trace device is to be attached or applied is unknown.
The order applies to the wireless telephone believed to be operated by the Subject to transmit
wire or electronic communications. The pen register or trap and trace device is to be applied in
the vicinity of the Subject to determine the number or other identifier of the Subject Telephone.

THEREFORE, IT IS HEREBY ORDERED, pursuant to 18 U.S.C. 3123, that agents of



[Investigative Agency] may install and use a pen register and trap and trace device anywhere in
the United States to record or decode the telephone number or other unique information (such as
the Electronic Serial Number (ESN), International Mobile Equipment Identity (IMEI), or
Mobile Equipment Identi?er necessary to identify the Subject Telephone.
[Investigative agency] shall neither retain nor make af?rmative investigative use of data
acquired beyond that necessary to identify the Subject telephone more fully.

IT IS FURTHER ORDERED THAT this Order shall be effective for sixty (60) days from
the date this Order is signed by the court. 18 U.S.C. 3123(c).

IT IS FURTHER ORDERED THAT pursuant to 18 U.S.C. 3123(d), that the

Application and this Order are herewith SEALED until otherwise ordered by this Court.

Signed on 2008, at

 

United States Magistrate Judge
District of 



UNITED STATES DISTRICT COURT

 

FOR THE DISTRICT OF

IN THE MATTER OF THE 

APPLICATION OF THE UNITED 

STATES OF AMERICA FOR AN Case No.
ORDER AUTHORIZING THE 

INSTALLATION AND USE (UNDER SEAL)
OF A PEN REGISTER AND TRAP 

AND TRACE DEVICE 

APPLICATION

The United States of America, by and through the undersigned Assistant United States
Attorney, applies for an order authorizing the use of a pen register and trap trace device to
identify wireless telephone devices being used by persons suspected of committing federal
crimes. In support of this application, Applicant states the following:

1. Applicant is an "attorney for the Government" as defined by Fed. R. Crim.
P. and, therefore, may apply for an order authorizing the installation and use of a pen
register and trap trace device. 18 USC. 3122(a)(1), 3127(5).

2. Applicant certi?es that [Investigative Agency] is conducting an ongoing criminal
investigation regarding [Offense Description] by (hereafter, "Subject"),
who is using one or more unidenti?ed wireless telephones, and that Subject is known to live at
or frequent the following locations: [Addressl,] [Address2, etc]. The identity of the person to
whom is leased or in whose name is listed the telephone line or other facility to which the pen
register or trap and trace device is to be attached or applied is unknown. The order applies to
wireless telephone communications utilizing GSM, CDMA, TDMA, UMTS, or analog
protocols?which comprise the entirety of all cellular or PCS wireless telephone protocols
currently used in the United States. The number or other identifier of the telephone line or other
facility to which the pen register or trap and trace device is to be attached or applied is unknown
and it is the purpose of the requested order to identify this unknown information, such as the

electronic serial number (ESN), international mobile equipment identity (IMEI), international



mobile subscriber identity (IMSI), or mobile equipment identi?er The information
likely to be obtained from the pen register and trap trace device is relevant to the
aforementioned investigation because it will enable investigators to identify Subj ect?s phone.
18 U.S.C. 3122(b)(1) (2).

3. Pursuant to 18 U.S.C. 3123(a)(l), Applicant requests the Court issue an order
authorizing the installation and use of a pen register and trap and trace device for a period of
sixty (60) days to detect radio signals emitted from wireless cellular telephones in the vicinity of
the Subject that identify the telephones by transmitting the telephone? 5 serial number and
phone number) to the network for authentication. By determining the identifying registration
data at various locations in which the Subject Telephone is reasonably believed to be operating,
the telephone number corresponding to the Subject Telephone can be identified Data
transmitted during autonomous registration is not dialed or otherwise controlled by the telephone
user. It is an autonomous transmission that occurs when the phone is turned on and periodically
thereafter, regardless of whether a call is being made, and in fact, is clearly separate from the
establishment or maintenance of a call.

4. Applicant further requests that this application any order entered in connection
therewith be SEALED until otherwise ordered by the Court. Specifically, disclosure of the
requested order and investigation would likely result in ?ight from prosecution, a modification
of the Subj ect?s activities or the activities of those with whom Subject communicates and
associates, or the destruction or tampering of evidence; and would otherwise seriously jeopardize
the investigation.

I declare under penalty of perjury that the foregoing is true and correct to the best of my

knowledge and belief, and that this declaration was executed on at

 

 

1Any potential interference to service occasioned by use of the Pen Register or Trap and Trace will be minimized so
as to be no more disruptive than might ordinarily occur with cellular service coverage.




Assistant US. Attorney




II.



PROCEDURES FOR AUTHORIZING EMERGENCY INSTALLATION OF PEN
AND TRAP AND TRACE UNDER 18 use. 3125

Justification:

A. A situation where there is: 1) an immediate threat to
life or limb; 2) a threat to national security; 3)
activity characteristic of organized crime; or 4) an
ongoing attack Of a protected computer (one used by

financial institution or U.S. government) where
violation is a felony; AND

B. An order cannot be obtained with an exercise of due
diligence, AND

C. There are grounds upon which an order could be issued
(information sought is relevant to ongoing criminal
activity).

Procedures:

A. Obtain the following, relevant facts: 1) circumstances
giving rise to the emergency situation; 2) who, if

known, is using the target phone/facility; 3) how the
phone/facility was identified; 4) when the
phone/facility was last known to be used; and 5) most

recent criminal activity.

B. Call a Deputy Assistant Attorne General (DAAG),
through the Command Center, 

C. Once approval has been Obtained, call the law
enforcement officer or AUSA back and advise them of the
following: 1) an application and order must be filed
within 48 hours (weekends and holidays included) after
the installation of the equipment has occurred or
begins to occur; and 2) the authorization obtained
applies only to that specific phone/facility - the use
of a pen/trap on any additional phones or facilities

that may be identified during the emergency situation
need to authorized by the DAAG.

Consent: If the request pertains to the victim?s phone or a
phone used by someone who is cooperating with the
investigation, consider whether consent would apply. The
cooperating party may consent tO the installation Of a trap
and trace/pen register on their phone, and with respect to
the victim, consent may be implied depending on the
circumstances. See 18 U.S.C. may consent)





PROCEDURES FOR EMERGENCY REQUESTS FOR CELL SITE DATA
WHEN SOUGHT IN CONNECTION WITH A 

I. Justification: See above

11. Procedures: See above. When advising the AUSA or agent
about filing the application and proposed order, instruct
them to file an application that cites to both the pen
register/trap and trace statute and 18 U.S.C. 2703(d).

111. Invocation of 18 U.S.C. 2702(c)(4) to receive prospective
cell site: Reliance on this provision to allow repeated,
perspective collection of cell site data may be problematic.
Judicious use of this provision is advised. Advise the
field that the more prudent course of action is to obtain a
search warrant under Rule 41 for repeated disclosures of
prospective cell site information because Rule 41 has
prospective effect.

IV. Consent: As with an emergency pen/trap request, consider
whether consent would apply. See 18 U.S.C. 2702(c)(2) 
allowing a provider to disclose a record or other
information with the consent of the "customer or
subscriber."

NOTE: A service provider can voluntarily disclose
historical cell site data under 18 U.S.C. 2702(c)(4),
and follow?up compulsory process is unnecessary.



PROCEDURES FOR EMERGENCY REQUESTS FOR DATA FOR
CELLULAR PHONES, I.E., GPS, E-911, TOWER TRILATERATION

The Department cannot authorize the collection of GPS
(latitude/longitude) data, E?9ll information, or location
information generated through tower trilateration under the

emergency pen/trap statute. (Tower trilateration measures the
signal strength from multiple cell towers to locate the phone and
is relatively accurate.) If law enforcement seeks this

information, they need to obtain a search warrant under Rule 41,
absent an emergency or voluntary disclosure by the service
provider. Again, consent is an option if the target phone
belongs to the victim or someone cooperating with the
investigation.

When advising the field, ascertain if the service provider
can actually produce the information.

Sprint/Nextel: True GPS
T?Mobile: Tower trilateration
Verizon Wireless/Alltel: no GPS, unless the phone

is used to call 911. Typically, these providers
can only pinpoint the location of a cell phone
within the "banana range" from a cell tower.

In addition, GPS data can only be captured when the phone is
on and registering with the network. Providers do not maintain
historical data. One exception is the "kiddie tracker"
phone service.

One final consideration is where to obtain the warrant.
Obtain the warrant where the phone is reasonably believed to be.



PROCEDURES FOR EMERGENCY WIRETAP REQUESTS
PURSUANT TO 18 U.S.C. 2518(7)

I. Justification:

A.

A situation where there is: 1) an immediate threat to
life or limb; 2) conspiratorial activity characteristic
of organized crime; or 3) conspiratorial activity
threatening national security; AND

An order cannot be obtained with an exercise of due
diligence; AND

There are grounds upon which an order could be issued,
i.e. probable cause for a predicate offense and/or
federal felony (usually not an issue) and legal
necessity.

II. Procedures:

A.

Obtain the following, relevant facts: 1) circumstances
giving rise to the emergency situation; 2) who, if
known, is using the target phone/facility/location; 3)
how the target phone/facility/location was identified;
4) when the phone/facility/location was last known to
be used; 5) most recent criminal activity; and 6) basis
for belief that phone/facility/location will be used
for communications concerning the crime, i.e. what
evidence is there that the perpetrator is acting in
concert with others what communications will be
obtained.

[Call a DAAG, through the Command Center, at(bx6??7xc)
advise the official of the facts.

Once the DAAG concurs that an emergency situation
exists, call the law enforcement officer or AUSA back
and advise them of the following: 1) the Criminal
Division agrees that an emergency tap may be sought; 2)
the law enforcement officer must proceed up his Chain
of command to seek approval for the emergency tap; and
3) a high?level official of the law enforcement agency
(for example, the Assistant Director or Director of the
FBI) must contact either the AG, the DAG, or the AAG
(Associate Attorney General) to obtain approval to
proceed with the emergency tap.



Once the tap has been authorized by DOJ, the AUSA must
file an application, affidavit, and proposed order
within 48 hours after the interception has occurred or
begins to occur. (Sample pleadings are available on


The affidavit in support of the emergency must contain
only those facts known to the law enforcement officer
at the time the emergency authorization was obtained
from DOJ.

All pleadings must be reviewed by GEO before the AUSA
goes to court.

Any documentation of the emergency authorization would
come from the law enforcement agency and would include
the date and time of the authorization, the identity of
the authorizing official, and a description of the
phone/facility/location that was authorized for
interception, the phone number for the phone, the
email address for the internet account, or the physical
address of the location. This documentation should be
filed with the application. GEO/Criminal
Division does not provide such documentation as we are
not involved directly with the approval process at the
level.

Continued surveillance: If the law enforcement agency
wants to extend interceptions beyond the first 48?hour
period, then:

1. They must seek DAAG authority to do so.

2. The affidavit filed in support of the emergency
request may also include a section that provides
probable cause to extend the interceptions. The

affidavit must clearly differentiate between those
facts in support of the emergency and those in
support of the extension request.

3. Separate applications and orders should be filed
for the emergency and extension requests.





USE OF WITT EQUIPMENT

WITT is a catchall term for equipment that law enforcement
can use to locate a cellular phone. It includes devices called
Wolfpack, Stingray, and Gossamer. WITT equipment emulates a cell
phone tower and can be used to determine which direction the
phone is in and how strong the signal is.

If law enforcement seeks to use their WITT equipment to
locate a cellular phone, they need to obtain a pen register and
trap and trace order for that phone. If they want to use the
WITT equipment in an emergency situation, they must obtain DOJ
approval first. Consent, for the reasons stated herein, may also

apply.



The following form is designed for the purpose of identifying an unknown phone that
is, a phone whose identifying attributes are not known being used/carried by a known
individual.

In brief, the technique involves using ?eld equipment owned and operated by the law
enforcement agency to detect all powered-on phones in the immediate vicinity of the subject.
(Carrier assistance is not normally required unless the subject?s location is unknown.) The
survey is repeated at various times and in various locations, ideally at least 3 or 4, in proximity to
the subject. The end product is a list of wireless instruments present and operating at each
location, where the element common to those lists typically a single device represents the
identi?er for the subject?s phone.

Because the objective is simply to identify the unknown device, collection should be
limited to device identi?ers (eg, lMEl, lMSl, MIN, etc). It should not encompass dialed digits,
as that would entail surveillance on the calling activity of all persons in the vicinity ofthe
subject. Once the subject?s phone is identi?ed, you may obtain a conventional pen/trap order or
other legal process addressed to the relevant carrier.

Finally, note that a separate form not this form should be employed for using law
enforcement ?eld equipment to determine the unknown physical location of a known phone.

Questions or comments about this form or the underlying technique may be directed to


Associate Director

Of?ce of Enforcement Operations


  



Rev. 1.3 8-11-08



UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF 
DIVISION

IN THE MATTER OF THE
APPLICATION OF THE UNITED
STATES OF AMERICA FOR AN
ORDER AUTHORIZING THE
INSTALLATION AND USE

OF A PEN REGISTER AND TRAP
AND TRACE DEVICE

Case No.

 

(UNDER SEAL)





This matter comes before the Court pursuant to written and sworn application under 18
U.S.C. 3122(a)(1) and 3127(5) by Assistant United States Attorney [Name] (Applicant), an
Attorney for the Government as de?ned by Federal Rule of Criminal Procedure Rule 
applying for an order authorizing the use of a pen register and trap trace device to identify the
telephone number or other unique information (such as the Electronic Serial Number (ESN),
International Mobile Equipment Identity (IMEI), or Mobile Equipment Identi?er 
identifying the telephone (hereinafter the "Subject Telephone") being used by 
in connection with an ongoing criminal investigation.

Pursuant to 18 U.S.C. 3123(a)(1), Applicant has certified that the information likely to
be obtained by the proposed pen register and trap and trace device is relevant to an ongoing
criminal investigation being conducted by [Investigative Agency] regarding [Offense
Description, such as: 18 U.S.C. by NAME IN (Subject). The
identity of the person to whom is leased or in whose name is listed the telephone line or other
facility to which the pen register or trap and trace device is to be attached or applied is unknown.
The order applies to the wireless telephone believed to be operated by the Subject to transmit
wire or electronic communications. The pen register or trap and trace device is to be applied in
the vicinity of the Subject to determine the number or other identifier of the Subject Telephone.

THEREFORE, IT IS HEREBY ORDERED, pursuant to 18 U.S.C. 3123, that agents of

5

[Investigative Agency] may install and use a pen register and trap and trace device anywhere in
the United States to record or decode the telephone number or other unique information (such as
the Electronic Serial Number (ESN), International Mobile Equipment Identity (IMEI), or
Mobile Equipment Identi?er necessary to identify the Subject Telephone.
[Investigative agency] shall neither retain nor make af?rmative investigative use of data
acquired beyond that necessary to identify the Subject telephone more fully.

IT IS FURTHER ORDERED THAT this Order shall be effective for sixty (60) days from
the date this Order is signed by the court. 18 U.S.C. 3123(c).

IT IS FURTHER ORDERED THAT pursuant to 18 U.S.C. 3123(d), that the

Application and this Order are herewith SEALED until otherwise ordered by this Court.

Signed on 2008, at

 

United States Magistrate Judge
District of 

6

UNITED STATES DISTRICT COURT

 

FOR THE DISTRICT OF

IN THE MATTER OF THE 

APPLICATION OF THE UNITED 

STATES OF AMERICA FOR AN Case No.
ORDER AUTHORIZING THE 

INSTALLATION AND USE (UNDER SEAL)
OF A PEN REGISTER AND TRAP 

AND TRACE DEVICE 

APPLICATION

The United States of America, by and through the undersigned Assistant United States
Attorney, applies for an order authorizing the use of a pen register and trap trace device to
identify wireless telephone devices being used by persons suspected of committing federal
crimes. In support of this application, Applicant states the following:

1. Applicant is an "attorney for the Government" as defined by Fed. R. Crim.
P. and, therefore, may apply for an order authorizing the installation and use of a pen
register and trap trace device. 18 USC. 3122(a)(1), 3127(5).

2. Applicant certi?es that [Investigative Agency] is conducting an ongoing criminal
investigation regarding [Offense Description] by (hereafter, "Subject"),
who is using one or more unidenti?ed wireless telephones, and that Subject is known to live at
or frequent the following locations: [Addressl,] [Address2, etc]. The identity of the person to
whom is leased or in whose name is listed the telephone line or other facility to which the pen
register or trap and trace device is to be attached or applied is unknown. The order applies to
wireless telephone communications utilizing GSM, CDMA, TDMA, UMTS, or analog
protocols?which comprise the entirety of all cellular or PCS wireless telephone protocols
currently used in the United States. The number or other identifier of the telephone line or other
facility to which the pen register or trap and trace device is to be attached or applied is unknown
and it is the purpose of the requested order to identify this unknown information, such as the

electronic serial number (ESN), international mobile equipment identity (IMEI), international

7

mobile subscriber identity (IMSI), or mobile equipment identi?er The information
likely to be obtained from the pen register and trap trace device is relevant to the
aforementioned investigation because it will enable investigators to identify Subj ect?s phone.
18 U.S.C. 3122(b)(1) (2).

3. Pursuant to 18 U.S.C. 3123(a)(l), Applicant requests the Court issue an order
authorizing the installation and use of a pen register and trap and trace device for a period of
sixty (60) days to detect radio signals emitted from wireless cellular telephones in the vicinity of
the Subject that identify the telephones by transmitting the telephone? 5 serial number and
phone number) to the network for authentication. By determining the identifying registration
data at various locations in which the Subject Telephone is reasonably believed to be operating,
the telephone number corresponding to the Subject Telephone can be identified Data
transmitted during autonomous registration is not dialed or otherwise controlled by the telephone
user. It is an autonomous transmission that occurs when the phone is turned on and periodically
thereafter, regardless of whether a call is being made, and in fact, is clearly separate from the
establishment or maintenance of a call.

4. Applicant further requests that this application any order entered in connection
therewith be SEALED until otherwise ordered by the Court. Specifically, disclosure of the
requested order and investigation would likely result in ?ight from prosecution, a modification
of the Subj ect?s activities or the activities of those with whom Subject communicates and
associates, or the destruction or tampering of evidence; and would otherwise seriously jeopardize
the investigation.

I declare under penalty of perjury that the foregoing is true and correct to the best of my

knowledge and belief, and that this declaration was executed on at

 

 

1Any potential interference to service occasioned by use of the Pen Register or Trap and Trace will be minimized so
as to be no more disruptive than might ordinarily occur with cellular service coverage.

8


Assistant US. Attorney


9