2006 Code of Virginia § 19.2-70.2 - Application for and issuance of order for a pen register or trap and trace device; assistance in in...

19.2-70.2. Application for and issuance of order for a pen register or trapand trace device; assistance in installation and use.

A. An investigative or law-enforcement officer may make application for anorder or an extension of an order authorizing or approving the installationand use of a pen register or a trap and trace device, in writing under oathor equivalent affirmation, to a court of competent jurisdiction. Theapplication shall include:

1. The identity of the officer making the application and the identity of thelaw-enforcement agency conducting the investigation; and

2. A certification by the applicant that the information likely to beobtained is relevant to an ongoing criminal investigation being conducted bythat agency.

The application may include a request that the order require information,facilities and technical assistance necessary to accomplish the installationbe furnished.

B. An application for an ex parte order authorizing the installation and useof a pen register or trap and trace device may be filed in the jurisdictionwhere the person or persons who subscribe to the wire or electroniccommunication system live, work, or maintain an address or a post office box.For the purposes of an order entered pursuant to this section for theinstallation and use of a pen register or trap and trace device, suchinstallation shall be deemed to occur in the jurisdiction where the order isentered, regardless of the physical location or the method by which theinformation is captured or routed to the law-enforcement officer that madethe application. Upon application, the court shall enter an ex parte orderauthorizing the installation and use of a pen register or a trap and tracedevice if the court finds that the investigative or law-enforcement officerhas certified to the court that the information likely to be obtained by suchinstallation and use is relevant to an ongoing criminal investigation.

The order shall specify:

1. The identity, if known, of the person in whose name the telephone line orother facility to which the pen register or trap and trace device is to beattached or applied is listed or to whom the line or other facility is leased;

2. The identity, if known, of the person who is the subject of the criminalinvestigation;

3. The attributes of the communications to which the order applies, includingthe number or other identifier and, if known, the location of the telephoneline or other facility to which the pen register or trap and trace device isto be attached or applied; and

4. A statement of the offense to which the information likely to be obtainedby the pen register or trap and trace device relates.

C. Installation and use of a pen register or a trap and trace device shall beauthorized for a period not to exceed 60 days. Extensions of the order may begranted, but only upon application made and order issued in accordance withthis section. The period of an extension shall not exceed 60 days.

D. An order authorizing or approving the installation and use of a penregister or a trap and trace device shall direct that:

1. The order and application be sealed until otherwise ordered by the court;

2. Information, facilities and technical assistance necessary to accomplishthe installation be furnished if requested in the application; and

3. The person owning or leasing the line or other facility to which the penregister or trap and trace device is attached or applied, or who is obligatedby the order to provide assistance to the applicant, not disclose theexistence of the pen register or trap and trace device or the existence ofthe investigation to the listed subscriber, or to any other person, unless oruntil otherwise ordered by the court.

E. Upon request of an investigative or a law-enforcement officer authorizedby the court to install and use a pen register, a provider of wire orelectronic communication service, a landlord, custodian or any other personso ordered by the court shall, as soon as practicable, furnish the officerwith all information, facilities, and technical assistance necessary toaccomplish the installation of the pen register unobtrusively and with aminimum of interference with the services that the person so ordered by thecourt accords the party with respect to whom the installation and use is totake place.

F. Upon request of an investigative or law-enforcement officer authorized bythe court to receive the results of a trap and trace device under thissection, a provider of wire or electronic communication service, a landlord,custodian or any other person so ordered by the court shall, as soon aspracticable, install the device on the appropriate line and furnish theofficer with all additional information, facilities and technical assistance,including installation and operation of the device, unobtrusively and with aminimum of interference with the services that the person so ordered by thecourt accords the party with respect to whom the installation and use is totake place. Unless otherwise ordered by the court, the results of the trapand trace device shall be furnished to the investigative or law-enforcementofficer designated by the court at reasonable intervals during regularbusiness hours for the duration of the order. Where the law-enforcementagency implementing an ex parte order under this subsection seeks to do so byinstalling and using its own pen register or trap and trace device on apacket-switched data network of a provider of electronic communicationservice to the public, the agency shall ensure that a record will bemaintained that will identify (i) any officer or officers who installed thedevice and any officer or officers who accessed the device to obtaininformation from the network; (ii) the date and time the device wasinstalled, the date and time the device was uninstalled, and the date, time,and duration of each time the device is accessed to obtain information; (iii)the configuration of the device at the time of its installation and anysubsequent modification thereof; and (iv) any information that has beencollected by the device. To the extent that the pen register or trap andtrace device can be set automatically to record this informationelectronically, the record shall be maintained electronically throughout theinstallation and use of such device. The record maintained hereunder shall beprovided ex parte and under seal of the court that entered the ex parte orderauthorizing the installation and use of the device within 30 days aftertermination of the order, including any extensions thereof.

G. A provider of a wire or electronic communication service, a landlord,custodian or other person who furnishes facilities or technical assistancepursuant to this section shall be reasonably compensated for reasonable andactual expenses incurred in providing such facilities and assistance. Theexpenses shall be paid out of the criminal fund.

H. No cause of action shall lie in any court against a provider of a wire orelectronic communication service, its officers, employees, agents or otherspecified persons for providing information, facilities, or assistance inaccordance with the terms of a court order issued pursuant to this section.Good faith reliance on a court order, a legislative authorization or astatutory authorization is a complete defense against any civil or criminalaction based upon a violation of this chapter.

(1988, c. 889; 2002, cc. 588, 623; 2005, c. 934.)