A court order must be signed by a judge and must indicate that the law enforcement officer has made the proper showing required under the law. An order compels us to provide some types of information to the government. We do not provide law enforcement any content (such as text messages or emails) in response to an order.
General Orders. Most of the 3,999 orders we received during the first half of 2021 were “general orders.” We use the term “general order” to refer to any order that is not a wiretap order, a pen register order, a trap and trace order, or a warrant. We continue to see that many of these general orders require us to release the same basic types of information that could also be released pursuant to a subpoena.
“Pen/Traps” and Wiretaps. We received 5,363 demands during the first half of 2021 that required us to provide access to data in real-time. These are commonly referred to as pen register orders, trap and trace orders, or wiretap orders, although an increasing number of these requests are now being captioned as warrants. A pen register order requires us to provide law enforcement with real-time access to phone numbers as they are dialed, while a trap and trace order compels us to provide law enforcement with real-time access to the phone numbers from incoming calls.
We received 4,246 orders to assist with pen registers or trap and traces during the first half of 2021, although generally a single demand is issued to establish both a pen register and a trap and trace. Far less often, we are required to assist with wiretaps, where law enforcement accesses the content of a communication as it is taking place. We received 414 orders for wiretaps during the first half of 2021.
What is a pen register or trap and trace order? Pen register or trap and trace orders require a wire or electronic communications provider (like Verizon) to afford access to “dialing, routing, addressing, or signaling information.” With a pen register order, we must afford real-time access to the numbers that a customer dials (or IP addresses that a customer visits); with a trap and trace order, we must afford real-time access to the numbers that call a customer. Such orders do not authorize law enforcement to obtain the contents of any communication.
What is a wiretap order? A wiretap order is an order that requires a wire or electronic communications provider to provide access to the content of communications in real-time to law enforcement. The order can relate to the content of telephone or Internet communications.
What are the different showings that law enforcement has to make for the different orders? A wiretap order is the most difficult for law enforcement to obtain. Under the law, law enforcement may not obtain a wiretap order unless a judge finds that there is probable cause to believe that an individual is committing one of certain specified offenses and that particular communications concerning that offense will be obtained through the wiretap. A wiretap order is only issued for a specified time.
A general order requires law enforcement to offer specific and articulable facts showing that there are reasonable grounds to believe that the records sought are relevant and material to an ongoing criminal investigation. In federal court, such orders are authorized under 18 U.S.C. § 2703(d).
A pen register order or trap and trace order requires law enforcement to make a lesser showing—that the information likely to be obtained is relevant to an ongoing criminal investigation.