CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Monday, March 5, 2018

Goldfoot on The Pen-Trap Statute and the Internet

Josh Goldfoot (U.S. Department of Justice - Computer Crime & Intellectual Property Section, Criminal Division) has posted The Pen-Trap Statute and the Internet (Virginia Journal of criminal Law, vol 6, no 1, Forthcoming) on SSRN. Here is the abstract:
Internet-connected computers might be illegal under the Pen Registers and Trap and Trace Devices chapter of Title 18, which is called the “Pen-Trap Statute” for short. The Pen-Trap Statute criminally prohibits any person from collecting non-content information from communications. One reading of the Statute suggests that cell phones, Wi-Fi, the Internet, and other modern technologies all fall under the Pen-Trap Statute’s broad definitions of “pen register” or “trap and trace device,” and, therefore, their use is a federal misdemeanor. Recognizing this problem, courts have struggled to find narrow readings of the Statute that would exclude ordinary Internet-connected devices from the Statute’s scope. Yet, these efforts either contradict the Statute’s text, or cannot be reconciled with court decisions interpreting how the statute regulates government surveillance. This Article argues that the Pen-Trap Statute prohibits only modifications to the pre-established line of communication that allow for the observation of dialing, routing, addressing, and signaling information that previously was impossible. This argument both saves modern communication devices from the Statute’s criminal scope, and explains the extent of the Statute’s surveillance and privacy protections.

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