II

106TH CONGRESS

1ST SESSION S. 411

To provide for a process to authorize the use of clone pagers, and for

other purposes.

IN THE SENATE OF THE UNITED STATES

FEBRUARY 11, 1999

Mr. DEWINE introduced the following bill; which was read twice and referred

to the Committee on the Judiciary

A BILL

To provide for a process to authorize the use of clone pagers,

and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Clone Pager Author5 ization Act of 1999’’.

6 SEC. 2. CLONE PAGERS.

7 (a) IN GENERAL.—Section 2511(2)(h) of title 18,

8 United States Code, is amended by striking clause (i) and

9 inserting the following:
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1 ‘‘(i) to use a pen register, a trap and

2 trace device, or a clone pager, as those

3 terms are defined in chapter 206 (relating

4 to pen registers, trap and trace devices,

5 and clone pagers) of this title; or’’;

6 (b) EXCEPTION.—Section 3121 of title 18, United

7 States Code, is amended—

8 (1) by striking subsection (a) and inserting the

9 following:

10 ‘‘(a) IN GENERAL.—Except as provided in this sec11 tion, no person may install or use a pen register, trap and

12 trace device, or clone pager without first obtaining a court

13 order under section 3123 or section 3129 of this title, or

14 under the Foreign Intelligence Surveillance Act of 1978

15 (50 U.S.C. 1801 et seq.).’’;

16 (2) in subsection (b), by striking ‘‘a pen reg17 ister or a trap and trace device’’ and inserting ‘‘a

18 pen register, trap and trace device, or clone pager’’;

19 and

20 (3) by striking the section heading and insert21 ing the following:
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1 ‘‘§ 3121. General prohibition on pen register, trap and

2 trace device, and clone pager use; excep3 tion’’.

4 (c) ASSISTANCE.—Section 3124 of title 18, United

5 States Code, is amended—

6 (1) by redesignating subsections (c) through (f)

7 as subsections (d) through (g), respectively;

8 (2) by inserting after subsection (b) the follow9 ing:

10 ‘‘(c) CLONE PAGER.—Upon the request of an attor11 ney for the Government or an officer of a law enforcement

12 agency authorized to use a clone pager under this chapter,

13 a provider of electronic communication service shall fur14 nish to such investigative or law enforcement officer all

15 information, facilities, and technical assistance necessary

16 to accomplish the use of the clone pager unobtrusively and

17 with a minimum of interference with the services that the

18 person so ordered by the court provides to the subscriber,

19 if such assistance is directed by a court order, as provided

20 in section 3129(b)(2) of this title.’’; and

21 (3) by striking the section heading and insert22 ing the following:
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1 ‘‘§ 3124. Assistance in installation and use of a pen

2 register, trap and trace device, or clone

3 pager’’.

4 (d) EMERGENCY INSTALLATIONS.—Section 3125 of

5 title 18, United States Code, is amended—

6 (1) by striking ‘‘pen register or a trap and

7 trace device’’ and ‘‘pen register or trap and trace de8 vice’’ each place those terms appear, and inserting

9 ‘‘pen register, trap and trace device, or clone pager’’;

10 (2) in subsection (a), by striking ‘‘an order ap11 proving the installation or use is issued in accord12 ance with section 3123 of this title’’ and inserting

13 ‘‘an application is made for an order approving the

14 installation or use in accordance with section 3122

15 or section 3128 of this title’’;

16 (3) in subsection (b), by adding at the end the

17 following: ‘‘In the event that such application for the

18 use of a clone pager is denied, or in any other case

19 in which the use of the clone pager is terminated

20 without an order having been issued, an inventory

21 shall be served as provided for in section 3129(e).’’;

22 and

23 (4) by striking the section heading and insert24 ing the following:
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1 ‘‘§ 3125. Emergency pen register, trap and trace de2 vice, and clone pager installation and

3 use’’.

4 (e) REPORTS.—Section 3126 of title 18, United

5 States Code, is amended—

6 (1) by striking ‘‘pen register orders and orders

7 for trap and trace devices’’ and inserting ‘‘orders for

8 pen registers, trap and trace devices, and clone

9 pagers’’; and

10 (2) by striking the section heading and insert11 ing the following:

12 ‘‘§ 3126. Reports concerning pen registers, trap and

13 trace devices, and clone pagers’’.

14 (f) DEFINITIONS.—Section 3127 of title 18, United

15 States Code, is amended—

16 (1) in paragraph (2)—

17 (A) in subparagraph (A), by striking ‘‘or’’

18 at the end; and

19 (B) by striking subparagraph (B) and in20 serting the following:

21 ‘‘(B) with respect to an application for the

22 use of a pen register or trap and trace device,

23 a court of general criminal jurisdiction of a

24 State authorized by the law of that State to

25 enter orders authorizing the use of a pen reg26 ister or a trap and trace device; or
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1 ‘‘(C) with respect to an application for the

2 use of a clone pager, a court of general criminal

3 jurisdiction of a State authorized by the law of

4 that State to issue orders authorizing the use of

5 a clone pager;’’;

6 (2) in paragraph (5), by striking ‘‘and’’ at the

7 end;

8 (3) in paragraph (6), by striking the period at

9 the end and inserting ‘‘; and’’; and

10 (4) by adding at the end the following:

11 ‘‘(7) the term ‘clone pager’ means a numeric

12 display device that receives communications intended

13 for another numeric display paging device.’’.

14 (g) APPLICATIONS.—Chapter 206 of title 18, United

15 States Code, is amended by adding at the end the follow16 ing:

17 ‘‘§ 3128. Application for an order for use of a clone

18 pager

19 ‘‘(a) APPLICATION.—

20 ‘‘(1) FEDERAL REPRESENTATIVES.—Any attor21 ney for the Government may apply to a court of

22 competent jurisdiction for an order or an extension

23 of an order under section 3129 of this title authoriz24 ing the use of a clone pager.
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1 ‘‘(2) STATE REPRESENTATIVES.—A State in2 vestigative or law enforcement officer may, if author3 ized by a State statute, apply to a court of com4 petent jurisdiction of such State for an order or an

5 extension of an order under section 3129 of this title

6 authorizing the use of a clone pager.

7 ‘‘(b) CONTENTS OF APPLICATION.—An application

8 under subsection (a) of this section shall include—

9 ‘‘(1) the identity of the attorney for the Govern10 ment or the State law enforcement or investigative

11 officer making the application and the identity of the

12 law enforcement agency conducting the investiga13 tion;

14 ‘‘(2) the identity, if known, of the individual or

15 individuals using the numeric display paging device

16 to be cloned;

17 ‘‘(3) a description of the numeric display paging

18 device to be cloned;

19 ‘‘(4) a description of the offense to which the

20 information likely to be obtained by the clone pager

21 relates;

22 ‘‘(5) the identity, if known, of the person who

23 is subject of the criminal investigation; and

24 ‘‘(6) an affidavit or affidavits, sworn to before

25 the court of competent jurisdiction, establishing
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1 probable cause to believe that information relevant

2 to an ongoing criminal investigation being conducted

3 by that agency will be obtained through use of the

4 clone pager.

5 ‘‘§ 3129. Issuance of an order for use of a clone pager

6 ‘‘(a) IN GENERAL.—Upon an application made under

7 section 3128 of this title, the court shall enter an ex parte

8 order authorizing the use of a clone pager within the juris9 diction of the court if the court finds that the application

10 has established probable cause to believe that information

11 relevant to an ongoing criminal investigation being con12 ducted by that agency will be obtained through use of the

13 clone pager.

14 ‘‘(b) CONTENTS OF AN ORDER.—An order issued

15 under this section—

16 ‘‘(1) shall specify—

17 ‘‘(A) the identity, if known, of the individ18 ual or individuals using the numeric display

19 paging device to be cloned;

20 ‘‘(B) the numeric display paging device to

21 be cloned;

22 ‘‘(C) the identity, if known, of the sub23 scriber to the pager service; and
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1 ‘‘(D) the offense to which the information

2 likely to be obtained by the clone pager relates;

3 and

4 ‘‘(2) shall direct, upon the request of the appli5 cant, the furnishing of information, facilities, and

6 technical assistance necessary to use the clone pager

7 under section 3124 of this title.

8 ‘‘(c) TIME PERIOD AND EXTENSIONS.—

9 ‘‘(1) IN GENERAL.—An order issued under this

10 section shall authorize the use of a clone pager for

11 a period not to exceed 30 days. Such 30-day period

12 shall begin on the earlier of the day on which the

13 investigative or law enforcement officer first begins

14 use of the clone pager under the order or the tenth

15 day after the order is entered.

16 ‘‘(2) EXTENSIONS.—Extensions of an order

17 issued under this section may be granted, but only

18 upon an application for an order under section 3128

19 of this title and upon the judicial finding required by

20 subsection (a). An extension under this paragraph

21 shall be for a period not to exceed 30 days.

22 ‘‘(3) REPORT.—Within a reasonable time after

23 the termination of the period of a clone pager order

24 or any extensions thereof under this subsection, the

25 applicant shall report to the issuing court the num-
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1 ber of numeric pager messages acquired through the

2 use of the clone pager during such period.

3 ‘‘(d) NONDISCLOSURE OF EXISTENCE OF CLONE

4 PAGER.—An order authorizing the use of a clone pager

5 shall direct that—

6 ‘‘(1) the order shall be sealed until otherwise

7 ordered by the court; and

8 ‘‘(2) the person who has been ordered by the

9 court to provide assistance to the applicant may not

10 disclose the existence of the clone pager or the exist11 ence of the investigation to the listed subscriber, or

12 to any other person, until otherwise ordered by the

13 court.

14 ‘‘(e) NOTIFICATION.—Within a reasonable time, not

15 later than 90 days after the date of termination of the

16 period of a clone pager order or any extensions thereof,

17 the issuing judge shall cause to be served, on the individ18 ual or individuals using the numeric display paging device

19 that was cloned, an inventory including notice of—

20 ‘‘(1) the fact of the entry of the order or the

21 application;

22 ‘‘(2) the date of the entry and the period of

23 clone pager use authorized, or the denial of the ap24 plication; and
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1 ‘‘(3) whether or not information was obtained

2 through the use of the clone pager. Upon an ex3 parte showing of good cause, a court of competent

4 jurisdiction may in its discretion postpone the serv5 ing of the notice required by this section.’’.

6 (h) CLERICAL AMENDMENTS.—The table of sections

7 for chapter 206 of title 18, United States Code, is

8 amended—

9 (1) by striking the item relating to section 3121

10 and inserting the following:

‘‘3121. General prohibition on pen register, trap and trace device, and clone

pager use; exception.’’;

11 (2) by striking the items relating to sections

12 3124, 3125, and 3126 and inserting the following:

‘‘3124. Assistance in installation and use of a pen register, trap and trace device, or clone pager.

‘‘3125. Emergency pen register, trap and trace device, and clone pager installation and use.

‘‘3126. Reports concerning pen registers, trap and trace devices, and clone

pagers.’’; and

13 (3) by adding at the end the following:

‘‘3128. Application for an order for use of a clone pager.

‘‘3129. Issuance of an order for use of a clone pager.’’.

14 (i) CONFORMING AMENDMENT.—Section 605(a) of

15 title 47, United States Code, is amended by striking

16 ‘‘chapter 119’’ and inserting ‘‘chapters 119 and 206’’.

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