Section | Description |
---|---|
705.00 | Definitions |
705.05 | Pen register and trap and trace authorizations; in general. |
705.10 | Orders authorizing the use of a pen register or a trap and trace device; when issuable. |
705.15 | Application for an order authorizing the use of a pen register or a trap and trace device. |
705.20 | Orders authorizing the use of a pen register or a trap and trace device; determination of application. |
705.25 | Pen register or trap and trace device orders; time period and extensions. |
705.30 | Nondisclosure of existence of pen register or a trap and trace device. |
705.35 | Assistance in installation and use of a pen register or a trap and trace device. |
S 705.00 Definitions. As used in this article, the following terms have the following meanings: 1. "Pen register" means a device which records or decodes electronic or other impulses which identify the numbers dialed or otherwise transmitted on the telephone line to which such device is attached, but such term does not include any device used by a provider or customer of a wire or electronic communication service for billing, or recording as an incident to billing, for communications services provided by such provider or any device used by a provider or customer of a wire communication service for cost accounting or other like purposes in the ordinary course of its business. 2. "Trap and trace device" means a device which captures the incoming electronic or other impulses which identify the originating number of an instrument or device from which a wire or electronic communication was transmitted. 3. "Applicant" means a district attorney, an assistant district attorney, and when empowered by law to conduct an investigation of or to prosecute or participate in the prosecution of a designated crime, the attorney general, an assistant attorney general, the deputy attorney general in charge of the statewide organized crime task force, or an assistant deputy attorney general of such task force. 4. "Law enforcement agency" means any agency which is empowered by law to conduct an investigation or to make an arrest for a felony, and any agency which is authorized by law to prosecute or participate in the prosecution of a felony. 5. "Designated crime" means any crime included within the definition of a "designated offense" in subdivision eight of section 700.05 of this chapter, any criminal act as defined in subdivision one of section 460.10 of the penal law, bail jumping in the first and second degree as defined in sections 215.57 and 215.56 of such law, or aggravated harassment as defined in subdivisions one and two of section 240.30 of such law. 6. "Justice" means justice as defined in subdivision four of section 700.05 of this chapter. S 705.05 Pen register and trap and trace authorizations; in general. Under circumstances prescribed in this article, a justice may issue an order authorizing the use of a pen register or a trap and trace device upon ex parte application of an applicant who is authorized by law to investigate, prosecute or participate in the prosecution of the designated crimes which are the subject of the application. S 705.10 Orders authorizing the use of a pen register or a trap and trace device; when issuable. An order authorizing the use of a pen register or a trap and trace device may issue only: 1. Upon an appropriate application made in conformity with this article; and 2. Upon a determination that an application sets forth specific, articulable facts, warranting the applicant`s reasonable suspicion that a designated crime has been, is being, or is about to be committed and demonstrating that the information likely to be obtained by use of a pen register or trap and trace device is or will be relevant to an ongoing criminal investigation of such designated crime. S 705.15 Application for an order authorizing the use of a pen register or a trap and trace device. 1. An ex parte application for an order or an extension of an order authorizing the use of a pen register or a trap and trace device must be made to a justice in writing, and must be subscribed and sworn to by the applicant. 2. The application must contain: (a) The identity of the applicant and the identity of the law enforcement agency conducting the investigation; and (b) A statement of facts and circumstances sufficient to justify the applicant`s belief that an order authorizing the use of a pen register or a trap and trace device should be issued, including (i) a statement of the specific facts on the basis of which the applicant reasonably suspects that the designated crime has been, is being, or is about to be committed and demonstrating that the information likely to be obtained by use of a pen register or a trap and trace device is or will be relevant to an ongoing criminal investigation of such designated offense, (ii) the identity, if known, of the person to whom is leased or in whose name is listed the telephone line to which the pen register or trap and trace device is to be attached, (iii) the identity, if known, of the person who is the subject of the criminal investigation, (iv) the number and, if known, the physical location of the telephone line to which the pen register or trap and trace device is to be attached and, in the case of a trap and trace device, the geographic limits of the trap and trace order, and (v) a statement of the designated crime or crimes to which the information likely to be obtained by the use of the pen register or trap and trace device relates; and (c) A statement of the period of time for which the authorization for the use of a pen register or a trap and trace device is required; and (d) A statement of the facts concerning all previous applications, known to the applicant, for an order authorizing the use of a pen register or a trap and trace device involving any of the same persons or facilities specified in the application, and the action taken by the justice on each such application. 3. Allegations of fact in the application may be based either upon the personal knowledge of the applicant or upon information and belief. If the applicant personally knows the facts alleged, it must be so stated. If the facts stated in the application are derived in whole or in part from the statements of persons other than the applicant, the sources of such facts must be either disclosed or described. S 705.20 Orders authorizing the use of a pen register or a trap and trace device; determination of application. 1. If the justice determines on the basis of the facts submitted by the applicant that grounds exist for the issue of an order authorizing the use of a pen register or a trap and trace device pursuant to section 705.10 of this article, the justice shall grant the application and issue an order authorizing the use of a pen register or a trap and trace device, in accordance with subdivision three of this section. 2. If the application does not conform to section 705.15 of this article, or if the justice is not satisfied that grounds exist for the issuance of an order authorizing the use of a pen register or a trap and trace device, the application must be denied. 3. An order issued under this section must contain: (a) the name of the applicant, date of issuance, and the subscription and title of the issuing justice; and (b) the identity, if known, of the person to whom is leased or in whose name is listed the telephone line to which the pen register or trap and trace device is to be attached; and (c) the identity, if known, of the person who is the subject of the criminal investigation; and (d) the number and, if known, the physical location of the telephone line to which the pen register or trap and trace device is to be attached and, in the case of a trap and trace device, the geographic limits of the trap and trace order; and (e) a statement of the designated crime or crimes to which the information likely to be obtained by the pen register or trap and trace device relates. 4. An order issued under this section shall direct, upon the request of the applicant, the furnishing of information, facilities, and technical assistance necessary to accomplish the installation of the pen register or trap and trace device under section 705.25 of this article. S 705.25 Pen register or trap and trace device orders; time period and extensions. 1. An order issued under this section shall authorize the installation and use of a pen register or a trap and trace device for a period not to exceed sixty days. 2. Extensions of such an order may be granted, but only upon an application for an order under section 705.05 of this article and upon the judicial finding required by subdivision one of section 705.10 of this article. The period of extension shall be for a period not to exceed sixty days. S 705.30 Nondisclosure of existence of pen register or a trap and trace device. An order authorizing or approving the installation and use of a pen register or a trap and trace device shall direct that: 1. the order be sealed until otherwise ordered by the court; and 2. the person owning or leasing the line to which the pen register or a trap and trace device is attached, or who has been ordered by the court to provide assistance to the applicant, not disclose the existence of the pen register or trap and trace device or the existence of the investigation to the listed subscriber, or to any other person, unless or until otherwise ordered by the court. S 705.35 Assistance in installation and use of a pen register or a trap and trace device. 1. Upon the request of an applicant authorized to use a pen register under this article, a provider of a wire or electronic communication service, landlord, custodian, or other person shall furnish such applicant, or his agent, forthwith 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, if such assistance is directed by a court order as provided in section 705.10 of this article. 2. Upon the request of an applicant authorized to receive the results of a trap and trace device under this article, a provider of a wire or electronic communication service, landlord, custodian, or other person shall install such device forthwith on the appropriate line and shall furnish such applicant forthwith all information, facilities and technical assistance including installation and operation of the device 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, if such installation and assistance is directed by the court order as provided in section 705.10 of this article. Unless otherwise ordered by the court, the results of the trap and trace device shall be furnished to the applicant, or his agent, at reasonable intervals during regular business hours for the duration of the order. 3. A provider of a wire or electronic communication service, landlord, custodian, or other person who furnishes facilities or technical assistance pursuant to this section shall be reasonably compensated for such reasonable expenses incurred in providing such facilities and assistance. 4. No cause of action shall lie in any court against any provider of a wire or electronic communication service, its officers, employees, agents or other specified persons for providing information, facilities or assistance in accordance with the terms of a court order under this article. A good faith reliance by a provider of a wire or electronic communication service upon the validity of a court order issued pursuant to this article is a complete defense against any civil cause of action or criminal action based entirely on a failure to comply with this article. Top of Page
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