A “trap and trace device,” in turn, was defined as “a device or process which captures the incoming electronic or other impulses which identify the originating number or other dialing, routing, addressing, and signaling information reasonably likely to identify the source of a wire or electronic communication.” 18 U.S.C. § 3127(4). Because Congress expressly referenced “electronic . . . impulses” and specific types of telephonic data in section 216, the absence of similar words in section 215 reflects a Congressional intent to exclude such things from the meaning of “tangible things” in section 215.

Second, a "trap and trace device" is defined as "a device or process which captures the incoming electronic or other impulses which identify the originating number or other dialing, routing, addressing and signaling information." 18 U.S.C. § 3127(4); 50 U.S.C. § 1841(2). Again, those impulses will already have been captured at the point that NSA conducts chaining.

(emphasis added). The 2009 amendment to §2711(3)(B) deleted the cross reference to 18 U.S.C. §3127, but brought over its definitional language, with one notable change—it substituted the word "includes" for "means." See Pub.L 111-79, §2(2).3 As a result, in the 2009 amendment, and as applicable herein, §2711(3)(B) was changed to provide that the term "court of competent jurisdiction" "includes," but does not exclusively "mean," a "court of general criminal jurisdiction of a State authorized by the law of that State to issue search warrants."

Office of the Dir. of Nat’l Intelligence, Release of Three Opinions by the Foreign Intelligence Surveillance Court (April 19, 2016).2 The pen register surveillance “method” is also defined and discussed in the U.S. Code, see 18 U.S.C. § 3127(3), and in cases that interpret that provision. In addition, the FISC’s interpretation of the law is not itself a “source” or “method” of intelligence gathering, but a legal judgment that Congress has determined the public has a right to access.

Finally, FISA’s so-called “pen/trap” provision may also be implicated by Plaintiffs’ claims regarding bulk collection of Internet metadata. Similar in structure to Section 215, the pen/trap statute authorizes the FISC, upon application by the Government, to issue an order “approving the installation and use of a pen register or trap and trace device,” see 50 U.S.C. § 1841(2); 18 U.S.C. § 3127(3), (4), to obtain information relevant to authorized FBI counter- terrorism investigations. 50 U.S.C. § 1842(a)(1), (c)(2).

Finally, FISA’s so-called “pen/trap” provision may also be implicated by Plaintiffs’ claims regarding bulk collection of Internet metadata. Similar in structure to Section 215, the pen/trap statute authorizes the FISC, upon application by the Government, to issue an order “approving the installation and use of a pen register or trap and trace device,” see 50 U.S.C. § 1841(2); 18 U.S.C. § 3127(3), (4), to obtain information relevant to authorized FBI counter- terrorism investigations. 50 U.S.C. § 1842(a)(1), (c)(2).

Moreover, the Act authorizes enforcement in any “court of competent jurisdiction,” which is defined to include “a court of general criminal jurisdiction of a State authorized by the law of that State to enter orders authorizing the use of a pen register or a trap and trace device.” 18 U.S.C. Section 3127(2). Perhaps because each of the federal statutory schemes cited by AT&T does, in fact, specifically reserve areas and functions for state law and state officials (and AT&T admits this fact at pages 16-17 of its supporting memorandum), AT&T also argues that complete federal preemption can and should be inferred over these proceedings.

The information that can be collected with a pen register device is set forth in federal statutes, as well as in pen register orders available to the public on PACER. For example, 18 U.S.C.S. § 3127(3) describes a “pen register” as “a device or process which records or decodes dialing, routing, addressing, or signaling information transmitted by an instrument or facility from which a wire or electronic communication is transmitted . . .” Further, a typical pen register order for a telephone describes the information to be collected as “numbers dialed to or pulsed from the subject cellular telephone number” and “the date and time of such dialings or pulsing.” (Ex.

Unlike the definition of “judge of competent jurisdiction” in the wiretapping provisions of Title III, the definition of “court of competent jurisdiction” in the Privacy Act specifically includes federal magistrates. See 18 U.S.C. § 3127(2)(A). Case: 3:16-cv-00539-wmc Document #: 84 Filed: 01/13/17 Page 14 of 25 15 In re United States, 10 F.3d 931, 935 (2d Cir. 1993).

By addressing the interplay between Sections 101 and 108, Chairman Sensenbrenner clarified that a court with jurisdiction of the offense refers to a court of competent jurisdiction, which as newly defined in 18 U.S.C. § 2711(3), “court of competent jurisdiction” has the meaning given that term in section 3127, which included and includes any Federal court within that definition, without geographic limitation. 18 U.S.C. § 3127(2)(B) defines a “court of competent jurisdiction" as “a court of general criminal jurisdiction of a State authorized by the law of that State to enter orders authorizing the use of a pen register or a trap and trace device…” Moreover, the Congressional Record for both the House of Representatives and the Senate each provide an accurate analysis of the applicable section of the final reconciled bill concerning what is meant by “jurisdiction”. On October 23, 2001, the House Congressional Record indicated that Section 220, “[p]ermits a single court having jurisdiction over the offense to issue a search warrant for e-mail that would be valid in [sic] anywhere in the United States.”