                                 CODE OF VIRGINIA

APPLICATION FOR AND ISSUANCE OF ORDER FOR A PEN REGISTER OR TRAP AND TRACE
DEVICE; ASSISTANCE IN INSTALLATION AND USE (§ 19.2-70.2)

A. An investigative or law-enforcement officer may make application for an order
or an extension of an order authorizing or approving the installation and use of
a pen register or a trap and trace device, in writing under oath or equivalent
affirmation, to a court of competent jurisdiction. The application shall
include:

   1. The identity of the officer making the application and the identity of the
   law-enforcement agency conducting the investigation; and

   2. A certification by the applicant that the information likely to be obtained
   is relevant to an ongoing criminal investigation being conducted by that
   agency.
   				The application may include a request that the order require information,
   facilities and technical assistance necessary to accomplish the installation
   be furnished.

B. An application for an ex parte order authorizing the installation and use of
a pen register or trap and trace device may be filed in the jurisdiction where
the ongoing criminal investigation is being conducted; where there is probable
cause to believe that an offense was committed, is being committed, or will be
committed; or where the person or persons who subscribe to the wire or
electronic communication system live, work, or maintain an address or a post
office box. For the purposes of an order entered pursuant to this section for
the installation and use of a pen register or trap and trace device, such
installation shall be deemed to occur in the jurisdiction where the order is
entered, regardless of the physical location or the method by which the
information is captured or routed to the law-enforcement officer that made the
application. Upon application, the court shall enter an ex parte order
authorizing the installation and use of a pen register or a trap and trace
device if the court finds that the investigative or law-enforcement officer has
certified to the court that the information likely to be obtained by such
installation and use is relevant to an ongoing criminal investigation.
			The order shall specify:

   1. The identity, if known, of the person in whose name the telephone line or
   other facility to which the pen register or trap and trace device is to be
   attached or applied is listed or to whom the line or other facility is leased;

   2. The identity, if known, of the person who is the subject of the criminal
   investigation;

   3. The attributes of the communications to which the order applies, including
   the number or other identifier and, if known, the location of the telephone
   line or other facility to which the pen register or trap and trace device is
   to be attached or applied; and

   4. A statement of the offense to which the information likely to be obtained
   by the pen register or trap and trace device relates.

C. Installation and use of a pen register or a trap and trace device shall be
authorized for a period not to exceed 60 days. Extensions of the order may be
granted, but only upon application made and order issued in accordance with this
section. The period of an extension shall not exceed 60 days.

D. 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 and application be sealed until otherwise ordered by the court;

   2. Information, facilities and technical assistance necessary to accomplish
   the installation be furnished if requested in the application; and

   3. The person owning or leasing the line or other facility to which the pen
   register or trap and trace device is attached or applied, or who is obligated
   by the order 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.

E. Upon request of an investigative or a law-enforcement officer authorized by
the court to install and use a pen register, a provider of wire or electronic
communication service, a landlord, custodian or any other person so ordered by
the court shall, as soon as practicable, furnish the officer with 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.

F. Upon request of an investigative or law-enforcement officer authorized by the
court to receive the results of a trap and trace device under this section, a
provider of wire or electronic communication service, a landlord, custodian or
any other person so ordered by the court shall, as soon as practicable, install
the device on the appropriate line and furnish the officer with all additional
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. Unless otherwise
ordered by the court, the results of the trap and trace device shall be
furnished to the investigative or law-enforcement officer designated by the
court at reasonable intervals during regular business hours for the duration of
the order. Where the law-enforcement agency implementing an ex parte order under
this subsection seeks to do so by installing and using its own pen register or
trap and trace device on a packet-switched data network of a provider of
electronic communication service to the public, the agency shall ensure that a
record will be maintained that will identify (i) any officer or officers who
installed the device and any officer or officers who accessed the device to
obtain information from the network; (ii) the date and time the device was
installed, the date and time the device was uninstalled, and the date, time, and
duration of each time the device is accessed to obtain information; (iii) the
configuration of the device at the time of its installation and any subsequent
modification thereof; and (iv) any information that has been collected by the
device. To the extent that the pen register or trap and trace device can be set
automatically to record this information electronically, the record shall be
maintained electronically throughout the installation and use of such device.
The record maintained hereunder shall be provided ex parte and under seal of the
court that entered the ex parte order authorizing the installation and use of
the device within 30 days after termination of the order, including any
extensions thereof.

G. A provider of a wire or electronic communication service, a landlord,
custodian or other person who furnishes facilities or technical assistance
pursuant to this section shall be reasonably compensated for reasonable and
actual expenses incurred in providing such facilities and assistance. The
expenses shall be paid out of the criminal fund.

H. When disclosure of real-time location data is not prohibited by federal law,
an investigative or law-enforcement officer may obtain a pen register or trap
and trace device installation without a court order, in addition to any
real-time location data obtained pursuant to subsection E of § 19.2-70.3, in
the following circumstances:

   1. To respond to a user&#8217;s call for emergency services;

   2. With the informed, affirmative consent of the owner or user of the
   electronic device concerned if (i) the device is in his possession, (ii) the
   owner or user knows or believes that the device is in the possession of an
   employee or agent of the owner or user with the owner&#8217;s or user&#8217;s
   consent, or (iii) the owner or user knows or believes that the device has been
   taken by a third party without the consent of the owner or user;

   3. With the informed, affirmative consent of the legal guardian or next of kin
   of the owner or user, if reasonably available, if the owner or user is
   reasonably believed to be deceased, is reported missing, or is unable to be
   contacted;

   4. To locate a child who is reasonably believed to have been abducted or to be
   missing and endangered; or

   5. If the investigative or law-enforcement officer reasonably believes that an
   emergency involving the immediate danger to a person requires the disclosure,
   without delay, of pen register and trap and trace data, or real-time location
   data pursuant to subsection E of &#xA7; 19.2-70.3, concerning a specific
   person and that a court order cannot be obtained in time to prevent the
   identified danger.
   				No later than three business days after seeking the installation of a pen
   register or trap and trace device pursuant to this subsection, the
   investigative or law-enforcement officer seeking the installation shall file
   with the appropriate court a written statement setting forth the facts giving
   rise to the emergency and the reasons why the installation of the pen register
   or trap and trace device was believed to be important in addressing the
   emergency.

I. No cause of action shall lie in any court against a 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 issued pursuant to this section. Good
faith reliance on a court order, a legislative authorization or a statutory
authorization is a complete defense against any civil or criminal action based
upon a violation of this chapter.

HISTORY: 1988, c. 889; 2002, cc. 588, 623; 2005, c. 934; 2016, c. 231; 2018, c.
667.