Chapter 13: Privacy Issues in Civil Litigation and Government Investigations
Preservation Orders and Pen Register / Trap-and-Trace
Under the SCA, a provider must preserve records on a government request pending a court order, similar to a litigation hold. Pen register and trap-and-trace orders issue on the lenient relevant to an ongoing investigation standard; the USA FREEDOM Act barred their use for bulk collection.
Under the SCA, a provider must, on a government request, take all necessary steps to preserve records pending a court order - the company must have the technical ability to do so. This Preservation order resembles a civil litigation hold.
ECPA allows Pen register and Trap-and-trace device orders on the lenient "relevant to an ongoing investigation" standard. The USA PATRIOT Act expanded their scope beyond telephone numbers to "dialing, routing, addressing, or signaling information." The USA FREEDOM Act prohibited their use for bulk collection in national security investigations, restricting them to specific selectors like an email address or phone number.
Key terms - quick answers
What is “Preservation order”?
An SCA requirement that a provider, on a government request, take all necessary steps to preserve records pending a court order or other process.
What is “Pen register”?
Traditionally a device recording the numbers of outgoing calls; the PATRIOT Act expanded it to dialing, routing, addressing, or signaling information.
What is “Trap-and-trace device”?
Traditionally a device recording the numbers calling into a particular number.