[Congressional Record Volume 143, Number 155 (Friday, November 7, 1997)]
[Senate]
[Pages S12059-S12061]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                 CLONE PAGER AUTHORIZATION ACT OF 1997

  Mr. LOTT. Mr. President, I ask unanimous consent that the Senate now 
proceed to the consideration of Calendar No. 166, S. 170.
  The PRESIDING OFFICER. The clerk will report the bill.
  The legislative clerk read as follows:

       A bill (S. 170) to provide for a process to authorize the 
     use of clone pagers, and for other purposes.

  There being no objection, the Senate proceeded to consider the bill.
  Mr. LEAHY. Mr. President, I am pleased to sponsor S. 170, the clone 
Pager authorization Act, and urge its speedy passage. This bill would 
enable law enforcement officers to gain quicker and easier access to an 
important investigatory tool, called a clone pager, which has proven 
invaluable in gathering evidence against gang members, drug traffickers 
and organized crime members.
  I was pleased to have helped improve this bill from the version 
introduced in the last congress. We included it in the juvenile crime 
bill, S. 15, that I sponsored along with other Democratic Members on 
the first day of this session and which the Democratic leader 
designated among our top legislative priorities.
  While pagers are, of course, used legitimately by millions of people, 
these devices are relied upon by gangsters and drug dealers to carry on 
their illicit business from roving offices that enable time to commit 
crimes no matter where they are at any time of day or night. Indeed, 
pagers are so popular among drug traffickers, these devices are 
considered a regular tool of the drug trade.
  A clone pager is programmed identically to the pager used by a 
suspected criminal so that it displays the same numbers transmitted to, 
and displayed on, the suspect's pager. A law enforcement officer using 
the clone pager is thereby able to receive the identical pager message 
at the same time as the targeted criminal.
  How does this help law enforcement? When a drug dealer moves about 
town conducting his illicit business, he can keep in constant touch 
with his criminal associates, including his drug suppliers and 
customers, by carrying a pager. Contacting the dealer wherever he may 
be is a simple matter of calling his pager. The drug dealer can then 
pull up to the nearest public telephone to return the call at the 
number displayed on his pager. A clone pager, which simultaneously 
displays the same call-back numbers received by the targeted drug 
dealer, alerts law enforcement officers to the telephone numbers used 
by the dealer's suppliers and associates, and through those numbers, 
their locations.
  To determine the telephone numbers of associates called by, or 
calling to, a criminal suspect's land-line or cellular telephone, law 
enforcement officers use a pen register or trap and trace device. Yet, 
when criminals opt to conduct their business using pagers-- often times 
to thwart police surveillance--law enforcement officers must obtain 
authority under the wiretap law to use a clone pager. Even though clone 
pagers reveal essentially the same information about the telephone 
numbers of associates calling the suspect as do pen register and trap 
and trace devices, the procedures for wiretap authorization are 
significantly more complicated and more time--consuming than those to 
obtain authority for

[[Page S12060]]

use of pen register and trap and trace devices. The additional 
procedural hurdles necessary to use clone pagers benefit only the 
criminal.
  This bill would permit law enforcement to use a clone pager based on 
the same form of court authorization necessary to use a pen register or 
trap and trace device. In fact, certain of the requirements for wiretap 
authorization simply make no sense when the investigatory tool being 
authorized is a clone numeric pager.
  Thus, courts confronted with defense motions to suppress evidence 
derived from clone pagers for failure to comply with wiretap procedures 
have concluded that certain statutory requirements for wiretaps do not 
apply. For example, since clone numeric pagers do not reveal the 
content of any conversation or even whether any conversation actually 
occurred, courts have found that it is impossible to minimize clone 
numeric pager interceptions as is required for interceptions of wire, 
oral or electronic communications. See, e.g., U.S. v. Bautista, 1992 
U.S. App. LEXIS 16829, 7 (4th Cir. 1992); U.S. v. tutino, 883 F.2d 
1125, 1141 (2d Cir. 1989), cert. denied, 493 U.S. 1081 (1990) 
(``minimization requirements cannot reasonably be applied to clone 
beepers''); U.S. v. Gambino, 1995 U.S. Dist. LEXIS 10689, 7 (S.D.N.Y. 
1995).
  Furthermore, since the numbers captured from clone numeric pagers are 
usually manually, rather than electronically or mechanically, recorded 
by law enforcement officers, courts have concluded that the recordation 
and sealing requirements of the wiretap law have limited utility and 
refused to suppress for failure to comply with these requirements. U.S. 
v. Suarez, 906 F.2d 977, 984 (4th Cir. 1990) U.S. v. Paredes-Moya, 722 
F. Supp. 1402, 1408 (N.D. Tex. 1989).
  Instead of providing fodder for defense motions, the time is long 
overdue for Congress to apply common sense and require law enforcement 
to follow more appropriate procedures--no more and no less--to obtain 
authorization to use clone numeric pagers.
  this bill would conform the requirements to obtain legal 
authorization for use of a clone pager to those for use of a pen 
register or trap and trace device. As one court recognized, ``[u]nlike 
telephone wiretaps, duplicate paging devices reveal only numbers, not 
the content of conversation. In this way they are similar to pen 
registers.'' U.S. v. Tutino, supra, 883 F.2d at 1141. Specifically, the 
bill would authorize a Federal court to issue an order authorizing the 
use of a clone numeric display pager to receive the communications 
intended for another such pager, upon certification of an attorney for 
the government or law enforcement officer that the information likely 
to be obtained is relevant to an ongoing criminal investigation.

  This new authority would be limited to clone numeric display pagers, 
not more sophisticated pagers that transmit and receive written or oral 
textual messages. The only communications obtained from, and displayed 
on, clone numeric display pagers are numbers dialed into a telephone 
for transmission to the suspect's pager--just like the information 
obtained from a pen register or trap and trace device.
  These numbers usually are callback telephone numbers, but may also 
include other incidental or coded numbers. Such incidental or coded 
numbers are also captured by pen register or trap and trace devices. 
The capturing of incidental or coded numbers by pen registers prompted 
Congress to require in the 1994 Communications Assistance for Law 
Enforcement Act [CALEA] that technology ``reasonably available'' be 
used to restrict the recording or decoding of numbers to the ``dialing 
or signaling information utilized in call processing.'' 18 U.S.C. 
Sec. 3121(c).
  Tone-only paging devices are already completely exempt from the 
wiretap law, as amended in 1986 by the Electronic Communications 
Privacy Act [ECPA]. The ECPA extended the protections of Title III of 
the Omnibus Crime Control and Safe Streets Act of 1968 (``Title III'') 
to unauthorized interceptions of ``electronic communications.'' My main 
purpose in sponsoring ECPA was, as the Senate Report indicates, ``to 
update and clarify Federal privacy protections and standards in light 
of dramatic changes in new computer and telecommunications 
technologies.'' S. Rep. No. 541, 99th Cong., 2d Sess. 1, reprinted in 
1986 U.S. Code Cong. & Admin. News 3555, 3555. Alphanumeric display 
pagers, which visually display both numbers and letters, and 
sophisticated tone and voice pagers should, in my view, continue to be 
subject to the wiretap authorization procedures. The nature of the 
communication captured by numeric display pagers, however, is so akin 
to the information obtained by pen register and trap and trace devices, 
that the procedures and standards for their authorized use by law 
enforcement should be equalized.
  As criminals use technological advances for their own ill purposes, 
Congress must continue, as we did with ECPA and CALEA, to give law 
enforcement the reasonable authority it needs to keep up, while 
protecting legitimate privacy interests. This bill does so, and I 
support its passage.
  Passage of this bill will not mean the end of our work in this area, 
however. The judicial role in approving the use of pen register and 
trap and trace devices is severely limited and, in fact, relegates 
judges to merely a ministerial role. U.S. v. Fregoso, 60 F.3d 1314, 
1320 (8th Cir. 1995); U.S. v. Hallmark, 911 F.2d 399, 402 (10th cir. 
1990); In re Order Authorizing Installation of Pen Reg., 846 F. Supp. 
1555, 1558-59 (M.D. Fla. 1994). The court's limited role is to confirm, 
first, the identity of the applicant and investigating law enforcement 
agency, and second, certification from the applicant that the 
information sought is relevant to an ongoing investigation. See 18 
U.S.C. Sec. Sec. 3121-3127.
  Significantly, the judge is not authorized to review, let alone 
question, the basis for the relevancy determination. If the appropriate 
certification appears, the judge must authorize the pen register or 
trap and trace device. This is an anomalous limitation on the judicial 
role. While relevance to an ongoing criminal investigation remains an 
appropriate basis for use of a pen register or trap and trace device, 
Congress should reexamine the limitation on judicial authority to 
review this determination. This remains unfinished business.
  Mr. LOTT. Mr. President, I ask unanimous consent that the bill be 
considered read a third time and passed, the motion to reconsider be 
laid upon the table, and that any statements relating to this bill 
appear at the appropriate place in the Record.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The bill (S. 170) was read a third time and passed, as follows:

                                 S. 170

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Clone Pager Authorization 
     Act of 1996''.

     SEC. 2. WIRE AND ELECTRONIC COMMUNICATIONS.

       (a) Definitions.--Section 2510(12) of title 18, United 
     States Code, is amended--
       (1) in subparagraph (B), by striking ``or'' at the end;
       (2) in subparagraph (C), by adding ``or'' at the end; and
       (3) by adding at the end the following:
       ``(D) any communication made through a clone pager (as that 
     term is defined in section 3127).''
       (b) Prohibition.--Section 2511(2)(h) of title 18, United 
     States Code, is amended by striking clause (i) and inserting 
     the following:
       ``(i) to use a pen register, a trap and trace device, or a 
     clone pager (as those terms are defined for the purposes of 
     chapter 206 (relating to pen registers, trap and trace 
     devices, and clone pagers)); or''.

     SEC. 3. AMENDMENT OF CHAPTER 206.

       Chapter 206 of title 18, United States Code, is amended--
       (1) in the chapter heading, by striking ``AND TRAP AND 
     TRACE DEVICES'' and inserting ``, TRAP AND TRACE DEVICES, AND 
     CLONE PAGERS'';
       (2) in the chapter analysis--
       (A) by striking ``and trap and trace device'' each place 
     that term appears and inserting ``, trap and trace device, 
     and clone pager'';
       (B) by striking ``and trap and trace devices'' and 
     inserting ``, trap and trace devices, and clone pagers''; and
       (C) by striking ``or a trap and trace device'' each place 
     that term appears and inserting ``, a trap and trace device, 
     or a clone pager'';
       (3) in section 3121--
       (A) in the section heading, by striking ``and trap and 
     trace device'' and inserting ``, trap and trace device, and 
     clone pager''; and
       (B) by striking ``or a trap and trace device'' each place 
     that term appears and inserting ``, a trap and trace device, 
     or a clone pager'';
       (4) in section 3122--
       (A) in the section heading by striking ``or a trap and 
     trace device'' and inserting ``, a trap and trace device, or 
     a clone pager'';

[[Page S12061]]

       (B) by striking ``or a trap and trace device'' each place 
     that term appears and inserting ``, a trap and trace device, 
     or a clone pager'';
       (5) in section 3123--
       (A) in the section heading, by striking ``or a trap and 
     trace device'' and inserting ``, a trap and trace device, or 
     a clone pager'';
       (B) by striking subsection (a) and inserting the following:
       ``(a) In General.--Upon an application made under section 
     3122, the court shall enter an ex parte order authorizing the 
     installation and use of a pen register or a trap and trace 
     device within the jurisdiction of the court, or of a clone 
     pager for which the service provider is subject to the 
     jurisdiction of the court, if the court finds that the 
     attorney for the Government or the State law enforcement or 
     investigative 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.'';
       (C) in subsection (b)(1)--
       (i) in subparagraph (A), by inserting before the semicolon 
     the following: ``, or, in the case of a clone pager, the 
     identity, if known, of the person who is the subscriber of 
     the paging device, the communications to which will be 
     intercepted by the clone pager'';
       (ii) in subparagraph (C), by inserting before the semicolon 
     the following: ``, or, in the case of a clone pager, the 
     number of the paging device, communications to which will be 
     intercepted by the clone pager''; and
       (iii) in paragraph (2), by striking ``or trap and trace 
     device'' and inserting ``, trap and trace device, or clone 
     pager'';
       (D) in subsection (c), by striking ``or a trap and trace 
     device'' and inserting ``, a trap and trace device, or a 
     clone pager''; and
       (E) in subsection (d)--
       (i) in the subsection heading, by striking ``or a Trap and 
     Trace Device'' and inserting ``, Trap and Trace Device, or 
     Clone Pager''; and
       (ii) in paragraph (2), by inserting ``or the paging device, 
     the communications to which will be intercepted by the clone 
     pager,'' after ``attached,'';
       (6) in section 3124--
       (A) in the section heading, by striking ``or a trap and 
     trace device'' and inserting ``, a trap and trace device, or 
     a clone pager'';
       (B) by redesignating subsections (c) through (f) as 
     subsections (d) through (g), respectively; and
       (C) by inserting after subsection (b) the following:
       ``(c) Clone Pager.--Upon the request of an attorney for the 
     Government or an officer of a law enforcement agency 
     authorized to acquire and use a clone pager under this 
     chapter, a Federal court may order, in accordance with 
     section 3123(b)(2), a provider of a paging service or other 
     person, to furnish to such investigative or law enforcement 
     officer, all information, facilities, and technical 
     assistance necessary to accomplish the operation and use of 
     the clone pager 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 
     programming and use is to take place.'';
       (7) in section 3125--
       (A) in the section heading, by striking ``and trap and 
     trace device'' and inserting ``, trap and trace device, and 
     clone pager'';
       (B) in subsection (a)--
       (i) by striking ``or a trap and trace device'' and 
     inserting ``, a trap and trace device, or a clone pager''; 
     and
       (ii) by striking the quotation marks at the end; and
       (C) by striking ``or trap and trace device'' each place 
     that term appears and inserting ``, trap and trace device, or 
     clone pager'';
       (8) in section 3126--
       (A) in the section heading, by striking ``and trap and 
     trace devices'' and inserting ``, trap and trace devices, and 
     clone pagers''; and
       (B) by inserting ``or clone pagers'' after ``devices''; and
       (9) in section 3127--
       (A) by redesignating paragraphs (5) and (6) as paragraphs 
     (6) and (7), respectively; and
       (B) by inserting after paragraph (4) the following:
       ``(5) the term `clone pager' means a numeric display device 
     that receives communications intended for another numeric 
     display paging device;''.

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