614 – Use of Pen Registers

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Policy

It is the Policy of the Harris County Sheriff’s Office (HCSO) to utilize every lawful investigative tool. Pen registers, electronic serial number readers (ESN), and similar equipment are extremely valuable investigative tools. This policy is meant to encourage the lawful and appropriate use of pen registers, ESN and similar equipment while respecting the rights and privacy of all individuals. The scope of this policy is for use in non-emergency situations.

Texas Department of Public Safety Approval

Texas Code of Criminal Procedure Chpt. 18.21 (J) requires each designated law enforcement office (in this case the HCSO) to submit a written policy such as this to the Director of the Texas Department of Public Safety for approval.

Definitions

“Pen register” means a device or process that records or decodes dialing, routing, addressing, or signaling information transmitted by an instrument or facility from which a wire or electronic communication is transmitted, if the information does not include the contents of the communication. The term does not include a device used by a provider or a customer of a wire or electronic communication service in the ordinary course of the provider’s or customer’s business for purposes of:

  1. Billing or recording as an incident to billing for communications services; or
  2. Cost accounting, security control, or other ordinary business purposes.
  3. “ESN reader” means a device that records the electronic serial number from the data track of a wireless telephone, cellular telephone, or similar communication devise that transmits its operational status to a base site, if the device does not intercept the contents of a communication.

NOTE: Throughout this policy, the term “pen register” will be used and is meant to broadly refer to the legal definition of “pen register, ESN reader, or similar equipment” collectively. It is also important to note that the primary use of pen registers today in law enforcement is in regards to cellular telephones. Commonly throughout the country, a cellular telephone pen register is referred to as CALEA delivery. CALEA is an acronym representing the federal Communications Assistance to Law Enforcement Act of 1994 (effective 1995). CALEA mandates that communication carriers, including cell phone companies, voice over internet protocol (VOIP) phone providers, landline telephone companies, and even internet companies, such as email providers and internet traffic, be able to provide law enforcement real-time information in a standardized format on the use of communications services by those under electronic surveillance pursuant to a lawful legal demand.

Historically, the term pen register originated from a device that was placed on landline telephone lines that would monitor the physical telephone wires and would record the numbers that were dialed on a target telephone line. The original pen registers had physical pens like a typewriter and the dialed numbers would be recorded on rolls of paper like a cash register. Today however, essentially all pen register data is captured and reported electronically and in the case of cell phones for example, there is no longer a physical device. The existing pen register laws have been construed to now apply to any process in which real-time outgoing dialed digits are accessed by law enforcement in real-time. In most cases, law enforcement will see this data on a computer; therefore, there is very little use of any actual physical devices anymore.

Policy Restated

If the HCSO wishes to make use of pen registers, ESN readers, or similar equipment in standard, non-emergency investigations, the Sheriff of Harris County, Texas will designate at least one Supervisory Sergeant within the Homeland Security Bureau who is assigned to the Gulf Coast Violent Offenders and Fugitive Task Force who is authorized to operate a pen register, ESN reader, or similar equipment in standard, non-emergency investigations. This supervisor will oversee the officer’s compliance with applicable laws in regards to the HCSO’s use of pen registers in standard, non-emergency investigations.

Deputies/Task Force Officers who are assigned to other various federal task forces must also be in compliance with both Texas Code of Criminal Procedure Chapter 18.21 and HCSO department policy.

Nothing in this policy is intended to prohibit any deputy from operating a pen register, ESN reader, or similar equipment in an emergency situation as defined by state law, provided that the deputy has met the requirements for operation of said equipment in an emergency situation. As well, nothing in this policy is meant to restrict a deputy from pursuing a federal investigation/pen register court order given the appropriate cooperation from a United States Attorney’s Office/Department of Justice, so long as the deputy is in compliance with all applicable laws. The policy is primarily meant to apply to compliance with the laws of the State of Texas.

Gulf Coast Violent Offenders & Fugitive Task Force – Supervisory Requirements

At a minimum, the designated Supervisory Sergeant will be properly trained and knowledgeable on the legal and technical issues regarding the following:

  1. The legal issues regarding the application for a pen register order under Texas and federal law.
  2. The legal issues regarding the issuance of a pen register court order under Texas and federal law.
  3. The legal requirements regarding who may be designated within Texas and within the HCSO to operate pen registers in non-emergency situations.
  4. The procedures for applying to a District Attorney’s/prosecutor’s office for issuance of a pen register order.
  5. The legal issues regarding the improper use of pen registers, including; possible suppression of evidence, possible revocation of authority from DPS to operate pen registers in standard non-emergency situations, possible civil liability, and, possible felony criminal sanctions that may be levied against employees for the illegal/improper operation of a pen register, ESN reader, or similar equipment.
  6. The investigative use of communications data.

The designated Supervisory Sergeant(s) will personally operate and/or will oversee the operation of any pen register that the HCSO conducts. This includes reviewing all court orders to ensure that the order is valid and ensuring that the policies outlined here are followed.

Gulf Coast Violent Offenders & Fugitive Task Force – Required List of Officers

Prior to authorizing the non-emergency investigative use of pen registers by a Harris County deputy of any rank, the Sheriff will submit this policy to DPS for approval. After approval is obtained from DPS, the designated Supervisory Sergeant will create a list of select deputies of the department who are thoroughly trained in the investigative (non-emergency) use of pen register for the purpose of operations under this policy. This list of deputies will be updated as necessary to document which deputies are authorized to operate pen registers in standard, non-emergency situations. After designation by the Sheriff, the list of designated deputies will be submitted to DPS. This list will be resubmitted to DPS whenever a deputy is added to or removed from the designated list. A current list is maintained at the Bureau level.

Procedures

Gulf Coast Violent Offenders & Fugitive Task Force – Case investigator Responsibilities / Request for Installation of a Pen Register

The case investigator requesting the installation of a pen register shall prepare a communication addressed to the Supervisory Sergeant within the Homeland Security Bureau who is assigned to the Gulf Coast Violent Offenders Task Force that is approved by the case investigator’s supervisors.

The communication will contain the following information:

  1. Target telephone(s) /device(s) number(s) and the servicing communications company (ies);
  2. Incident number;
  3. Believed location of the telephone(s)/device(s) in the cases of movable telephone(s)/device(s) such as cellular telephones, or the specific address (es) of the telephone(s)/device(s) in the case of stationary telephone(s)/devices(s) such as landline telephones. If known, the listed subscriber(s) (according to communications company records), or the target(s) believed to be using the telephone(s)/device(s);
  4. A brief synopsis of the case and the reason(s) for requesting the pen register; and
  5. A statement indicating whether a state or federal court order will be secured.

In regards to the target case, a copy of any subpoenaed and/or obtained communications’ company (ies) records obtained up to the date and time of the request. If available, these records should list all telephone(s)/Device(s) subscribed to or installed on those telephone(s)/device(s) (i.e., call forwarding, speed dialing, etc.), shall be attached to the request.

The communication records should be forwarded to the Supervisory Sergeant within the Homeland Security Bureau who is assigned to the Gulf Coast Violent Offenders and Fugitive Task Force for processing and will be maintained in a database. All requests for assistance will be documented, whether or not a pen register is actually applied for and/or operated. As well, a database of all pen registers that are applied for and/or operated will be maintained as well. Each installed pen register will be logged with a specific case number.

These records will be available for review by the Supervisory Sergeant with the Homeland Security Bureau who is assigned to the Gulf Coast Violent Offenders and Fugitive Task Force through the chain of command to the Sheriff.

A Supervisory Sergeant within the Homeland Security Bureau who is assigned to the Gulf Coast Violent Offenders and Fugitive Task Force, or designee, will personally approve any request for a pen register application.

The case investigator shall also indicate in the request what division(s) will be responsible for the financial costs of the pen register(s) that is billed by the communications carrier(s). Investigators need to be aware that the financial costs of the pen register may not always be financed by the Homeland Security Bureau. The case investigator will also indicate whether any other agency or unit has conducted electronic surveillance and/or communications records analysis on the case, and, will advise the Supervisory Sergeant within the Homeland Security Bureau who is assigned to the Gulf Coast Violent Offenders and Fugitive Task Force at any point(s) in the future when any other agency or unit conducts, or plans to conduct, electronic surveillance and/or communications records analysis on the case.

If a federal court order is to be utilized, it will be the responsibility of the case investigator to secure the federal court order from the proper authority. The federal court order and any accompanying affidavit and/or application will also be approved by a Supervisory Sergeant with the Homeland Security Bureau who is assigned to the Gulf Coast Violent Offenders and Fugitive Task Force. Note: The HCSO must be named in the order as authorized to install and operate the pen register in order for the HCSO to have legal authority to install and/or operate the pen register.

If a state court order is to be utilized, the Supervisory Sergeant or designee within the Homeland Security Bureau who is assigned to the Gulf Coast Violent Offender and Fugitive Task Force will prepare the required paperwork with the assistance of the requesting investigator(s), utilizing information provided by the case investigator(s). Prior to presentation to a district court judge with jurisdiction pursuant to Art. 18.21 Texas Code of Criminal Procedure, Sec. 2, the affidavit, application, and court order will also be approved by the Harris County District Attorney’s Office, or, the prosecutor in the appropriate jurisdiction.

The case investigator will be responsible for coordinating with the Supervisory Sergeant with the Homeland Security Bureau who is assigned to the Gulf Coast Violent Offender and Fugitive Task Force. For the proper date and time to have the order presented for issuance, to ensure that the communications company (ies) have time to complete any required preparation.

The case investigator will provide the Supervisory Sergeant within the Homeland Security Bureau who is assigned to the Gulf Coast Violent Offenders and Fugitive Task Force with a signed copy of the affidavit, application, and order prior to beginning any installation. The Supervisory Sergeant will ensure that the order complies with all applicable laws and the Supervisory Sergeant or his or her designee will maintain a clear and legible copy of the court order and any accompanying documents. As well, the case investigator will maintain a clear and legible copy of the court order and any accompanying documents, including maintaining an original signed copy if the prosecutor’s office does not maintain an original signed copy.

The Supervisory Sergeant or his or her designee within the Homeland Security Bureau who is assigned to the Gulf Coast Violent Offenders and Fugitive Task Force will be responsible for serving the order on the communications company (ies).

All legal questions and any required changes should be discussed and resolved by the Supervisory Sergeant and/or the affected District Attorney or United States Attorney.

Deputy/Task Force Officers (DEA / HIDTA, ATF, HSI): Request for Installation of a Pen Register

When obtaining a non-emergency, court ordered pen register/ping order, Deputy/Task Force Officers assigned to the Drug Enforcement Administration (DEA)/High Intensity Drug Trafficking Area (HIDTA), Alcohol, Tobacco and Firearms (ATF) and Homeland Security Investigations (HSI) must adhere to the following procedure:

The deputy/task force officer’s name must be on the list maintained by the Deputy Commander/Lieutenant of the Homeland Security Bureau or his or her designee and with the Texas Department of Public Safety.

Deputy/Task Force Officers must contact his or her first line supervisor to advise him or her of the pending request and justification to the request.

Deputy/Task Force Officers are responsible for drafting his or her own probable cause statement/affidavit in order to obtain the warrant/court order.

NOTE: Verbiage in the court orders obtained for pen registers must match the same legal standard and definition as is required to apply for a warrant for the incident and knowledge of intent to operate a pen register/ping order.

Once the affidavit for the warrant/court order has been finalized, the Deputy/Task Force Officer will subsequently present the request to a Special Prosecutor assigned to the Harris County District Attorney’s Office.

DO NOT utilize the District Attorney’s Office regular intake.

Once the warrant/order has been approved by the Special Prosecutor it must be signed by a State District Judge; not a magistrate.

Ensure any and all funding associated with the request will be funded by the respective federal law enforcement agency.  

NOTE: The Harris County Sheriff’s Office will not be responsible for any cost associated with the issuance of these specific requests.

Deputy/Task Force Officers shall take the signed document to his or her respective federal agency and have the Telecommunications Specialist or other specifically designated representative execute the warrant/order.

Per the Harris County District Attorney’s Office, the person executing the order must include a caveat in the e-mail to the service provider stating he or she is executing the request on behalf of the “Task Force Officer” who is a Peace Officer in the state of Texas.

The return portion of the warrant/order must be returned to the Special Prosecutor’s Office where it will be maintained.

All telecommunication and internet court orders shall be sealed as a matter of state and federal law.

The Deputy/Task Force Officer is responsible for the preservation of any and all information derived from the ping. The retrieved information/data shall be submitted into the Harris County Sheriff’s Office Property Room, or federal law enforcement partner property vault and maintained as a part of the case file.

Request for Extension of a Pen Register

The case investigator/Task Force Officer will be responsible for notifying his or her Administrative Supervisor the Homeland Security Bureau at least seven (7) working days prior to the expiration date of the current order of his or her intent to apply for an extension of the initial court order authorization.

Deputy/Task Force Officers assigned to the Drug Enforcement Administration (DEA) / High Intensity Drug Trafficking Area (HIDTA), Alcohol, Tobacco and Firearms (ATF) and Homeland Security Investigations (HSI) will be responsible for notifying the Deputy Commander/Lieutenant of the Homeland Security Bureau or his or her designee.

The case investigator or deputy/task force officer will prepare a communication addressed to his or her Administrative Supervisor, requesting approval to apply for an extension order to continue the operation of the pen register beyond the original sixty (60) day period.

The communication must cite the reason(s) for requesting the extension. Failure to notify the Administrative Supervisor will result in the pen register being terminated no later than the expiration of the original order.

The Administrative Supervisor will oversee the preparation of a communication to the prosecutor to obtain authorization for an extension order and will approve an application for an extension, working with the case investigator and prosecutor to develop the application request. As well, the prosecutor must approve the request for an extension application prior to presentation to a district court judge.

NOTE: Deputy/Task Force Officers assigned to the Drug Enforcement Administration (DEA) / High Intensity Drug Trafficking Area (HIDTA), Alcohol, Tobacco and Firearms (ATF) and Homeland Security Investigations (HSI) will be responsible for the above preparations.

If approved, the case investigator/Task Force Officer will provide the Administrative Supervisor within the Homeland Security Bureau with a signed copy of the extension application and order prior to any extension being implemented

The Administrative Supervisor will ensure that the extension order complies with all applicable laws and will maintain a clear and legible copy of the extension court order and any accompanying documents.

If the prosecutor’s office does not maintain an original signed copy, the case investigator/Task Force Officer will maintain a clear and legible copy of the court order extension and any other accompanying documents.

The Administrative Supervisor or his or her designee within the Homeland Security Bureau will be responsible for serving the communications company (ies) with the extension order and all initial procedures will apply.

Documented and Reported Expenditures

In compliance with state law (Texas Code of Criminal Procedure, Chpt. 18.21 Sec. 2) the HCSO will maintain a yearly account of all expenditures for the purchase and maintenance of pen registers, ESN Readers, or similar equipment. The Sheriff of Harris County will submit the previous year’s total of these expenditures to the DPS in January of each year. The designated Supervisory Sergeant will prepare this yearly letter to the DPS for the Sheriff to forward to the DPS. This letter will be sent annually whether or not expenditures were made.

DPS Audit Authority

The HCSO is fully aware that the DPS is the state agency governing the standard (non-emergency) investigative use of pen registers. The HCSO is also aware that the DPS has sole authority to audit the HCSO’s use of pen registers in such cases. The HCSO intends to cooperate fully with any such audit that may be conducted and is also aware that the DPS may revoke the HCSO designation to operate pen registers in standard non-emergency, investigative situations if the HCSO is not in compliance with this policy and/or all applicable laws. The HCSO will work with DPS to ensure compliance with all applicable laws and the use of a department policy that is agreeable to DPS.

                                                                                    Ed Gonzalez

                                                                                    Sheriff of Harris County, Texas

Revision:

This policy has been revised on the below listed dates:

January 25, 2014

August 6, 2015

January 3, 2019

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