Electronic Communications Privacy Act

"ECPA" redirects here. For the Christian publishers association, see Evangelical Christian Publishers Association.

The Electronic Communications Privacy Act is a United States law.

Overview

The “electronic communication” means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system that affects interstate or foreign commerce, but does not include (A) any wire or oral communication; (B) any communication made through a tone-only paging device; (C) any communication from a tracking device (as defined in section 3117 of this title); or (D) electronic funds transfer information stored by a financial institution in a communications system used for the electronic storage and transfer of funds.

Title I of the ECPA protects wire, oral, and electronic communications while in transit. It sets down requirements for search warrants that are more stringent than in other settings. Title II of the ECPA, the Stored Communications Act (SCA), protects communications held in electronic storage, most notably messages stored on computers. Its protections are weaker than those of Title I, however, and do not impose heightened standards for warrants. Title III prohibits the use of pen register and/or trap and trace devices to record dialing, routing, addressing, and signalling information used in the process of transmitting wire or electronic communications without a court order.

History

The Electronic Communications Privacy Act of 1986 (ECPA, Pub.L. 99-508, 100 Stat. 1848, enacted October 21, 1986, codified at 18 U.S.C. §§ 2510–2522) was enacted by the United States Congress to extend government restrictions on wire taps from telephone calls to include transmissions of electronic data by computer. Specifically, ECPA was an amendment to Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (the Wiretap Statute), which was primarily designed to prevent unauthorized government access to private electronic communications.

The ECPA also added new provisions prohibiting access to stored electronic communications, i.e., the Stored Communications Act,18 U.S.C. §§ 2701-12. The ECPA also included so-called pen/trap provisions that permit the tracing of telephone communications. §§ 3121-27. Later, the ECPA was amended, and weakened to some extent, by some provisions of the USA PATRIOT Act. In addition, Section 2709 of the Act, which allowed the FBI to issue National Security Letters (NSLs) to Internet service providers (ISPs) ordering them to disclose records about their customers, was ruled unconstitutional under the First and Fourth Amendments in ACLU v. Ashcroft (2004). It is thought that this could be applied to other uses of National Security Letters.

Summaries of the decisions about the act

Several court cases have raised the question of whether e-mail messages are protected under the stricter provisions of Title I while they were in transient storage en route to their final destination. In United States v. Councilman, a U.S. district court and a three-judge appeals panel ruled they were not, but in 2005, the full United States Court of Appeals for the First Circuit reversed this opinion. Privacy advocates were relieved; they had argued in Amicus curiae briefs that if the ECPA did not protect e-mail in temporary storage, its added protections were meaningless as virtually all electronic mail is stored temporarily in transit at least once and that Congress would have known this in 1986 when the law was passed. (see, e.g., RFC 822).

The seizure of a computer, used to operate an electronic bulletin board system, and containing private electronic mail which had been sent to (stored on) the bulletin board, but not read (retrieved) by the intended recipients, doesn't constitute an unlawful intercept under the Federal Wiretap Act, 18 U.S.C. s 2510, et seq., as amended by Title I of the Electronic Communications Privacy Act of 1986, Title I. Government may track cell phone, in real time, without search warrant, under Electronic Communications Privacy Act (ECPA), by analyzing information as to antennae being contacted by cell phones, so long as tracking does not involve cell phone being used in private place where visual surveillance would not be available.

In "WebcamGate", Rollins v. Lower Merion School District (2010), plaintiffs charged that two suburban Philadelphia high schools secretly spied on students by surreptitiously and remotely activating webcams embedded in school-issued laptops the students were using at home, violating the Act. The schools admitted to secretly snapping over 66,000 webshots and screenshots, including webcam shots of students in their bedrooms.

Criticism

The ECPA has been met with criticism through the years including its failure to protect all communications and consumer records. Under the ECPA it is relatively easy for a governmental agency to demand service providers hand over consumer data that has been stored on servers. All that is required of the agency is a written statement certifying that the information is relevant to an investigation of foreign counterintelligence with no judicial review required. It also increased the list of crimes that can justify the use of surveillance as well as the number of judicial members who can authorize such surveillance. Data can be obtained without a warrant on traffic and calling patterns of an individual or group allowing an agency to gain valuable intelligence and possibly invade privacy without coming under fire because the actual content of the communication is left untouched. While workplace communications are in theory protected an employer must simply give notice or a supervisor must feel that the employee’s actions are not in the company’s “interest” to gain access to communiqué. This means that with minimal assumptions an employer can monitor communications within the company. The ongoing debate is where to limit the government’s power to see into civilian lives while balancing the need to curb national threats. The ECPA falls directly in the middle of this debate both sides wanting revisions and clarifications made by the courts and legislation.

In 2011, The New York Times published "1986 Privacy Law Is Outrun by the Web," highlighting that:

Last year, for example, the Justice Department argued in court that cellphone users had given up the expectation of privacy about their location by voluntarily giving that information to carriers. In April, it argued in a federal court in Colorado that it ought to have access to some e-mails without a search warrant. And federal law enforcement officials, citing technology advances, plan to ask for new regulations that would smooth their ability to perform legal wiretaps of various Internet communications.

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The analysis went on to discuss how Google, Facebook, Verizon, Twitter and other companies are in the middle between users and governments.

See also

• Customer proprietary network information
• In re DoubleClick (2001)
• Katz v. United States (1967)
• Lane v. Facebook, Inc. (2010)
• United States v. Graham (2012)