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Electronic Communications Privacy Act

What is the Electronic Communications Privacy Act and why does it matter? 

The Electronic Communications Privacy Act of 1986 (ECPA) was passed by Congress in order to address privacy issues with new communication technologies.  The ECPA is designed to protect the privacy of wire, oral, and electronic communications while in transit, and stored on a computer.  The act is designed to encompass all forms of electronic and digital communications including but not limited to, emails, phone conversations, text messages, faxes, etc.  The act is divided into three parts known as titles. 

Title I sets protections for wire, oral, and electronic communications while in transit.  This part of the ECPA is often called the Wiretap Act.  It prohibits the actual or attempted interception, use, disclosure of electronic information.  The protection does have exceptions however for operators and service providers as they may encounter transmissions throughout the course of their jobs.  It also sets procedure for warrants so that government officers may be permitted to wiretap someone if there is probable cause that they are involved in something illegal.  Finally, Title I also states that electronic communications intercepted illegally may not be used as evidence.

Title II sets protections for electronic communication data stored on computers or other digital storage devices.  This part of the ECPA is often called the Stored Communications Act.  It also protects data collected about you stored by the service provider such as names, billing records, and IP addresses.  Like Title I, one is required to obtain a warrant in order to access the data.

Title III prohibits the use of trap and trace and pen register devices.  This part of the ECPA is often called the Pen Register and Trap and Trace Statute.  Trap and trace and pen register devices allow someone to collect real time data, by showing things like what a person is typing at the moment or dialing on the phone.  Like the two titles above one may be granted access to the use of these devices if given the proper warrant.  

In short, the Electronic Communications Act protects an individual’s communications from government surveillance without a warrant, from a third-party viewing without legal access, and from the service provider’s viewing.  The act is essential for conducting business and government as it allows electronic communication with some confidence that it won’t be intercepted by competitors.  Full text of the act can be seen here: http://floridalawfirm.com/privacy.html

How did the ECPA come to be?

As technology evolved the courts began to look at electronic communications like emails as legitimate evidence.  After empowering electronic communications they needed to set protections so that people had a reasonable right to privacy, thus the ECPA was born. 

The Act was actually an amendment to the already existing Title III of the Omnibus Crime Control and Safe Streets Act of 1968, which dealt with protections against wiretapping much like Title III of the ECPA.  The ECPA expanded on existing wiretapping protection beyond just telephone transmissions which became ECPA Title III, and added Title I and Title II. 

Key court cases

United States v. Councilman was an important case in defining where the court stood on their protections for emails in transit.  In this case a company named Interloc , a company that matched book sellers with consumers, was intercepting, copying, and storing all outgoing email messages from Amazon.com before sending them to the recipients.  The United States government saw this as wrong and tried to prosecute the company for undermining Title I of the Electronic Communications Privacy Act.  However, Interloc pleaded not guilty as they felt they were not liable under Title I.  This is because the emails were being stored on the Interloc ISP server before being taken by the Interloc employees; therefore they fell under Title II of the ECPA which protects ISPs from accessing communications stored on their servers.  The emails were temporarily stored for probably less than a second before continuing on to the recipients but the district court and the first circuit court dismissed the government’s claim.

The United States v. Councilman case was reheard a year later by the same first circuit court and the ruling was reversed.  They ruled that an electronic communication temporarily stored while in transit to its destination does violate the Wiretap Act if intercepted.  This helped to further define what exactly a message in transit is versus and message in storage.

American Civil Union Liberties v. Ashcroft dealt with defining protections of the ECPA versus security measures taken by the US Patriot Act.  The US Patriot Act, among many other things, had amended the ECPA to allow the Federal Bureau of Investigation to request data records from ISPs through the issuing of National Security Letters.  The court ruled that the amendment was unconstitutional and it was removed from the ECPA.

Bartnicki v. Vopper was also an important case in further defining the reach of the ECPA.  In this case a radio station broadcasted a taped conversation of a labor union leader speaking to others in his union about a teachers strike.  The union asserted that the tape had been illegally intercepted due to the ECPA.  In this case however, the radio station was not the one who actually intercepted the tape; they had received from a third party.  Therefore the court dismissed the claims stating the radio station could not be held liable for broadcasting something they did not know was illegally intercepted.  The case set the precedent for this kind of unknowing distribution of illegally obtained communication and was later referenced in United States v. Stevens.

Finally, another interesting case involving the ECPA was Robbins v. Lower Merion School District in which a school district used school issued laptop computers to spy on its students.  The school used the laptop’s Webcams to take pictures of students while at home, and take screenshots of things like chat logs.  The problem came to light when the school tried to punish students for things done off school grounds seen through the webcam.  The school was prosecuted in part for violation of the Wiretapping act in Title I of the ECPA.  The case is important because it showed a new form of “wiretapping” by viewing through a webcam, which is now covered by the ECPA.

For further reading about court cases involving the ECPA click here.

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