The Electronic Communications Privacy Act of 1986 (ECPA) was enacted by the
United States Congress
The United States Congress is the legislature of the federal government of the United States. It is bicameral, composed of a lower body, the House of Representatives, and an upper body, the Senate. It meets in the U.S. Capitol in Washi ...
to extend restrictions on government
wire taps of telephone calls to include transmissions of electronic data by computer ( ''et seq.''), added new provisions prohibiting access to stored electronic communications, i.e., the
Stored Communications Act
The Stored Communications Act (SCA, codified at 18 U.S.C. Chapter 121 §§ 2701–2712) is a law that addresses voluntary and compelled disclosure of "stored wire and electronic communications and transactional records" held by third-party i ...
(SCA, ''et seq.''), and added so-called
pen trap provisions that permit the tracing of telephone communications ( ''et seq.'').
ECPA was an amendment to Title III of the
Omnibus Crime Control and Safe Streets Act of 1968
The Omnibus Crime Control and Safe Streets Act of 1968 (, codified at ''et seq.'') was legislation passed by the Congress of the United States and signed into law by President Lyndon B. Johnson that established the Law Enforcement Assistance Ad ...
(the
Wiretap Statute), which was primarily designed to prevent unauthorized government access to private electronic communications. The ECPA has been amended by the
Communications Assistance for Law Enforcement Act
The Communications Assistance for Law Enforcement Act (CALEA), also known as the "Digital Telephony Act," is a United States wiretapping law passed in 1994, during the presidency of Bill Clinton (Pub. L. No. 103-414, 108 Stat. 4279, codified at 47 ...
(CALEA) of 1994, the
USA PATRIOT Act
The USA PATRIOT Act (commonly known as the Patriot Act) was a landmark Act of the United States Congress, signed into law by President George W. Bush. The formal name of the statute is the Uniting and Strengthening America by Providing Approp ...
(2001), the USA PATRIOT reauthorization acts (2006), and the
FISA Amendments Act (20
Overview
"Electronic communications" means any transfer of signs, signals, writing, images, sounds,
data
In the pursuit of knowledge, data (; ) is a collection of discrete values that convey information, describing quantity, quality, fact, statistics, other basic units of meaning, or simply sequences of symbols that may be further interprete ...
, or intelligence of any nature transmitted in whole or in part by a wire,
radio
Radio is the technology of signaling and communicating using radio waves. Radio waves are electromagnetic waves of frequency between 30 hertz (Hz) and 300 gigahertz (GHz). They are generated by an electronic device called a trans ...
,
electromagnetic
In physics, electromagnetism is an interaction that occurs between particles with electric charge. It is the second-strongest of the four fundamental interactions, after the strong force, and it is the dominant force in the interactions of ...
, photoelectronic or photooptic system that affects interstate or
foreign commerce, but excludes the following:
* Wire or
oral communication
Conversation is interactive communication between two or more people. The development of conversational skills and etiquette is an important part of socialization. The development of conversational skills in a new language is a frequent focus ...
* Communication made through a tone-only
paging
In computer operating systems, memory paging is a memory management scheme by which a computer stores and retrieves data from secondary storage for use in main memory. In this scheme, the operating system retrieves data from secondary storage ...
device
* Communication from a
tracking device
A tracking system, also known as a locating system, is used for the observing of persons or objects on the move and supplying a timely ordered sequence of location data for further processing. It is important to be aware of human tracking, fu ...
(as defined in section 3117)
*
Electronic funds transfer
Electronic funds transfer (EFT) is the electronic transfer of money from one bank account to another, either within a single financial institution or across multiple institutions, via computer-based systems, without the direct intervention of b ...
information stored by a financial institution in a communications system used for the
electronic storage
Data storage is the recording (storing) of information (data) in a storage medium. Handwriting, phonographic recording, magnetic tape, and optical discs are all examples of storage media. Biological molecules such as RNA and DNA are consi ...
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
The Stored Communications Act (SCA, codified at 18 U.S.C. Chapter 121 §§ 2701–2712) is a law that addresses voluntary and compelled disclosure of "stored wire and electronic communications and transactional records" held by third-party i ...
(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
A pen register, or dialed number recorder (DNR), is an electronic device that records all numbers called from a particular telephone line. The term has come to include any device or program that performs similar functions to an original pen regis ...
and/or trap and trace devices to record dialing, routing, addressing, and signaling information used in the process of transmitting wire or electronic communications without a court order.
History
The law was first brought to attention after the
Captain Midnight broadcast signal intrusion, where electrical engineer John R. MacDougall hacked into the
HBO signal on April 27, 1986.
As a consequence, this act was passed. This act also made satellite hijacking a felony.
Provisions
The ECPA extended government restrictions on
wire taps from telephone calls to include transmissions of electronic data by computer ( ''et seq.''), added new provisions prohibiting access to stored electronic communications, i.e., the
Stored Communications Act
The Stored Communications Act (SCA, codified at 18 U.S.C. Chapter 121 §§ 2701–2712) is a law that addresses voluntary and compelled disclosure of "stored wire and electronic communications and transactional records" held by third-party i ...
( ''et seq.''), and added so-called pen/trap provisions that permit the tracing of telephone communications ( ''et seq.'').
provides for gag orders which direct the recipient of a
pen register
A pen register, or dialed number recorder (DNR), is an electronic device that records all numbers called from a particular telephone line. The term has come to include any device or program that performs similar functions to an original pen regis ...
or
trap and trace device order not to disclose the existence of the pen/trap or the investigation.
Employee privacy
The ECPA extended
privacy protections provided by the
Omnibus Crime Control and Safe Streets Act of 1968
The Omnibus Crime Control and Safe Streets Act of 1968 (, codified at ''et seq.'') was legislation passed by the Congress of the United States and signed into law by President Lyndon B. Johnson that established the Law Enforcement Assistance Ad ...
(of employers monitoring of employees phone calls) to include also electronic and cell phone communications.
[Slide 22 o]
Chapter 24 Powerpoint
for text: ''See also
Employee monitoring and
Workplace privacy''.
Case law
Several court cases have raised the question of whether
e-mail
Electronic mail (email or e-mail) is a method of exchanging messages ("mail") between people using electronic devices. Email was thus conceived as the electronic ( digital) version of, or counterpart to, mail, at a time when "mail" mean ...
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
The United States district courts are the trial courts of the U.S. federal judiciary. There is one district court for each federal judicial district, which each cover one U.S. state or, in some cases, a portion of a state. Each district cou ...
and a three-judge appeals panel ruled they were not, but in 2005, the full
United States Court of Appeals for the First Circuit
The United States Court of Appeals for the First Circuit (in case citations, 1st Cir.) is a federal court with appellate jurisdiction over the district courts in the following districts:
* District of Maine
* District of Massachusetts
* ...
reversed this opinion.
Privacy
Privacy (, ) is the ability of an individual or group to seclude themselves or information about themselves, and thereby express themselves selectively.
The domain of privacy partially overlaps with security, which can include the concepts of a ...
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 case was eventually dismissed on grounds unrelated to ECPA issues.
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, does not constitute an unlawful intercept under the Federal Wiretap Act, 18 U.S.C. s 2510, et seq., as amended by Title I of ECPA.
Governments can actually track cell phones in real time without a search warrant under ECPA by analyzing information as to antennae being contacted by cell phones, as long as the cell phone is used in public where visual surveillance is available.
In ''
Robbins v. Lower Merion School District'' (2010), also known as "WebcamGate", the plaintiffs charged that two suburban
Philadelphia
Philadelphia, often called Philly, is the largest city in the Commonwealth of Pennsylvania, the sixth-largest city in the U.S., the second-largest city in both the Northeast megalopolis and Mid-Atlantic regions after New York City. Sin ...
high schools violated ECPA by remotely activating the webcams embedded in school-issued laptops and monitoring the students at home. The schools admitted to secretly snapping over 66,000 webshots and
screenshot
screenshot (also known as screen capture or screen grab) is a digital image that shows the contents of a computer display. A screenshot is created by the operating system or software running on the device powering the display.
Additionally, s ...
s, including webcam shots of students in their bedrooms.
Criticism
ECPA has been criticized for failing to protect all communications and consumer records, mainly because the law is so outdated and out of touch with how people currently share, store, and use information.
Under ECPA, it is relatively easy for a government agency to demand service providers hand over personal consumer data stored on the service provider's servers. Email that is stored on a third party's server for more than 180 days is considered by the law to be abandoned. All that is required to obtain the content of the emails by a law enforcement agency is a written statement certifying that the information is relevant to an investigation, without
judicial review
Judicial review is a process under which executive, legislative and administrative actions are subject to review by the judiciary. A court with authority for judicial review may invalidate laws, acts and governmental actions that are incompa ...
. When the law was initially passed, emails were stored on a third party's server for only a short period of time, just long enough to facilitate transfer of email to the consumer's email client, which was generally located on their personal or work computer. Now, with online email services prevalent such as
Gmail
Gmail is a free email service provided by Google. As of 2019, it had 1.5 billion active users worldwide. A user typically accesses Gmail in a web browser or the official mobile app. Google also supports the use of email clients via the PO ...
and
Hotmail
Outlook.com is a webmail service that is part of the Microsoft 365 product family. It offers mail, Calendaring software, calendaring, Address book, contacts, and Task management, tasks services.
Founded in 1996 by Sabeer Bhatia and Jack Smit ...
, users are more likely to store emails online indefinitely, rather than to only keep them for less than 180 days. If the same emails were stored on the user's personal computer, it would require the police to obtain a warrant first for seizure of their contents, regardless of their age. When they are stored on an internet server however, no warrant is needed, starting 180 days after receipt of the message, under the law. In 2013, members of the U.S. Congress proposed to reform this procedure.
ECPA 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 on traffic and calling patterns of an individual or a group without a warrant, allowing an agency to gain valuable intelligence and possibly invade privacy without any scrutiny, because the actual content of the communication is left untouched. While workplace communications are, in theory, protected, all that is needed to gain access to communiqué is for an employer to simply give notice or a supervisor to report that the employee's actions are not in the company's interest. 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.
In 2011, ''
The New York Times
''The New York Times'' (''the Times'', ''NYT'', or the Gray Lady) is a daily newspaper based in New York City with a worldwide readership reported in 2020 to comprise a declining 840,000 paid print subscribers, and a growing 6 million paid ...
'' published "1986 Privacy Law Is Outrun by the Web", highlighting that:
[Helft, Miguel and Claire Cain Miller]
“News Analysis: 1986 Privacy Law Is Outrun by the Web”
''The New York Times
''The New York Times'' (''the Times'', ''NYT'', or the Gray Lady) is a daily newspaper based in New York City with a worldwide readership reported in 2020 to comprise a declining 840,000 paid print subscribers, and a growing 6 million paid ...
'', January 9, 2011. Retrieved 2011-01-10.
...the Justice Department argued in court that cellphone users had given up the expectation of privacy
Expectation of privacy is a legal test which is crucial in defining the scope of the applicability of the privacy protections of the Fourth Amendment to the United States Constitution. It is related to, but is not the same as, a ''right to privacy ...
about their location by voluntarily giving that information to carriers. In April, it argued in a federal court in Colorado
Colorado (, other variants) is a state in the Mountain states, Mountain West subregion of the Western United States. It encompasses most of the Southern Rocky Mountains, as well as the northeastern portion of the Colorado Plateau and the wes ...
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.
The analysis went on to discuss how
Google
Google LLC () is an American multinational technology company focusing on search engine technology, online advertising, cloud computing, computer software, quantum computing, e-commerce, artificial intelligence, and consumer electronic ...
,
Facebook
Facebook is an online social media and social networking service owned by American company Meta Platforms. Founded in 2004 by Mark Zuckerberg with fellow Harvard College students and roommates Eduardo Saverin, Andrew McCollum, Dustin Mosk ...
,
Verizon
Verizon Communications Inc., commonly known as Verizon, is an American multinational telecommunications conglomerate and a corporate component of the Dow Jones Industrial Average. The company is headquartered at 1095 Avenue of the Americas i ...
,
Twitter
Twitter is an online social media and social networking service owned and operated by American company Twitter, Inc., on which users post and interact with 280-character-long messages known as "tweets". Registered users can post, like, and ...
and other companies are in the middle between users and governments.
See also
*
Customer proprietary network information Customer proprietary network information (CPNI) is the data collected by telecommunications companies about a consumer's telephone calls. It includes the time, date, duration and destination number of each call, the type of network a consumer subsc ...
(CPNI)
* ''
Katz v. United States
''Katz v. United States'', 389 U.S. 347 (1967), was a landmark decision of the U.S. Supreme Court in which the Court redefined what constitutes a "search" or "seizure" with regard to the protections of the Fourth Amendment to the U.S. Constitutio ...
'' (1967)
* ''
In re DoubleClick'' (2001)
* ''
Lane v. Facebook, Inc.'' (2010)
* ''
United States v. Graham'' (2012)
References
{{Authority control
United States federal computing legislation
United States federal defense and national security legislation
1986 in law
Privacy of telecommunications
Privacy law in the United States
United States federal privacy legislation
Labor rights