Electronic Communications Privacy Act

The Electronic Communications Privacy Act of 1986 (ECPA) was enacted by the United States Congress to extend restrictions on government wire taps of telephone calls to include transmissions of electronic data by computer (18 U.S.C. § 2510 et seq.), added new provisions prohibiting access to stored electronic communications, i.e., the Stored Communications Act (SCA, 18 U.S.C. § 2701 et seq.), and added so-called pen trap provisions that permit the tracing of telephone communications (18 U.S.C. § 3121 et seq.).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 has been amended by the Communications Assistance for Law Enforcement Act (CALEA) of 1994, the USA PATRIOT Act (2001), the USA PATRIOT reauthorization acts (2006), and the FISA Amendments Act (2008)....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. The Electronic Communications Privacy Act of 1986 (ECPA) was enacted by the United States Congress to extend restrictions on government wire taps of telephone calls to include transmissions of electronic data by computer (18 U.S.C. § 2510 et seq.), added new provisions prohibiting access to stored electronic communications, i.e., the Stored Communications Act (SCA, 18 U.S.C. § 2701 et seq.), and added so-called pen trap provisions that permit the tracing of telephone communications (18 U.S.C. § 3121 et seq.).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 has been amended by the Communications Assistance for Law Enforcement Act (CALEA) of 1994, the USA PATRIOT Act (2001), the USA PATRIOT reauthorization acts (2006), and the FISA Amendments Act (2008). 'Electronic communications' 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 photooptic system that affects interstate or foreign commerce, but excludes the following: 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 signaling information used in the process of transmitting wire or electronic communications without a court order. The ECPA extended government restrictions on wire taps from telephone calls to include transmissions of electronic data by computer (18 U.S.C. § 2510 et seq.), added new provisions prohibiting access to stored electronic communications, i.e., the Stored Communications Act (18 U.S.C. § 2701 et seq.), and added so-called pen/trap provisions that permit the tracing of telephone communications (18 U.S.C. § 3121 et seq.). 18 U.S.C. § 3123(d)(2) provides for gag orders which direct the recipient of a pen register or trap and trace device order not to disclose the existence of the pen/trap or the investigation. The ECPA extended privacy protections provided by the Omnibus Crime Control and Safe Streets Act of 1968 (of employers monitoring of employees phone calls) to include also electronic and cell phone communications. See also Employee monitoring and Workplace privacy. 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 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 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 screenshots, including webcam shots of students in their bedrooms.