Electronic Communications Privacy Act
Encyclopedia
The Electronic Communications Privacy Act is a United States
law
.
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.
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 Letter
s (NSLs) to Internet service provider
s (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.
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.
In 2011, The New York Times published "1986 Privacy Law Is Outrun by the Web," highlighting that:
The analysis went on to discuss how Google
, Facebook
, Verizon, Twitter
and other companies are in the middle between users and governments.
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
law
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
.
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
Secrecy of correspondence
The secrecy of correspondence ) or literally translated as secrecy of letters, is a fundamental legal principle enshrined in the constitutions of several European countries. It guarantees that the content of sealed letters is never revealed and letters in transit are not opened by government...
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
Stored Communications Act
The Stored Communications Act is a law that was enacted by the United States Congress in 1986. It is not a stand-alone law but forms part of the Electronic Communications Privacy Act; it is codified as 18 U.S.C. §§ 2701 to 2712...
(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, Oct. 21, 1986, 100 Stat. 1848) was enacted by the United States CongressUnited States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
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
Omnibus Crime Control and Safe Streets Act of 1968
The Omnibus Crime Control and Safe Streets Act of 1968 was legislation passed by the Congress of the United States that established the Law Enforcement Assistance Administration . Title III of the Act set rules for obtaining wiretap orders in the United States. It has been started shortly after...
(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
Stored Communications Act
The Stored Communications Act is a law that was enacted by the United States Congress in 1986. It is not a stand-alone law but forms part of the Electronic Communications Privacy Act; it is codified as 18 U.S.C. §§ 2701 to 2712...
,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
USA PATRIOT Act
The USA PATRIOT Act is an Act of the U.S. Congress that was signed into law by President George W. Bush on October 26, 2001...
. In addition, Section 2709 of the Act, which allowed the FBI to issue National Security Letter
National Security Letter
A National Security Letter is a form of administrative subpoena used by the United States Federal Bureau of Investigation and reportedly by other U.S. Government Agencies including the Central Intelligence Agency and the Department of Defense. They require no probable cause or judicial oversight...
s (NSLs) to Internet service provider
Internet service provider
An Internet service provider is a company that provides access to the Internet. Access ISPs directly connect customers to the Internet using copper wires, wireless or fiber-optic connections. Hosting ISPs lease server space for smaller businesses and host other people servers...
s (ISPs) ordering them to disclose records about their customers, was ruled unconstitutional under the First
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
and Fourth
Fourth Amendment to the United States Constitution
The Fourth Amendment to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause...
Amendments
Constitutional amendment
A constitutional amendment is a formal change to the text of the written constitution of a nation or state.Most constitutions require that amendments cannot be enacted unless they have passed a special procedure that is more stringent than that required of ordinary legislation...
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
E-mail
Electronic mail, commonly known as email or e-mail, is a method of exchanging digital messages from an author to one or more recipients. Modern email operates across the Internet or other computer networks. Some early email systems required that the author and the recipient both be online at the...
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
United States v. Councilman
US v. Councilman was a criminal case involving interception of e-mail while in temporary storage en route to its final destination. Earlier rulings in the case had raised concerns about the privacy of e-mail and the effectiveness of the Electronic Communications Privacy Act of 1986...
, 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
United States Court of Appeals for the First Circuit
The United States Court of Appeals for the First Circuit 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
Privacy is the ability of an individual or group to seclude themselves or information about themselves and thereby reveal themselves selectively...
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.
The analysis went on to discuss how Google
Google
Google Inc. is an American multinational public corporation invested in Internet search, cloud computing, and advertising technologies. Google hosts and develops a number of Internet-based services and products, and generates profit primarily from advertising through its AdWords program...
Facebook
Facebook is a social networking service and website launched in February 2004, operated and privately owned by Facebook, Inc. , Facebook has more than 800 million active users. Users must register before using the site, after which they may create a personal profile, add other users as...
, Verizon, Twitter
Twitter
Twitter is an online social networking and microblogging service that enables its users to send and read text-based posts of up to 140 characters, informally known as "tweets".Twitter was created in March 2006 by Jack Dorsey and launched that July...
and other companies are in the middle between users and governments.
See also
- Customer proprietary network informationCustomer Proprietary Network InformationCustomer proprietary network information 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 subscribes to, and any other information that appears on the...
- In re DoubleClickIn re DoubleClickIn re DoubleClick Inc. Privacy Litigation, 154 F. Supp. 2d 497 , had Internet users initiate proceedings against DoubleClick, alleging that DoubleClick's placement of web cookies on computer hard drives of Internet users who accessed DoubleClick-affiliated web sites constituted violations of...
(2001) - Katz v. United StatesKatz v. United StatesKatz v. United States, , is a United States Supreme Court case discussing the nature of the "right to privacy" and the legal definition of a "search." The Court’s ruling adjusted previous interpretations of the unreasonable search and seizure clause of the Fourth Amendment to count immaterial...
(1967) - Lane v. Facebook, Inc.Lane v. Facebook, Inc.Lane v. Facebook was a class-action lawsuit in the United States District Court for the Northern District of California regarding internet privacy and social media. In December 2007, Facebook launched Beacon, which resulted in user's private information being posted on Facebook without consent. A...
(2010)