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).[1]
"ECPA" redirects here. For the Christian publishers association, see Evangelical Christian Publishers Association.Long title
An Act to amend title 18, United States Code, with respect to the interception of certain communications, other forms of surveillance, and for other purposes.
ECPA
October 21, 1986
18
"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:[2]
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.[3] 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.
Case law[edit]
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.[8]
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.[9]
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.[10][11]