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Overview The Electronic Communications Privacy Act (ECPA) of 1986 was adopted to address the legal privacy issues that were evolving with the growing use of computers and other new innovations in electronic communications. The ECPA updated legislation passed in 1968 that had been designed to clarify what constitutes invasion of privacy when electronic surveillance is involved. The ECPA extended privacy protection outlined in the earlier legislation to apply to radio paging devices, electronic mail, cellular telephones, private communication carriers, and computer transmissions. Background Major Provisions Electronic Mail All Communication Carriers Cellular Telephones Radio Paging Customer Records Satellite Transmissions Evolving ECPA Issues Criticism of ECPA Workplace Privacy Constitutional Rights vs. Curbing Terrorism Background Prior to the enactment of the Electronic Communications Privacy Act (ECPA) of 1986, Title III of the Omnibus Crime Control and Safe Streets Act of 1968 had established the procedures which governed electronic surveillance. In a 1967 case, Katz vs.
the U. S. , the Supreme Court determined that the use by FBI agents of electronic devices to listen to and record telephone conversations without a warrant constituted a violation of unreasonable search and seizure provisions established by the Fourth Amendment. This case provided the Court with an opportunity to more thoroughly articulate general criteria for allowable government surveillance. Government agencies were required to demonstrate probable cause, identify the specific suspect, crime, telephone to be used, and time of conversation, and secure a warrant before they could legally execute a wiretap.
By 1986 there had been very few significant abuses of earlier privacy legislation, but legislators felt pressure from industry and civil liberties groups to take notice of and address the dramatic expansion in the use of new technologies like electronic mail. In October 1985, the congressional Office of Technology Assessment reported that " many innovations in electronic surveillance technology" employed by law enforcement agencies " have outstripped constitutional and statutory protections, leaving areas in which there is currently no legal protection against... new surveillance devices. " The ECPA was developed in anticipation of new privacy issues, relating to both government surveillance and " recreational eavesdropping" by private parties, that were likely to emerge along with the widespread use of new communication technologies. Major Provisions President Reagan signed the Electronics Communication Privacy Act into law on October 21, 1986. The ECPA was designed to expand Title III privacy protection to apply to radio paging devices, electronic mail, cellular telephones, private communication carriers, and computer transmissions. The Act also identified specific situations and types of transmissions that would not be protected, most notably an employers monitoring of employee electronic mail on the employers system.
Electronic Mail The ECPA extended Title III privacy protection to both the transmission and storage of digitized textual information exemplified by electronic mail. The Act amended the definition of the term " intercept to make it clear that it is illegal to intercept the non-voice portion of a wire communication such as the data or digitized portion of a voice communication. " The " non-voice portion" includes " electronic communication, " which is defined as " any transfer of signs, signals, writing, images, sound, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectric or photo-optical system. " The Act was designed to protect the contents of stored electronic mail, voice mail and remote computing services. It was also intended to prohibit providers of the electronic communication services from disclosing the contents of communication that has been stored electronically without the lawful consent of the person who originated the communication. All Communication Carriers Under Title III, privacy protection had been limited to surveillance of the " common carrier" facilities available to the general public. The ECPA of 1986 extends protection to the use of all carriers, including private telephone systems and branch exchanges, and local area networks. The House Judiciary Committee explained that it " chose to extend federal jurisdiction to the maximum permissible constitutional limits by providing coverage of a person who provides or operates (any) facilities for communications that affect interstate or foreign commerce. " Cellular Telephones In Hall vs.
U. S. , a 1973 U. S. Circuit Court of Appeals decision held that mobile telephone conversations are protected under Title III when part of a communication is carried to or from a landline telephone. " This decision failed to clarify whether protection applies to all cellular and cordless telephone conversations, however.
The ECPA of 1986 amended the definition of protected " wire communication" to " include communications utilizing wires, cables, or other line connections within a switching office... regardless of whether the communications are between two cellular telephones or between a cellular telephone and a landline telephone. " However, in order to encourage the use of technological means of protection like scrambling and encryption, the Act reduced the criminal penalty for the interception of unencrypted, unscrambled cellular phone calls from a felony that could carry up to five years of imprisonment to a $ 500 fine. The Act provides protection for the wire portion of cordless phone conversations, but specifically notes that " wire communication" protected under Title III " does not include the radio portion of a telephone that is transmitted between the cordless telephone handset and the base unit. " Radio Paging The ECPA clarified privacy protection related to the use of radio paging devices. The Department of Justice defined voice and digital display pagers as " a continuation of an original wire communication" that should therefore be subject to Title III protection. The legislation also specifically identified the " tone-only" pager as a device whose use is not protected under Title III.
Customer Records The ECPA of 1986 restricted government access to subscriber and customer records belonging to electronic service providers. Government agencies must first secure a search warrant, court order, or an authorized administrative or grand jury subpoena to access service provider records without first notifying a subscriber or customer. Satellite Transmissions The ECPA of 1986 identified the Cable Communications Policy Act of 1984 as the exclusive source of protection policy governing home reception of unencrypted cable satellite programming. The 1984 Act established a separate set of specialized policies to address cable satellite reception issues that related more to the conduct of commercial enterprise than to privacy issues.
The ECPA also increased criminal penalties for malicious or intentional interference that impedes the delivery of satellite transmissions. Evolving ECPA Issues Criticism of ECPA The ECPA was originally endorsed by the ACLU and promoted to protect civil liberties. Since it was signed into law, however, it has come under fire for its failure to protect certain electronic communication procedures. Shortly after the Act was passed, critics pointed to some key discrepancies between the original version of the Act promoted by civil libertarians and the final version that became law.
A critic from The Nation called the final version " a wish list for the law-enforcement community. " Critics maintain that ECPA provisions for access to subscriber information make it easier for the FBI and other agencies to demand that service providers hand over customer records. The demand must be accompanied by a statement certifying that the information sought pertains to an investigation of a foreign counterintelligence operation, but no judicial review is required, so questionable certifying procedures can be easily rationalized. The ECPA substantially increased the list of Federal crimes for which electronic surveillance could be authorized. It also expanded the range and number of Justice Department officials who can authorize applications for court approval.
While the ECPA was designed to protect the content of electronic communications, it revised the definition of content to specifically exclude the existence of the communication itself, as well as the identity of the parties involved. This meant that close scrutiny of calling patterns had become allowable. One critic argued that The changes in the laws definition could lead to specialized surveillance of the networking patterns of citizens. Computer programs that analyze telephone traffic information can be applied to the communications of a political group, a student community or a ghetto to illuminate invisible social networks and identify key members.
Although the government must apply for a wiretap order to have access to the substance of a telephone conversation, it can amass a great deal of information without actually hearing the conversation. Workplace Privacy Under the ECPA an employer cannot monitor employee telephone calls or electronic mail when employees have a reasonable expectation of privacy. However, the Act does allow employer eavesdropping if employees are notified in advance or if the employer has reason to believe the companys interests are in jeopardy. A number of cases in the early 1990 s involving employee complaints that their privacy was being violated sparked heated debate over the limits of corporate surveillance.
In 1992 legislators pointed to specific issues that were inadequately addressed by the ECPA. Suggested supplements to the ECPA include (1) requiring employers to disclose information about their monitoring systems to employees and to provide a " beep" tone whenever communication was being monitored, (2) requiring " all monitoring to be relevant to work performance, " (3) providing " employees with access to information about their work gained through monitoring, " and (4) restricting " disclosure and use of resulting data. " Constitutional Rights vs. Curbing Terrorism In 1995 the bombing of the Alfred P. Murray Federal Building in Oklahoma City prompted further reexamination of ECPA provisions.
President Clinton proposed that the ECPA be amended to make it easier for law enforcement officials to conduct roving wiretaps. The bombing also sparked debate over whether the government should exercise greater control over information transmitted on the Internet. Marc Rosenberg, director of the Electronic Privacy Information Center, criticized emerging proposals like Clintons for seeking " the Holy Grail of absolute surveillance, an aim the U. S. government has never previously pursued. " Strong anti-terrorist sentiment strengthens the conviction that every effort should be made to curb the ability of terrorists and other criminals to avail themselves of the enormous powers of information exchange that new electronic communication technologies make possible. On the other hand, privacy and civil liberty advocates warn that terrorist incidents become convenient excuses to champion policy that would undermine fundamental Constitutional rights to privacy.
The Electronic Communications Privacy Act of 1986 remains at the center of ongoing debates about Constitutional privacy issues that are sparked by rapid innovations in electronic communications technology. 35 d
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