Electronic Communications Privacy Act of 1986

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Electronic Communications Privacy Act of 1986

Jennifer Byram

The Electronic Communications Privacy Act of 1986 (ECPA) (P. L. 99-508, 100 Stat.1848) was enacted to extend federal wiretap laws to new forms of communication. The prior law, the Omnibus Crime Control and Safe Streets Act of 1968, protected only those communications that could be heard and understood by the human ear, such as telephone calls made over a public, wire-based system and private in person conversations overheard with a microphone from interception or disclosure by law enforcement or private individuals. It did not address new communication technologies such as email, computer data transmissions, faxes, pagers and cellular or cordless telephones.

These new technologies created significant uncertainty about their privacy protections, and about any limits on law enforcement's right to gather and use these communications as evidence in a criminal prosecution. Congress also feared that, without clear privacy protections, the public would not use or accept these new technologies.

In addition to extending current protections against interception and disclosure to new communication technologies, the ECPA also expanded the list of crimes that justified law enforcement interceptions of communications; limited access to stored communications and data including email without a person's consent; prohibited interference with the operation of a satellite; and regulated the use of pen registers to record the telephone numbers received, as well as tap and trace devices to record the telephone numbers dialed, on a particular telephone line.

Congress held extensive hearings and negotiations, beginning in 1975, leading up to the introduction and passage of the ECPA. Representatives of many groups testified at the hearings, including law enforcement, prosecutors, telephone and computer companies, the American Civil Liberties Union, and amateur radio enthusiasts. Thus, the final bill had broad support from interested parties.

The ECPA is based on the privacy rights derived from the protection against unreasonable searches and seizures found in the Fourth Amendment and Congress's power to regulate interstate commerce granted in Article I of the U.S. Constitution. In Bartnicki v. Vopper, aka Williams (2001), the U.S. Supreme Court ruled on the constitutionality of the ECPA. In that case, an unknown person illegally intercepted and recorded a cellular telephone conversation. The recording was delivered subsequently to a radio station that broadcast it. The individual who made the call sued the radio station for disclosing the call, claiming an ECPA violation. The Supreme Court held that, in this case, enforcing the ECPA's ban on disclosing the contents of illegally intercepted communications would violate the radio station's First Amendment right to free speech. The ECPA was unconstitutional as applied in this case, because the radio station was not involved in the illegal interception of the call, and the callers discussed an important matter of public concern. The ECPA is still constitutional and can be enforced under other circumstances.

In 2001, Congress passed the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA Patriot Act) and amended the ECPA to make it more effective in the fight against terrorism. It added terrorist activities to the list of crimes that justify a wiretap. It allows law enforcement to seize voice-mail messages when they have a warrant, and have electronic communications providers record the email addresses from messages coming in to or going out from tapped email accounts. Law enforcement can also intercept and use any information or communications left by a trespasser on someone else's computer, if the computer owner agrees.

The USA Patriot Act amended the disclosure provisions of the ECPA to increase the situations in which someone can legally make a voluntary disclosure of the contents of an intercepted communication. After 2001, people could disclose information about emergencies "involving immediate danger of death or serious physical harm" to another person. Therefore, if a person intercepts a message that appears to threaten a murder or terrorist attack, that information can legally be given to the police.

Finally, the USA Patriot Act makes it more difficult to sue the government for its violations of the ECPA's privacy protections. Any civil suits against the government must comply with provisions of the Federal Tort Claims Act, which mandates specific, more complex, procedures for the lawsuit.

The ECPA has had a significant impact on the administration of justice in the United States. It regulates when and how law enforcement can intercept and use electronic communications. It also protects electronic and telephone communications from non-government eavesdroppers so that people can feel secure using new technologies for private communications. This increased consumer confidence in privacy protections has helped people decide to buy and use new technologies, which promotes innovation and helps the U.S. economy.

See also: Computer Security Act of 1987; Counterfeit Access Device and Computer Fraud and Abuse Act of 1984; Federal Tort Claims Act; USA Patriot Act.