Electronic Communications Privacy Act (ECPA)

Congress passed the Electronic Communications Privacy Act (ECPA) to expand the scope of existing federal wiretap laws, such as Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (the Wiretap Act), to include protection for electronic communications. The ECPA is an exceptionally complicated statute.

The ECPA expands the privacy protections of the Wiretap Act in five significant ways:

1. ECPA broadens the scope of privileged communications to include all forms of electronic transmissions, including video, text, audio, and data.
2. ECPA eliminates the requirement that communications be transmitted via common carrier to receive legal protection.
3. ECPA maintains restrictions on the interception of messages in transmission and adds a prohibition on access to stored electronic communications.
4. ECPA responds to the Supreme Court's ruling in Smith v. Maryland that telephone toll records are not private and restricts law enforcement access to transactional information pertaining to users of electronic communication services.
5. ECPA broadens the reach of the Wiretap Act by restricting both government and private access to communications.

The ECPA, as amended, protects wire, oral, and electronic communications while those communications are being made, are in transit, and when they are stored on computers. The Act applies to email, telephone conversations, and data stored electronically. ECPA has three titles:

Title I of the ECPA, which is often referred to as the Wiretap Act, prohibits the intentional actual or attempted interception, use, disclosure, or “procure[ment] [of] any other person to intercept or endeavor to intercept any wire, oral, or electronic communication.” Title I provides exceptions for operators and service providers for uses “in the normal course of his employment while engaged in any activity which is a necessary incident to the rendition of his service” and for “persons authorized by law to intercept wire, oral, or electronic communications or to conduct electronic surveillance, as defined in section 101 of the Foreign Intelligence Surveillance Act (FISA) of 1978.” 18 U.S.C. § 2511. It provides procedures for Federal, State, and other government officers to obtain judicial authorization for intercepting such communications, and regulates the use and disclosure of information obtained through authorized wiretapping. 18 U.S.C. § 2516-18. A judge may issue a warrant authorizing interception of communications for up to 30 days upon a showing of probable cause that the interception will reveal evidence that an individual is committing, has committed, or is about to commit a “particular offense” listed in § 2516. 18 U.S.C. § 2518. Title I also prohibits the use of illegally obtained communications as evidence. 18 U.S.C. § 2515.

Title II of the ECPA, which is called the Stored Communications Act (SCA), protects the privacy of the contents of files stored by service providers and of records held about the subscriber by service providers, such as subscriber name, billing records, or IP addresses. 18 U.S.C. §§ 2701-12.

Title III of the ECPA, which is called the Pen Register and Trap and Trace Statute, requires government entities to obtain a warrant before collecting real-time information, such as dialing, routing, and addressing information related to communications. Real-time collection of this information is usually done using a pen register or trap and trace device.

The ECPA was significantly amended by the Communications Assistance to Law Enforcement Act (CALEA), the USA PATRIOT Act in 2001, the USA PATRIOT reauthorization acts in 2006, and the FISA Amendments Act of 2008.

“Electronic Communications” which means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in party by a wire, radio, electromagnetic, photo-electronic or photo-optical system that affects interstate or foreign commerce, but does not include:

1. Any wire or oral communication;
2. Any communication made through a tone-only paging device;
3. Any communication from a tracking device; or
4. Electronic funds transfer information stored by a financial institution in a communications system used for the electronic storage and transfer of funds.