ECPA

– Electronic Communications Privacy Act Essay, Research Paper

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 employer’s monitoring of

employee electronic mail on the employer’s 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

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