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

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 law’s 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 company’s interests

are in jeopardy.

A number of cases in the early 1990s 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. Murrah 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 Rotenberg, director of the Electronic

Privacy Information Center, criticized emerging proposals like Clinton’s

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.

35d