– Electronic Communications Privacy Act Essay, Research Paper
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
All Communication Carriers
Evolving ECPA Issues
Criticism of ECPA
Constitutional Rights vs. Curbing Terrorism
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
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.
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.
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
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.
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."
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."
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
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.
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.
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.
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."
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.