Transcript Electronic Communications Privacy Act

Wiretap Act / Electronic
Communications Privacy Act
Richard Warner
What Are We Talking About?
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The Statute is 18 USC §§ 2510 – 2522.
This is Title III of the Omnibus Crime Control and
Safe Streets Act of 1996 (Pub. L. No. 90-351, 82
Stat. 211).
This referred to both as the Wiretap Act and as the
ECPA.
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ECPA because the Electronic Communications Privacy
Act of 1986 (Pub. L. NO 99-508, 100 Stat. 1848)
amended Title III to include coverage of electronic
communications.
Given the amendment, the “Wiretap Act” reference is
inaccurate.
What Are We Talking About?
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The Electronic Communications Privacy Act
1986 also added 18 USC §§ 2701 – 2709, §§
2711 – 12.
Some refer to this as the ECPA.
I will use “Wiretap Act” for 18 USC §§ 2510
– 2522, and “ECPA” for 18 USC §§ 2701 –
2709, §§ 2711 – 12.
I will also discuss the Pen Register Act, 18
USC §§ 3227 et seq.
Two Issues
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The interception of communications during
transmission.
The acquisition of stored communications
from an ISP.
During Communication:
Wiretapping and Eavesdropping
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The 4th Amendment:
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The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but on
probable cause, supported by Oath or affirmation,
and particularly describing the place to be
searched, and the person or things to be seized.
Katz v. United States
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“Once it is recognized that the Fourth
Amendment protects people—and not simply
‘areas’—against unreasonable searches and
seizures, it becomes clear that the reach of
that Amendment cannot turn upon the
presence or absence of a physical intrusion
into any given enclosure.”
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389 U. S. 347, 353 (1967).
When Unreasonable?
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You must have an actual, subjective
expectation of privacy.
It must be an expectation that is objectively
reasonable (“one society is prepared to
recognize as ‘reasonable’”-- 389 U. S. 347,
361 (Justice Harlan concurring)).
Title III:
Electronic Versus Non-Electronic
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The Wiretap Act and the ECPA answer the
question of what counts as reasonable
differently for electronic, and non-electronic
communications.
Wire, Oral, Electronic
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Wire communications contain the human voice and
travel through a wire at some point. 2510(1)
(“aural” communications).
An oral communication is one uttered by a person
with the justified expectation that it will not be
intercepted by another person. 2510(2)
Electronic communications are all non-wire, nonoral communications.
The Wiretap Acts treatment of non-electronic
communications follows the pattern the U. S.
Supreme Court laid down in Berger v. New York.
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388 U. S. 41 (1967)
Berger Defects
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Berger concerns a New York statute under
which a court could authorize eavesdropping.
The court found five things wrong with the
statute.
First: it only required only that “reasonable
grounds” for the belief that surveillance
would yield evidence of a crime.
Berger holds that the 4th Amendment requires
that the place, persons, or things to be
searched or seized be particularly described.
Berger Defects
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Second: the statute did not limit the type of
conversations or the duration of surveillance; nor did
it require that surveillance cease once its goals were
accomplished.
Third: the surveillance order was renewable based
on the initial information provided to the court.
Fourth: No requirement of notice to the subject of
the search, and no requirement of exigency to justify
lack of notice.
Fifth: No “return” to the court; law enforcement has
complete discretion in use of seized material (even
that concerning the innocent).
Title III:
Wire and Oral Communications
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§2518(1): places, persons, things be searched or
seized must be particularly described.
§2518(3): the court must find probable cause to
believe that the specifically listed offense is being
committed and that surveillance will yield the
specified communications concerning that offense.
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Normal investigative procedures must be too dangerous or
unlikely to succeed. §2518(3)(c).
Notice to the target is required within 90 takes of the
termination of the surveillance. §2518(3)(d).
Title III:
Wire and Oral Communications
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§2518(5): surveillance must stop when its goals are
accomplished or in a maximum of 30 days
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Renewable if §2518(1) and §2518(3) requirements are
fulfilled.
Interception of innocent communications must be
minimized.
§2518(8)(a): Intercepted communications must be
recorded and made available to the court. The court
may require periodic progress reports.
§2518(6): Communications obtained in violation of
the statute are inadmissible as evidence.
Only Intercepted Communications
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For electronic communications “interception”
occurs only during the transmission of a
communication, not when it is stored.
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Fraser . Nationwide Mut. Ins., 352 F.3d. 107, 113-14
(3rd Cir. 2003).
A wire communication is defined to include
“any electronic storage of such
communication.” § 2510(1).
An electronic communication is not defined to
include electronic storage.
ECPA: 18 USC § 2701
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Criminal and civil penalties for “(1)
intentionally accesses without authorization a
facility through which an electronic
communication service is provided; or (2)
intentionally exceeds an authorization to
access that facility; and thereby obtains,
alters, or prevents authorized access to a wire
or electronic communication while it is in
electronic storage in such system . . . “
Electronic Storage
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2510(17): “Any temporary, intermediate
storage of a wire or electronic communication
incidental to the transmission thereof; and . . .
any storage of such communication by an
electronic communications service for
purposes of backup protection of such
communication.”
Justice Department interprets this to apply to
communications not yet retrieved by the
recipient.
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Government Access
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2703 allows government access based on
three distinctions.
First: Communications held in storage by an
electronic communications service provider
for 180 days or less.
Access requirement -- §2703(a): A search
warrant.
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2703 Access
Second: Communications held in storage by
an electronic communications service
provider for more than180 days.
Third: Communications held by a remote
computing service.
Access Requirement
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§2703(b):
Search warrant without notice to
the subscriber; or, a grand jury or
administrative subpoena with notice; or a
court order.
The court order may be issued if the
government provides “specific and articulable
facts showing reasonable grounds to believe”
that the communications are “relevant” to an
ongoing criminal investigation.
Patriot Act Changes
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These distinctions applied only to electronic
communications until the passage of the USA
PATRIOT Act.
The PATRIOT Act extend these provisions to
stored wire communications.
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Pub. L. No. 107 -56, § 209, 115 Stat. 222, 238.
Pen Registers and Trap and Trace
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A pen register records numbers of outgoing phone
calls.
A trap and trace device records numbers of incoming
calls.
The information collected receives no 4th
Amendment protection.
A court order is required. §3121(a). The government
must certify that “the information likely to be
obtained . . . is relevant to an ongoing investigation.”
§3123(a).
The court does not review claims; it must take the
government’s word.
PATRIOT Act Extension
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The Act extended pen registers to all “dialing,
routing, addressing, or signaling information”
in a variety of forms of transmission, not just
phone lines. §3127(3), amended by USA
PATRIOT Act §216.
This includes IP addresses and e-mail header
information.