Wiretap Act / Electronic Communications Privacy ActRichard Warner

What Are We Talking About? 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. 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? 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 The interception of communications during

transmission. The acquisition of stored communications

from an ISP.

During Communication: Wiretapping and Eavesdropping The 4th Amendment:

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 “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.” 389 U. S. 347, 353 (1967).

When Unreasonable? 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 The Wiretap Act and the ECPA answer the

question of what counts as reasonable differently for electronic, and non-electronic communications.

Wire, Oral, Electronic 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, non-oral communications.

The Wiretap Acts treatment of non-electronic communications follows the pattern the U. S. Supreme Court laid down in Berger v. New York.

388 U. S. 41 (1967)

Berger Defects 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 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 §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. 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 §2518(5): surveillance must stop when its goals are

accomplished or in a maximum of 30 days 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 For electronic communications “interception”

occurs only during the transmission of a communication, not when it is stored.

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 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 § 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.

Government Access § 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.

§ 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 §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 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. Pub. L. No. 107 -56, § 209, 115 Stat. 222, 238.

Pen Registers and Trap and Trace 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 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.