Electronic Communications Privacy Act of 1986

From The IT Law Wiki

Citation: Electronic Communications Privacy Act of 1986, 18 U.S.C. §§2510-22, 2701-11, 3121-26.

The Electronic Communications Privacy Act of 1986 (ECPA) amended and augmented Title III. The Act added “electronic communications” to the federal wiretap statute. It regulates government access to ongoing and stored wire and electronic communications (such as voice mail or e-mail), transactional records access, and the use of pen registers, and trap and trace devices. After its modifications the surreptitious capture of e-mails and other electronic communications in transit enjoy the coverage of Title III and may be accomplished under a Title III court order.

When voice mail, e-mails and other electronic communications have been in storage for less than 180 days, they can be seized under a search warrant based on probable cause. Those in storage for 180 days or more can be secured under a court order upon a showing of relevancy and materiality, under a subpoena, or under a search warrant.

The ECPA also authorizes court orders for the installation and use of pen registers as well as trap and trace devices, which identify source and address of communications, but not the contents of the conversation. These orders may be issued on the basis of relevancy to a criminal investigation and their results need not be disclosed to the individuals whose communications are their targets. Perhaps because in the case of Internet communications header information is more revealing than the mere identification of source and addressee telephone numbers, results of such orders must be reported to the issuing court under seal.

Finally, ECPA established a procedure for government access to the customer records of telephone company or other communications service providers. Here too, access may be had by search warrant, subpoena, or court order (on a showing of relevancy).

The ECPA prohibits the ‘provider of an electronic communication service’ from disclosing the contents of a communication it stores or transmits. The Act also limits a provider’s disclosure of transactional data to the government, but not to private parties.