Electronic Communication Privacy Act of 1986

Electronic surveillance is a significant tool in modern law enforcement, bringing dimension to dialogues, minimizing interpretation ambiguity, and making recollection issues obsolete. When used appropriately, it has the power to bring down the most elusive criminals. There is little wiggle room for a defendant whose words are captured on tape. If used inappropriately, surveillance has the power to invade our privacy, stifle our creativity for fear of being exposed as different, and share our secrets with those who have no need to know. Mindful of the balance that must be struck between law enforcement’s need to intercept the communications of wrongdoers and an individual’s right to be free of unwarranted eavesdropping, the legislature enacted the Omnibus Safe Streets and Crime Control Act of 1968 and the Electronic Communication Privacy Act (ECPA) of 1986.
The ECPA consists of three subtitles and covers three specific types of communications: wire, oral, and electronic. The three subtitles are Title I, the Wiretap Act, which deals with the interception of communications that are in transmission; Title II, the Stored Communications Act, which covers the accessing of stored electronic communications and records; and Title III, the Pen Register Act, which applies to pen registers and trap-and-trace devices, which record phone numbers or address information (such as the “to” and “from” lines in an e-mail).
The types of communications covered by the ECPA are wire, oral, and electronic. A wire communication involves aural transfers, which are communications containing the human voice that travel through a wire or cable device at some point during their transmission. A landline or mobile telephone conversation taking place in real time is an example of this type of communication. An oral communication is one uttered by a person under circumstances such that the person has a reasonable expectation that the communication will not be overheard. In other words, the communicator must have a reasonable expectation of privacy in his or her conversation and the communication must be one that society is willing to protect. This definition applies to communications intercepted through bugs or other recording devices such as tape recorders that do not involve a wire transmission. Finally, electronic communications include all non-wire and non-oral communications: signals, images, and data that are transmitted through a medium such as wire, radio, electromagnetic, or photoelectronic. Prime examples of electronic communications are electronic mail messages, faxes, (electronic) pages, and text messages.
The extent to which audio and electronic communication surveillance occurs is reported annually to Congress through the Administrative Office of the United States Courts. Specifically, the Omnibus Crime Control and Safe Streets Act of 1968 requires that certain information—including the number and nature of federal and state applications for orders authorizing or approving the interception of wire, oral, or electronic communications; the offenses under investigation; the locations of intercepts; the cost of the surveillance; and the numbers of arrests, trials, and convictions that were a direct result of such surveillance—be reported annually. The 2004 report concluded that 1710 intercepts were authorized that year by state and federal courts, which was an increase of 19 percent compared with the number in 2003. Of the 47 jurisdictions (federal, state, the District of Columbia, and the Virgin Islands) that currently authorize this type of surveillance, 20 reported using it during 2004 as an investigative tool. Furthermore, the report showed that federal officials requested 730 intercept applications in 2004, which amounted to a 26 percent increase over the number requested in 2003.
Historically, wiretapping laws have required the consent of all parties before a communication could be intercepted. An example of a situation involving the consent of all parties is the use of a telephone answering machine. The machine owner has given his consent by attaching the machine to his phone and asking the caller to leave her message after the beep. The caller has given her consent to be intercepted by recording her message. Thus, both parties to the communication gave prior consent for the content of the interception to be captured.
Federal law and 35 states allow for the interception of wire communications if only one of the parties to the communication has given prior consent. However, the conditions for interception still vary significantly from jurisdiction to jurisdiction. For example, jurisdictions may define the term “party” as anyone involved a conversation or as law enforcement personnel only. Jurisdictions may limit the offenses for which interception is permissible to select crimes. Some jurisdictions limit the ability to record the intercepted communications. Some jurisdictions may allow interception for reasons of officer safety but for no other purpose, including its use as evidence in criminal or civil matters. Some jurisdictions may allow the interception of communications that are part of a videotaped car stop.
The ECPA requires law enforcement to obtain a court order with an accompanying affidavit based on an extensive list of legal requirements before the content of a communication can be captured. The list is extensive because wiretap surveillance poses a greater threat to privacy than the physical searches and seizures covered by the Fourth Amendment. Interception inevitably captures some communications of non-targets whether or not their communication is relevant to the investigation. Not every communication of a criminal suspect is criminal in nature. Further, unlike the typical search warrant—where officers announce, enter, search, and exit—electronic surveillance is conducted surreptitiously and is ongoing until the objectives of the investigation are met. In some cases the monitoring continues for months and involves thousands of communications.
The list of legal requirements includes proper authorization from the appropriate official; identication of the investigators, the crimes, and the parties to be intercepted with specificity; tripartite probable cause; a full and complete statement of the facts and circumstances relied on by the applicant to justify the belief that the order should be issued; the goals of the interception; the length of time for the interception, including when it will begin and end, the actual hours of interception per day, and the days of the week of interception; exhaustion and necessity; minimization; and the equipment and technology to be employed.
All electronic surveillance statutes require tripartite probable cause demonstrating a link between the interceptee, the device intercepted, and the offense. Specifically, before an ex parte order approving a wiretap may be issued, the judge must determine that (1) there is probable cause for belief that an individual is committing, has committed, or is about to commit certain enumerated offense(s); (2) there is probable cause to believe that communications relevant to the particular offense(s) will be intercepted; and (3) there is probable cause to believe that the facilities (devices) from which the communications will be intercepted are being, or are about to be, used in connection with the commission of the offense(s) or that they are commonly used, leased, or listed under the name of a person connected with the alleged offense(s). The standard for review of tripartite probable cause is exactly the same as that required by the Fourth Amendment for a search warrant. Therefore, courts are bound to consider only the facts contained within the four corners of the affidavit.
All electronic surveillance statutes require the issuing judge to review the affidavit to determine whether normal investigative procedures have been tried but failed, reasonably appear to be unlikely to succeed if they were tried, or are too dangerous. To satisfy this requirement (commonly referred to as the necessity/exhaustion requirement), the affidavit cannot be merely a boilerplate recitation of the difficulties of gathering usable evidence. The affidavit must include a complete statement providing detailed information about all prior interceptions on the named intercep-tees and the facility or device to be intercepted. It also must include all pertinent information relevant to the investigation, including possibly exculpatory information. However, some discretion is allowed in terms of disclosing the evidence in less than its entirety to establish probable cause, provided there is no effort to mislead the court toward approving a warrant that might otherwise not have been issued. For example, it has been held acceptable for the government to withhold information to protect the confidentiality of informants.
In evaluating the good faith efforts regarding the use of alternative methods of investigation, a reviewing court is guided by reasonableness; the police need not exhaust all conceivable techniques. Before granting the wiretap application, however, the issuing judge must determine that standard investigative techniques employing a normal amount of resources have failed to do the job within a reasonable period of time. Essentially, all that is required is that the investigators give serious consideration to non-wiretap techniques prior to applying for wiretap authority and that the court be informed of the reasons for the investigators’ belief that such non-wiretap techniques have been or will likely be inadequate. In other words, the government must make a reasonable good faith effort to run the gamut of normal investigative procedures before employing an electronic surveillance technique. Other investigatory techniques typically employed are dialed number recorder (DNR)/trap-and-trace analysis; surveillance, mobile and stationary; trash or garbage runs; use of informants; criminal history checks; execution of search warrants; a grand jury investigation; use of surveillance cameras, mobile tracking devices, and pole cameras; toll record analysis; undercover investigations; and clone pagers.
The ECPA also requires that the interception of oral communications through wiretapping be conducted in such a way as to minimize the interception of communications not otherwise subject to interception. Interception is proper only if it is necessary to achieve the goals of the authorization. This does not require that all innocent or unrelated communications remain unmonitored. Rather, the statute requires that unnecessary intrusions on the privacy of the individuals being lawfully monitored be minimized to the greatest extent possible. Compliance is determined using a case-by-case reasonableness standard. Specifically, a minimization inquiry is not to be made in a fragmented manner, considering each interception alone. Instead, it requires an examination of the totality of the monitoring agents’ conduct for the duration of the authorized interception. Minimization is satisfied if, on the whole, the agents have shown a high regard for the rights of privacy and have done all they reasonably could to avoid unnecessary intrusion.
The burden of proof for minimization is initially on the government to make a prima facie showing of compliance; the burden then switches to the defense for production and persuasion. The compliance standard for minimization is the overall reasonableness of the totality of the conduct of the monitoring agents in light of the purpose of the wiretap and the information available to the agents at the time of the interception. The more complex and widespread the investigation, the wider the latitude of eavesdropping allowed. Factors involved in this reasonableness determination include: the sophistication of the suspects and the counter-surveillance methods; whether coded conversations are used; the location and operation of the target telephone or device; the extent of judicial supervision; the duration of the wiretap; the purpose of the wiretap; the length of the calls monitored; the existence, or lack thereof, of a pattern of pertinent calls; the absence of privileged interceptions; and the proper handling of interception of windfall or other offenses.
The wiretap statute contains its own exclusionary rule providing that no intercepted communications, wire or oral, can be received in evidence if the communications were unlawfully intercepted, if the order was insufficient, or if the interception was not made in conformity with the order. Due to this clear legislative intent to limit surveillance in order to protect privacy issues and to control law enforcement surveillance, a substantial compliance standard is mandated by most courts for each provision of the statute that is deemed to be a central or functional safeguard factor. In short, only surveillances that are narrowly focused with constitutionally acceptable, pre-approved judicial sanctions based on special showings of need are permissible.
The Stored Communications Act (SCA) (18 U.S.C. 2701-2711) governs law enforcement’s access to stored, or temporarily stored, wire and electronic communications. This includes any backup copies of files in temporary electronic storage. Accordingly, it governs access to the subscriber records of various communications service providers, including Internet service providers (ISPs). If a communication is being transmitted from its origin to a destination, then the Wiretap Act applies. If it is stored in the computer of a provider of an electronic communication service (ECS) or a remote computing service (RCS), then the Stored Communications Act governs.
The Stored Communications Act is much less protective than the Wiretap Act. It includes no exclusionary provision and no minimization requirement, and it allows for little judicial supervision. The degree of privacy protection afforded customers and subscribers depends on whether the stored communication is considered content or non-content information and whether it is housed by an ECS or RCS provider. In determining whether the information sought is content or non-content, experts usually make the analogy to mail. The content is the actual letter, and the non-content is the envelope. Telephone companies and electronic mail companies generally act as ECS providers and a company’s or university’s server represents an RCS.
The SCA is not a catch-all statute designed to protect the privacy of all stored communications. It does not cover information stored on home computers, since that information is protected by the Fourth Amendment. The SCA protects only information held by third-party providers. It is essentially a Fourth Amendment type of protection for computer networks. The statute limits the government’s ability to compel providers to disclose information stored by an ECS or RCS about their customers and subscribers.
Specifically, the statute restricts the ability of service providers, including ISPs, to voluntarily disclose information about their customers and subscribers to the government. (The Fourth Amendment is not applicable here because it would allow private providers to make such disclosures to third parties under the knowing exposure doctrine.) The SCA is a legislative attempt to protect the privacy of an individual’s content information electronically stored by third parties. The Act mandates that some official action be taken before the disclosure can occur unless it falls within one of the eight specifically designated exceptions listed in 18 U.S.C.2702(b), including disclosure to the recipient of the communication, to the National Center for Missing and Exploited Children in connection with a report, and to a consenting originator.
The type of official action required for disclosure depends on whether the information is content or non-content, whether it is stored for less or more than 180 days, and whether the information is held by an ECS or RCS provider. A warrant is necessary to compel an ECS provider to disclose the contents of communications held in storage for 180 days or less (18 U.S.C. 2703(a)). To force an ECS provider to disclose content in electronic storage for more than 180 days or to compel an
RCS provider to disclose content at any time, the government has several options: a search warrant, with no notification to the subscriber or customer (18 U.S.C. 2703(b)); a court order combined with prior notice to the subscriber or customer (which can be delayed in some circumstances) (18 U.S.C. 2705); or an administrative, grand jury, or trial subpoena with prior notice to the subscriber or customer (18 U.S.C. 2703(b)).
A court order requires that the government provide specific and articulable facts showing that there are reasonable (not probable) grounds to believe that the information sought is “relevant and material to an ongoing criminal investigation” (18 U.S.C. 2703(d)). A subpoena requires only that the government is seeking relevant information and that the request is not overly broad.
Non-content, or envelope-type, information may be disclosed more readily through a mere subpoena, as it is deemed less private than content information. Many argue, however, that non-content disclosure does reveal private information. From the packaging of mail delivered to a home, one can identify an individual’s doctors, interests, associates’ names, political affiliations, and perhaps sexual preferences; a subpoena is all that is required. Non-content information amounts to basic subscriber information of the sort included in pen register data: name; address; local and long-distance telephone connection records, or records of session times and durations; length of service (including start date) and types of service utilized; telephone or instrument number or other subscriber number or identity, including any temporarily assigned network address; and the means and source of payment for such service (including any credit card or bank account numbers) (18 U.S.C. 2703(c)(2)).
The Pen Register Act regulates the government’s use of pen registers and trap-and-trace processes. Pen registers provide real-time information as to the date and time the phone is off hook, numbers dialed, the date and time a call is terminated, the duration of the call and, if it is an incoming call, whether it was answered. Trap-and-trace processes capture in real time the telephone number of the device calling the target phone (caller ID). Trap-and-trace devices are geographically limited in scope.
Pen registers are not protected by the Fourth Amendment. A person has no reasonable expectation of privacy in terms of this information because the information is available and accessible to a third party, such as the telephone company. Furthermore, pen registers presumably capture only non-content information. Although the installation and use of a pen register does not constitute a search under Fourth Amendment criteria requiring a warrant, most jurisdictions, including federal jurisdictions, require a court order before installation. The order required is of the type described under the SCA, certifying that the information sought is relevant and material to an ongoing criminal investigation. Certification by the government means only that the information likely to be obtained is relevant to the investigation. Thus, the court order should include the identity of the law enforcement officer making the application, the identity of the agency conducting the investigation, and a statement under oath by the applicant that the information likely to be obtained is relevant to an ongoing criminal investigation being conducted by the agency.
The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act) expanded the definition of pen registers and trap-and-trace devices to include addressing information on e-mails and to Internet Protocol (IP) addresses. Whereas previously pen registers recorded only numbers dialed on the telephone line, the definition now includes all forms of transmission (“dialing, routing, addressing, or signaling information”). The effect of this change is that e-mail headers (i.e., the address information), IP addresses, and Uniform Resource Locators (URLs) now fall under this definition. The concern is that the information revealed from IP addresses and URLs is more content-like than non-content-like. IP addresses and URLs reveal significant information about users, including what their interests are and where they shop. This concern has not been addressed to date.
In summary, a court order certifying that the information likely to be obtained by such installation and use is relevant to an ongoing investigation is all that is required for its release. The orders can last up to 60 days and are not reviewed. This differs greatly from a warrant, where a return is required. Neither the Stored Communications Act nor the Pen Register Act contains an exclusionary rule. Thus, an individual has no recourse when the government illegally collects information.