What does the Electronic Communications Privacy Act ECPA cover?

A federal statute that protects certain wire, oral, and electronic communications from unauthorized interception, access, use, and disclosure. The ECPA's provisions are codified in:

• The Wiretap Act (amended by the ECPA). Among other things and subject to certain exceptions, the Wiretap Act makes it unlawful to:

  • intentionally intercept (use any electronic, mechanical, or other device to acquire the contents of) wire, oral, and electronic communications while in transit; or

  • use or disclose the contents of any communication obtained in violation of the statute.

  (18 U.S.C. §§ 2510 to 2523.)

• The Stored Communications Act (SCA). The SCA protects the privacy of wire and electronic communications (for example, emails) and records (for example, email service subscriber names) while in electronic storage. Among other things, the SCA makes it unlawful to:

  • access without authorization (or exceed authorized access to) a system used to transmit wire or electronic communications; and

  • through such access, obtain, alter, or prevent another's authorized access to a wire or electronic communication stored on the system.

  (18 U.S.C. §§ 2701 to 2713.)

• The Pen Register and Trap and Trace Devices Statute. Regulates the government's use of "pen registers" and "trap and trace devices" related to wire or electronic communications, such as telephone and internet communications (18 U.S.C. §§ 3121 to 3127).

The SCA also specifies the procedures for federal and state law enforcement to compel the disclosure of stored communications and regulates voluntary disclosure by service providers of customer communications and records.

In certain circumstances, the ECPA permits an individual who suffers damages to bring a civil action for damages or injunctive relief against a violator of the statute.

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The ECPA also added new provisions prohibiting access to stored electronic communications, including the Stored Communications Act. The ECPA also included provisions that permit the tracing of telephone communications. The ECPA has been amended by the Communications Assistance to Law Enforcement Act (CALEA) (1994), the USA Patriot Act (2001), the USA Patriot reauthorization acts (2006), and the FISA Amendments Act (2008). The law entitles federal agencies to subpoena 180-day-old emails.

An Overview of the Act

The electronic communication means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photo electronic or photo optical system that affects interstate or foreign commerce. This does not include:

• A wire or oral communication.
• A communication made through a tone-only paging device.
• A communication from a tracking device (as defined in section 3117 of the Act).
• An electronic funds transfer information stored by a financial institution in a communications system used for the electronic storage and transfer of funds.

Title I of the ECPA protects wire, oral, and electronic communications while in transit. Title II of the ECPA, the Stored Communications Act (SCA), protects communications held in electronic storage, most notably messages stored on computers. Its protections are weaker than those of Title I, however, and do not impose heightened standards for warrants. Title III prohibits the use of trace devices to record dialing, routing, addressing, and signaling information used in the process of transmitting wire or electronic communications without a court order.

Major Court Decisions Interpreting the Act

In Katz v. United States, the Supreme Court held that telephone conversations are protected by the Fourth Amendment and establishing the principle of a reasonable expectation of privacy.

In Smith v. Maryland (1979), the Supreme Court held that the use of trace devices does not constitute a search requiring a warrant.

In United States v. Warshak (2010), the 6th Circuit court held that law enforcement must have a warrant to obtain emails stored by email providers.

Lastly, in Application of the US (2010), the 3rd Circuit held that judges might require the government to obtain a warrant to access stored location information.

What are Damages and Civil and Criminal Claims Available under the Act?

There are both civil and criminal penalties for a violation of the ECPA. A court can award damages to the victim of eavesdropping. The damages are calculated in a way that each day of continuation of the violation gives rise to a higher amount of damages. A court may also impose additional, punitive damages if the violation is especially malicious. Finally, a court may impose a term of imprisonment not to exceed five years for a violation of the ECPA.

Elements of a Civil or Criminal Action in Violation of the ECPA

Under the Act, it is illegal to:

• Intentionally or purposefully,
• Intercept, disclose, or use the contents of
• Any wire, oral, or electronic communication
• With a “device.”

What are Defenses to a Violation of the ECPA?

Two main exceptions allow communications to be intercepted without violating the Act are:

• The “provider” exception allows telephone service providers to listen to or monitor your telephone calls when they are directed to by law enforcement officers with a valid court order or when it’s necessary to provide you with service, to inspect the equipment, or to protect the provider’s property or rights, such as when its network is being used without being paid for, and
• Law enforcement officials can intercept communications when one party consents to it, so, if you’re suspected in illegal activities and a government informant consents, agents can listen to and record your conversations with the informant

Minc Law does not typically litigate ECPA claims. However, understanding the ECPA is critical for defamation cases in terms of the scope of discovery that can be obtained from third party service providers. This is especially the case in John Doe lawsuits, where obtaining as much information from email accounts and online service providers is critical to identify online defamers. The law of the right of privacy and wiretapping is complex. If you believe you are a victim of a violation of the ECPA then contact the experienced extortion lawyers at Minc Law to evaluate your case. The laws regarding the ECPA vary depending on the state. Call today to find out more information at (216) 373-7706.

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The ECPA protects individuals against unlawful interception of electronic communications by the Federal Government or individuals. Specifically, it restricts the ability to undertake wire taps, computer transmissions, stored electronic communications, and tracing of telephone communications, etc. It is a federal crime to undertake such activity without first receiving a court order or obtaining consent from a party to the communication. This means that one party to the conversation may record the conversation without another party's knowledge. The Act protects communications while being made, as well as records of past communications. It is also a crime to use or disclose information obtained through this illegal means. 

Note: The ECPA does not cover video recordings without an audio recording component. States may further restrict the ability of individuals and the government to record private communications. Notably, some states require the consent of both parties before a communication may be recorded. The ECPA establishes higher standards for search warrants for active communications. The standard is not raised for records of communications. 

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Related Topics

How do you feel about the ability of the Federal Government and individuals to record private communications? Should the government have broader or narrower rights to record communications? Should both individuals be required to consent before recording an communication? Why or why not?

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