# Privacy: An Overview of the Electronic Communications Privacy Act > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/crs%3AR41733 ## Record - **Collection:** Congressional research report - **Document type:** CRS Report - **Published:** October 9, 2012 - **Citation:** R41733 ## Text Privacy: An Overview of the Electronic Communications Privacy Act (name redacted) Senior Specialist in American Public Law October 9, 2012 Congressional Research Service 7-.... www.crs.gov R41733 CRS Report for Congress Prepared for Members and Committees of Congress Privacy: An Overview of the Electronic Communications Privacy Act Summary This report provides an overview of federal law governing wiretapping and electronic eavesdropping under the Electronic Communications Privacy Act (ECPA). It also appends citations to state law in the area and the text of ECPA. It is a federal crime to wiretap or to use a machine to capture the communications of others without court approval, unless one of the parties has given his prior consent. It is likewise a federal crime to use or disclose any information acquired by illegal wiretapping or electronic eavesdropping. Violations can result in imprisonment for not more than five years; fines up to $250,000 (up to $500,000 for organizations); civil liability for damages, attorneys’ fees and possibly punitive damages; disciplinary action against any attorneys involved; and suppression of any derivative evidence. Congress has created separate, but comparable, protective schemes for electronic communications (e.g., email) and against the surreptitious use of telephone call monitoring practices such as pen registers and trap and trace devices. Each of these protective schemes comes with a procedural mechanism to afford limited law enforcement access to private communications and communications records under conditions consistent with the dictates of the Fourth Amendment. The government has been given narrowly confined authority to engage in electronic surveillance, conduct physical searches, and install and use pen registers and trap and trace devices for law enforcement purposes under ECPA and for purposes of foreign intelligence gathering under the Foreign Intelligence Surveillance Act. This report appears as a part of a larger piece, which includes a discussion of the Foreign Intelligence Surveillance Act and is entitled CRS Report 98-326, Privacy: An Overview of Federal Statutes Governing Wiretapping and Electronic Eavesdropping, by (name redacted) and (name redacted). Each of the two is available inan abridged form without footnotes, quotations, attributions of authority, or appendices, i.e., CRS Report R41734, Privacy: An Abridged Overview of the Electronic Communications Privacy Act, by (name redacted), and CRS Report 98327, Privacy: An Abbreviated Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping, by (name redacted) and (name redacted). Congressional Research Service Privacy: An Overview of the Electronic Communications Privacy Act Contents Introduction...................................................................................................................................... 1 Background...................................................................................................................................... 1 Title III: Prohibitions ....................................................................................................................... 7 Illegal Wiretapping and Electronic Eavesdropping ................................................................... 7 Person.................................................................................................................................. 7 Intentional ........................................................................................................................... 8 Jurisdiction .......................................................................................................................... 8 Interception ......................................................................................................................... 9 Content .............................................................................................................................. 10 By Electronic, Mechanical, or Other Device .................................................................... 11 Wire, Oral, or Electronic Communications....................................................................... 12 Endeavoring to Intercept ................................................................................................... 13 Exemptions: Consent Interceptions................................................................................... 13 Exemptions: Publicly Accessible Radio Communications ............................................... 15 Exemptions: Government Officials................................................................................... 15 Exemptions: Communication Service Providers............................................................... 16 Domestic Exemptions ....................................................................................................... 17 Illegal Disclosure of Information Obtained by Wiretapping or Electronic Eavesdropping...................................................................................................................... 17 Illegal Use of Information Obtained by Unlawful Wiretapping or Electronic Eavesdropping...................................................................................................................... 20 Shipping, Manufacturing, Distributing, Possessing or Advertising Wire, Oral, or Electronic Communication Interception Devices................................................................. 21 Title III: Government Access......................................................................................................... 24 Law Enforcement Wiretapping and Electronic Eavesdropping............................................... 24 Title III: Consequences of a Violation ........................................................................................... 29 Criminal Penalties ............................................................................................................. 29 Civil Liability .................................................................................................................... 31 Civil Liability of the United States.................................................................................... 32 Administrative Action ....................................................................................................... 32 Attorney Discipline ........................................................................................................... 32 Exclusion of Evidence....................................................................................................... 34 Stored Communications Act (SCA)............................................................................................... 35 SCA: Prohibitions.................................................................................................................... 35 SCA: Government Access ....................................................................................................... 40 SCA: Consequences ................................................................................................................ 45 Pen Registers and Trap and Trace Devices (PR/T&T) .................................................................. 46 PR/T&T: Prohibitions.............................................................................................................. 46 PR/T&T: Government Access ................................................................................................. 48 PRT&T: Consequences............................................................................................................ 49 Electronic Communications Privacy Act (Text). ........................................................................... 50 Chapter 119 (“Title III”) .......................................................................................................... 50 18 U.S.C. 2510. Definitions. ............................................................................................. 50 Congressional Research Service Privacy: An Overview of the Electronic Communications Privacy Act 18 U.S.C. 2511. Interception and disclosure of wire, oral, or electronic communications prohibited............................................................................................ 52 18 U.S.C. 2512. Manufacture, distribution, possession, and advertising of wire, oral, or electronic communication intercepting devices prohibited. .............................. 55 18 U.S.C. 2513. Confiscation of wire, oral, or electronic communication interception devices........................................................................................................ 56 18 U.S.C. 2515. Prohibition of use as evidence of intercepted wire or oral communications. ............................................................................................................ 56 18 U.S.C. 2516. Authorization for interception of wire, oral, or electronic communications. ............................................................................................................ 56 18 U.S.C. 2517. Authorization for disclosure and use of intercepted wire, oral, or electronic communications............................................................................................. 59 18 U.S.C. 2518. Procedure for interception of wire, oral, or electronic communications. ............................................................................................................ 60 18 U.S.C. 2519. Reports concerning intercepted wire, oral, or electronic communications. ............................................................................................................ 64 18 U.S.C. 2520. Recovery of civil damages authorized.................................................... 65 18 U.S.C. 2521. Injunction against illegal interception. ................................................... 66 18 U.S.C. 2522. Enforcement of the Communications Assistance for Law Enforcement Act. ........................................................................................................... 66 Chapter 121 (“Stored Communications Act”) ......................................................................... 66 18 U.S.C. 2701. Unlawful access to stored communications............................................ 66 18 U.S.C. 2702. Voluntary disclosure of customer communications or records. .............. 67 18 U.S.C. 2703. Required disclosure of customer communications or records................ 68 18 U.S.C. 2704. Backup preservation. .............................................................................. 70 18 U.S.C. 2705. Delayed notice. ....................................................................................... 71 18 U.S.C. 2706. Cost reimbursement................................................................................ 72 18 U.S.C. 2707. Civil action. ............................................................................................ 72 18 U.S.C. 2708. Exclusivity of remedies. ......................................................................... 73 18 U.S.C. 2709. Counterintelligence access to telephone toll and transactional records............................................................................................................................ 73 18 U.S.C. 2711. Definitions for chapter. ........................................................................... 75 18 U.S.C. 2712. Civil Action against the United States. ................................................... 75 Chapter 206 (“Pen Register and Trap and Trace Devices”) .................................................... 76 18 U.S.C. 3121. General prohibition on pen register and tape and trace device use; exception................................................................................................................. 76 18 U.S.C. 3122. Application for an order for a pen register or a trap and trace device. ............................................................................................................................ 76 18 U.S.C. 3123. Issuance of an order for a pen register or a trap and trace device........... 77 18 U.S.C. 3124. Assistance in installation and use of a pen register or a trap and trace device. ................................................................................................................... 78 18 U.S.C. 3125. Emergency pen register and trap and trace device installation............... 79 18 U.S.C. 3126. Reports concerning pen registers and trap and trace devices. ................ 79 18 U.S.C. 3127. Definitions for chapter............................................................................ 79 Appendixes Appendix A. State Statutes Outlawing the Interception of Wire(w), Oral(o) and Electronic Communications(e) .................................................................................................................... 81 Congressional Research Service Privacy: An Overview of the Electronic Communications Privacy Act Appendix B. Consent Interceptions Under State Law ................................................................... 82 Appendix C. Statutory Civil Liability for Interceptions Under State Law .................................... 83 Appendix D. Court Authorized Interception Under State Law...................................................... 84 Appendix E. State Statutes Regulating Stored Electronic Communications (SE), Pen Registers (PR) and Trap and Trace Devices (T) ......................................................................... 85 Appendix F. State Computer Crime Statutes ................................................................................. 86 Contacts Author Contact Information........................................................................................................... 86 Congressional Research Service Privacy: An Overview of the Electronic Communications Privacy Act Introduction This is an outline of the Electronic Communications Privacy Act (ECPA).1 ECPA consists of three parts. The first, sometimes referred to as Title III, outlaws the unauthorized interception of wire, oral, or electronic communications.2 It also establishes a judicial supervised procedure to permit such interceptions for law enforcement purposes.3 The second, the Stored Communications Act, focuses on the privacy of, and government access to, stored electronic communications.4 The third creates a procedure for governmental installation and use of pen registers as well as trap and trace devices.5 It also outlaws such installation or use except for law enforcement and foreign intelligence investigations.6 Background At common law, “eavesdroppers, or such as listen under walls or windows, or the eaves of a house, to hearken after discourse, and thereupon to frame slanderous and mischievous tales, are a 1 Portions of this report draw upon a series of earlier reports, no longer available, entitled: Wiretapping and Electronic Surveillance: A Brief Discussion of Pertinent Supreme Court Cases, A Summary and Compilation of Federal State Statutes, and a Selected Legal Bibliography (1970); Wiretapping and Electronic Surveillance: A Brief Discussion of Pertinent Supreme Court Cases, A Summary and Compilation of Federal State Statutes, and a Selected Legal Bibliography (1971); Wiretapping and Electronic Surveillance: Federal and State Statutes (1974); Taps and Bugs: A Compilation of Federal and State Statutes Governing the Interception of Wire and Oral Communications (1981); The Interception of Communications: A Legal Overview of Bugs and Taps (1988); Wiretapping & Electronic Surveillance: The Electronic Communications Privacy Act and Related Matters (1992); Taps, Bugs & Telephony: An Overview of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (1998); Privacy: An Overview of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2001); id. (2003); id. (2006); id. (2009). It constitutes the ECPA portion of a separate report that includes a discussion of the Foreign Intelligence Surveillance Act (FISA), CRS Report 98-326, Privacy: An Overview of Federal Statutes Governing Wiretapping and Electronic Eavesdropping. As used in this report “electronic eavesdropping” refers to the use of hidden microphones, recorders and any other mechanical or electronic means of capturing ongoing communications, other than wiretapping (tapping into telephone conversations). In previous versions of this report and other earlier writings, it was common to use a more neutral, and consequently preferred, term—electronic surveillance—at least when referring to law enforcement use. Unfortunately, continued use of the term “electronic surveillance” rather than “electronic eavesdropping” risks confusion with forms of surveillance that either have individualistic definitions (e.g., “electronic surveillance” under the Foreign Intelligence Surveillance Act, 50 U.S.C. 1801(f)), involve surveillance that does not capture conversation (e.g., thermal imaging or electronic tracking devices), or may or may not capture conversation (e.g., the coverage of video surveillance depends upon the circumstances and the statutory provision question). Related developments are discussed in CRS Report R42725, Reauthorization of the FISA Amendments Act; CRS Report R40138, Amendments to the Foreign Intelligence Surveillance Act (FISA) Extended Until June 1, 2015; CRS Report R40980, Government Collection of Private Information: Background and Issues Related to the USA PATRIOT Act Reauthorization; CRS Report 97-1025, Cybercrime: An Overview of the Federal Computer Fraud and Abuse Statute and Related Federal Criminal Laws, by (name redacted); CRS Report RL33424,Government Access to Phone Calling Activity and Related Records: Legal Authorities; CRS Report RL30677, The Communications Assistance for Law Enforcement Act, by (name redacted); and CRS Report RL34693, Online Data Collection and Disclosure to Private Entities: Selected Federal Laws and Self-Regulatory Regimes, by (name redacted). 2 18 U.S.C. 2510-2522. This part of ECPA was originally enacted as Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. 2510-2520 (1964 ed,)(Supp. IV). 3 Id. 4 18 U.S.C. 27-1-2712. 5 18 U.S.C. 3121-3127. 6 18 U.S.C. 3121. Congressional Research Service 1 Privacy: An Overview of the Electronic Communications Privacy Act common nuisance and presentable at the court-leet; or are indictable at the sessions, and punishable by fine and finding of sureties for [their] good behavior.”7 Although early American law proscribed common law eavesdropping, the crime was little prosecuted and by the late nineteenth century had “nearly faded from the legal horizon.”8 With the invention of the telegraph and telephone, however, state laws outlawing wiretapping or indiscretion by telephone and telegraph operators preserved the spirit of the common law prohibition in this country. Congress enacted the first federal wiretap statute as a temporary measure to prevent disclosure of government secrets during World War I.9 Later, it proscribed intercepting and divulging private radio messages in the Radio Act of 1927,10 but did not immediately reestablish a federal wiretap prohibition. By the time of the landmark Supreme Court decision in Olmstead, however, at least forty-one of the forty-eight states had banned wiretapping or forbidden telephone and telegraph employees and officers from disclosing the content of telephone or telegraph messages or both.11 Olmstead was a Seattle bootlegger whose Prohibition Act conviction was the product of a federal wiretap. He challenged his conviction on three grounds, arguing unsuccessfully that the wiretap evidence should have been suppressed as a violation of either his Fourth Amendment rights, his Fifth Amendment privilege against self-incrimination, or the rights implicit in the Washington state statute that outlawed wiretapping. For a majority of the Court, writing through Chief Justice Taft, Olmstead’s Fourth Amendment challenge was doomed by the absence of “an official search and seizure of his person, or such a seizure of his papers or his tangible material effects, or an actual physical invasion of his house or curtilage12 for the purposes of making a seizure.”13 7 4 BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND, 169 (1769). 8 “Eavesdropping is indictable at the common law, not only in England but in our states. It is seldom brought to the attention of the courts, and our books contain too few decisions upon it to enable an author to define it with confidence.... It never occupied much space in the law, and it has nearly faded from the legal horizon.” 1 BISHOP, COMMENTARIES ON THE CRIMINAL LAW, 670 (1882). 9 40 Stat.1017-18 (1918)(“whoever during the period of governmental operation of the telephone and telegraph systems of the United States ... shall, without authority and without the knowledge and consent of the other users thereof, except as may be necessary for operation of the service, tap any telegraph or telephone line ... or whoever being employed in any such telephone or telegraph service shall divulge the contents of any such telephone or telegraph message to any person not duly authorized or entitled the receive the same, shall be fined not exceeding $1,000 or imprisoned for not more than one year or both”); 56 Cong.Rec. 10761-765 (1918). 10 44 Stat. 1172 (1927)(“ ... no person not being authorized by the sender shall intercept any message and divulge or publish the contents, substance, purpose, effect, or meaning of such intercepted message to any person ... ”). 11 Olmstead v. United States, 277 U.S. 438, 479-80 n.13 (1928)(Brandeis, J., dissenting). Olmstead is remembered most today for the dissents of Holmes and Brandeis, but for four decades it stood for the view that the Fourth Amendment’s search and seizure commands did not apply to government wiretapping accomplished without a trespass onto private property. 12 Curtilage originally meant the land and buildings enclosed by the walls of a castle; in later usage it referred to the barns, stables, garden plots and the like immediately proximate to a dwelling; it is understood in Fourth Amendment parlance to describe that area which “harbors those intimate activities associated with domestic life and the privacies of the home,” United States v. Dunn, 480 U.S. 294, 301 n.4 (1987). 13 277 U.S. at 466. Olmstead had not been compelled to use his phone and so the Court rejected his Fifth Amendment challenge. 277 U.S.C. at 462. Any violation of the Washington state wiretap statute was thought insufficient to warrant the exclusion of evidence, 277 U.S. at 466-68. Justice Holmes in his dissent tersely characterized the conduct of federal wiretappers as “dirty business,” 277 U.S. at 470. The dissent of Justice Brandeis observed that the drafters of the Constitution “conferred as against the Government, the right to be let alone—the most comprehensive of rights and the (continued...) Congressional Research Service 2 Privacy: An Overview of the Electronic Communications Privacy Act Chief Justice Taft pointed out that Congress was free to provide protection which the Constitution did not.14 Congress did so in the 1934 Communications Act by expanding the Radio Act’s proscription against intercepting and divulging radio communications so as to include intercepting and divulging radio or wire communications.15 The Federal Communications Act outlawed wiretapping, but it said nothing about the use of machines to surreptitiously record and transmit face to face conversations.16 In the absence of a statutory ban the number of surreptitious recording cases decided on Fourth Amendment grounds surged and the results began to erode Olmstead’s underpinnings.17 Erosion, however, came slowly. Initially the Court applied Olmstead’s principles to the electronic eavesdropping cases. Thus, the use of a dictaphone to secretly overhear a private conversation in an adjacent office offended no Fourth Amendment precepts because no physical trespass into the office in which the conversation took place had occurred.18 Similarly, the absence of a physical trespass precluded Fourth Amendment coverage of the situation where a federal agent secretly recorded his conversation with a defendant held in a commercial laundry in an area open to the public.19 On the other hand, the Fourth Amendment did reach the government’s physical intrusion upon private property during an investigation, as for example when they drove a “spike mike” into the common wall of a row house until it made contact with a heating duct for the home in which the conversation occurred.20 The spike mike case presented something of a technical problem, because there was some question whether the spike mike had actually crossed the property line of the defendant’s town house when it made contact with the heating duct. The Court declined to rest its decision on the technicalities of local property law, and instead found that the government’s conduct had intruded upon privacy of home and hearth in a manner condemned by the Fourth Amendment.21 (...continued) right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government against privacy of the individual whatever the means employed, must be deemed in violation of the Fourth Amendment,” 277 U.S. at 478-79. 14 “Congress may of course protect the secrecy of telephone messages by making them, when intercepted inadmissible in evidence in federal criminal trials, by direct legislation,” 277 U.S. at 465. 15 48 Stat. 1103-104 (1934), 47 U.S.C. 605 (1940 ed.). The Act neither expressly condemned law enforcement interceptions nor called for the exclusion of wiretap evidence, but it was read to encompass both, Nardone v. United States, 302 U.S. 379 (1937); Nardone v. United States, 308 U.S. 321 (1939). 16 Section 605 did ban the interception and divulgence of radio broadcasts but it did not reach the radio transmission of conversations that were broadcast unbeknownst to all of the parties to the conversation. Late in the game, the FCC supplied a partial solution when it banned the use of licensed radio equipment to overhear or record private conversation without the consent of all the parties involved in the conversation, 31 Fed. Reg. 3400 (March 4, 1966), amending then 47 C.F.R. §§2.701, 15.11. The FCC excluded “operations of any law enforcement offices conducted under lawful authority,” id. 17 The volume of all Fourth Amendment cases calling for Supreme Court review increased dramatically after Mapp v. Ohio, 367 U.S. 643 (1961), acknowledged the application of the Fourth Amendment exclusionary rule to the states. 18 Goldman v. United States, 316 U.S. 129 (1942). 19 On Lee v. United States, 343 U.S. 747 (1952). 20 Silverman v. United States, 365 U.S. 505 (1961). 21 “The absence of a physical invasion of the petitioner’s premises was also a vital factor in the Court’s decision in Olmstead v. United States.... In holding that the wiretapping there did not violate the Fourth Amendment, the Court noted that the insertions were made without trespass upon any property of the defendants. They were made in the basement of the large office building. The taps from house lines were made in the streets near the houses. 277 U.S. at (continued...) Congressional Research Service 3 Privacy: An Overview of the Electronic Communications Privacy Act Each of these cases focused upon whether a warrantless trespass onto private property had occurred, that is, whether the means of conducting a search and seizure had been so unreasonable as to offend the Fourth Amendment. Yet in each case, the object of the search and seizure had been not those tangible papers or effects for which the Fourth Amendment’s protection had been traditionally claimed, but an intangible, a conversation. This enlarged view of the Fourth Amendment could hardly be ignored, for “[i]t follows from ... Silverman ... that the Fourth Amendment may protect against the overhearing of verbal statements as well as against the more traditional seizure of papers and effects.”22 Soon thereafter the Court repudiated the notion that the Fourth Amendment’s protection was contingent upon some trespass to real property in Katz v. United States.23 Katz was a bookie convicted on the basis of evidence gathered by an electronic listening and recording device set up outside the public telephone booth that Katz used to take and place bets. The Court held that the gateway for Fourth Amendment purposes stood at that point where an individual should to able to expect that his or her privacy would not be subjected to unwarranted governmental intrusion.24 One obvious consequence of Fourth Amendment coverage of wiretapping and other forms of electronic eavesdropping is the usual attachment of the Amendment’s warrant requirement. To avoid constitutional problems and at the same time preserve wiretapping and other forms of electronic eavesdropping as a law enforcement tool, some of the states established a statutory (...continued) 457. There was no entry of the houses or offices of the defendants. 277 U.S. at 464. Relying upon these circumstances, the Court reasoned that the intervening wires are not part of (the defendant’s) house or office any more than are the highways along which they are stretched. 277 U.S. at 465. “Here, by contrast, the officers overheard the petitioners’ conversations only by usurping part of the petitioners’ house or office—a heating system which was an integral part of the premises occupied by the petitioners, a usurpation that was effected without their knowledge and without their consent. In these circumstances we need not pause to consider whether or not there was a technical trespass under the local property law relating to party walls. Inherent Fourth Amendment rights are not inevitably measurable in terms of ancient niceties of tort or real property law . . . . “The Fourth Amendment, and the personal rights which it secures, have a long history. At the very core stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion ... This Court has never held that a federal officer may without warrant and without consent physically entrench into a man’s office or home, there secretly observe or listen, and relate at the man’s subsequent criminal trial what was seen or heard. “A distinction between the dictaphone employed in Goldman and the spike mike utilized here seemed to the Court of Appeals too fine a one to draw. The court was unwilling to believe that the respective rights are to be measured in fractions of inches. But decision here does not turn upon the technicality of a trespass upon a party wall as a matter of local law. It is based upon the reality of an actual intrusion into a constitutionally protected area. What the Court said long ago bears repeating now: It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. Boyd v. United States, 116 U.S. 616, 635. We find no occasion to reexamine Goldman here, but we decline to go beyond it, by even a fraction of an inch,” 365 U.S. at 510-12 (internal quotation marks omitted). 22 Wong Sun v. United States, 371 U.S. 471, 485 (1963). 389 U.S. 347 (1967). 24 “We conclude that the underpinnings of Olmstead and Goldman have been so eroded by our subsequent decisions that the trespass doctrine there enunciated can no longer be regarded as controlling. The Government’s activities in electronically listening to and recording the petitioner’s words violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a search and seizure within the meaning of the Fourth Amendment. The fact that the electronic device employed to achieve that end did not happen to penetrate the wall of the booth can have no constitutional significance.” Later courts seem to prefer the “expectation of privacy” language found in Justice Harlan’s concurrence: “My understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as reasonable,” 389 U.S. at 361. 23 Congressional Research Service 4 Privacy: An Overview of the Electronic Communications Privacy Act system under which law enforcement officials could obtain a warrant, or equivalent court order, authorizing wiretapping or electronic eavesdropping. The Court rejected the constitutional adequacy of one of the more detailed of these state statutory schemes in Berger v. New York.25 The statute was found deficient because of its failure to require: • a particularized description of the place to be searched; • a particularized description of the crime to which the search and seizure related; • a particularized description of the conversation to be seized; • limitations to prevent general searches; • termination of the interception when the conversation sought had been seized; • prompt execution of the order; • return to the issuing court detailing the items seized; and • any showing of exigent circumstances to overcome the want of prior notice.26 Berger helped persuade Congress to enact Title III of the Omnibus Crime Control and Safe Streets Act of 1968, a comprehensive wiretapping and electronic eavesdropping statute that not only outlawed both activities in general terms but that also permitted federal and state law enforcement officers to use them under strict limitations designed to meet the objections in Berger.27 A decade later another Supreme Court case persuaded Congress to supplement Title III with a judicially supervised procedure for the use of wiretapping and electronic eavesdropping in foreign intelligence gathering situations. When Congress passed Title III there was some question over the extent of the President’s inherent powers to authorize wiretaps—without judicial approval—in national security cases. As a consequence, the issue was simply removed from the Title III scheme.28 After the Court held that the President’s inherent powers were insufficient to excuse warrantless electronic eavesdropping on purely domestic threats to national security,29 Congress considered it prudent to augment the foreign intelligence gathering authority of the United States with the Foreign Intelligence Security Act of 1978 (FISA).30 The FISA provides a procedure for judicial review and authorization of electronic surveillance and other forms of information gathering for foreign intelligence purposes. 25 388 U.S. 41 (1967). 26 388 U.S. at 58-60. 27 87 Stat. 197, 18 U.S.C. 2510 - 2520 (1970 ed.). 18 U.S.C. 2511(3)(1970 ed.)(“Nothing contained in this chapter or in section 605 of the Communications Act ... shall limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities ... ”). 29 United States v. United States District Court, 407 U.S. 297 (1972). 30 92 Stat. 1783, 50 U.S.C. 1801-1862. 28 Congressional Research Service 5 Privacy: An Overview of the Electronic Communications Privacy Act Two other Supreme Court cases influenced the development of federal law in the area. In United States v. Miller,31 the Court held that a customer had no Fourth Amendment protected expectation of privacy in the records his bank created concerning his transactions with them. These third party records were therefore available to the government under a subpoena duces tecum rather than a more narrowly circumscribed warrant.32 In Smith v. Maryland,33 it held that no warrant was required for the state’s use of a pen register or trap and trace device, if the device merely identified the telephone numbers for calls made and received from a particular telephone. No Fourth Amendment search or seizure occurred, the Court held, since the customer had no justifiable expectation of privacy in information which he knew or should have known the telephone company might ordinarily capture for billing or service purposes.34 In 1986, Congress enacted the Electronic Communications Privacy Act (ECPA).35 ECPA consists of three parts: a revised Title III;36 the Stored Communications Act (SCA);37 and provisions governing the installation and use of pen registers as well as trap and trace devices.38 Congress has adjusted the components of ECPA and FISA, over the years. It has done so sometimes in the interests of greater privacy; sometimes in the interest of more effective law enforcement or foreign intelligence gathering; often with an eye to some combination of those interests. Prominent among its enactments are: • the USA PATRIOT Act; 39 • the Intelligence Authorization Act for Fiscal Year 2002;40 • the 21st Century Department of Justice Appropriations Authorization Act;41 • the Department of Homeland Security Act;42 • the USA PATRIOT Improvement and Reauthorization Act;43 and • the Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008 (2008 FISA Amendments Act).44 31 425 U.S. 435, 441-43 (1976). Id. at 44-45. 33 442 U.S. 735, 741-46 (1979). 34 Id. In United States v. New York Telephone Co., the Court held that the Title III did not apply to the use of pen registers and that federal courts had the power to authorize their installation for law enforcement purposes, 434 U.S. 157, 168 (1977). 35 100 Stat. 1848 (1986). 36 18 U.S.C. 2510-2522. 37 18 U.S.C. 2701-2712. 38 18 U.S.C. 3121-3126. 39 P.L. 107-56, 115 Stat. 272 (2001). 40 P.L. 107-108, 115 Stat. 1394 (2001). 41 P.L. 107-273, 116 Stat. 1758 (2002). 42 P.L. 107-296, 116 Stat. 2135 (2002). 43 P.L. 109-177, 120 Stat. 192 (2006). 44 P.L. 110-261, 122 Stat. 2436 (2008). 32 Congressional Research Service 6 Privacy: An Overview of the Electronic Communications Privacy Act Title III: Prohibitions In Title III, ECPA begins the proposition that unless provided otherwise, it is a federal crime to engage in wiretapping or electronic eavesdropping; to possess wiretapping or electronic eavesdropping equipment; to use or disclose information obtained through illegal wiretapping or electronic eavesdropping; or to disclose information secured through court-ordered wiretapping or electronic eavesdropping, in order to obstruct justice.45 Illegal Wiretapping and Electronic Eavesdropping First among these is the ban on illegal wiretapping and electronic eavesdropping that covers: • any person who • intentionally • intercepts, or endeavors to intercept, • wire, oral, or electronic communications • by using an electronic, mechanical, or other device • unless the conduct is specifically authorized or expressly not covered, e.g. • one of the parties to the conversation has consented to the interception, • the interception occurs in compliance with a statutorily authorized (and ordinarily judicially supervised) law enforcement or foreign intelligence gathering interception, • the interception occurs as part of providing or regulating communication services, • certain radio broadcasts, and • in some places, spousal wiretappers.46 Person The prohibition applies to “any employee, or agent of the United States or any State or political subdivision thereof, and any individual, partnership, association, joint stock company, trust, or corporation.”47 45 18 U.S.C. 2511. Elsewhere, federal law proscribes: unlawful access to stored communications, 18 U.S.C. 2701; unlawful use of a pen register or a trap and trace device, 18 U.S.C. 3121; and abuse of eavesdropping and search authority or unlawful disclosures under the Foreign Intelligence Surveillance Act, 50 U.S.C. 1809, 1827. 46 18 U.S.C. 2511(1). 47 18 U.S.C. 2510(6). Although the governmental entities are not subject to criminal liability, as noted infra, some courts believe them subject to civil liability under 18 U.S.C. 2520; Smoot v. United Transportation Union, 246 F.3d 633, 640-41 (6th Cir. 2001). Congressional Research Service 7 Privacy: An Overview of the Electronic Communications Privacy Act Intentional Conduct can only violate Title III if it is done “intentionally,” inadvertent conduct is no crime; the offender must have done on purpose those things which are outlawed.48 He need not be shown to have known, however, that his conduct was unlawful.49 Jurisdiction Subsection 2511(1) contains two interception bars—one, 2511(1)(a), simply outlaws intentional interception; the other, 2511(1)(b), outlaws intentional interception when committed under any of five jurisdictional circumstances with either an implicit or explicit nexus to interstate or foreign commerce.50 Congress adopted the approach because of concern that its constitutional authority might not be sufficient to ban instances of electronic surveillance that bore no discernable connection to interstate commerce or any other of Congress’s enumerated constitutional powers. So it enacted a general prohibition, and as a safety precaution, a second provision more tightly tethered to specific jurisdictional factors.51 The Justice Department has honored that caution by 48 “In order to underscore that the inadvertent reception of a protected communication is not a crime, the subcommittee changed the state of mind requirement under Title III of the Omnibus Crime Control and Safe Streets Act of 1968 from ‘willful’ to ‘intentional,’” S.Rept. 541, at 23 (1986); “This provision makes clear that the inadvertent interception of a protected communication is not unlawful under this Act,” H.Rept. 99-647, at 48-9 (1986). See, e.g., In re Pharmatrak, Inc., 329 F.3d 9, 23 (1st Cir. 2003); Sanders v. Robert Bosch Corp., 38 F.3d 736, 742-43 (4th Cir. 1994); Lonegan v. Hasty, 436 F.Supp.2d 419, 429 (E.D.N.Y. 2006); Lewton v. Divingnzzo, 772 F.Supp.2d 1046, 1059 (D.Nev. 2011). “But the plaintiffs need not produce direct evidence of the intentional interception; for often the only way to prove that a stealthy interception occurred is through circumstantial evidence,” McCann v. Iroquois Memorial Hospital, 622 F.3d 745, 752 (7th Cir. 2010), citing, DirecTV v. Webb, 545 F.3d 837, 844 (9th Cir. 2008). 49 Narducci v. Village of Bellwood, 444 F.Supp. 924, 935 (N.D. Ill. 2006). 50 “(1) Except as otherwise specifically provided in this chapter any person who—(a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication; “(b) intentionally uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication when—(I) such device is affixed to, or otherwise transmits a signal through, a wire, cable, or other like connection used in wire communication; or (ii) such device transmits communications by radio, or interferes with the transmission of such communication; or (iii) such person knows, or has reason to know, that such device or any component thereof has been sent through the mail or transported in interstate or foreign commerce; or (iv) such use or endeavor to use (A) takes place on the premises of any business or other commercial establishment the operations of which affect interstate or foreign commerce; or (B) obtains or is for the purpose of obtaining information relating to the operations of any business or other commercial establishment the operations of which affect interstate or foreign commerce; or (v) such person acts in the District of Columbia, the Commonwealth of Puerto Rico, or any territory or possession of the United States,” 18 U.S.C. 2511(1)(a),(b). 51 “Subparagraph (a) establishes a blanket prohibition against the interception of wire communication. Since the facilities used to transmit wire communications form part of the interstate or foreign communications network, Congress has plenary power under the commerce clause to prohibit all interception of such communications whether by wiretapping or otherwise. “The broad prohibition of subparagraph (a) is also applicable to the interception of oral communications. The interception of such communications, however, does not necessarily interfere with the interstate or foreign commerce network, and the extent of the constitutional power of Congress to prohibit such interception is less clear than in the case of interception of wire communications. . . . “Therefore, in addition to the broad prohibitions of subparagraph (a), the committee has included subparagraph (b), which relies on accepted jurisdictional bases under the commerce clause, and other provisions of the Constitution to prohibit the interception of oral communications,” S.Rept. 90-1097, at 91-2 (1968). Congressional Research Service 8 Privacy: An Overview of the Electronic Communications Privacy Act employing subparagraph (b) to prosecute the interception of oral communications, while using subparagraph (a) to prosecute other forms of electronic eavesdropping.52 Interception Interception “means the aural or other acquisition of the contents” of various kinds of communications by means of “electronic, mechanical or other devices.”53 Although logic might suggest that interception occurs only in the place where the communication is captured, the cases indicate that interception occurs as well where the communication begins, is transmitted, or is received.54 Yet, it does not include instances when an individual simply reads or listens to a previously intercepted communication, regardless of whether additional conduct may implicate the prohibitions on use or disclosure.55 Once limited to aural acquisitions, ECPA enlarged the definition of “interception” by adding the words “or other acquisition” so that it is no longer limited to interceptions of communications that can be heard.56 The change complicates the question of whether the wiretap, stored communications, or trap and trace portions of the ECPA govern the legality of various means of capturing information relating to a communication. The analysis might seem to favor wiretap coverage when it begins with an examination of whether an “interception” has occurred. Yet, there is little consensus over when an interception occurs; that is, whether “interception” as used in section 2511 contemplates surreptitious acquisition, either contemporaneous with transmission, or whether such acquisition may occur anytime before the initial cognitive receipt of the contents by the intended recipient, or under some other conditions.57 52 DEPARTMENT OF JUSTICE CRIMINAL RESOURCE MANUAL §9-60.200 at 1050, available at http://www.justice.gov/usao/ eousa/foia_reading_room/usam/title9/60mcrm.htm#9-60.400. As will be noted in a moment, the statutory definitions of wire and electronic communications contain specific commerce clause elements, but the definition of oral communications does not. Subsequent Supreme Court jurisprudence relating to the breadth of Congress’s commerce clause powers indicates that the precautions may have been well advised, United States v. Lopez, 514 U.S. 549 (1995) and United States v. Morrison, 529 U.S. 598 (2000). 53 18 U.S.C. 2510(4). The dictionary definition of “aural” is “of or relating to the ear or to the sense of hearing,” MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 76 (10th ed. 1996). 54 United States v. Luong, 471 F.3d 1107, 1109 (9th Cir. 2006)(“an interception occurs where the tapped phone is located and where the law enforcement officers first overheard the call ... United States v. Rodriguez, 968 F.2d 130, 136 (2d Cir. 1992); accord, United States v. Ramirez, 112 F.3d 849, 852 (7th Cir. 1997)(concluding that an interception occurs in the jurisdiction where the tapped phone is located, where the second phone in the conversation is located, and where the scanner used to overhear the call is located); United States v. Denman, 100 F.3d 399, 403 (5th Cir. 1996)”). 55 Noel v. Hall, 568 F.3d 743, 749 (9th Cir. 2009)(“In reaching this conclusion, we join a number of other circuits that have held that replaying of tapes containing recorded phone conversations does not amount to a new interception in violation of the Wiretap Act”), citing inter alia, United States v. Hammond, 286 F.3d 189, 193 (4th Cir. 2002); Reynolds v. Spears, 93 F.3d 428, 432-33 (8th Cir. 1996); United States v. Shields, 675 F.2d 1152, 1156 (11th Cir. 1982). 56 S.Rept. 99-541, at 13 (1986)(the “amendment clarifies that it is illegal to intercept the non-voice portion of a wire communication. For example, it is illegal to intercept the data or digitized portion of a voice communication”); see also, H.Rept. 99-647, at 34 (1986). 57 See, United States v. Szymuszkiewicz, 622 F.3d 701, 705-706 (7th Cir. 2010)(an employee’s surreptitiously programming his supervisor’s computer, so that the server forwards duplicates to the employee of all emails sent to the supervisor, constitutes an interception in violation of Title III); United States v. Councilman, 418 F.3d 67, 79-80(1st Cir. 2005)(en banc)(service provider’s access to email “during transient storage” constitutes “interception”; without deciding whether “interception is limited to acquisition contemporaneous with transmission”); Konop v. Hawaiian Airlines, Inc., 302 F.3d 868, 878 (9th Cir. 2002)(fraudulent access to stored communication does not constitute an “interception”; interception requires access contemporaneous with transmission); United States v. Smith, 155 F.3d 1051, 1058 (9th Cir. 1998)(unauthorized retrieval and recording of another’s voice mail messages constitutes an (continued...) Congressional Research Service 9 Privacy: An Overview of the Electronic Communications Privacy Act The USA PATRIOT Act resolved some of the statutory uncertainty concerning voice mail when it removed voice mail from the wiretap coverage of Title III (striking the phrase “and such term includes any electronic storage of such communication” from the definition of “wire communications” in Title III (18 U.S.C. 2510(1)) and added stored wire communications to the stored communications coverage of 18 U.S.C. 2703.58 Content The interceptions proscribed in Title III are confined to those that capture a communication’s “content,” that is, “information concerning [its] substance, purport, or meaning.”59 Trap and trace devices and pen registers once captured only information relating to the source and addressee of a communication, not its content. That is no longer the case. The “post-cut-through dialed digit features” of contemporary telephone communications now transmit communications in such a manner that the use of ordinary pen register or trap and trace devices will capture both noncontent and content.60 As a consequence, a few courts have held, either as a matter of statutory (...continued) “interception”); United States v. Jones, 451 F.Supp.2d 71, 75 (D.D.C. 2006)(government’s acquisition from the phone company of text messages was no interception because there was no contemporaneous access); Fraser v. National Mutual Insurance Co., 135 F.Supp.2d 623, 634-37 (E.D.Pa. 2001)(“interception” of email occurs with its unauthorized acquisition prior to initial receipt by its addressee); Steve Jackson Games, Inc. v. United States Secret Service, 36 F.3d 457, 461-62 n.7 (5th Cir. 1994)(Congress did not intend for “interception” to apply to email stored on an electronic bulletin board; stored wire communications (voice mail), however, is protected from “interception”); United States v. Meriwether, 917 F.2d 955, 959-60 (6th Cir. 1990)(access to stored information through the use of another’s pager does not constitute an “interception”); United States v. Reyes, 922 F.Supp. 818, 836-37 (S.D.N.Y. 1996)(same); Wesley College v. Pitts, 947 F.Supp. 375, 385 (D.Del. 1997)(no “interception” occurs when the contents of electronic communications are acquired unless contemporaneous with their transmission); Cardinal Health 414, Inc. v. Adams, 582 F.Supp.2d 967, 979-81 (M.D. Tenn. 2008)(same); see also, Adams v. Battle Creek, 250 F.3d 980, 982 (6th Cir. 2001)(use of a “clone” or duplicate pager to simultaneously receive the same message as a target pager is an “interception”); Brown v. Waddell, 50 F.3d 285, 294 (4th Cir. 1995)(same). 58 115 Stat. 283 (2001). Such recourse to the procedures of the Stored Communications Act must still comply with the demands of the Fourth Amendment, see, United States v. Warshak, 631 F.3d 266, 288 (6th Cir. 2010)(“Accordingly, we hold that a subscriber enjoys a reasonable expectation of privacy in the contents of emails that are stored with, or sent or received through, a commercial ISP. The government may not compel a commercial ISP to turn over the contents of a subscriber’s emails without first obtaining a warrant based on probable cause. Therefore, because they did not obtain a warrant, the government agents violated the Fourth Amendment when they obtained the contents of Warshak’s emails. Moreover, to the extent that the SCA purports to permit the government to obtain such emails warrantlessly, the SCA is unconstitutional”). 59 18 U.S.C. 2510(8). In re iPhone Application Litigation, 844 F.Supp.2d 1040, 1061 (2012)(“In United States v. Reed, 575 F.3d 900 (9th Cir. 2009), the Ninth Circuit held that data automatically generated about a telephone call, such as the call’s time of origination and its duration, do not constitute ‘content’ for purposes of the Wiretap Act’s sealing provisions because such data ‘contains no “information concerning the substance, purport, or meaning of [the] communication.”’ Id. at 916 (quoting 18 U.S.C. 2510[(8)]). Rather, ‘content’ is limited to information the user intended to communicate, such as the words spoken in a phone call. Id. Here, the allegedly intercepted electronic communications are simply users’ geolocation data. This data is generated automatically, rather than through the intent of the user, and therefore does not constitute ‘content’ susceptible to interception”). 60 “‘Post-cut-through dialed digits’ are any numbers dialed from a telephone after the call is initially setup or ‘cutthrough.’ Sometimes these digits are other telephone numbers, as when a party places a credit card call by first dialing the long distance carrier access number and then the phone number of the intended party. Sometimes these digits transmit real information, such as bank account numbers, Social Security numbers, prescription numbers, and the like. In the latter case, the digits represent communications content; in the former, they are non-content call processing numbers,” In re United States, 441 F.Supp.2d 816, 818 (S.D. Tex. 2006). Congressional Research Service 10 Privacy: An Overview of the Electronic Communications Privacy Act construction or constitutional necessity, that the authorities must rely on a Title III wiretap order rather than a pen register/trap and trace order if such information will be captured.61 By Electronic, Mechanical, or Other Device The statute does not cover common law “eavesdropping,” but only interceptions “by electronic, mechanical or other device.”62 The term includes computers,63 but it is defined so as not to include hearing aids or extension telephones in normal use (use in the “ordinary course of business”).64 Whether an extension phone has been installed and is being used in the ordinary course of business or in the ordinary course of law enforcement duties, so that it no longer constitutes an interception device for purposes of Title III and comparable state laws has proven a somewhat vexing question.65 Although often intertwined with the consent exception discussed below, the question generally turns on the facts in a given case.66 When the exemption is claimed as a practice in the ordinary course of business, the interception must be for a legitimate business reason, it must be routinely conducted, and at least in some circuits employees must be notified that their conversations are being monitored.67 Similarly, “Congress most likely carved out an exception for law enforcement 61 In re United States for Orders (1) Authorizing Use of Pen Registers and Trap and Trace Devices, 515 F.Supp.2d 325, 328-38 (E.D.N.Y. 2007); In re United States, 441 F.Supp.2d 816, 818-27 (S.D. Tex. 2006). 62 18 U.S.C. 2510(4). United States v. Jones, 451 F.Supp.2d 71, 75 (D.D.C. 2006)(government’s acquisition from the phone company of text messages was not an interception because it did not involve contemporaneous access and because no electronic, mechanical, or other devices were used). 63 United States v. Szymuszkiewicz, 622 F.3d 701, 707 (7th Cir. 2010)(“Thus Szymuszkiewicz acquired the emails by using at least three devices: Infusino’s computer (where the rule [directing surreptitious duplication of incoming emails] was set up), the Kansas City server (where the rule caused each message to be duplicated and sent his way), and his own computer (where the messages were received, read, and sometimes stored”). 64 “‘[E]lectronic, mechanical, or other device’ means any device or apparatus which can be used to intercept a wire, oral, or electronic communication other than—(a) any telephone or telegraph instrument, equipment or facility, or any component thereof, (i) furnished to the subscriber or user by a provider of wire or electronic communication service in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business or furnished by such subscriber or user for connection to the facilities of such service and used in the ordinary course of its business; or (ii) being used by a provider of wire or electronic communication service in the ordinary course of its business, or by an investigative or law enforcement officer in the ordinary course of his duties; (b) a hearing aid or similar device being used to correct subnormal hearing to not better than normal,” 18 U.S.C. 2510(5). 65 See the cases cited and commentary in Barnett & Makar, “In the Ordinary Course of Business”: The Legal Limits of Workplace Wiretapping, 10 HASTINGS JOURNAL OF COMMUNICATIONS AND ENTERTAINMENT LAW 715 (1988); Application to Extension Telephones of Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C. §§2510 et seq.), Pertaining to Interceptions of Wire Communications, 58 ALR Fed. 594; Eavesdropping on Extension Telephone as Invasion of Privacy, 49 ALR 4th 430. 66 E.g., Deal v. Spears, 780 F.Supp. 618, 623 (W.D.Ark. 1991), aff’d, 980 F.2d 1153 (8th Cir. 1992)(employer regularly taped employee calls by means of a device attached to an extension phone; most of the calls were personal and recording and disclosing them served no business purpose). 67 Adams v. Battle Creek, 250 F.3d 980, 983 (6th Cir. 2001); Arias v. Mutual Central Alarm Service, 202 F.3d 553, 558 (2d Cir. 2000); Berry v. Funk, 146 F.3d 1003, 1008 (D.C.Cir. 1998); Sanders v. Robert Bosch Corp., 38 F.3d 736, 741 (4th Cir. 1994). See also, Hall v. Earthlink Network Inc., 396 F.3d 500, 503-04 (2d Cir. 2005) (Internet service provider’s receipt and storage of former customer’s email after termination of the customer’s account was done in ordinary course of business and consequently did not constitute an interception). Some courts include surreptitious, extension phone interceptions conducted within the family home as part of the “business extension” exception, Anonymous v. Anonymous, 558 F.2d 677, 678-79 (2d Cir. 1977); Scheib v. Grant, 22 F.3d 149, 154 (7th Cir. 1994); Newcomb v. Ingle, 944 F.2d 1534, 1536 (10th Cir. 1991); contra, United States v. Murdock, 63 F.3d 1391, 1400 (6th Cir. 1995). Congressional Research Service 11 Privacy: An Overview of the Electronic Communications Privacy Act officials to make clear that the routine and almost universal recording of phone lines by police departments and prisons, as well as other law enforcement institutions, is exempt from the statute.”68 The exception contemplates administrative rather than investigative monitoring,69 which must nevertheless be justified by a lawful, valid law enforcement concern.70 Wire, Oral, or Electronic Communications An interception is only a violation of Title III if the conversation or other form of captured communication is among those kinds which the statute protects, in oversimplified terms—if it is a telephone (wire), face to face (oral), or computer (electronic) communication. Thus, Title III does cover silent video surveillance.71 Title III does not cover all wire, oral or electronic communications. “Oral communications,” by definition, includes only those face to face conversations for which the speakers have a justifiable expectation of privacy.72 “Wire communications” are limited to those that are at some point involve voice communications (i.e., only aural transfers).73 The term “electronic communications” encompasses radio and data transmissions generally, but excludes certain radio 68 Adams v. Battle Creek, 250 F.3d at 984; see also, United States v. Lewis, 406 F.3d 11, 18 (1st Cir. 2005); United States v. Hammond, 286 F.3d 189, 192 (4th Cir. 2002); Smith v. U.S. Dept. of Justice, 251 F.3d 1047, 1049-50 (D.C.Cir. 2001); United States v. Poyck, 77 F.3d 285, 292 (9th Cir. 1996); United States v. Daniels, 902 F.2d 1238, 1245 (7th Cir. 1990); United States v. Paul, 614 F.2d 115, 117 (6th Cir. 1980). 69 Amati v. Woodstock, 176 F.3d 952, 955 (7th Cir. 1999)(“Investigation is within the ordinary course of law enforcement, so if ‘ordinary’ were read literally warrants would rarely if ever be required for electronic eavesdropping, which was surely not Congress’s intent. Since the purpose of the statute was primarily to regulate the use of wiretapping and other electronic surveillance for investigatory purposes, ‛ordinary’ should not be read so broadly; it is more reasonably interpreted to refer to routine noninvestigative recording of telephone conversations”); accord, United States v. Lewis, 416 F.3d at 11; Colandrea v. Orangetown, 411 F.Supp.2d 342, 347-48 (S.D.N.Y. 2007). 70 The exception, however, does not permit a county to record all calls in and out of the offices of county judges merely because a detention center and the judges share a common facility, Abraham v. Greenville, 237 F.3d 386, 390 (4th Cir. 2001), nor does it permit jailhouse telephone monitoring of an inmate’s confession to a clergyman, Mockaitis v. Harcleroad, 104 F.3d 1522, 1530 (9th Cir. 1997). The courts are divided over whether private corrections officials are covered by the law enforcement exception. Compare, United States v. Faulkner, 323 F. Supp.2d 1111, 1113-17 (D. Kan. 2004), aff’d on other grounds, 439 F.3d 1221 (10th Cir. 2006) (not covered) with, United States v. Rivera, 292 F. Supp.2d 838, 842-43 (E.D.Va. 2003) (covered). 71 United States v. Larios, 593 F.3d 82, 90-91 (1st Cir. 2010); United States v. Falls, 34 F.3d 674, 679-80 (8th Cir. 1994); United States v. Koyomejian, 970 F.2d 536, 538 (9th Cir. 1992); United States v. Biasucci, 786 F.2d 505, 508509 (2d Cir. 1986); United States v. Torres, 751 F.2d 875, 880-81 (7th Cir. 1984). 72 “‘[O]ral communication’ means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation, but such term does not include any electronic communication,” 18 U.S.C. 2510(2). United States v. Larios, 593 F.3d 82, 92 (1st Cir. 2010)(emphasis in the original but most internal quotation marks and citations omitted)(The “legislative history of this statutory provision shows that Congress intended this definition to parallel the ‘reasonable expectation of privacy test’ articulated by the Supreme Court in Katz. Thus, for Title III to apply, the court must conclude: (1) the defendant had an actual, subjective expectation of privacy—i.e., that his communications were not subject to interception; and (2) the defendant’s expectation is one society would objectively consider reasonable.... We conclude that the most reasonable reading of the statute is that the meaning of ‘oral communication’ was intended to parallel evolving Fourth Amendment jurisprudence on reasonable expectations of privacy in one’s communications”); Pattee v. Georgia Ports Authority, 512 F.Supp.2d 1372, 1376-377 (S.D.Ga. 2007). 73 “‘[W]ire communication’ means any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception (including the use of such connection in a switching station) furnished or operated by any person engaged in providing or operating such facilities for the transmission of interstate or foreign communications or communications affecting interstate or foreign commerce,” 18 U.S.C. 2510(1). Congressional Research Service 12 Privacy: An Overview of the Electronic Communications Privacy Act transmissions which can be innocently captured without great difficulty.74 Even when a radio transmission meets the definition, Title III’s general exemption may render its capture innocent.75 Endeavoring to Intercept Although the statute condemns attempted wiretapping and electronic eavesdropping (“endeavoring to intercept”),76 the provisions appear to have escaped use, interest, or comment heretofore, perhaps because the conduct most likely to constitute preparation for an interception—possession of wiretapping equipment—is already a separate crime.77 Exemptions: Consent Interceptions Consent interceptions are common, controversial and have a history all their own. The early bans on divulging telegraph or telephone messages had a consent exception.78 The Supreme Court upheld consent interceptions against Fourth Amendment challenge both before and after the enactment of Title III.79 The argument in favor of consent interceptions has always been essentially that a speaker risks the indiscretion of his listeners and holds no superior legal position simply because a listener elects to record or transmit his statements rather than subsequently memorializing or repeating them.80 Wiretapping or electronic eavesdropping by either the police or anyone else with the consent of at least one party to the conversation is not unlawful under the federal statute.81 These provisions do no more than shield consent interceptions from the 74 “‘[E]lectronic 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, photoelectronic or photooptical system that affects interstate or foreign commerce, but does not include—(A) the radio portion of a cordless telephone communication that is transmitted between the cordless handset and the base unit; (B) any wire or oral communication; (C) any communication made through a tone-only paging device; or (D) any communication from a tracking device (as defined in section 3117 of this title),” 18 U.S.C. 2510(12). 75 18 U.S.C. 2511(2)(g). 76 18 U.S.C. 2511(1). 77 18 U.S.C. 2512, discussed, infra. 78 E.g., 47 U.S.C. 605 (1940 ed.). 79 On Lee v. United States, 343 U.S. 747 (1952); Lopez v. United States, 373 U.S. 427 (1963); United States v. White, 401 U.S. 745 (1971). 80 United States v. White, 401 U.S. at 751 (1971)(“Concededly a police agent who conceals his police connections may write down for official use his conversations with a defendant and testify concerning them, without a warrant authorizing his encounters with the defendant and without otherwise violating the latter’s Fourth Amendment rights.... For constitutional purposes, no different result is required if the agent instead of immediately reporting and transcribing his conversations with defendant, either (1) simultaneously records them with electronic equipment which he is carrying on his person, Lopez v. United States, supra; (2) or carries radio equipment which simultaneously transmits the conversations either to recording equipment located elsewhere or to other agents monitoring the transmitting frequency. On Lee v. United States, supra. If the conduct and revelations of an agent operating without electronic equipment do not invade the defendant’s constitutionally justifiable expectations of privacy, neither does a simultaneous recording of the same conversations made by the agent or by others from transmissions received from the agent to whom the defendant is talking and whose trustworthiness the defendant necessarily risks”); Lopez v. United States 373 U.S. 427, 439 (1963)(“Stripped to its essentials, petitioner’s argument amounts to saying that he has a constitutional right to rely on possible flaws in the agent’s memory, or to challenge the agent’s credibility without being beset by corroborating evidence that is not susceptible of impeachment. For no other argument can justify excluding an accurate version of a conversation that the agent could testify to from memory. We think the risk that petitioner took in offering a bribe to Davis fairly included the risk that the offer would be accurately reproduced in court, whether by faultless memory or mechanical recording”). 81 “(c) It shall not be unlawful under this chapter for a person acting under color of law to intercept a wire, oral, or (continued...) Congressional Research Service 13 Privacy: An Overview of the Electronic Communications Privacy Act sanctions of federal law; they afford no protection from the sanctions of state law. Many of the states recognize comparable exceptions, but some only permit interception with the consent of all parties to a communication.82 Under federal law, consent may be either explicitly or implicitly given. For instance, someone, who uses a telephone other than his or her own and has been told by the subscriber that conversations over the instrument are recorded, has been held to have implicitly consented to interception when using the instrument.83 This is not to say that subscriber consent alone is sufficient, for it is the parties to the conversation whose privacy is protected.84 Although consent may be given in the hopes of leniency from law enforcement officials or as an election between unpalatable alternatives, it must be freely given and not secured coercively.85 Private consent interceptions may not be conducted for a criminal or tortious purpose.86 Some state wiretap laws do not recognize a one party consent exception. There, interception with the consent of but one party to the conversation is a violation of state law. But the federal exception is available as long as the purpose of the interception was neither criminal nor tortious—though the means may have been.87 At one time, the limitation encompassed interceptions for criminal, tortious, or otherwise injurious purposes, but ECPA dropped the reference to injurious purposes for fear that First Amendment values might be threatened should the clause be read to outlaw consent interceptions conducted to embarrass.88 (...continued) electronic communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception. “(d) It shall not be unlawful under this chapter for a person not acting under color of law to intercept a wire, oral, or electronic communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State,” 18 U.S.C. 2511(2)(c), (d). 82 For citations to state law, see, Appendix B. 83 United States v. Verdin-Garcia, 516 F.3d 884, 894-95 (10th Cir. 2008) (inmate use of prison phone); United States v. Friedman, 300 F.3d 111, 122-23 (2d Cir. 2002)(same); United States v. Hammond, 286 F.3d 189, 192 (4th Cir. 2002) (same); United States v. Footman, 215 F.3d 145, 154-55 (1st Cir. 2000) (same); Griggs-Ryan v. Smith, 904 F.2d 112, 116-17 (1st Cir. 1990) (use of landlady’s phone); United States v. Rivera, 292 F. Supp.2d 838, 843-45 (E.D.Va. 2003) (inmate use of prison phone monitored by private contractors); see also, United States v. Conley, 531 F.3d 56, 58-9 (1st Cir. 2008)(explicit consent as a condition for phone privileges). 84 Anthony v. United States, 667 F.2d 870, 876 (10th Cir. 1981). 85 United States v. Antoon, 933 F.2d 200, 203-204 (3d Cir. 1991). But see, O’Ferrell v. United States, 968 F.Supp. 1519, 1541 (M.D.Ala. 1997) (an individual who spoke to his wife on the telephone after being told by FBI agents who were then executing a search warrant at his place of business that he could only speak to her with the agents listening in consented to the interception, even if FBI’s initial search was unconstitutional). 86 18 U.S.C. 2511(2)(d); United States v. Lam, 271 F.Supp.2d 1182, 1183-184 (N.D.Cal. 2003). 87 Caro v. Weintraub, 618 F.3d 94, 100 (2d Cir. 2010)(“We join the courts that have considered this question, and hold that a cause of action under §2511(2)(d) requires that the interceptor intend to commit a crime or tort independent of the act of recording itself”), citing, Desnick v. American Broadcasting Co., 44 F.3d 1345, 1347-48 (7th Cir. 1995); Sussman v. American Broadcasting Co, 186 F.3d 1200, 1201 (9th Cir. 1999). 88 S.Rept. 99-541, at 17-8 (1986); H.Rept. 99-647, at 39-40 (1986). Congressional Research Service 14 Privacy: An Overview of the Electronic Communications Privacy Act Exemptions: Publicly Accessible Radio Communications Radio communications which can be inadvertently heard or are intended to be heard by the public are likewise exempt. These include not only commercial broadcasts, but ship and aircraft distress signals, tone-only pagers, marine radio and citizen band radio transmissions, and interceptions necessary to identify the source of any transmission, radio or otherwise, disrupting communications satellite broadcasts.89 Exemptions: Government Officials Government officials have the benefit of an exemption when executing a Title III eavesdropping order;90 acting in an emergency situation pending issuance of a court order;91 acting under the authority of Title III in the case of communications of an intruder in a communications system acting with the approval of the system provider;92 acting under the authority of the Foreign 89 “(g) It shall not be unlawful under this chapter or chapter 121 of this title for any person—(i) to intercept or access an electronic communication made through an electronic communication system that is configured so that such electronic communication is readily accessible to the general public; “(ii) to intercept any radio communication which is transmitted—(I) by any station for the use of the general public, or that relates to ships, aircraft, vehicles, or persons in distress; (II) by any governmental, law enforcement, civil defense, private land mobile, or public safety communications system, including police and fire, readily accessible to the general public; (III) by a station operating on an authorized frequency within the bands allocated to the amateur, citizens band, or general mobile radio services; or (IV) by any marine or aeronautical communications system; “(iii) to engage in any conduct which—(I) is prohibited by section 633 of the Communications Act of 1934; or (II) is excepted from the application of section 705(a) of the Communications Act of 1934 by section 705(b) of that Act; “(iv) to intercept any wire or electronic communication the transmission of which is causing harmful interference to any lawfully operating station or consumer electronic equipment, to the extent necessary to identify the source of such interference; or “(v) for other users of the same frequency to intercept any radio communication made through a system that utilizes frequencies monitored by individuals engaged in the provision or the use of such system, if such communication is not scrambled or encrypted,” 18 U.S.C. 2511(2)(g). 90 “Except as otherwise specifically provided in this chapter any person who (a) intentionally intercepts.... ” 18 U.S.C. 2511(1)(emphasis added). 91 “Notwithstanding any other provision of this chapter, any investigative or law enforcement officer, specially designated by the Attorney General, the Deputy Attorney General, the Associate Attorney General, or by the principal prosecuting attorney of any State or subdivision thereof acting pursuant to a statute of that State, who reasonably determines that—(a) an emergency situation exists that involves—(i) immediate danger of death or serious physical injury to any person, (ii) conspiratorial activities threatening the national security interest, or (iii) conspiratorial activities characteristic of organized crime, [—] that requires a wire, oral, or electronic communication to be intercepted before an order authorizing such interception can, with due diligence, be obtained, and (b) there are grounds upon which an order could be entered under this chapter to authorize such interception, may intercept such wire, oral, or electronic communication if an application for an order approving the interception is made in accordance with this section within forty-eight hours after the interception has occurred, or begins to occur. In the absence of an order, such interception shall immediately terminate when the communication sought is obtained or when the application for the order is denied, whichever is earlier. In the event such application for approval is denied, or in any other case where the interception is terminated without an order having been issued, the contents of any wire, oral, or electronic communication intercepted shall be treated as having been obtained in violation of this chapter, and an inventory shall be served as provided for in subsection (d) of this section on the person named in the application,” 18 U.S.C. 2518(7). 92 “(i) It shall not be unlawful under this chapter for a person acting under color of law to intercept the wire or electronic communications of a computer trespasser transmitted to, through, or from the protected computer, if—(I) the owner or operator of the protected computer authorizes the interception of the computer trespasser’s communications on the protected computer; (II) the person acting under color of law is lawfully engaged in an investigation; (III) the person acting under color of law has reasonable grounds to believe that the contents of the computer trespasser’s communications will be relevant to the investigation; and (IV) such interception does not acquire communications (continued...) Congressional Research Service 15 Privacy: An Overview of the Electronic Communications Privacy Act Intelligence Surveillance Act,93 or acting pursuant to the authority according them the use of pen registers and trap and trace devices.94 Exemptions: Communication Service Providers A further exemption applies to those who supply communications services: the telephone company, switchboard operators, and the like. The exemption permits interception in the name of improved service; to allow a service provider to itself against fraud;95 to assist federal and state officials operating under a judicially supervised interception order,96 and for the regulatory activities of the Federal Communications Commission.97 (...continued) other than those transmitted to or from the computer trespasser,” 18 U.S.C. 2511(2)(i). 93 “(e) Notwithstanding any other provision of this title or section 705 or 706 of the Communications Act of 1934, it shall not be unlawful for an officer, employee, or agent of the United States in the normal course of his official duty to conduct electronic surveillance, as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, as authorized by that Act,” 18 U.S.C. 2511(2)(e). 94 “(h) It shall not be unlawful under this chapter—(I) to use a pen register or a trap and trace device (as those terms are defined for the purpose of chapter 206)….” 18 U.S.C. 2511(2)(h). Neither the stored communications sections in chapter 121 nor the pen register and trap and trace device in chapter 206 authorize the contemporaneous interception of the contents of a communication. For the citations to state statutes permitting judicial authorization of law enforcement interception of wire, oral, or electronic communications, for access to stored electronic communications, and for the use of pen registers and trap and trace devices, see, Appendix D. 95 “(a)(i) It shall not be unlawful under this chapter for an operator of a switchboard, or an officer, employee, or agent of a provider of wire or electronic communication service, whose facilities are used in the transmission of a wire or electronic communication, to intercept, disclose, or use that communication in the normal course of his employment while engaged in any activity which is a necessary incident to the rendition of his service or to the protection of the rights or property of the provider of that service, except that a provider of wire communication service to the public shall not utilize service observing or random monitoring except for mechanical or service quality control checks.... * * * “(h) It shall not be unlawful under this chapter ... “(ii) for a provider of electronic communication service to record the fact that a wire or electronic communication was initiated or completed in order to protect such provider, another provider furnishing service toward the completion of the wire or electronic communication, or a user of that service, from fraudulent, unlawful or abusive use of such service,” 18 U.S.C. 2511(2)(a)(I), (h). 96 “(ii) Notwithstanding any other law, providers of wire or electronic communication service, their officers, employees, and agents, landlords, custodians, or other persons, are authorized to provide information, facilities, or technical assistance to persons authorized by law to intercept wire, oral, or electronic communications or to conduct electronic surveillance, as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, if such provider, its officers, employees, or agents, landlord, custodian, or other specified person, has been provided with— (A) a court order directing such assistance signed by the authorizing judge, or (B) a certification in writing by a person specified in section 2518(7) of this title or the Attorney General of the United States that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required, setting forth the period of time during which the provision of the information, facilities, or technical assistance is authorized and specifying the information, facilities, or technical assistance required. No provider of wire or electronic communication service, officer, employee, or agent thereof, or landlord, custodian, or other specified person shall disclose the existence of any interception or surveillance or the device used to accomplish the interception or surveillance with respect to which the person has been furnished a court order or certification under this chapter, except as may otherwise be required by legal process and then only after prior notification to the Attorney General or to the principal prosecuting attorney of a State or any political subdivision of a State, as may be appropriate. Any such disclosure, shall render such person liable for the civil damages provided for in section 2520. No cause of action shall lie in any court against any provider of wire or electronic communication service, its officers, employees, or agents, (continued...) Congressional Research Service 16 Privacy: An Overview of the Electronic Communications Privacy Act Domestic Exemptions A few courts recognize a “vicarious consent” exception under which a custodial parent may secretly record the conversations of his or her minor child in the interest of protecting the child.98 Although rejected by most,99 a handful of federal courts have held that Title III does not preclude one spouse from wiretapping or electronically eavesdropping upon the other,100 a result other courts have sometimes reached through the telephone extension exception discussed above.101 Illegal Disclosure of Information Obtained by Wiretapping or Electronic Eavesdropping Title III has three disclosure offenses. The first is a general prohibition focused on the products of an unlawful interception: • any person [who] • intentionally • discloses or endeavors to disclose to another person • the contents of any wire, oral, or electronic communication • having reason to know • that the information was obtained through the interception of a wire, oral, or electronic communication • in violation of 18 U.S.C. 2511(1) (...continued) landlord, custodian, or other specified person for providing information, facilities, or assistance in accordance with the terms of a court order, statutory authorization, or certification under this chapter,” 18 U.S.C. 2511(2)(a)(ii). 97 “(b) It shall not be unlawful under this chapter for an officer, employee, or agent of the Federal Communications Commission, in the normal course of his employment and in discharge of the monitoring responsibilities exercised by the Commission in the enforcement of chapter 5 of title 47 of the United States Code, to intercept a wire or electronic communication, or oral communication transmitted by radio, or to disclose or use the information thereby obtained,” 18 U.S.C. 2511(2)(b). 98 Pollock v. Pollock, 154 F.3d 601, 611 (8th Cir. 1998); Wagner v. Wagner, 64 F.Supp.2d 895, 889-901 (D.Minn. 1999); Campbell v. Price, 2 F.Supp.2d 1186, 1191-192 (E.D.Ark. 1998); Thompson v. Dulaney, 838 F.Supp. 1535, 1544-45 (D.Utah 1993); cf., Babb v. Eagleton, 616 F.Supp.2d 1195, 1205-206 (N.D.Okla. 2007). 99 Glazner v. Glazner, 347 F.3d 1212, 1215-16 (11th Cir. 2003); Heggy v. Heggy, 944 F.2d 1537, 1539 (10th Cir. 1991); Kempf v. Kempf, 868 F.2d 970, 972 (8th Cir. 1989); Pritchard v. Pritchard, 732 F.2d 372, 374 (4th Cir. 1984); United States v. Jones, 542 F.2d 661, 667 (6th Cir. 1976); Kratz v. Kratz, 477 F.Supp. 463, 467-70 (E.D.Pa. 1979); Heyman v. Heyman, 548 F.Supp. 1041, 1045-47 (N.D.Ill.1982); Lombardo v. Lombardo, 192 F.Supp.2d 885, 809 (N.D.Ill. 2002). 100 Simpson v. Simpson, 490 F.2d 803, 809 (5th Cir. 1974); Perfit v. Perfit, 693 F.Supp. 851, 854-56 (C.D.Cal. 1988); see generally, Applicability, in Civil Action, of Provisions of Omnibus Crime Control and Safe Streets Act of 1968 Prohibiting Interception of Communications (18 USCS §2511(1)), to Interception by Spouse, or Spouse’s Agent, of Conversations of Other Spouse, 139 ALR Fed. 517, and the cases discussed therein. 101 Anonymous v. Anonymous, 558 F.2d 677, 678-79 (2d Cir. 1977); Scheib v. Grant, 22 F.3d 149, 154 (7th Cir. 1994); Newcomb v. Ingle, 944 F.2d 1534, 1536 (10th Cir. 1991); cf., Babb v. Eagleton, 616 F.Supp.2d 1195, 1203-205 (N.D. Okla. 2007); contra, United States v. Murdock, 63 F.3d 1391, 1400 (6th Cir. 1995). Congressional Research Service 17 Privacy: An Overview of the Electronic Communications Privacy Act • is subject to the same sanctions and remedies as the wiretapper or electronic eavesdropper.102 This is true of the wiretapper or electronic eavesdropper and of all those who, aware of the information’s illicit origins, disclose it. The defendant must be shown to have known that the interception occurred and that the interception was unlawful.103 There are exceptions. When the illegally secured information relates to a matter of usual public concern, the First Amendment precludes a prosecution for disclosure under §2511(c).104 Moreover, the legislative history indicates that Congress did not intend to punish the disclosure of intercepted information that is public knowledge. Less clear is whether the limitation is confined to information commonly known at the time of capture, or more likely, information of which the public was generally aware at the time of disclosure.105 Finally, the results of electronic eavesdropping authorized under Title III may be disclosed and used for law enforcement purposes106 and for testimonial purposes.107 Title III makes it a federal crime to disclose intercepted communications under two other circumstances. It is a federal crime to disclose, with an intent to obstruct criminal justice, any information derived from lawful police wiretapping or electronic eavesdropping, i.e.: • any person [who] 102 18 U.S.C. 2511(1)(c). McCann v. Iroquois Memorial Hospital, 622 F.3d 745, 753 (7th Cir. 2010), citing, Nix v. O’Malley, 160 F.3d 343, 348 (6th Cir. 1998); Williams v. Poulos, 11 F.3d 271, 284 (1st Cir. 1993); and Thompson v. Dulaney, 970 F.2d 744, 749 (10th Cir. 1992). 104 Bartnicki v. Vopper, 532 U.S. 514, 533-34 (2001). Bartnicki was a union negotiator whose telephone conversations with the union’s president concerning teachers’ contract negotiations were surreptitiously intercepted and recorded. During the conversation, the possibility of using violence against school board members was mentioned. After the teachers’ contract was signed, the unknown wiretapper secretly supplied Yocum, a critic of the union’s position, with a copy of the tape. Yocum in turn played it for members of the school board and turned it over to Vopper, a radio talk show host, who played it on his show. Other stations and media outlets published the contents as well. Bartnicki sued Vopper and Yocum for use and disclosure in violation of sections 2511(1)(c) and 2511(1)(d). Vopper and Yocum offered a free speech defense, which the Supreme Court accepted. But see, Quigley v. Rosenthal, 327 F.3d 1044, 106768 (10th Cir. 2003) (denying First Amendment protection for those knowingly involved with interceptors of private matters (not public concerns)); Boehner v. McDermott, 484 F.3d 573, 577-81 (D.C.Cir. 2007)(Members of Congress do not have a First Amendment right to disclose unlawful wiretap information in violation of House rules). 105 “Subparagraphs (c) and (d) prohibit, in turn, the disclosure or use of the contents of any intercepted communication by any person knowing or having reason to know the information was obtained through an interception in violation of this subsection. The disclosure of the contents of an intercepted communication that had already become ‘public information’ or ‘common knowledge’ would not be prohibited. The scope of this knowledge required to violate either subparagraph reflects existing law (Pereira v. United States, 347 U.S. 1 (1954)),” S.Rept. 90-1097, at 93 (1967). 106 “Any investigative or law enforcement officer who, by any means authorized by this chapter, has obtained knowledge of the contents of any wire, oral, or electronic communication, or evidence derived therefrom, may disclose such contents to another investigative or law enforcement officer to the extent that such disclosure is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure,” 18 U.S.C. 2517(1). 107 “Any person who has received, by any means authorized by this chapter, any information concerning a wire, oral, or electronic communication, or evidence derived therefrom intercepted in accordance with the provisions of this chapter may disclose the contents of that communication or such derivative evidence while giving testimony under oath or affirmation in any proceeding held under the authority of the United States or of any State or political subdivision thereof,” 18 U.S.C. 2517(3). This does not entitle private litigants to disclosure in the view of at least one court, In re Motion to Unseal Electronic Surveillance Evidence, 990 F.2d 1015 (8th Cir. 1993). When court-ordered interception results in evidence of a crime other than the crime with respect to which the order was issued, the evidence is admissible only upon a judicial finding that it was otherwise secured in compliance with Title III/ECPA requirements, 18 U.S.C. 2517(5). 103 Congressional Research Service 18 Privacy: An Overview of the Electronic Communications Privacy Act • intentionally discloses, or endeavors to disclose, to any other person • the contents of any wire, oral, or electronic communication • intercepted by means authorized by sections: • 2511(2)(a)(ii) (communication service providers, landlords, etc. who assist police setting up wiretaps or electronic eavesdropping devices) • 2511(2)(b) (FCC regulatory activity) • 2511(2)(c) (police one party consent) • 2511(2)(e) (Foreign Intelligence Surveillance Act) • 2516 (court-ordered, police wiretapping or electronic surveillance) • 2518 (emergency wiretaps or electronic surveillance) • knowing or having reason to know that • the information was obtained through the interception of such a communication • in connection with a criminal investigation • having obtained or received the information in connection with a criminal investigation • with intent to improperly obstruct, impede, or interfere with a duly authorized criminal investigation • is subject to the same sanctions and remedies as one who illegally wiretaps.108 Offenders face the criminal and civil liability as those who wiretap.109 This second disclosure proscription applies to efforts to obstruct justice by revealing information gleaned from either federal wiretaps. It may also apply to state wiretaps. It covers information generated from a court-ordered wiretap authorized under §2516. Section 2516 authorizes both federal and state court-ordered wiretaps.110 On the other hand, strictly speaking, §2516 permits state wiretapping when “authorized” by state law.111 The courts might conclude that Congress would have spoken more clearly, if it intended to make it a federal crime to obstruct state criminal prosecutions by the disclosing of information derived from a state wiretap. 108 18 U.S.C. 2511(1)(e). When acting with a similar intent, disclosure of the fact of authorized federal wiretap or foreign intelligence gathering is proscribed elsewhere in title 18: “Whoever, having knowledge that a Federal investigative or law enforcement officer has been authorized or has applied for authorization under chapter 119 to intercept a wire, oral, or electronic communication, in order to obstruct, impede, or prevent such interception, gives notice or attempts to give notice of the possible interception to any person shall be fined under this title or imprisoned not more than five years, or both,” 18 U.S.C. 2232(d). “Whoever, having knowledge that a Federal officer has been authorized or has applied for authorization to conduct electronic surveillance under the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801, et seq.), in order to obstruct, impede, or prevent such activity, gives notice or attempts to give notice of the possible activity to any person shall be fined under this title or imprisoned not more than five years, or both,” 18 U.S.C. 2232(e). 109 18 U.S.C. 2511(1)(e), (4)(a), 2520(a), (g). 110 18 U.S.C. 2516(2). 111 Id. Congressional Research Service 19 Privacy: An Overview of the Electronic Communications Privacy Act A third disclosure proscription applies only to electronic communications service providers “who intentionally divulge the contents of the communication while in transmission” to anyone other than sender and intended recipient.112 The prohibition comes with its own exemptions for divulgence—when one of the parties to the communications consents, when Title III authorizes disclosure of a court approved interception, when necessary for transmission of the communication, or when it involves inadvertent discovery of information relating to the commission of a crime.113 Although subsection 2511(3) provides no specific sanctions, violators would presumably be exposed to criminal liability under the general disclosure proscription, 18 U.S.C. 2511(1)(c), and to civil liability under 18 U.S.C. 2520.114 Illegal Use of Information Obtained by Unlawful Wiretapping or Electronic Eavesdropping The prohibition on the use of information secured from illegal wiretapping or electronic eavesdropping mirrors its disclosure counterpart: • any person [who] • intentionally • uses or endeavors to use to another person • the contents of any wire, oral, or electronic communication • having reason to know • that the information was obtained through the interception of a wire, oral, or electronic communication • in violation of 18 U.S.C. 2511(1) • is subject to the same sanctions and remedies as the wiretapper or electronic eavesdropper.115 The available case law under the use prohibition of paragraph 2511(1)(d) is scant, and the section has rarely been invoked except in conjunction with the disclosure prohibition of paragraph 112 18 U.S.C. 2511(3)(a) (“Except as provided in paragraph (b) of this subsection, a person or entity providing an electronic communication service to the public shall not intentionally divulge the contents of any communication (other than one to such person or entity, or an agent thereof) while in transmission on that service to any person or entity other than an addressee or intended recipient of such communication or an agent of such addressee or intended recipient”). 113 18 U.S.C. 2511(3)(b) (“A person or entity providing electronic communication service to the public may divulge the contents of any such communication—(i) as otherwise authorized in section 2511(2)(a) or 2517 of this title; (ii) with the lawful consent of the originator or any addressee or intended recipient of such communication; (iii) to a person employed or authorized, or whose facilities are used, to forward such communication to its destination; or (iv) which were inadvertently obtained by the service provider and which appear to pertain to the commission of a crime, if such divulgence is made to a law enforcement agency”). 114 Note that subsection 2520(d) establishes a good faith defense that specifically references the prohibition: “A good faith reliance on ... (3) a good faith determination that section 2511(3) ... of this title permitted the conduct complained of; is a complete defense against any civil or criminal action brought under this chapter.... ” 115 18 U.S.C. 2511(1)(d). Congressional Research Service 20 Privacy: An Overview of the Electronic Communications Privacy Act 2511(1)(c).116 The wording of the two is clearly parallel, the legislative history describes them in the same breath,117 and they are treated alike for law enforcement purposes.118 A few courts had recognized an exception to the disclosure-use bans of subsection 2511(1) when law enforcement officials disclose or use the results of an illegal interception in which they had played no role.119 The criminal and civil liability that attend unlawful use of intercepted communications in violation of paragraph 2511(1)(d) are the same as for unlawful disclosure in violation of paragraphs 2511(1)(c) or 2511(1)(e), or for unlawful interception under paragraphs 2511(1)(a) or 2511(1)(b).120 Shipping, Manufacturing, Distributing, Possessing or Advertising Wire, Oral, or Electronic Communication Interception Devices The proscriptions for possession and trafficking in wiretapping and eavesdropping devices are even more demanding than those that apply to the predicate offense itself. There are exemptions for service providers,121 government officials and those under contract with the government,122 116 See e.g., McCann v. Iroquois Memorial Hospital, 622 F.3d 745, 753-54 (7th Cir. 2010). “Subparagraphs (c) and (d) prohibit, in turn, the disclosure or use of the contents of any intercepted communication by any person knowing or having reason to know the information was obtained through an interception in violation of this subsection,” S.Rept. 90-1097, at 93 (1967). 118 Compare, 18 U.S.C. 2517(1)(“Any investigative or law enforcement officer who, by any means authorized by this chapter, has obtained knowledge of the contents of any wire, oral, or electronic communication, or evidence derived therefrom, may disclose such contents to another investigative or law enforcement officer to the extent that such disclosure is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure”), with 18 U.S.C. 2517(2)(“Any investigative or law enforcement officer who, by any means authorized by this chapter, has obtained knowledge of the contents of any wire, oral, or electronic communication or evidence derived therefrom may use such contents to the extent such use is appropriate to the proper performance of his official duties”). On the other hand, the Supreme Court in Bartnicki seemed to parse the constitutionally suspect ban on disclosure from the constitutionally permissible ban on use. Bartnicki v. Vopper, 532 U.S. 514, 526-27 (2001)(“[T]he naked prohibition against disclosures is fairly characterized as a regulation of pure speech. Unlike the prohibition against the ‛use’ of the contents of an illegal interception in §2511(1)(d), subsection (c) is not a regulation of conduct”). 119 Forsyth v. Barr, 19 F.3d 1527, 1541-545 (5th Cir. 1994); United States v. Murdock, 63 F.3d 1391, 1400-403 (6th Cir. 1995); contra, United States v. Crabtree, 565 F.3d 887, 889 (4th Cir. 2009); Berry v. Funk, 146 F.3d 1003, 1011-13 (D.C.Cir. 1998); Chandler v. United States Army, 125 F.3d 1296, 1300-302 (9th Cir. 1997); In re Grand Jury, 111 F.3d 1066, 1077 (3d Cir. 1997); United States v. Vest, 813 F.2d 477, 481 (1st Cir. 1987). 120 18 U.S.C. 2511(4), 2520(a), (g). 121 “It shall not be unlawful under this section for—(a) a provider of wire or electronic communication service or an officer, agent, or employee of, or a person under contract with, such a provider, in the normal course of the business of providing that wire or electronic communication service ... to send through the mail, send or carry in interstate or foreign commerce, or manufacture, assemble, possess, or sell any electronic, mechanical, or other device knowing or having reason to know that the design of such device renders it primarily useful for the purpose of the surreptitious interception of wire, oral, or electronic communications,” 18 U.S.C. 2512(2)(a). 122 “(2) It shall not be unlawful under this section for ... (b) an officer, agent, or employee of, or a person under contract with, the United States, a State, or a political subdivision thereof, in the normal course of the activities of the United States, a State, or a political subdivision thereof, to send through the mail, send or carry in interstate or foreign commerce, or manufacture, assemble, possess, or sell any electronic, mechanical, or other device knowing or having reason to know that the design of such device renders it primarily useful for the purpose of the surreptitious interception of wire, oral, or electronic communications. “(3) It shall not be unlawful under this section to advertise for sale a device described in subsection (1) of this section if (continued...) 117 Congressional Research Service 21 Privacy: An Overview of the Electronic Communications Privacy Act but there is no exemption for equipment designed to be used by private individuals, lawfully but surreptitiously.123 Nevertheless, inoperable equipment, though designed to intercept, may not be considered equipment “which can be used to intercept” and consequently may not serve as the basis for a conviction under §2512.124 Section 2512’s three prohibitions feature several common elements, declaring that: • any person who • intentionally • either (a) • sends through the mail or sends or carries in interstate or foreign commerce • any electronic, mechanical, or other device • knowing or having reason to know • that the design of such device renders it primarily useful • for the purpose of the surreptitious interception of wire, oral, or electronic communications; or (b) • manufactures, assembles, possesses, or sells • any electronic, mechanical, or other device • knowing or having reason to know • that the design of such device renders it primarily useful • for the purpose of the surreptitious interception of wire, oral, or electronic communications, and • that such device or any component thereof has been or will be sent through the mail or transported in interstate or foreign commerce; or (c) • places in any newspaper, magazine, handbill, or other publication or disseminates electronically • any advertisement of— (...continued) the advertisement is mailed, sent, or carried in interstate or foreign commerce solely to a domestic provider of wire or electronic communication service or to an agency of the United States, a State, or a political subdivision thereof which is duly authorized to use such device,” 18 U.S.C. 2512(2)(b),(3). 123 United States v. Spy Factory, Inc., 951 F.Supp. 450, 473-75 (S.D.N.Y. 1997); United States v. Bast, 495 F.2d 138, 141 (D.C.Cir. 1974). 124 United States v. Simels, 654 F.3d 161, 171 (2d Cir. 2011). Congressional Research Service 22 Privacy: An Overview of the Electronic Communications Privacy Act • any electronic, mechanical, or other device • knowing or having reason to know • that the design of such device renders it primarily useful • for the purpose of the surreptitious interception of wire, oral, or electronic communications; or • any other electronic, mechanical, or other device • where such advertisement promotes the use of such device • for the purpose of the surreptitious interception of wire, oral, or electronic communications • knowing the content of the advertisement and knowing or having reason to know • that such advertisement will be sent through the mail or transported in interstate or foreign commerce shall be imprisoned for not more than five years and/or fined not more than $250,000 (not more than $500,000 for organizations).125 The legislative history lists among the items Congress considered “primarily useful for the purpose of the surreptitious interception of communications: the martini olive transmitter, the spike mike, the infinity transmitter, and the microphone disguised as a wristwatch, picture frame, cuff link, tie clip, fountain pen, stapler, or cigarette pack.”126 Questions once raised over whether §2512 covers equipment designed to permit unauthorized reception of scrambled satellite television signals have been resolved.127 Each of the circuits to consider the question has now concluded that §2512 outlaws such devices,128 but simple possession does not give rise to a private cause of action.129 125 18 U.S.C. 2512. S.Rept. 90-1097, at 95 (1968). 127 The two appellate panel decisions that found the devices beyond the bounds of section 2512, United States v. Herring, 933 F.2d 932 (11th Cir. 1991) and United States v. Hux, 940 F.2d 314 (8th Cir. 1991) were overturned en banc, United States v. Herring, 993 F.2d 784, 786 (11th Cir. 1993); United States v. Davis, 978 F.2d 415, 416 (8th Cir. 1992). 128 United States v. Harrell, 983 F.2d 36, 37-39 (5th Cir. 1993); United States v. One Macom Video Cipher II, 985 F.2d 258, 259-61 (6th Cir. 1993); United States v. Shriver, 989 F.2d. 898, 901-06 (7th Cir. 1992); United States v. Davis, 978 F.2d 415, 417-20 (8th Cir. 1992); United States v. Lande, 968 F.2d 907, 910-11 (9th Cir. 1992); United States v. McNutt, 908 F.2d 561, 564-65 (10th Cir. 1990); United States v. Herring, 993 F.2d 784, 786-89 (11th Cir. 1991). 129 DirecTV, Inc. v. Treworgy, 373 F.3d 1124, 1129 (11th Cir. 2004); DirecTV, Inc. v. Robson, 420 F.3d 532, 538-39 (5th Cir. 2005)(citing several district court cases that have reached the same conclusion). Proof that the possessor used the device to intercept satellite transmission evidences a violation of section 2511 and exposure to civil liability under section 2520, DirecTV, Inc. v. Nicholas, 403 F.3d 223, 227-28 (4th Cir. 2005); DirecTV, Inc. v. Pepe, 431 F.3d 162, 169 (3d Cir. 2005). 126 Congressional Research Service 23 Privacy: An Overview of the Electronic Communications Privacy Act Title III: Government Access The prohibitions in each of ECPA’s three parts—chapter 119 (Title III), chapter 121 (Stored Communications Act), and chapter 206 (pen registers and trap and trace devices)—yield to the need for government access, usually under judicial supervision. Law Enforcement Wiretapping and Electronic Eavesdropping Title III exempts federal and state law enforcement officials from its prohibitions on the interception of wire, oral, and electronic communications under three circumstances: (1) pursuant to or in anticipation of a court order,130 (2) with the consent of one of the parties to the communication;131 and (3) with respect to the communications of an intruder within an electronic communications system.132 To secure a Title III interception order as part of a federal criminal investigation, a senior Justice Department official must approve the application for the court order authorizing the interception of wire or oral communications.133 The procedure is only available where there is probable cause to believe that the wiretap or electronic eavesdropping will produce evidence of one of a long, but not exhaustive, list of federal crimes,134 or of the whereabouts of a “fugitive from justice” fleeing 130 18 U.S.C. 2516-2518. 18 U.S.C. 2511(2)(c). 132 18 U.S.C. 2511(2)(i)(“It shall not be unlawful under this chapter for a person acting under color of law to intercept the wire or electronic communications of a computer trespasser transmitted to, through, or from the protected computer, if—(I) the owner or operator of the protected computer authorizes the interception of the computer trespasser’s communications on the protected computer; (II) the person acting under color of law is lawfully engaged in an investigation; (III) the person acting under color of law has reasonable grounds to believe that the contents of the computer trespasser’s communications will be relevant to the investigation; and (IV) such interception does not acquire communications other than those transmitted to or from the computer trespasser”). A computer trespasser is a person who: (A) “accesses a protected computer without authorization and thus has no reasonable expectation of privacy in any communication transmitted to, through, or from the protected computer; and (B) does not include a person known by the owner or operator of the protected computer to have an existing contractual relationship with the owner or operator of the protected computer for access to all or part of the protected computer,” 18 U.S.C. 2510(21). 133 “The Attorney General, Deputy Attorney General, Associate Attorney General, or any Assistant Attorney General, any acting Assistant Attorney General, or any Deputy Assistant Attorney General or acting Deputy Assistant Attorney General in the Criminal Division specially designated by the Attorney General, may authorize an application to a Federal judge of competent jurisdiction for, and such judge may grant in conformity with section 2518 of this chapter an order authorizing or approving the interception of wire or oral communications by the Federal Bureau of Investigation, or a Federal agency having responsibility for the investigation of the offense as to which the application is made, when such interception may provide or has provided evidence of [the predicate offenses]....” 18 U.S.C. 2516(1). Subsection 2516(1) “plainly calls for the prior, informed judgment of enforcement officers desiring court approval for intercept authority, and investigative personnel may not themselves ask a judge for authority to wiretap or eavesdrop. The mature judgment of a particular, responsible Department of Justice official is interposed as a critical precondition of any judicial order,” United States v. Giordano, 416 U.S. 505, 515-16 (1974). Evidence generated without such senior approval must be suppressed, id. at 23. However, “suppression is not warranted ... when a wiretap application or order either misidentifies a DOJ official who could not legally authorize the wiretap or, ... identifies no official at all, so long as the record shows that a statutorily designated official actually gave the authorization,” United States v. Gray, 521 F.3d 514, 526-27 (6th Cir. 2008), citing in accord, United States v. Callum, 410 F.3d 571, 576 (9th Cir. 2005); United States v. Radcliff, 331 F.3d 1153, 1160-163 (10th Cir. 2003); United States v. Fudge, 325 F.3d 910, 918 (7th Cir. 2003). 134 The list appears in 18 U.S.C. 2516(1). 131 Congressional Research Service 24 Privacy: An Overview of the Electronic Communications Privacy Act from prosecution of one of the offenses on the predicate offense list.135 Any federal prosecutor may approve an application for a court order under section 2518 authorizing the interception of email or other electronic communications and the authority extends to any federal felony rather than more limited list of federal felonies upon which a wiretap or bug must be predicated.136 At the state level, the principal prosecuting attorney of a state or any of its political subdivisions may approve an application for an order authorizing wiretapping or electronic eavesdropping based upon probable cause to believe that it will produce evidence of a felony under the state laws covering murder, kidnaping, gambling, robbery, bribery, extortion, drug trafficking, or any other crime dangerous to life, limb or property. State applications, court orders and other procedures must at a minimum be as demanding as federal requirements.137 Applications for a court order authorizing wiretapping and electronic surveillance include: • the identity of the applicant and the official who authorized the application; • a full and complete statement of the facts including • details of the crime, • a particular description of the nature, location and place where the interception is to occur,138 • a particular description of the communications to be intercepted, and • the identities (if known) of the person committing the offense and of the persons whose communications are to be intercepted; • a full and complete statement of the alternative investigative techniques used or an explanation of why they would be futile or dangerous; • a statement of the period of time for which the interception is to be maintained and if it will not terminate upon seizure of the communications sought, a probable cause demonstration that further similar communications are likely to occur; • a full and complete history of previous interception applications or efforts involving the same parties or places; • in the case of an extension, the results to date or explanation for the want of results; and • any additional information the judge may require.139 135 18 U.S.C. 2516(1)(l). “Any attorney for the Government (as such term is defined for the purposes of the Federal Rules of Criminal Procedure) may authorize an application to a Federal judge of competent jurisdiction for, and such judge may grant, in conformity with section 2518 of this title, an order authorizing or approving the interception of electronic communications by an investigative or law enforcement officer having responsibility for the investigation of the offense as to which the application is made, when such interception may provide or has provided evidence of any Federal felony,” 18 U.S.C. 2516(3); e.g., United States v. Benjamin, 72 F.Supp.2d 161, 189 (W.D.N.Y. 1999). 137 18 U.S.C. 2516(2). 138 Identification of the place where, or facilities over which, the targeted communications are to occur may be excused where the court finds that the suspect has or will take steps to thwart interception, 18 U.S.C. 2518(11), (12); United States v. Oliva, 686 F.3d 1106, 1109-110 (9th Cir. 2012). 136 Congressional Research Service 25 Privacy: An Overview of the Electronic Communications Privacy Act Before issuing an order authorizing interception, the court must find: • probable cause to believe that an individual is, has or is about to commit one or more of the predicate offenses; • probable cause to believe that the particular communications concerning the crime will be seized as a result of the interception requested; • probable cause to believe that “the facilities from which, or the place where, the wire, oral, or electronic communications are to be intercepted are being used, or are about to be used, in connection with the commission of such offense, or are leased to, listed in the name of, or commonly used by such person”;140 and • that normal investigative procedures have been or are likely to be futile or too dangerous.”141 Subsections 2518(4) and (5) demand that any interception order include: • the identity (if known) of the persons whose conversations are to be intercepted; • the nature and location of facilities and place covered by the order; • a particular description of the type of communication to be intercepted and an indication of the crime to which it relates; • the individual approving the application and the agency executing the order; (...continued) 139 18 U.S.C. 2518(1), (2). 140 18 U.S.C. 2518(3). Paragraphs 2518(3)(a) and (b) mirror the probable demands of the Fourth Amendment, i.e., that the court find probable cause to believe that the interception will capture evidence of a specific offense, United States v. Abu-Jihaad, 630 F.3d 102, 122 (2d Cir. 2010), citing, Dalia v. United States, 441 U.S. 238, 255 (1979). Title III, however, provides its own particularity requirements relating to targets, facilities, locations, and crimes, United States v. Gaines, 639 F.3d 423, 430 (8th Cir. 2011), citing inter alia, United States v. Donovan, 429 U.S. 413, 427 n.15 (1977). 141 18 U.S.C. 2518(3). As for the necessity requirement of paragraph 2518(3)(c), the Supreme Court explained in the infancy of Title III that: “[I]t is at once apparent that [Title III] not only limits the crimes for which intercept authority may be obtained but also imposes important preconditions to obtaining any intercept authority at all. Congress legislated in considerable detail in providing for applications and orders authorizing wiretapping and evinced the clear intent to make doubly sure that the statutory authority be used with restraint and only where the circumstances warrant the surreptitious interception of wire and oral communications. These procedures were not to be routinely employed as the initial step in criminal investigation. Rather, the applicant must state and the court must find that normal investigative procedures have been tried and failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous. §§2518(1)(c) and (3)(c),” United States v. Giordano, 416 U.S. 505, 515 (1974). Thus, “[t]he necessity requirement was inten [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3AR41733. Public record. Not legal advice.