Electronic Communications Privacy Act

1. Electronic Communications Privacy Act • Distinction between wire and electronic communication • Title III defines “electronic communication” • Any transfer of signs, signals, writing, images, sounds, data or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photo-electric, or photo-optical system that affects interstate . . . Commerce, but does not include . . . any wire . . . communication . . .

2. Illegal for any “person” to “intentionally intercept” the “content” of any “wire . . . or electronic communication” and to disclose or use any illegally intercepted communication • Violation of Title III is a felony—punishable by 5 years in prison • Private right of action also possible—damages, punitive damages, attorney fees • No exclusionary rule for illegally intercepted electronic communication

3. Electronic communication includes email and internet use • Electronic communication does not include communication in electronic storage • Eliminates usefulness of Title III for email—unlike voice mail

4. Workplace exceptions • Consent • A party to the communication may give prior consent, even if the other party is unaware • Ordinary course of business