Wiretap Act / Electronic Communications Privacy Act

1. Wiretap Act / Electronic Communications Privacy Act Richard Warner

2. What Are We Talking About? • The Statute is 18 USC §§ 2510 – 2522. • This is Title III of the Omnibus Crime Control and Safe Streets Act of 1996 (Pub. L. No. 90-351, 82 Stat. 211). • This referred to both as the Wiretap Act and as the ECPA. • ECPA because the Electronic Communications Privacy Act of 1986 (Pub. L. NO 99-508, 100 Stat. 1848) amended Title III to include coverage of electronic communications. • Given the amendment, the “Wiretap Act” reference is inaccurate.

3. What Are We Talking About? • The Electronic Communications Privacy Act 1986 also added 18 USC §§ 2701 – 2709, §§ 2711 – 12. • Some refer to this as the ECPA. • I will use “Wiretap Act” for 18 USC §§ 2510 – 2522, and “ECPA” for 18 USC §§ 2701 – 2709, §§ 2711 – 12. • I will also discuss the Pen Register Act, 18 USC §§ 3227 et seq.

4. Two Issues • The interception of communications during transmission. • The acquisition of stored communications from an ISP.

5. During Communication: Wiretapping and Eavesdropping • The 4th Amendment: • The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but on probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.

6. Katz v. United States • “Once it is recognized that the Fourth Amendment protects people—and not simply ‘areas’—against unreasonable searches and seizures, it becomes clear that the reach of that Amendment cannot turn upon the presence or absence of a physical intrusion into any given enclosure.” • 389 U. S. 347, 353 (1967).

7. When Unreasonable? • You must have an actual, subjective expectation of privacy. • It must be an expectation that is objectively reasonable (“one society is prepared to recognize as ‘reasonable’”-- 389 U. S. 347, 361 (Justice Harlan concurring)).

8. Title III: Electronic Versus Non-Electronic • The Wiretap Act and the ECPA answer the question of what counts as reasonable differently for electronic, and non-electronic communications.

9. Wire, Oral, Electronic • Wire communications contain the human voice and travel through a wire at some point. 2510(1) (“aural” communications). • An oral communication is one uttered by a person with the justified expectation that it will not be intercepted by another person. 2510(2) • Electronic communications are all non-wire, non-oral communications. • The Wiretap Acts treatment of non-electronic communications follows the pattern the U. S. Supreme Court laid down in Berger v. New York. • 388 U. S. 41 (1967)

10. Berger Defects • Berger concerns a New York statute under which a court could authorize eavesdropping. • The court found five things wrong with the statute. • First: it only required only that “reasonable grounds” for the belief that surveillance would yield evidence of a crime. • Berger holds that the 4th Amendment requires that the place, persons, or things to be searched or seized be particularly described.

11. Berger Defects • Second: the statute did not limit the type of conversations or the duration of surveillance; nor did it require that surveillance cease once its goals were accomplished. • Third: the surveillance order was renewable based on the initial information provided to the court. • Fourth: No requirement of notice to the subject of the search, and no requirement of exigency to justify lack of notice. • Fifth: No “return” to the court; law enforcement has complete discretion in use of seized material (even that concerning the innocent).

12. Title III:Wire and Oral Communications • §2518(1): places, persons, things be searched or seized must be particularly described. • §2518(3): the court must find probable cause to believe that the specifically listed offense is being committed and that surveillance will yield the specified communications concerning that offense. • Normal investigative procedures must be too dangerous or unlikely to succeed. §2518(3)(c). • Notice to the target is required within 90 takes of the termination of the surveillance. §2518(3)(d).

13. Title III:Wire and Oral Communications • §2518(5): surveillance must stop when its goals are accomplished or in a maximum of 30 days • Renewable if §2518(1) and §2518(3) requirements are fulfilled. • Interception of innocent communications must be minimized. • §2518(8)(a): Intercepted communications must be recorded and made available to the court. The court may require periodic progress reports. • §2518(6): Communications obtained in violation of the statute are inadmissible as evidence.

14. Only Intercepted Communications • For electronic communications “interception” occurs only during the transmission of a communication, not when it is stored. • Fraser . Nationwide Mut. Ins., 352 F.3d. 107, 113-14 (3rd Cir. 2003). • A wire communication is defined to include “any electronic storage of such communication.” § 2510(1). • An electronic communication is not defined to include electronic storage.

15. ECPA: 18 USC § 2701 • Criminal and civil penalties for “(1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or (2) intentionally exceeds an authorization to access that facility; and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system . . . “

16. Electronic Storage • § 2510(17): “Any temporary, intermediate storage of a wire or electronic communication incidental to the transmission thereof; and . . . any storage of such communication by an electronic communications service for purposes of backup protection of such communication.” • Justice Department interprets this to apply to communications not yet retrieved by the recipient.

17. Government Access • § 2703 allows government access based on three distinctions. • First: Communications held in storage by an electronic communications service provider for 180 days or less. • Access requirement -- §2703(a): A search warrant.

18. § 2703 Access • Second: Communications held in storage by an electronic communications service provider for more than180 days. • Third: Communications held by a remote computing service.

19. Access Requirement • §2703(b): Search warrant without notice to the subscriber; or, a grand jury or administrative subpoena with notice; or a court order. • The court order may be issued if the government provides “specific and articulable facts showing reasonable grounds to believe” that the communications are “relevant” to an ongoing criminal investigation.

20. Patriot Act Changes • These distinctions applied only to electronic communications until the passage of the USA PATRIOT Act. • The PATRIOT Act extend these provisions to stored wire communications. • Pub. L. No. 107 -56, § 209, 115 Stat. 222, 238.

21. Pen Registers and Trap and Trace • A pen register records numbers of outgoing phone calls. • A trap and trace device records numbers of incoming calls. • The information collected receives no 4th Amendment protection. • A court order is required. §3121(a). The government must certify that “the information likely to be obtained . . . is relevant to an ongoing investigation.” §3123(a). • The court does not review claims; it must take the government’s word.

22. PATRIOT Act Extension • The Act extended pen registers to all “dialing, routing, addressing, or signaling information” in a variety of forms of transmission, not just phone lines. §3127(3), amended by USA PATRIOT Act §216. • This includes IP addresses and e-mail header information.