Electronic Communications Privacy Act of 1986

It altered Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (also known as the Wire Tap Statute). The ECPA was meant to protect electronic communications from government surveillance. The ECPA changed the Wire Tap Statute to include not only electronic transmissions of data but also the interception of electronic messages and access to stored electronic messages.

Both during and after the Act’s passage, there was considerable controversy about the impact of the piece of legislation on employees’ rights to privacy in their email, even when it was being sent and received on company machines. There was, in fact, some support for the contention that employers’ owning the computer system used by their employees have the legal right to monitor their employees’ email. Because employee consent is a defense used in legal cases when the ECPA provisions are not complied with, employees should either consent to the company’s policy that their email may be intercepted or be put on notice that it may be intercepted.

An interesting legal case involving interpretations of the ECPA occurred on June 29, 2004, and was known as the United States v. Councilman case. In particular, this case involved a ruling on Title I of the Electronic Communications Privacy Act (ECPA). The defendant, Mr. Councilman, was the Vice President of Interloc and Alibris.

Interloc, primarily an electronic out-of-print book service, also provided book dealers with email accounts and acted as an Internet Service Provider. Councilman was charged with intercepting thousands of email messages before they reached those for whom the messages were intended to gain a competitive business edge. Whether this activity actually was in breach of the Wiretap Act was the question decided by the Court of Appeals. The defendant said that the intercepted email was “in storage.” Therefore, he argued, there was no violation of the Wiretap Act. The U.S. government argued, in contrast, that the law states that an intercept is subject to the Wiretap Act, including the time between when an individual presses the Send button and the time when the message gets to the recipient’s email box. The Court of Appeals agreed with the defendant’s lawyers that if an electronic communication is obtained while it is simultaneously in transmission and in storage, an illegal intercept under the Wiretap Act has not occurred. The Court of Appeals also noted that Congress meant to give lesser protection to electronic communications than to wire and oral communications.

In recent years, more changes occurred to the ECPA when President George W. Bush signed the USA PATRIOT Act of 2001. The latter changes allowed search warrants to be used to access stored voice mails transmitted with a computer. The USA Patriot Act expanded law enforcement’s surveillance and investigative powers, creating legal debates around such important issues as to what forms “a business record” and what constitutes “a computer trespasser.” The American Library Association Website has a chart detailing the legal process and the standards and other legal particulars of the PATRIOT Act.

See Also: Electronic Mail or Email; Internet Service Provider (ISP); PATRIOT Act of 2001; Privacy; Privacy Laws.