Electronic Communications Privacy Act (the Wiretap Act)

Introduction

In the year 1986 for expanding and revising the provisions of the federal electronic eavesdropping and wiretapping provisions, The Electronic Communications Privacy Act (“ECPA”) was passed (Doyle, 2012).

There are three parts in the ECPA. First, is referred to as the Title III, and deals with the provisions of wire, oral, or electronic communications.[1] A procedure for law enforcement is also provided by this part and this part is also judicially supervised. This part also provides a procedure which is judicially supervised for the purposes of law enforcement.[2] Second, is the Stored Communications Act, which maintains for the stored electronic communications, the privacy and government access on it.[3] The Third part provides a procedure regarding governmental installation and use of pen registers as well as traps and trace devices.[4] This even provides for such installation or use except for law enforcement and foreign intelligence investigations.[5]

Wire communication and phone communication are synonymous and it relates to, “any communication part or whole, made through the use of provisions for transmitting communication with the help of cable, wire or any other intermediate” (Hura & Singhal, 2001).

Requirement of a warrant

One of the outcomes, that the inclusion of the matters relating to wiretapping and other types of electronic eavesdropping, into the ambit of the Fourth Amendment, is the requirement of the warrant as is required under the Fourth Amendment. Therefore, due to this requirement, it adversely affected the constitutional provisions and violated them, and to tackle this situation, many states adopted separate statutory provisions to guide their officials to, obtain warrant, or any alternate order of the court, authorizing the act of wiretapping and so.

In the case of Katz v. United States[6], the court gave an impression that the motive of protection behind the Fourth Amendment is not available for any trespass to a real property (REICHBACH, 2012).  There were evidence collected against Katz who was a bookie and used the public telephone booth for placing and taking bets, which was then tapped and electronic conversations were recorded. The Court laid down that, the Fourth Amendment would be taken help of, only if the individual is certain about his privacy until and unless there is a warrant. That is, there has to be a requirement of a warrant for intrusion under the ECPA, Act.[7]

In the case of, Berger v. New York[8] the constitutional adequacy relating to various schemes and provisions of the statute were rejected by the Court as it was ineffective and deficient as it failed to fulfil and 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.[9]

The above mentioned case of Berger, made it necessary and thus contributed by suggesting the Congress to adopt the Title III and thus the Omnibus Crime Control and Safe Streets Act of 1968 was adopted (Turley, 1988). This is a much more elaborate statute that not only gave rules regarding the wiretapping and eavesdropping activities but also provided and gave instructions and powers to the federal and state law enforcement officers as to how to tackle the objections in Berger.[10]

As the Congress passed the Title III, there was again a question that arose, regarding the ambit of the inherent power of the President, to authorize the acts of wiretapping and eavesdropping in the case of national security. Thus, for this purpose the issue regarding national security, such acts were removed from the scheme of the Title III.[11]

when the Court observed that the inherent powers of the president were not sufficient to excuse and allow warrantless electronic eavesdropping just on the basis of domestic threats to Congress with the help of the Foreign Intelligence Security Act of 1978 (FISA),[12] the congress put forward the proposal of augmenting the foreign intelligence authority of the US, as the Court had observed that the inherent powers of the President were not enough to excuse and allow the warrantless activities of wiretapping and eavesdropping just on the event of domestic threat to the country’s national security.[13] The FISA, thus now, gives the rules which highlight the conditions and procedure of authorization of such electronic check-activities and judicial review for the foreign intelligence purposes (Stevens & Doyle, 2012).

Since the society is always dynamic and never remains constant, therefore with time there has been many steps and enactments done by the Congress so that the ECPA and the FISA can work together collectively (LII, 2008). This has been done to promote greater privacy, and to establish a better law enforcement and gathering foreign intelligence.

Some of the enactments are:

• the USA PATRIOT Act; [14]
• the Intelligence Authorization Act for Fiscal Year 2002;[15]
• the 21st Century Department of Justice Appropriations Authorization Act;[16]
• the Department of Homeland Security Act;[17]
• the USA PATRIOT Improvement and Reauthorization Act;[18] and
• the Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008 (2008    FISA Amendments Act).[19]

Prohibition on Illegal Wiretapping and Electronic Eavesdropping

Under Title III, the ECPA starts by giving the provision which means that, subject to the provisions mentioned, activities amounting to eavesdropping and wiretapping through any electronic or mechanical devices, plus, disclosing information, attained through court-ordered wiretapping or electronic eavesdropping, in order to obstruct justice is a federal crime.[20]

ECPA maintains every individual’s privacy by putting a restriction on any private person from intruding the individual’s wire or any electronic conversations or communications.

Any intentional attempt or act of intercepting a wire, electronic as well as oral communication with the help of any kind of device, be it electronic or mechanical, a certain act is prohibited by The Wiretap Act (Determann & Sprague, 2011).

Certain exceptions are also provided by the same Act, this includes –

• Authorization to intercept, provided by the statute
• Provided, by any consent of the party
• Provided by, any clause under the contracts between employer and the employee
• A person can record his conversations himself if he wants to.

Acts of disclosing any such personal information obtained illegally are also prohibited under the Act.

Consequences of violation – Illegal Wiretapping and Electronic Eavesdropping

Criminal Penalties

Activities of using, disclosing and intercepting any information that violates the Title III is punishable with imprisonment which shall not exceed 5 years and/or with a fine, not exceeding $250,000 for the individuals and $500,000 for the organizations (Stevens, Privacy: An Overview of Federal Statutes Governing Wiretapping and Electronic Eavesdropping, 2003).[21]

These penalties as enlisted above also cover in its ambit, the activities of unlawfully capturing any cell phone or any conversations on a cord-less phone, as the Homeland Security Act[22] removed the reduced penalties which are one time applied to the practice of unlawfully intercepting through radio scanners and the like.[23] Any mechanism, equipment or any instrument used for such acts, in violation to the Title III can be confiscated by the United States either through any civil proceedings or at the time of the prosecution of the convicted.[24]

Acts done in good faith can be used as a defence in such cases and is allowed as an exception and thus the criminal liability shall be dismissed under Title III.[25]

Civil Liability

On violation of the Title III, its victims, are entitled to –

• Equitable reliefs
• Actual damages, either computed as $100 per day of violation, or $10,000 in total[26]
• Punitive damages
• Reasonable litigation costs[27]

It is also an established provision that section 2520 includes the actions of any governmental entity other than the United States and holds it liable for its violating actions and that law enforcement officers enjoy a qualified immunity from suit under section 2520.

Civil Liability of the United States

For any violations of Title III by the United States, The USA PATRIOT Act permits lawfully to initiate a show-cause action against the State as well as by the, Foreign Intelligence Surveillance Act or the provisions governing stored communications in 18 U.S.C. 2701-2712.[28] The victims here are entitles to maximum of $10,000 or actual damages, and adequate lawyer costs.[29]

Administrative Action

In cases where any law enforcement or federal officer or any employee of the federal department or agency, intentionally or willfully amounts to any misconduct on their part, then a disciplinary action can be instituted against them (Office, 1967).[30]

Attorney Discipline

Initially the interception or recording of the conversation of the parties without their consent, by any attorney, was considered to be an ethical misconduct by the American Bar Association (ABA), ABA Formal Op. 337 (1974). This was criticised and not followed by every person (Doyle, Wiretapping, Tape Recorders, and Legal Ethics: An Overview of Questions Posed by Attorney Involvement in Secretly Recording Conversation , 2012). There were different opinions. Some agreed the rules followed by ABA[31], some expanded the ambit of the ethical bounds to record any conversation[32], whereas some did not approve the view of the ABA.[33] Changes have been made and now any attorney who commits an act of unlawful activity of wiretapping and eavesdropping shall be under the obligation of the professional discipline they are required to maintain.[34]

The ABA view has brought the court and the bar associations to judge and interpret the provisions based on the facts and circumstances of the case.

D. Prohibition on Access of Communications – Stored Communications Act –

Well, this Act, mainly deals with the access to stored communications with are at rest, that is, the e-mails which are saved in the storage. This Act makes it unlawful to make access intentionally and prevents an unauthorized access to any communication, wired or electronic which is present in the electronic storage (Kerr, 2013).

Thus, employers are not authorized to keep legally a check on the mails of the employee unless and until there is a separate contract for the same, between the two.

SCA: Consequences

Violation of the provisions relating to prohibitions of unauthorized access under section 2701 leads to criminal, civil and administrative sanctions. Imprisonment may also be awarded not exceeding 5 years and for the subsequent conviction, 10 years and/or a fine not more than $250,000 and not exceeding $500,000 for the organizations.[35] Further, claims can be made by the victim for the equitable damages, attorney’s fees, cost, damages etc, (but not less than $1,000 in any event).[36]

For the wrongful acts done by the officials and employees of the United States are to be checked under civil cause of action and shall lead to any disciplinary actions against the offender under U.S. violations of Title III.[37]

If there has been a voluntary provider for disclosure, then there shall be no criminal penalties for the same, under section 2702.

E. Pen Registers and Trap and Trace

The origin and the destination of any specific communication is provided by the help of Pen registers and trap and trace devices. This information as provided by the pen registers and trap and trace does not bear the communication’s content but only the information regarding its origin and destination. This is why, there are lesser restrictions in the present matter. The telecommunication companies have direct access to these information therefore, the Supreme Court has laid down that these information have no degree of privacy. Its just that the companies should have proper mechanisms to complete the route of these communications. This is covered under the Pen-Register Act. As the Caller ID works, these pen registers display the numbers of incoming and outgoing, is the case of phone calls.

F. Reform

ECPA provides various protections, but since 1986 when the ECPA was passed, there has been a drastic change in the technologies (McMurry, 2000). With growing technologies, various modes like internet, mobile phones have been introduced. Therefore there have been certain modifications in the Act made and there are several others with need to be done.

Earlier there were wired communication setups but now there are other sources like internet, enabling electronic mails, cordless phones, mobile phone, with which wiretapping and eavesdropping by using surveillance options, becomes very difficult.

Further there are certain issues like,

• Emails are covered under Title I
• Electronic storage in Title II

Whereas, Title I and Title II, Wiretap Act and Stored Communications Act, respectively, both have separate standards and requirements. This causes difficulties and uncertainties for the users, officers of law enforcement and the courts.

Further, ECPA is criticised for the 180 day distinction. Back in 1986, email services like the g-mail did not exist. Earlier there were email services were merely intranet and the companies managed those accounts within themselves. Back then, the Congress presumed mails in the account, 180 days old, to be an abandoned property as there could be no back-ups but in the present times there is an access to unlimited cloud storage. Thus the distinction of 180 days is not relevant in the present period.

Thus there has been numerous meetings held by the Congress with technology companies and other electronic rights groups for reforming and modifying the ECPA to meet the present needs and introduce better law enforcement strategies.

Senators Patrick Leahy and Mike Lee recommended and put forward the “Electronic Communications Privacy Act Amendments Act of 2013,” on March 19, 2013, and the Committee on Judiciary reported it favourable to the senate on Aril 25, 2013 based on the amendments put forward by Sen. Leahy. This bill provides for certain rules and modifications, these are –

• The governmental entity only after obtaining the relevant warrant can make and take necessary actions for disclosure of contents of any electronic communication.
• This will help to remove the 180 day rule and also the difference between the unopened and the opened electronic mails for the law enforcement purposes.
• The proposed bill also imposes a stricter requirement of notices as to ensure timely notification to be provided to the user whose, electronic communication is to be kept under surveillance.

[1] 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).

[2] Id.

[3] 18 U.S.C. 27-1-2712.

[4] 18 U.S.C. 3121-3127.

[5] 18 U.S.C. 3121.

[6] 389 U.S. 347 (1967).

[7] 389 U.S. at 361.

[8] 388 U.S. 41 (1967).

[9] 388 U.S. at 58-60.

[10] 87 Stat. 197, 18 U.S.C. 2510 – 2520 (1970 ed.).

[11] 18 U.S.C. 2511(3)(1970 ed.)

[12] 92 Stat. 1783, 50 U.S.C. 1801-1862.

[13] United States v. United States District Court, 407 U.S. 297 (1972).

[14] P.L. 107-56, 115 Stat. 272 (2001).

[15] P.L. 107-108, 115 Stat. 1394 (2001).

[16] P.L. 107-273, 116 Stat. 1758 (2002).

[17] P.L. 107-296, 116 Stat. 2135 (2002).

[18] P.L. 109-177, 120 Stat. 192 (2006).

[19] P.L. 110-261, 122 Stat. 2436 (2008).

[20] 18 U.S.C. 2511. Elsewhere, the federal law prescribes: 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.

[21] 18 U.S.C. 2511(4)(a).

[22] 116 Stat. 2158 (2002).

[23] 18 U.S.C. 2511(4)(b)(2000 ed.).

[24] 18 U.S.C. 2513.

[25] 18 U.S.C. 2520(d).

[26] Smoot v. United Transportation Union, 246 F.3d 633, 642-645 (6th Cir. 2001)

[27] 18 U.S.C. 2520(b), (c).

[28] 18 U.S.C. 2712.

[29] 18 U.S.C. 2712(a).

[30] 18 U.S.C. 2520(f).

[31] People v. Smith, 778 P.2d 685, 686, 687 (Colo. 1989)

[32] Ariz. Opinion No. 95-03 (1995); Alaska Bar Ass’n Eth.Comm. Ethics Opinions No. 95-5 (1995) and No. 91-4

(1991);

[33] D.C. Opinion No. 229 (1992)

[34] Nissan Motor Co., Ltd. v. Nissan Computer Corp., 180 F.Supp.2d 1089, 1095-97 (C.D.Cal. 2002).

[35] 18 U.S.C. 2701(b).

[36] VanAlystyne v. Electronic Scriptorium, Ltd., 560 F.3d 199, 202 (4th Cir. 2009).

[37] 18 U.S.C. 2712(a),(c).