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 peopleand not simply areasagainst
  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 IIIWire 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 IIIWire 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 governments 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.