A. Quick Summaries:
(detailed summaries of Title III of the Omnibus Crime Control and Safe Street Act of 1968 and the Electronic Communications Privacy Act (ECPA) of 1986 follow at the end of this section)
1. Title III of the Omnibus Crime Control and Safe Street Act of 1968 (Wiretap Act)
In 1968, Congress enacted the Wiretap Act, which set out the specific requirements for conducting wiretaps. Under this statute, law enforcement must obtain a warrant from a judge to conduct a wiretap. To obtain such a warrant, the law enforcement officials must demonstrate to the judge that "there is probable cause [to believe] that an individual is committing, has committed, or is about to commit a particular offense . . . [and that] normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous." The Wiretap Act only applied to wire (telephone) communications. Further, the Wiretap Act only applied to the contents of communications. Nothing in the act prevented the government from using a pen register to obtain lists of telephone numbers a suspect had contacted.
2. Electronic Communications Privacy Act (ECPA) of 1986
The Electronic Communications Privacy Act of 1986 (ECPA) (18 U.S.C. §§ 2510-2521 (1998)) (optional), an amendment to the Wiretap Act, extends protection of the Wiretap Act to electronic communications. ECPA provides civil and criminal penalties for intentional, unauthorized interception of private electronic communications. ECPA is divided into two parts. Title I prohibits the interception of wire, oral, or electronic communications. To intercept such messages, the government must obtain a court order based on probable cause (the same requirement as required under the Wiretap Act for a warrant). Title II prevents unauthorized access to stored wire and electronic communications. The government may access stored communications with only a search warrant. This is a less stringent procedure than for obtaining a court order to conduct a wiretap as provided for in Title I. If the government violates either title, it can be sued for civil damages under either Title.
3. Statues Regulating Pen Registers
In addition to the provisions regarding interception of electronic communications and access to stored communications, the ECPA provides some protection against use of pen registers. A pen register is a device that allows the government to determine the phone numbers to which a suspect places calls and those from which he receives calls. To receive a pen register warrant, law enforcement officials must demonstrate that "the information likely to be obtained by such installation and use is relevant to an ongoing criminal investigation." This relevancy requirement is a much lower standard than the probable cause requirement necessary to obtain a court order to intercept an electronic communication.
In 1994 the Communications Assistance for Law Enforcement Act (CALEA) http://epic.org/privacy/wiretap/calea/calea_law.html was adopted to amend both the Wiretap Act and the ECPA. While the main provisions of CALEA require telephone companies to update their digital telephone equipment so that the government can wiretap these lines, CALEA also has provisions relating to email and Internet Service Providers (ISPs). Under CALEA, a court order is required for law enforcement officials to wiretap and eavesdrop on phone conversations and to intercept electronic communications. Such a court order is obtainable only with a showing that there is probable cause to believe that a crime is being committed, that communications about the crime will be intercepted and that the equipment being tapped is used by the suspect in connection with the crime. This standard under CALEA is higher than the standard required by the Fourth Amendment alone, which just requires probable cause that a crime has been committed.
4. Privacy Protection Act of 1980 (http://www.privacycouncil.com/maps/UnitedStates/federal/Privacy_Protection_Act.htm)
The Privacy Protection Act of 1980 (PPA) was enacted to protect the freedom of the press. The original goal of the PPA was to allow reporters to investigate and develop sensitive stories without fear of government interference. Under the PPA, the government cannot conduct a search or seizure of materials from a “publisher” without probable cause. The probable cause standard under the PPA is higher than the usual standard for warrants. The government can only obtain a warrant under the PPA if there is probable cause to believe that the materials sought are themselves involved in the commission of a crime.
Under the PPA, “publisher” is defined as "a person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication.” Online systems that provide publishing services (such as online newsletters) or engage in publishing related activities (e.g., collection of documentary information via email) are protected under the PPA. Whenever a system does qualify as a “publisher,” protection under the PPA extends to the entire system, not just the parts of it engaged in the publishing activity. Monetary damages are available as a remedy for violations under the PPA.
5. USA Patriot. (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism, USAPA), H.R. 3162, was passed on October 26, 2001. This post-September 11, 2001 legislation will be considered in Module V.
B. Detailed Summary of Title III of the Omnibus Crime Control and Safe Streets Act of 1968. and the Electronic Communications Privacy Act of 1986 (ECPA)
Title III of the Omnibus Crime Control and Safe Streets Act of 1968 attempted to codify the Fourth Amendment principles set forth by Katz. Title III proscribes the interception of oral and wire communications, "while making provision for law enforcement to intercept these communications for use in criminal investigations."
The Electronic Communications Privacy Act of 1986 ("ECPA") amended Title III when it became clear that Title III was not adequate to deal with developing technologies in the field of electronic communication. The ECPA was designed to align Title III with new innovations such as "cellular telephones, computer-to-computer transmissions, and electronic mail systems . . . ."
Title I of the ECPA prohibits unauthorized interception of electronic communications. “Unauthorized” includes communications obtained without the authority of an appropriate court order. Title II proscribes the unauthorized access to stored wire and electronic communications. However, although the ECPA was designed to update Title III, it did not resolve conflicting understandings of what would be protected under the “reasonable expectation of privacy” standard. While the privacy standard still governs communications obtained by the government, the standard is difficult to apply because it is not obvious whether a user’s hope of privacy is one a court will protect as “reasonable.”
· A search warrant may be used to gain access to any electronic information that has been stored for less than 180 days. If the information has been stored for more than 180 days, law enforcement may gain access either via warrant, court order, or subpoena. The standard for granting an order or subpoena is that information is ‘relevant to an ongoing criminal investigation.’ Also note that notice to the person being searched is usually required with an order or subpoena. However, notice may be delayed up to 90 days if it is found that giving notice would put someone in danger or harm the investigation.
o U.S. v. Bianco, 998 F.2d 1112.
§ Defendants were members of a mafia organization and were convicted of organized crime and racketeering related offenses. Defendants appeal conviction claiming that the roving wiretap, which was used to gather evidence leading to the conviction, is unconstitutional. Appeals court determined that law enforcement officials need to identify the specific location for the surveillance. However, law enforcement officers may apply for an exception to this rule and thus get permission to conduct a roving wiretap. A roving wiretaptap allows police to target the suspects communications in all necessary locations. Thus, the court held that ‘roving wiretap did not violate the particularity requirement of the Fourth Amendment because surveillance was limited to communications involving an identified speaker and relating to crimes in which the speaker was suspected of participating.’
o U.S. v. Gaytan, 74 F.3d 545.
§ Defendants convicted of possession of cocaine and intent to distribute cocaine. On appeal, the defendants claimed that the roving wiretap that was used to gain evidence against them was unconstitutional. However, the prosecution presented evidence that the defendants ‘engaged in conduct to thwart surveillance by changing facilities.’ In fact, the defendants had changed cellular phones several times in an effort to evade police surveillance. Thus, the court found that a roving wiretap was warranted. The court held that that a roving wire or electronic communication intercept is warranted where ‘the targeted persons have engaged in conduct to thwart surveillance by changing facilities.’
“[W]hoever (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 shall be punished …”