Electronic Communications Privacy Act (ECPA) of 1986

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The Electronic Communications Privacy Act (ECPA) sets out the provisions for access, use, disclosure, and interception of electronic communications, including telephone, cell phones, computers, email, faxes, and texting.

• passed 1986
• is an amendment to the original Wiretap Act and expands that act’s privacy protections
  • Includes 3 parts:
    • The Wiretap Act (1968, amended)
    • The Stored Communications Act
    • The Pen Register Act
• extensively updated by the 2001 Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA PATRIOT Act)

Overview

• government cannot access electronic communications without a search warrant
• includes access to the contents of the communication and the headers and other transmission information
• private entity may voluntarily disclose the contents of stored communications to law enforcement
  • ISPs have additional conditions to meet:
    • The disclosure is made with the consent of the sender or receiver of the communication
    • The disclosure is related to the ISP’s services or is made to protect the ISP’s rights
    • The ISP inadvertently received the contents of the communication and the contents appear to be related to criminal activity
    • ISP reasonably believes that disclosure is required to prevent an emergency involving immediate danger of death or serious bodily injury
    • U.S. child protection laws require the disclosure
    • disclosure is made in response to a court order

Penalties

• fined or imprisoned for up to 5 years, or both
• repeat offenders can be imprisoned up to 10 years