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Home > Privacy and Business > Online Privacy > Select Laws and Regulations > The Electronic Communications Privacy Act


The Electronic Communications Privacy Act

The Electronic Communications Privacy Act (ECPA) was passed by Congress in 1986 to bring new communications technologies under the umbrella of the federal wiretap laws. Though largely aimed at preventing invasions of privacy by government, the law also prohibited private-sector providers of electronic communications services from divulging their contents.

The law was designed to meet the challenge of sophisticated surveillance technologies, which create the opportunity for government surveillance beyond what is allowed by the Fourth Amendment. ECPA was inspired by the findings of the Church Committee, which revealed that the FBI had used electronic surveillance on Dr. Martin Luther King, Jr., Congressman Harold Cooley, dissident groups, and many others.

Despite this, ECPA does not control government access to private communications strongly enough. It allows pen registers and trap and trace orders (which record what telephone numbers are dialed and what numbers calls come in from) to be issued too easily. An investigator only has to certify that information "relevant" to a criminal investigation will be collected. Other kinds of searches and surveillance require a showing of probable cause supported by specific facts and a particular statement of what will be searched.

ECPA has not been updated to accomodate the Internet, and investigators have sought to use technologies like Carnivore, which collect much more information than pen registers or trap and trace devices, under the authority of this law. It should be strengthened to protect citizens' privacy in electronic communications.


Links:

Memorandum and Order, FTC v. Netscape (No. CV-00-00026 (Misc.) MHP) (N.D. Cal. April 24, 2000) (holding that ECPA prevents federal agency from using pretrial subpoena to obtain subscriber information from provider of electronic communications service)

Electronic Communications Privacy Act entry in Jones Telecommunications and Multimedia Encyclopedia

Comments? comments@privacilla.org (Subject: EPCA)

[updated 02/02/01]



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