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 the information to be collected is
"relevant" to a criminal investigation. Other kinds of searches and surveillance require a showing
of probable cause supported by specific facts and a particular statement of what will be
ECPA has not been updated to accommodate 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.
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