Federal Internet Law & Policy
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ECPA: Emergency

Dont be a FOOL; The Law is Not DIY

"Where a recognized expectation of privacy exists for Fourth Amendment purposes, the Amendment's usual demands such as those of probable cause, particularity, and a warrant may be eased in the face of exigent circumstances. For example, the Fourth Amendment requirement that officers must knock and announce their purpose before forcibly entering a building to execute a warrant can be eased in the presence of certain exigent circumstances such as the threat of the destruction of evidence or danger to the officers. Satisfying Fourth Amendment requirements, however, does not necessary satisfy statutory [ECPA] demands." [CRS 2009 p 14]

See also ISP :: Emergency :: National Security Letters and Exigent Letters

An additional exception to ECPA exists where there is an emergency and risk of life exists. In these situations a service provider may provide content or customer records information to law enforcement even without necessary legal authority.

Pursuant to the Homeland Security Act, the emergency disclosure of content provision no longer sunsets on December 31, 2005. However, the emergency disclosure of customer records still sunsets on December 31, 2005. [See Patriot Act]

Content of Communications

A service provider may divulge the content of communications without a court order or other appropriate legal authorization in certain specific moments of emergency. Pursuant to 18 U.S.C. § 2511(2)(a)(ii)(B), this can happen in an emergency situation that involves:

18 U.S.C. § 2518(7). [DOJ US Attorney's Manual Title 9-7.112 Electronic Surveillance] [Crouch] [Nabozny] It must be a situation where, but for the emergency, a law enforcement official would be able to obtain a warrant.

The law enforcement officer must apply for the court order within 48 hours. Failure to apply for or obtain court authority means the wiretap is illegal. The law enforcement office must provide to the person named in the court application the contents of the communications intercepted (in other words, give that person notice that the walls have ears and this is what they heard). 18 U.S.C. § 2518(7)(b). [DOJ US Attorney's Manual Title 9-7.112 Electronic Surveillance]

Service provider should expect to receive a certification in writing by a person specified in section 2518(7) of this title or the Attorney General of the United States that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required; and setting forth the period of time during which the provision of the information, facilities, or technical assistance is authorized and specifying the information, facilities, or technical assistance required.

Gag Rule: The service provider cannot tell anyone what is going on (unless permitted to do so by law). Service providers are immune from liability for providing information pursuant to this authority. 18 U.S.C. § 2511(2)(a)(ii).

Customer Communications Records

Where a service provider has a good faith belief that an emergency exists, the service provider may provide customer record information to law enforcement. As a protective measure, the Attorney General must annual report to Congress on the usage of this provision. 18 USC § 2702(c).

Where law enforcement reasonably believes that an emergency situation exists, law enforcement may have a pen register or trap and trace device installed if, within 48 hours, appropriate legal authority is approved. This emergency action must cease immediately upon obtaining the info sought, the denial or the legal authority request, or 48 hours - whichever is shorter. 18 USC § 3125.

18 USC § 2702

(c) Exceptions for Disclosure of Customer Records.- A provider described in subsection (a) may divulge a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications covered by subsection (a)(1) or (a)(2))-

(d) Reporting of Emergency Disclosures.- On an annual basis, the Attorney General shall submit to the Committee on the Judiciary of the House of Representatives and the Committee on the Judiciary of the Senate a report containing-

"a kidnapping for ransom is the type of emergency situation which involves "immediate danger of death or serious physical injury to a person. . ." Thus, a provider who discloses records or other information pursuant to the statutory authorization in 18 U.S.C. 2702(c)(4) (added by the Patriot Act of 2001) in emergency circumstances has the same protection from lawsuits as a provider who discloses the records pursuant to a court order. The Homeland Security Act of 2002 added an authorization (18 U.S.C. 2702(b)(8)) to disclose the contents of telecommunications in the same circumstances. In the Matter of the Application of the United States for a Nunc Pro Tunc Order for Disclosure of Telecommunications Records, 352 F. Supp.2d 45 (D. Mass. 2005)." [DOJ Electronic Surveillance Issues p. 10 (2005)]

Emergency Trap and Trace

18 USC § 3125

(a) Notwithstanding any other provision of this chapter, any investigative or law enforcement officer, specially designated by the Attorney General, the Deputy Attorney General, the Associate Attorney General, any Assistant Attorney General, any acting Assistant Attorney General, or any Deputy Assistant Attorney General, or by the principal prosecuting attorney of any State or subdivision thereof acting pursuant to a statute of that State, who reasonably determines that-

(b) In the absence of an authorizing order, such use shall immediately terminate when the information sought is obtained, when the application for the order is denied or when forty-eight hours have lapsed since the installation of the pen register or trap and trace device, whichever is earlier.

(c) The knowing installation or use by any investigative or law enforcement officer of a pen register or trap and trace device pursuant to subsection (a) without application for the authorizing order within forty-eight hours of the installation shall constitute a violation of this chapter.

(d) A provider of a wire or electronic service, landlord, custodian, or other person who furnished facilities or technical assistance pursuant to this section shall be reasonably compensated for such reasonable expenses incurred in providing such facilities and assistance.

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