ECPA : Enforcement / Recovery
Go Directly To Jail ?
People who illegally intercept communications face
- criminal penalties of up to 5 years in jail, or
- civil damages up to $10,000 per violation
18 U.S.C. § 2511(4). See also 18 U.S.C. § 3121(d) (criminal penalties for Pen/Trap statute violations)
Suppression of Evidence
The suppression of evidence remedy under the Wiretap Act is provided pursuant to 18 U.S.C. § 2515
Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived there from may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter.
See 18 U.S.C. § 2518(10)(a) (suppression for certain Title III violations)
Federal circuits have found that suppression of evidence is an unavailable remedy for violations of ECPA and interceptions of “electronic communications.” [Steiger] [Jones] [USDOJ Search and Seizure Manual, Sec. III.H.1.] [Smith 1056] [Kennedy 1110] [Hambrick 507] [Charles 21] [Reyes 837-38] "There is one minor exception to this rule: electronic communications intercepted pursuant to a Title III court order may be suppressed for failure to seal the intercepted communications as required by 18 U.S.C. § 2518(8)(a). See United States v. Suarez, 906 F.2d 977, 982 n.11 (4th Cir. 1990)." [Search Seizure 2009 p 184]
"In addition, the Pen/Trap statute does not provide a statutory suppression remedy for violations. See United States v. Forrester, 512 F.3d 500, 512 (9th Cir. 2008); United States v. Fregoso, 60 F.3d 1314, 1320-21 (8th Cir. 1995); United States v. Thompson, 936 F.2d 1249, 1249-50 (11th Cir. 1991)." [Search Seizure 2009 p 184]
Bad Fruit: Where evidence illicitly gathered may be suppressed, everything that resulted from the discovery of that evidence can be suppressed. This is known as the Bad Fruit Doctrine; if the tree is bad, then so is all the fruit. In the example of Timothy McVeigh, the Navy’s entire case was built upon the initial illegal search of the AOL records. Anything that McVeigh subsequently said in the court room was suppressed as well.
Civil Action / Private Right of Action
Recovery: Individuals whose communication or communications-records have been intercepted, disclosed, or intentionally used in violation of law have a private right of action may seek civil relief against any person or entity – but not against the sovereign United States (you may be able to sue the law enforcement officer him or her self, but not the US Government). This relief includes
- Injunctive relief,
- Damages plus punitive damages, and
- Attorney’s fees.
18 USC § 2707(a) (civil action for certain Pen/Trap statute violations); 18 U.S.C. § 2520 (private right of action for Title III violations).
Statute of Limitations: Actions must be initiated within 2 years of the infraction. 18 U.S.C. § 2520(e).
US Government officials found to have violated the law can also be subject to administrative discipline. 18 U.S.C. § 2520(f) (provision sunsets on December 31, 2005).
18 USC § 2707
(a) Cause of Action.- Except as provided in section 2703 (e) , any provider of electronic communication service, subscriber, or other person aggrieved by any violation of this chapter in which the conduct constituting the violation is engaged in with a knowing or intentional state of mind may, in a civil action, recover from the person or entity, other than the United States, which engaged in that violation such relief as may be appropriate.
(b) Relief.- In a civil action under this section, appropriate relief includes-(1) such preliminary and other equitable or declaratory relief as may be appropriate;
(2) damages under subsection (c); and
(3) a reasonable attorney's fee and other litigation costs reasonably incurred.
(c) Damages.- The court may assess as damages in a civil action under this section the sum of the actual damages suffered by the plaintiff and any profits made by the violator as a result of the violation, but in no case shall a person entitled to recover receive less than the sum of $1,000. If the violation is willful or intentional, the court may assess punitive damages. In the case of a successful action to enforce liability under this section, the court may assess the costs of the action, together with reasonable attorney fees determined by the court.
(d) Administrative Discipline.- If a court or appropriate department or agency determines that the United States or any of its departments or agencies has violated any provision of this chapter, and the court or appropriate department or agency finds that the circumstances surrounding the violation raise serious questions about whether or not an officer or employee of the United States acted willfully or intentionally with respect to the violation, the department or agency shall, upon receipt of a true and correct copy of the decision and findings of the court or appropriate department or agency promptly initiate a proceeding to determine whether disciplinary action against the officer or employee is warranted. If the head of the department or agency involved determines that disciplinary action is not warranted, he or she shall notify the Inspector General with jurisdiction over the department or agency concerned and shall provide the Inspector General with the reasons for such determination.
Recovery: Service providers, subscribers, or other individuals aggrieved by any knowing or intentional violation of the stored communications rules may recover from the person or entity engaged in the violation – but not against the United States (see Suing the Sovereign). This relief includes
- Injunctive relief,
- Damages of $1,000 per violation plus attorney’s fees, and
- Punitive damages for willful or intentional violations.
18 U.S.C. § 2701, 18 U.S.C. § 2707.
US Government officials found to have violated the law can also be subject to administrative discipline. 18 U.S.C. § 2707(d), 18 U.S.C. § 2712(c) (provision sunsets on December 31, 2005).
Actions must be initiated within 2 years after the date upon which the claimant first discovered or had a reasonable opportunity to discover the violation. 18 U.S.C. § 2707(f).
Penalties: Violators of the Pen Register / Trap and Trace provisions may be fined or imprisoned not more than one year. 18 U.S.C. § 3121(d).
Suing the Sovereign
“Suits against the United States may be brought under 18 U.S.C. § 2712 for willful violations of ECPA, Title III, or specified sections of the Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. § 1801. This section authorizes courts to award actual damages or $10,000, whichever is greater, and reasonable litigation costs. Section 2712 also defines procedures for suits against the United States and a process for staying proceedings when civil litigation would interfere with a related investigation or criminal prosecution. See 18 U.S.C. § 2712(b), (e). Unless extended, § 2712 will sunset on December 31, 2005.” [USDOJ, Search and Seizure Manual, Sec. III.H.2.]
ISP Liability & Immunity