Electronic Communications Privacy
- Legislative History
- Electronic Communications Privacy Act of 1986, S.
2575, 99th Cong. (1986)
- H.R. Rep. No. 103-827, at
10, 17, 31 (1994), reprinted in 1994 U.S.C.C.A.N. 3489, 3490, 3497, 3511
- Electronic Communications Privacy Act of 1986, S.
2575, 99th Cong. (1986)
- 132 Cong. Rec. S14,441 (Oct. 1, 1986).
- 132 Cong. Rec. S7,991 (June 19, 1986).
- 132 Cong. Rec. H4,039 (June 23, 1986).
- House Comm. on the Judiciary, Electronic Communications Privacy Act of 1986, H.R. Rep. No. 99-647, 99th Cong., 2d Sess. (1986)
- S Rep. 99--541 (1986) reprinted in 1986 USCCAN
3555 (referencing Brandeis dissent from Olmstead)
- "A letter sent by first class mail is
afforded a high level of protection against unauthorized opening by a
combination of constitutional provisions, case law, and the US Postal
Service statutes and regulations. Voice communications transmitted via
common carrier are protected by title III of the Omnibus Crime Control
and Safe Streets Act of 1969. But there are no comparable Federal
statutory standares to protect privacy and security of communications
transmitted by new noncommon carrier communications services or new
forms of telecommunications and computer technology." p. 5 / p. 3559
- S. 1667, 99th Cong. (1985), reprinted in 131
Cong. Rec. S11,795 (Sept. 19, 1985) (HR 3378 by Rep. Kastenmeier and
Morehead - identical)
- Federal Government Information Technology: Electronic Surveillance and Civil Liberties (Washington, DC: U.S. Congress, Office of Technology Assessment, OTA- CIT-293, October 1985).
U.S.C. § 2511(2)(g) : no expectation of privacy for public
radio transmissions, ship or vehicle radio, distress radio
transmissions, government radio, amateur or CB radio, radio
transmissions causing harmful interference.
- Supreme Court
- City of Ontario v. Quon, 130 S. Ct. 2619, 2624 (2010) (considering whether the Fourth Amendment protects —text messages sent and received on a pager [an] employer owned and issued to an employee?)
- "Rapid changes in the dynamics of communication and information transmission are evident not just in the technology itself but in what society accepts as proper behavior.. . . Cell phone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self- identification. That might strengthen the case for an expectation of privacy. On the other hand, the ubiquity of those devices has made them generally affordable, so one could counter that employees who need cell phones or similar devices for personal matters can purchase and pay for their own. " Quon, 130 S. Ct. at 2629–30.
- "The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear. In Katz, the Court relied on its own knowledge and experience to conclude that there is a reasonable expectation of privacy in a telephone booth. It is not so clear that courts at present are on so sure a ground. Prudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices." at 2629
- Kyllo v. United States, 533 U.S. 27, 29 (2001) (considering —whether the use of a thermal-imaging device aimed at a private home from a public street to detect relative amounts of heat within the home constitutes a ?search‘ within the meaning of the Fourth Amendment)
- "obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical —intrusion into a constitutionally protected area,? constitutes a search—at least where (as here) the technology in question is not in general public use. This assures preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted." p. 34.
- Richards v. Wisconsin, 520 U.S.
385, 391 (1997) (Fourth Amendment and exigent circumstances)
- Wilson v. Arkansas, 514 U.S. 927,
936 (1995) (Fourth Amendment and exigent circumstances)
480 U.S. at 715 (“We have no talisman that determines in all cases
those privacy expectations that society is prepared to accept as
- Oliver v. United
States, 466 U.S. 170, 179 (1984) (a workplace computer
simply “do[es] not provide the setting for those intimate activities
that the [Fourth] Amendment is intended to shelter from government interference or
- United States v. Karo, 104 S. Ct. 3296 (1984)– "using a beeper to trail a container into a house and “to keep in touch with it inside the house” did violate the fourth amendment."
- Illinois v. Andreas, 463 US 765 (1983)
- United States v. Knotts, 103 S. Ct. 1081 (1983) "warrantless monitoring of a beeper is not a search and seizure under the fourth amendment because there is no reasonable expectation of privacy as the movements tracked are public."
v. Maryland, 442 U.S. 735 (1979)
- United States v. Caceres, 440 U.S. 741 (1979)
- Smith v. Maryland, 442 U.S. 735 (1979) individuals do not have an expectation of privacy in
phone numbers and therefore the Fourth Amendment does not apply.
- United States v. New York Telephone Co., 434
U.S. 159 (1977) "Court held that to be covered by Title III, a communication must be capable of being overheard."
- United States v. Miller,
425 U.S. 435 (1976) (no expectation of privacy in bank records of
- United States v.
White, 401 U.S. 745 (1971)
v. New York, 388 U.S. 41 (1967)
v. US, 389 US 347 (1967) (overturned
Olmstead, Fourth Amendment applies to people, not places - Fourth
Amendment applies to telephone calls where there is an expectation of privacy)
- Silverman v. United States, 365 U.S. 505 (1961) ("the Fourth Amendment did reach the government’s physical intrusion upon private property during an investigation, as for example when they drove a “spike mike” into the common wall of a row house until it made contact with a heating duct for the home in which the conversation occurred")
- Mapp v. Ohio, 367 U.S. 643 (1961)
- On Lee v. United States, 343 U.S. 747 (1952) ("the absence of a physical trespass precluded Fourth Amendment coverage of the situation where a federal agent secretly recorded his conversation with a defendant held in a commercial laundry in an area open to the public")
- Goldman v. United States, 316 U.S. 129, 62 S. Ct. 993, 86 L. Ed. 1322 (1942)
- Olmstead v. United States,
277 U.S. 438 (1928) (telephone calls not protected by Fourth Amendment)
- Ex parte Jackson, 96 U.S. 727 (1877). (“the right of the people to be secure in their papers against unreasonable searches and seizures extends to their papers, thus closed against inspection, wherever they may be. Whilst in the mail, they can only be opened and examined under like warrant, issued upon similar oath or affirmation, particularly describing the thing to be seized, as is required when papers are subjected to search in one's own household”)
- Boyd v. U.S., 116 U.S. 616 (1886).
- Appellate Court
- Doe v Ashcroft,
334 F.Supp.2d 471 (S.D.N.Y. 2004), vac’d and remanded, 449 F.3d 415 (2d
Cir. 2006), after remand, 500 F.Supp.2d 379 (S.D.N.Y. 2007), aff’d in
part, rev’d in part and remanded, 549 F.3d 861 (2d Cir. 2008), after
remand, ____ F.Supp.2d ____ (2009 WL 2432320)(S.D.N.Y. Aug. 5, 2009) (Patriot Act NSL
- United States v.
Perrine, 518 F.3d 1196, 1202 (10th Cir. 2008) the “specific
and articulable facts” standard of 2703(d) “derives from the Supreme
Court’s decision in [Terry v. Ohio, 392 U.S. 1 (1968)].”
v. US, 532
F.3d 521 (6th Cir . 2008), rehearing en banc (reversing
previous decision, the standard that applies to government access to
email "will turn in part on the expectations of privacy that computer
users have in their e-mails--an inquiry that may well shift over time,
that assuredly shifts from internet-service agreement to
internet-service agreement and that requires considerable knowledge
about ever-evolving technologies"), 2007 WL 1730094 (6th Cir. June 18,
2007) (finding expectation of privacy in email and that disclosure of
emails without a warrant violated Fourth Amendment; 2703(d) Order was
- US v Forrester, (9th Cir July 6,
2007) (pen register that monitor's
defendant's Internet and email activity, providing ip number and email
address information, lawful as defendants "had no reasonable
expectation that IP addresses and to/from lines of emails would remain
private since such activity is transmitted through a third party")
v. Ziegler, No. 05-30177 (9th Cir. Aug. 8, 2006)
v Gonzales, 386 F.Supp.2d 66 (D.Conn. 2005), dism’d as moot,
449 F.3d 415 (2d Cir. 2006) (Patriot Act NSL Letters)
States v. Gourde, 440 F.3d 1065, 1077 (9th Cir. 2006) (en
banc) (Kleinfeld, J., dissenting)
- United States v. Councilman
, ___ F3d ___ (1st Cir. Aug 11, 2005)
(rehearing en banc)
"the purpose of the broad
definition of electronic storage was to
enlarge privacy protections for stored data
under the Wiretap Act, not to exclude e-mail
messages stored during transmission from those strong protections.
Moreover, Congress's sole purpose in adding electronic storage to the
definition of "wire communication" was to protect voice mail, and not
to affect e-mail at all." Slip at 18.
373 F3d 197, 201-03 (1st Cir
2004) (holding that copying emails at
the server level was not an interception and citing with approval
circuit court decisions requiring interception to be contemporaneous
with transmission. Relied on Konop)
States v. Councilman , 245 F. Supp. 2d 319, 320 (D. Mass. 2003)
(definition of electronic communications is “extraordinarily – indeed,
almost breathtakingly – broad”).
- United States v. Caymen, 404 F.3d 1196, 1199 (9th Cir. 2005)
- Biby v. Bd. of
Regents, 419 F.3d 845, 850-51 (8th Cir. 2005) (holding
that no reasonable expectation of privacy existed where a policy
reserved the employer’s right to search an employee’s computer for a
- Hall v. EarthLink
Network, Inc., 396 F.3d 500, 503 n.1 (2d Cir. 2005) (rejecting
arguments that "communication over the Internet can only be electronic
communication while it is in transit, not while it is in electronic
- Theofel v. Farey-Jones,
359 F.3d 1066 (9th Cir. 2004)
- United States v. Thorn, 375 F.3d 679, 683 (8th Cir. 2004), cert.
granted and judgment vacated on other grounds by 543 U.S. 1112 (2005)
(holding that a public agency’s computer-use policy, which prohibited
accessing sexual images, expressly denied employees any personal
privacy rights in the use of the computer systems, and provided the
employer the right to access any computer in order to audit its use,
precluded any reasonable expectation of privacy);
- United States v. Steiger, 318 F3d 1039, 1048-49 (11th Cir 2003), cert.
denied, 538 U.S. 1051 (2003)
- "[W]e hold that a contemporaneous
interception—i.e., an acquisition during 'flight'—is required to
implicate the Wiretap Act with respect to electronic communications."
v. Nationwide Mut. Ins. Co., 352 F. 3d 107 - Court of
Appeals, 3rd Circuit 2003
( email in storage is not in transit and therefore cannot be "intercepted" under the Wiretap Act; no liability under the Stored Communications Act, noting under 18 U.S.C. § 2701(c)(1) that an ECS is not barred from accessing stored communications).
- Fraser v. Nationwide Mut. Ins. Co., 135
F.Supp.2d 623 (E.D.Pa 2001)
- United States v. Shryock, 342 F.3d 948, 978 (9th Cir. 2003).
- Blumofe v.
Pharmatrak, Inc. (In re Pharmatrak Privacy Litig.), 329 F.3d
9, 21 (1st Cir. 2003) (a rigid "storage-transit dichotomy . . . may be
less than apt to address current problems")
- United States v. Angevine, 281 F.3d 1130, 1133-35 (10th Cir. 2002)
(holding that the employer’s computer-use policy, which included
monitoring and claimed a right of access to equipment, and the
employer’s ownership of the computers defeated any reasonable
expectation of privacy)
- Konop v. Hawaiian
Airlines, Inc., 302 F3d 868, 878 (9th Cir 2002), cert. denied,
537 U.S. 1193 (2003)("We therefore hold that for a website such as
Konop's to be 'intercepted' in violation of the Wiretap Act, it must be
acquired during transmission, not while it is in electronic storage.")
- Reinhardt, J., concurring in part, dissenting
in part) ("I dissent, however, from Part B of Section I, which holds
that the term 'intercept' in the Wiretap Act, as applied to electronic
communications, refers solely to contemporaneous acquisition.").
- Konop v Hawaiian
Airlines, No. 99-55106 9th Cir January 8, 2001
- Muick v. Glenayre
Electronics, 280 F.3d 741 (7th Cir. 2002)
- 743 (“Glenayre had announced that it could
inspect the laptops that it furnished for the use of its employees, and
this destroyed any reasonable expectation of privacy . . . .”)
- 743] “[T]he abuse of access to workplace
computers is so common (workers being prone to use them as media of
gossip, titillation, and other entertainment and distraction) that
reserving a right of inspection is so far from being unreasonable that
the failure to do so might well be thought irresponsible.”
- United States v. Silva,
247 F.3d 1051, 1055 (9th Cir. 2001) (noting that “[t]he reasonableness
of an expectation of privacy is evaluated . . . ‘[by reference] to
understandings that are recognized and permitted by society’ ” (quoting
Rakas v. Illinois, 439 U.S. 128, 143 n.12 (1978)))
- Guest v.
Leis, 255 F.3d 325 (6th Cir. 2001)
v. Smith, 155 F.3d 1051 (9th Cir.
- Organizacion JD Ltda. v. United States Dep't of Justice, 124 F.3d 354, 359-61 (2d Cir. 1997) (discussing the scope of the word "customer" as used in the SCA)
- United States v.
Pervaz, 118 F.3d 1 (1st Cir. 1997).
- Davis v. Gracey, 111 F.3d 1472 (10th Cir. 1997).
- Reynolds v. Spears, 93 F.3d 428, 432-33 (9th Cir. 1996)
- Tucker v. Waddell, 83 F.3d 688,
693 (4th Cir. 1996) ("[T]he language of § 2703(c) does not
prohibit any governmental conduct, and thus a governmental entity may
not violate that subsection by simply accessing information improperly")
- United States v. Gaytan, 74 F.3d 545 (5th Cir. 1996)
- United States v. Fregoso, 60 F.3d 1314, 1320 (8th Cir. 1995) ("The judicial
role in approving use of trap and trace devices is ministerial in
- Steve Jackson
Games v. U.S. Secret Service, 36 F.3d 457 (5th Cir.
1994) (ECPA is "famous (if not infamous for its lack of clarity.")
- United States v. Bianco, 998
F.2d 1112 (2d Cir. 1993), cert. denied, 114 S. Ct. 1644 (1994)
States v. Herring, 993 F.2d 784 (11th Cir. 1993) (en banc)
States v. Mullins, 992 F.2d 1472, 1478 (9th Cir. 1993),
cert. denied, 509 US 905 (1993) (airline that provides travel agents
with computerized travel reservation system accessed through separate
computer terminals can be a provider of electronic communication
- United States v. Petti, 973 F.2d
1441 (9th Cir. 1992), cert. denied, 113 S.Ct. 1859 (1993)
- United States v. Villegas , 899 F.2d 1324, 1337 (2d Cir. 1990) (law
enforcement officers must show “good reason” for delayed notice).
v. Marshall, 781 F.2d 83 (6th Cir.), cert. denied, 476 U.S. 1161
(1986) (kidnapping and extortion scenario constituted an emergency
- United States
v. Seidlitz, 589 F.2d 152, 158 (4th Cir. 1978), cert.
denied, 441 U.S. 922 (1979) (owner of computer is a party to the
communication and can consent to government monitoring)
- Hodge v. Mountain States Tel. &
Tel. Co., 555 F. 2d 254 - Court of Appeals, 9th Circuit 1977
- District Court
- SHEFTS v. PETRAKIS, Dist. Court, CD Illinois 2013
- Loucks v. Illinois Institute of Technology, Dist. Court, ND Illinois 2012
- Cheng v. Romo, Dist. Court, D. Massachusetts 2012
- IN RE INNOVATIO IP VENTURES, LLC PATENT LITIGATION, Dist. Court, ND Illinois 2012 (intercepting WiFi is not a violation of the Wiretap Act)
- In re Google Inc. Street View Electronic Communications Litigation No. C 10-MD-02184 JW.
United States District Court, N.D. California, San Francisco Division.
June 29, 2011 (Google Motion to Dismissed ECPA Claim Denied; WiFi is not a Radio Communications in context of 18 USC 2511(g)(i) exception for interception of communications readily accessible to public)
- Valentine v. NEBUAD, Inc. ND CA
Denying Nebuad Motion to Dismiss April 4, 2011
- "This lawsuit arises out of a practice of
tracking individuals' internet habits and harnessing that data to sell
and deliver targeted advertisements based on their web browsing
history. NebuAd contracted with internet service providers ("ISPs") to
install devices on their networks that monitored ISP subscribers'
internet activity and transmitted that data to NebuAd's California
headquarters for analysis. That data was used to sell advertising
tailored to subscribers' interests, which appeared in place of more
generic advertisements on web pages visited by subscribers. The
advertising profits were split by NebuAd and its ISP partners.
- "Plaintiffs are ISP customers who allege
their online activities were monitored during trials of this technology
by NebuAd and the six ISPs to which they subscribed ("ISP Defendants").
- "In the meantime, on May 13, 2009, NebuAd's
board of directors executed an assignment for the benefit of creditors
("ABC"), a business liquidation device under California law that is an
alternative to bankruptcy proceedings. NebuAd's counsel moved to
withdraw and to stay proceedings on May 18, arguing that they could not
continue to represent NebuAd because there was effectively — due to the
ABC — no client left to represent.
- " Plaintiffs bring claims for violation of
the federal Electronic Communications Privacy Act of 1986 ("ECPA"), 18
U.S.C. § 2510 et seq. (Count I); California's Computer
Crime Law ("CCCL"), Cal. Pen. Code § 502 (Count II); the federal
Computer Fraud and Abuse Act, 18 U.S.C. § 1030 (Count III); and
California's Invasion of Privacy Act ("CIPA"), Cal. Pen. Code §
630 et seq. (Count IV). Plaintiffs also assert a claim for
unjust enrichment (Count VII).
- See Network
Neutrality & ECPA
- Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965 (CD Ca 2010) (holding Stored Communication Act applies to Facebook messaging and may apply to Facebook wall posts given certain privacy settings)
- Chasten v. Franklin, 2010 U.S. Dist. LEXIS 113284 (N.D. Cal. October 14, 2010). The U.S. District Court for the Northern District of California quashed a subpoena for emails sent or received from the defendant?s email account because it violated the Stored Communications Act (SCA).
- Mortensen v. BRESNAN COMMUNICATION, LLC, Dist. Court, D. Montana 2010
- In re An Application of the United States of America for an Order Authorizing the Release of Historical Cell-Site Information, 10-MJ-0550, Memorandum and Order (EDNY Aug. 27, 2010) (denying request for an order pursuant to the SCA directing a telephone company " to disclose, with respect to all calls and text messages to and from a certain mobile telephone over a period of 58 days, all "recorded information identifying the base station towers and sectors that received transmissions from" that telephone)
- Cardinal Health 414 v. Daniel Adams et al., Case
No. 3:07-00691 (M.D. Tenn., Oct. 10, 2008)
- Hepting v. AT&T, EFF case against networks for
illegal wiretapping at the request of the NSA
Complaint for Damages, Declaratory and Injunctive Relief, Feb. 22, 2006
Corp., Motion to Dismiss, April 28, 2006
Orders on Motions to Dismiss, July 20, 2006
Granting Appeal to 9th Circuit, Nov. 7, 2006
States v. Long, U.S. Court of Appeals for the Armed Forces
No. 05-5002, September 27, 2006 (supressing email, finding expectation
of privacy where email account was password protected and log-on banner
said monitoring would take place only for administrative purposes, not
legal or investigative).
- U.S. v. Jones, 2005 WL
850991, ___ F Supp 2d ___ (DCD Utah 2005) the email in question intercepted by a
private individual “may not be suppressed because §2515 does not
apply to electronic communications, and there is no other applicable
suppression remedy under the Wiretap Act.”.
- Fischer v. Mt.Olive Lutheran Church , 207 F.
Supp. 2d 914 (W.D. Wis. 2002) (court held that email in a Hotmail
account that had been opened but remained on the Hotmail server
remained “stored” communications).
- Fraser v. Nationwide Mut. Ins. Co., 135
F.Supp.2d 623 (E.D.Pa 2001): Appealed
Insurance company on its network reviewed email transmitted from one
contractor to another after it had been opened. Court held that the
Wiretap Act did not apply because this did not constitute an
interception of a communication; the communication had already been
transmitted. Furthermore, the stored communications provisions of ECPA
did not apply because this was not storage incident to transmission.
The email had been received, open and read. Therefore reading of email
by company was not barred by ECPA. See also HR Rep. No.
99-647, at 64-65 (1986).
- Chance v. Avenue A, Inc.,
165 F.Supp.2d 1153 (W.D.Wash.2001)
- In re Intuit Privacy
Litigation, 138 F.Supp.2d 1272 (C.D.Cal.2001) (holding that
accessing cookies could constitute a violation of ECPA).
- In re Doubleclick
Inc. Privacy Litigation, 154 F.Supp.2d 487, 511-12 (SDNY 2001)
v. Cybersource Corp., 166 F.Supp.2d 1263, 1270 (NDCa 2001)
(finding that Amazon.com was a user of a network and not a ECS,
rejecting plaintiff’s argument that it sends and receives messages from
- Hill v. MCI Worldcom , 120 F.
Supp. 2d 1194 (S.D. Iowa 2000) ("concluding that the "names, addresses,
and phone numbers of parties . . . called" constituted "a record or
other information pertaining to a subscriber or customer of such
service" for a telephone account).”
- United States v. Allen, 53 M.J.
402, 409 (C.A.A.F. 2000) (concluding that "a log identifying the date,
time, user, and detailed internet address of sites accessed" by a user
constituted "a record or other information pertaining to a subscriber
or customer of such service" under ECPA).”
- United States v. Kennedy, 81
F. Supp. 2d 1103, 1109-11 (D. Kan. 2000)
- “A Law enforcement official can not slide by
with merely proposing that it has “specific and articulable facts”; the
official must set them forth. “(concluding that a conclusory
application for a § 2703(d) order "did not meet the requirements
of the statute.").”
- 1110 ("[S]uppression is not a remedy
contemplated under the ECPA.")
- United States v. Hambrick,
55 F. Supp. 2d 504, 507 (W.D. Va. 1999), aff'd, 225 F.3d 656, 2000 WL
1062039 (4th Cir. 2000) ("Congress did not provide for suppression
where a party obtains stored data or transactional records in violation
of the Act.")
- United States v. Charles,
1998 WL 204696, at *21 (D. Mass. 1998) ("ECPA provides only a civil
remedy for a violation of § 2703")
- United States v. Barth,
26 F. Supp. 2d 929, 936-37 (W.D. Tex. 1998) (finding reasonable
expectation of privacy in files stored on hard drive of personal
- McClelland v. McGrath,
31 F.Supp.2d 616 (NDIll 1998) (monitoring of telephone call must be
reasonably connected with protection of service).
- Jessup-Morgan v. America
Online, Inc. , 20 F. Supp. 2d 1105 (E.D. Mich. 1998) (finding ECPA
does not regulate disclosure to private individual of identity of a
subscriber of an electronic communication service)
v. Cohen, 983 F. Supp. 215 (DDC 1998)
- Wasson v. Sonoma
County Jr. Coll. Dist., 4 F. Supp. 2d 893, 905-06 (N.D.
Cal. 1997) (holding that a policy giving the employer “the right to
access all information stored on [the employer’s] computers” defeated
an expectation of privacy)
- United States
v. Reyes, 922 F. Supp. 818, (S.D.N.Y. 1996)
- 832-33 (finding reasonable expectation of
privacy in data stored in a pager)
- 837-38 ("Exclusion of the evidence is not an
available remedy for this violation of the ECPA. . . . The remedy for
violation of [18 U.S.C. § 2701-11] lies in a civil action.").”
- Sega Enterprises
Ltd v. MAPHIA, 948 F.Supp. 923, 930-31 (NDCal. 1996) (video game
manufacturer that accessed private email
stored on another company’s bulletin board service in order to expose
copyright infringement was not a provider of electronic communication
- Bohach v.
City of Reno , 932 F.Supp. 1232, 1236 (D.Nev 1996)
(city that provided pager service to its police officers can be a
provider of electronic communications service)
- United States v. Orena, 883 F. Supp. 849 (E.D.N.Y.
- State Wide
Photocopy v. Tokai Fin. Servs. Inc., 909 F.Supp. 137, 145 (SDNY
1995) (financing company that used fax machines and computers but did
not provide the ability to send or receive communications was not
provider of electronic communication service).
- United States v. Lynch, 908 F.
Supp. 284, 287 (D.V.I. 1995)
- In re Application of the United States , 846 F. Supp. 1555, 1558-59 (M.D. Fla. 1994).
“The court will not conduct an "independent judicial inquiry into the
veracity of the attested facts."
- United States v.
Chan, 830 F. Supp. 531, 535 (N.D. Cal. 1993)
- United States v. Villegas, 1993 WL 535013 (S.D.N.Y.
December 22, 1993)
- United States v.
Blas, 1990 WL 265179, at *21 (E.D. Wis. Dec. 4, 1990) ("[A]n
individual has the same expectation of privacy in a pager, computer, or
other electronic data storage and retrieval device as in a closed
- United States v. Crouch,
666 F. Supp. 1414 (N.D. Cal. 1987)(wiretap evidence suppressed because
there was no imminent threat of death or serious injury)
- State Courts
- Blue Box Cases
- British (Colonial era) Cases
- Wilkes v. Woods, 19 Howelll's State Trials 1153 (1763)
- Entick v. Carrington , 19 Howell's State Trials 1029 (1765)
- Samanyse case, 5 Coke’s Rep 91a, 77 Eng. Rep. 194 (K.B. 1604) (a man's house is his castle)
Derived From: CRS 2003 Appendix I: State Statutes Outlawing the Interception of Wire(w), Oral(o) and Electronic Communications(e)
- Alabama: Ala.Code §§13A-11-30 to 13A-11- 37(w/o);
- Alaska: Alaska Stat. §§42.20.300 to 42.20.390(w/o/e);
- Arizona: Ariz.Rev.Stat.Ann. §§13-3001 to 13- 3009(w/o/e);
- Arkansas: Ark.Code §5-60-120(w/o/e);
- California: Cal.Penal Code §§631(w), 632(o), 632.7(e);
- Colorado: Colo.Rev.Stat. §§18-9-301 to 18-9- 305(w/o/e);
- Connecticut: Conn.Gen.Stat.Ann. §§53a-187 to 53a-189(w/o);
- Delaware: Del.Code tit.11 §2402(w/o/e);
- Florida: Fla.Stat.Ann. §934.03(w/o/e);
- Georgia: Ga.Code §16-11-62 (w/o/e);
- Hawaii: Hawaii Rev.Stat. §§803-41, 803- 42(w/o/e);
- Idaho: Idaho Code §18-6702(w/o);
- Illinois: Ill.Comp.Stat.Ann. ch.720 §5/14- 2(w/o/e);
- Indiana: Ind.Code Ann. §35-33.5-5-5(w/e);
- Iowa: Iowa Code Ann. §808B.2(w/o/e);
- Kansas: Kan.Stat.Ann. §21-4001(w/o); 21- 4002(w);
- Kentucky: Ky.Rev.Stat. §§526.010, 526.020(w/o);
- Louisiana: La.Rev.Stat.Ann. §15:1303(w/o/e);
- Maine: Me.Rev.Stat.Ann. ch.15 §§710(w/o);
- Maryland: Md.Cts. & Jud.Pro.Code Ann. §10- 402(w/o/e);
- Massachusetts: Mass.Gen.Laws Ann. ch.272 §99(w/o);
- Michigan: Mich.Comp.Laws Ann. §§750.539c(o); 750.540(w);
- Minnesota: Minn.Stat.Ann. §626A.02(w/o/e);
- Mississippi: Miss.Code §41-29-533(w/o/e)
- Missouri: Mo.Ann.Stat. §542.402 (w/o);
- Montana: Mont.Code Ann. §45-8-213(w/o/e);
- Nebraska: Neb.Rev.Stat. §86-702(w/o);
- Nevada: Nev.Rev.Stat. §§200.620(w), 200.650(o);
- New Hampshire: N.H.Rev.Stat.Ann. §570-A:2 (w/o);
- New Jersey: N.J.Stat.Ann. §2A:156A-3(w/o);
- New Mexico: N.M.Stat.Ann. §30-12-1(w);
- New York: N.Y.Penal Law §250.05(w/o/e);
- North Carolina: N.C.Gen.Stat. §15A-287(w/o/e);
- North Dakota: N.D.Cent.Code §§12.1-15-02 (w/o);
- Ohio: Ohio Rev.Code §2933.52 (w/o/e);
- Oklahoma: Okla.Stat.Ann. tit.13 §176.3 (w/o/e);
- Oregon: Ore.Rev.Stat. §§165.535 to 165.545 (w/o/e);
- Pennsylvania: Pa.Stat.Ann. tit.18 §5703 (w/o/e);
- Rhode Island: R.I.Gen.Laws §§11-35-21(w/o/e);
- South Dakota: S.D.Cod.Laws §23A-35A-20 (w/o);
- Tennessee: Tenn.Code Ann. §39-13-601(w/o/e);
- Texas: Tex.Penal Code. §§16.01 to 16.04 (w/o/e);
- Utah: Utah Code Ann. §§77-23a-4, 77-23b-2 to 77-23b-4(w/o/e);
- Virginia: Va.Code §19.2-62(w/o/e);
- Washington: Wash.Rev.Code Ann. §9.73.030(w/o);
- West Virginia: W.Va.Code §62-1D-3(w/o/e);
- Wisconsin: Wis.Stat.Ann. §968.31(w/o/e);
- Wyoming: Wyo.Stat. §7-3-702(w/o/e);
- District of Columbia: D.C.Code §23-542(w/o).
- Government Guides
- DOJ US Attorney's
and Seizing Computers and Obtaining Electronic Evidence in Criminal
Computer Crime and Intellectual Property Section, Criminal Division,
- Searching and
Seizing Computers and Obtaining Electronic Evidence in Criminal
Investigations, USDOJ Sec. III.B. (July 2002)
- Appendix A:
Sample Network Banner Language
- Appendix B:
Sample 18 U.S.C. § 2703(d) Application and Order
- Appendix C: Sample Language for Preservation Request Letters
under 18 U.S.C. § 2703(f)
- Appendix D:
Model form for IP trap and trace on a web-based email account; Model form for pen
register/trap and trace; and Model form for IP pen register/trap and
trace on a computer network intruder.
- Appendix E:
Sample Subpoena Language
- Appendix F:
Sample Language for Search Warrants and Accompanying Affidavits to
Search and Seize Computers
- Appendix G:
Sample Letter for Provider Monitoring
- Appendix H:
Sample Authorization For Monitoring of Computer Trespasser Activity
- DOJ, Criminal
Resource Manual: 1053 Exceptions to the Prohibitions --
Interceptions by Providers of Wire or Electronic Communications
Services (1997). “The provision allows telephone companies to combat
"blue box" toll fraud by intercepting portions of telephone calls which
have been completed by circumventing the companies' billing systems.
See United States v. Auler, 539 F.2d 642 (7th Cir. 1976); United States
v. Clegg, 509 F.2d 605 (5th Cir. 1975).”
- Patriot Act
2001 (Oct 2001) (“DOJ can call up ISPs
and have them start the monitoring, with court orders to follow.”).
a Computer Hacker, US Attorneys Bulletin May 2001
- Stephen L. Harwood, Electronic
Surveillance Issues, Nov. 2005
- Department of Justice
“Online Investigative Principles for Federal Law Enforcement Agents,”
The Online Investigations Working Group, 1999.
- Charles Doyle, National Security
Letters in Foreign Intelligence Investigations: A Glimpse of the Legal
Background and Recent Amendments, Congressional Research Service (Sept. 8, 2009)
- Congressional Research Service, Privacy: An Overview of Federal Statutes Governing Wiretapping and Electronic Eavesdropping Updated January 13, 2003
- Office of Technology Assesment, Electronic
Surveillance and Civil Liberties, OTA-CIT-293 (1985)
- Doyle, Charles & Stevens, Gina Marie “Privacy: An Overview of Federal Statutes Governing Wiretapping and Electronic Eavesdropping,” Congressional Research Service December 3, 2009, CRS-2
- Electronic Surveillance and Civil Liberties, NTIS Order #PB86-123239, Office of Technology Assessment, p. 39 (Oct. 1985).
- S. Rep. No. 1790, 75th Cong., 3d sess. 3 (1938), reprinted in 1914-59 Leg. Hist. 961
- Senate Committee on the Judiciary, " The Electronic Communications Act: Government Perspectives on Protecting Privacy in the Digital Age ," April 6, 2011
- Electronic Communications Privacy Act and the Revolution in Cloud Computing : Hearing Before the Subcomm. on the Constitution, Civil Rights, and Civil Liberties of the H. Comm. on the Judiciary, 111th Cong., Sept. 23, 2010
- House Committee on the Judiciary, Subcommittee on the Constitution, Civil Rights, and Civil Liberties, Hearing on ECPA Reform and the Revolution in Location Based Technologies and Services, June 24, 2010
- House Judiciary Hearing on: Electronic
Communications Privacy Act Reform Wednesday 5/05/2010- 2:00 p.m.
2141 Rayburn House Office Building Subcommittee on the Constitution,
Civil Rights, and Civil Liberties
of Kevin V. Di Gregory, Deputy Assistant Attorney General, US
Department of Justice Before the Subcommittee on the Constitution of
the House Committee on the Judiciary, The Fourth Amendment and the
Internet (April 6, 2000).
- Testimony Of Jerry Berman
Executive Director Electronic Frontier Foundation Accompanied By Ronald
L. Plesser Piper & Marbury On Behalf Of The Electronic Frontier
Foundation And The Digital Privacy And Security Working Group Concerning
The Digital Telephony And Communications Privacy Improvement Act Of 1994
Before The Senate Judiciary Subcommittee On Technology And Law And
House Judiciary Subcommittee On Civil And Constitutional Rights March
- Electronic Communications Privacy Act:
Hearings on H.R. 3378 Before the Subcomm. on Courts, Civil Liberties,
and the Admin. of Justice, House Comm. on the Judiciary, 99th
Cong. 214, 230 (1986)
- Hearings before the Subcommittee on Patents,
Copyrights and Trademarks of the Committee on the Judiciary on Privacy
and Electronic Communications, September 12, 1984, S. Hrg. 98-1266
- 11, R. Rep. No. 800, 65th Cong,, 2d sess. ( 1918), reprinted in Wiretapping, Eavesdropping and the Bill of Rights, Hearings Before the Subcommittee on Constitutional Rights of the Senate Judiciary’ Committee, Part 4, Appendix to Part 3, 86th Cong., 1st sess. 792 ( 1959)
- Wiretapping Hearings before Subcommittee No. 5. U.S. House of Representatives Judiciary Committee, 84 Cong., 1st sess. 53, 67 (1955)
- Susan Freiwald. "Cell Phone Location Data and the Fourth Amendment: A Question of Law, Not Fact" Maryland Law Review 70 (2011): 677.
Principles for Reform Legal analysis by Becky Burr. Digital Due
Telecommunications and Multimedia Encyclopedia ECPA Electronic
Communications Privacy Act
- NANOG: ISPs and Federal Privacy Law: Everything You Need to Know About the
Electronic Communications Privacy Act, Mark Eckenweiler, US DOJ Powerpoint HTML
Is The Electronic Communications Privacy Act ("ECPA")
- Prof. Orin
- Kerr, Orin S., Applying the Fourth Amendment to the Internet: A General Approach (February 23, 2009). Stanford Law Review, Forthcoming. Available at SSRN .
S. Kerr , Searches and Seizures in a Digital World, SSRN 4/8/2005
Orin S., A User's Guide to
the Stored Communications Act, and a Legislator's Guide to Amending It.
George Washington Law Review, 2004.
- Orin S.
Kerr, Internet Surveillance Law After the USA Patriot Act: The Big
Brother that Isn't, 97 Nw. U. L. Rev. 607, 613-14 (2003)
Kerr, Lifting the “Fog” of Internet Surveillance: How a Suppression
Remedy Would Change Computer Crime Law, 54 HASTINGS L.J. 805 (2003)
(“The law of electronic surveillance is famously complex, if not
- Orin S. Kerr, Internet Surveillance Law After the USA Patriot Act: The Big Brother that Isn't, 97 Nw. U.L.Rev. 607, 613-14 (2003)
- Paul Ohm, When Network Neutrality Met Privacy , Communications of the ACM, Vol. 53, No. 4, p. 30 (2010)
- Kevin Werbach, ECPA Reform and the Revolution in Cloud Computing , Testimony Before the House Judiciary Committee, September 23, 2010
- Plourde-Cole, Haley, Back to Katz: Reasonable Expectation of Privacy in the Facebook Age (December 31, 2010). Fordham Urban Law Journal, Vol. 38, 2010.
Palfrey, “The Public and the Private at the United States Border with
Cyberspace,” Mississippi Law Journal, (2008), 78 Miss. L.J. 241, 242
- Patricia L. Bellia, The Memory Gap in Surveillance Law, 75 U. Chi. L. Rev. 137 (2008).
- Gellis, Catherine R., Copysense and Sensibility:
How the Wiretap Act Forbids Universities from Using P2P Monitoring Tools.
Boston University Journal of Science & Technology Law, Vol. 12, p.
340, 2006. ("this paper argues that the Wiretap Act’s sanction against
interception extends to Internet communications as well. As such, use
of CopySense, or any similar tool, amounts to an illegal invasion of
- Gellis, Catherine R., Copysense and Sensibility: How the Wiretap Act Forbids Universities from Using P2P Monitoring Tools . Boston University Journal of Science & Technology Law, Vol. 12, p. 340, 2006. Available at SSRN: http://ssrn.com/abstract=968700
Liebesman, The Potential Effects of United States v. Councilman
on the Confidentiality of Attorney-Client
E-Mail Communications, 18 Geog. J. Legal Ethics 893 (2005).
Swire, Katz is Dead. Long Live Katz., SSRN 2/18/2004
- Yonatan Lupu, The Wiretap Act and Web Monitoring: A Breakthrough for Privacy Rights? , 9 VA. J.L. & TECH. 3, 9 (2004)
- Deirdre K.
Mulligan, Reasonable Expectations in Electronic Communications: A
Critical Perspective on the Electronic Communications Privacy Act, 72
GEO. WASH. L. REV. 1557, 1558 (2004)
- Susan Freiwald, Online Surveillance: Remembering the Lessons of the Wiretap Act, 56 AL. L. REV. 9, 15 (2004)
- Yonatan Lupu, The Wiretap
Act and Web Monitoring: A Breakthrough for Privacy Rights?, 9 VA. J.L. & TECH. 3 (2004)
- Robert A.
Pikowsky, An Overview of the Law of Electronic Surveillance Post
September 11, 2001, 94 Law Libr. J. 601 (2002)
Ney, Law Clerk, Bricker & Eckler LLP, July 2000
- Lieutenant Colonel LeEllen Coacher, Permitting Systems Protection Monitoring: When the Government Can Look and What It Can See, 46 A.F. L.Rev. 155, 171-74 (1999)
- Tatsuya Akamine, Note, Proposal for a Fair Statutory Interpretation: E-mail Stored in a Service Provider Computer Is Subject to an Interception Under the Federal Wiretap Act, 7 J.L. Pol'y 519, 521-29, 561-68 (1999) (criticizing the judiciary's interpretation of the ECPA).
- CDT Communications
Privacy in the Digital Age June 1997
- James X. Dempsey, Communications Privacy in the Digital Age: Revitalizing the Federal Wiretap Laws to Enhance Privacy, 8 ALB. L.J. SCI. & TECH. 65, 69 (1997)
- Jarrod J.
White, E-Mail @ Work.com: Employer Monitoring of Employee E-Mail, 48
Ala. L.Rev. 1079, 1083 (1997)
- Matthew W.
Finkin, Employee Privacy, American Values, and the
Law, 72 CHI.-KENT L. REV. 221, 226 (1996) (“[T]o the extent the
reasonableness of the legitimate expectation of privacy is determined
on objective grounds, it would rest upon employer policies, practices,
or assurances in the matter . . . . [T]his bids fair to eviscerate any
claim to privacy at all.” (citation omitted))
- Thomas R.
Greenberg, E-Mail and Voice Mail: Employee Privacy and the Federal
Wiretap Statute, 44 Am. U.L.Rev. 219, 249 (1994) ("Thus, the
limitations imposed on employer interceptions of wire and electronic
communications vanish once the same communication is in storage.
Accordingly, in order to avoid Title III liability, an employer need
only access employee communications once they have been stored.")
Torres Hernández, ECPA and Online Computer Privacy, 41
Fed. Comm. L.J. 17, 39 (1988-1989) ("In other words, there simply is no
ECPA violation if the person or entity providing a wire or electronic
communication service intentionally examines everything [in storage] on
the system, whether or not it is for the purpose of a quality control
- Russell S. Burnside, The Electronic Communications Privacy Act of 1986: The Challenge of Applying Ambiguous Statutory Language to Intricate Telecommunications Technologies, 13 Rutgers Computer & Tech. L.J. 451 (1987).
- Ruel T. Hernandez, ECPA and Online Computer Privacy, 41 F.C.L.J. 17 (1987)
- Appellate Cases
- United States v. Foster , 580 F. 2d 388 - Court of Appeals, 10th Circuit 1978
- United States v. Cornfeld , 563 F. 2d 967 - Court of Appeals, 9th Circuit 1977 (affirming, holding facts of case at hand are indistinguishable from Goldstein).
- United States v. Bowler , 561 F. 2d 1323 - Court of Appeals, 9th Circuit 1977
- United States v. Manning , 542 F. 2d 685 - Court of Appeals, 6th Circuit 1976 (telephone company investigating use of Blue Box by defendant was not acting as govt agent)
- U. S. v. Goldstein , 532 F.2d 1305 (9th Cir. 1976)
(concluding that placing a fraud documentation device on the telephone line which recorded the presence of the 2600 MHz tone and the salutations of the parties fall within the § 2511 exception)
- United States v. Auler, 539 F. 2d 642, 646 - Court of Appeals, 7th Circuit 1976
- United States v. Harvey , 540 F. 2d 1345 - Court of Appeals, 8th Circuit 1976 (affirming that 6 week monitoring of defendant's use of a blue-box was not a violation of ECPA, where the monitoring was narrowly tailored to advance the investigation, recorded only the preliminary aspect of the call, and non-blue box call data was not listened to and was destroyed)
- United States v. Auler, 539 F. 2d 642, 646 - Court of Appeals, 7th Circuit 1976
- United States v. Freeman , 524 F.2d 337, 340-41 (7th Cir. 1975), cert. denied, 424 U.S. 920, 96 S.Ct. 1126, 47 L.Ed.2d 327 (1976)
(affirming conviction of defendant for violation of Wire Fraud Act, finding that telephone company's actions of monitoring defendant's Blue Box use fell withing the exception of ECPA, as did the companies disclosure to law enforcement).
- United States v. Glanzer , 521 F. 2d 11 - Court of Appeals, 9th Circuit 1975
- United States v. Douglas , 510 F. 2d 266 - Court of Appeals, 9th Circuit 1975
- United States v. Clegg , 509 F. 2d 605, 613 - Court of Appeals, 5th Circuit 1975 "It is unnecessary for us at this juncture to decide whether 18 U.S.C. § 2511(2)(a) continues to allow a telephone company to divulge the entire content of illegally placed telephone calls. However, we feel that it is quite clear and we do hold that § 2511(2)(a), at a minimum, authorizes a telephone company which has reasonable grounds to suspect that its billing procedures are being bypassed to monitor any phone from which it believes that illegal calls are being placed . If, by the use of a device similar to a TTS 176, it discovers the existence of illegal calls, § 2511(2)(a), again at a minimum, authorizes it to record, audibly, the salutations. Additionally, § 2511(2)(a) allows a telephone company to divulge, at least, the existence of the illegal calls and the fact that they were completed (the salutations) to law enforcement authorities and ultimately to the courts, since such disclosures are a necessary incident to the protection of the company's property rights. As authorized disclosures, such evidence is admissible in court. 18 U.S.C. § 2517(3)."
- Bubis v. United States , 384 F. 2d 643 - Court of Appeals, 9th Circuit 1967
- District Cases
- United States v. Logan , 423 F. Supp. 146 - Dist. Court, SD Illinois 1976
- U. S. v. DeLeeuw , 368 F.Supp. 426 (D.Wis.1974)
- United States v. Freeman , 373 F. Supp. 50 - Dist. Court, SD Indiana 1974
- United States v. Shah , 371 F. Supp. 1170 - Dist. Court, WD Pennsylvania 1974
- U. S. v. DeLeeuw , 368 F.Supp. 426 (D.Wis.1974) ("[T]he action taken by the telephone company security supervisor in attaching a "blue box" detector to the defendant subscriber's line, which device recorded the numbers dialed, and conversations had on such line in only those instances where a "blue box" frequency was actually applied thereto, constituted the type of nonrandom monitoring for the protection of property which is sanctioned by 18 U.S.C. § 2511(2)(a)(i)")
- Cliff Stoll, The Cuckoo’s Egg
(Simon & Schuster 1989) : The twisted tale of tracking a Soviet
paid spy as he hacked his way into the Lawrence Berkeley Lab, through
the ARPANet, and into sensitive US Government computers, at a time when
US law enforcement officials neither comprehended nor cared about an
insignificant 75-cent computer intrusion.
- "The first 'data wiretap'
was reportedly used to apprehend some of the principal actors in the
Phonemaster case." PBS
- Court Says College Can Snoop On Students' Email, Techdirt 8/15/2011
- Time Spent Investigating Intrusion Counts Towards $5000 CFAA Damages Threshold, Cybertelecom 7/15/2011
- ZINNA v. Cook, 10th Circuit 2011 7/11/2011
- Court Holds ECPA allows Myspace to Disclose Private Messages Pursuant to Out Of State Warrant, Center for Internet and Society 6/22/2011
- Hubbard v. MYSPACE, INC., SDNY 2011 6/9/2011
- Davis v. State, Md, Ct Special Appeals MD 6/9/2011
- Hubbard v Myspace :: ECPA Cause/Action Dismissed, CT 6/9/2011
- Davis v State MD: MD Didnt Violate ECPA by Tapping Cell Phone Call Placed & Received in Virginia, CT 6/9/2011
- NebuAd Deep Packet Inspection Lawsuits Sputter -- Deering v. CenturyTel & Green v. Cable One, Tech & Marketing Law 6/6/2011
- Valentine v. NEBUAD, INC.,, NDCA 5/9/2011
- The Law Enforcement Surveillance Reporting Gap, SSRN 4/14/2011
- Feds: 4th Amendment Shouldn't Apply To Online Emails Because... That Would Make Us Have To Work Harder, Techdirt 4/11/2011
- EFF Uncovers Widespread FBI Intelligence Violations, EFF 1/31/2011
- F.B.I. Seeks Wider Wiretap Law for Web, NYT 11/17/2010
- Thompson v. Kaczmarek, WDPA (Sept. 30, 2010), WDPa 10/12/2010
- Emails on laptop not protected by the Stored Communications Act, Internet Cases 10/12/2010
- Lack of knowledge of interception causes ECPA claims against website owners to fail, Internet Cases 9/24/2010
- ART: Daniel Garrie, Matthew Armstrong, Donald P Harris, Voice over Internet Protocol and the Wiretap Act: Is Your Conversation Protected?, SSRN 9/13/2010
House proposal would ease FBI access to records of Internet activity,
- ECPA and the Law of
Disruption, Center for Internet and Society 4/30/2010
and the FCC, USTelecom 8/9/2010
gets into cybersecurity business, Ars Technica 4/23/2010
Look To Remove Telco Retroactive Immunity For Warrantless Wiretaps,
Firms Read Employee E-mail On a Massive Scale, Slashdot 5/22/2008
Limits For Warrantless Wiretapping?, Internet News 4/10/2008
Court Requires Subpoena for Internet Subscriber Records, NYT
- Feds Need A
Warrant To Search Email, Techdirt 6/19/2007
Protected by 4th Amendment, Court Says, Freedom to Tinker 6/19/2007
Protects Email from Secret Government Searches, EFF 6/19/2007
reasonable expectation of privacy in Internet subscriber information,
judge raises bar on net privacy, Register 9/30/2004
of E-Mail Raises Questions, CRN 7/2/2004
Rules For ISP Who Read E-Mail, Techweb 7/2/2004
probe used first live Internet wiretap, sacbee 5/20/2004
Google denies FBI link to Gmail, CNET 4/30/2004
Challenges FBI On Obtaining ISP Records, USA Today 4/30/2004
- ISP Wiretap Hotline CIX ISPC
hotline has been terminated)
White Paper: The Legal Standard for Government Tracing of
Internet Communications: The Misuse of Pen Register Court Orders
for Real Time Acquisition of Transactional Information October 2000 | Press Release |