What Did the ECPA Do to Limit Law Enforcement?

¶ … Electronic Privacy Control Act of 1986 address?

The ECPA addressed a variety of issues regarding the collection of information by government agencies using electronic devices. For instance, it placed more restrictions on wire tapping, such as the transmission of data via computer. It also addressed issues regarding the retrieval of data stored on a drive and the use of pen traps for tracing phone calls.

In actuality, however, the Act addressed the needs of government agencies to have permission to tap into communications and stored data files of networks and providers. The Act allowed such agencies to request warrants to obtain such information by broadening the list of crimes for which said collection methods could be lawfully used. So while technically the Act was said to place new limits on law enforcement "snooping," it actually expanded those limits in terms of the justification that could be used to request a warrant.

How many titles are there in the Act?

There were 3 titles in ECPA: Title I, or the Wiretap Act; Title II, or the Stored Communications Act; and Title III, or the Pen Register Act, which addressed the lawful usage of pen registers, traps, and tracing devices.

3. Explain what each of the titles covers.

Title I, or the Wiretap Act, covered the prohibition of any "procurement" of any kind (intentional, attempted, actual), or of any attempt to intercept "any wire, oral, or electronic communication" (ECPA, 1986). Also prohibited is the use as evidence of any such illegally procured communication.

Title II, or the Stored Communications Act, covers the protection of service providers' stored files and records which contain information about subscribers (addresses, bills, names, etc.).

Title III, or the Pen Register Act, covers the usage of trap and trace devices and requires agencies to have a court order that allows them to install devices such as a pen register (which records numbers dialed from phone lines) or a trap and trace (which records inbound call numbers and information). These devices do not record actual communications, only the origin/destination of the second party. Nonetheless, a court order must be obtained by the agency wishing to employ such technology in the gathering of information pertaining to a subject under surveillance. The agency must certify that the data to be collected is important to the investigation of the said subject.

4. List any exceptions and amendments to the original Act of 1986.

Exceptions to Title I consist of the following: Operators and providers who are required to collect information as part of the normal procedure of business are exempted. Also, operators authorized to intercept by the Foreign Intelligence Surveillance Act (FISA) are exempted. Also, officers of Federal, State and other levels are supplied a procedure for obtaining the authority to intercept by a judge who can provide a warrant good for 30 days, provided the officer shows that there exists a probable cause that the tap will turn up crucial evidence of a "particular offense" as stated in Section 2516 (ECPA, 1986).

The ECPA was amended in 1994 by the Communications Assistance to Law Enforcement Act (CALEA) and again in 2001 by the U.S.A. Patriot Act, and again in 2006 by the U.S.A. Patriot Reauthorization Acts as well as by, in 2008, the FISA Amendments Act (Justice Information Sharing, 2013).

5. What is the rationale behind the creation of this Act?

The rationale behind the creation of this Act is based on the desire by citizens to have the privacy protected in the face of new technologies. The Act was meant to provide "a fair balance between the privacy expectations of citizens and the legitimate needs of law enforcement" (Introduction to ECPA, 2015). However, what the Act actually did was to make it easier for law enforcement agencies to conduct wiretaps, etc., by broadening the scope of crimes that could be used to justify the warrant of such taps and by expanding the number of judicial authorities who could provide the warrants needed for execution (Helft, Miller, 2011). In other words, the Act paid lip service to the demands of the public, who felt that their right to privacy was being violated by an overreaching government, but in reality the Act was a boon to agencies intent on spying on the public. It can also be conceived as a prelude to the seriously-encroaching Patriot Act which has essentially given government agencies the authority to collect as much information on the average citizen as the prefer to have.

Therefore, depending on whether one is a critic of the government's spying or a supporter of the government's "collection methods" -- the rationale for the Act's creation will differ. Proponents of the Act, just like proponents of the Patriot Act, describe the rationale for the Act as existing in the need for a fair compromise between the desires of the public and the demands of the law enforcement agencies. This is a rather subversive compromise, however, because what is actually compromised is the right of the average citizen to his or her own privacy. It is none other than the simple encroachment of government and its adoption of totalitarian means in order to maintain absolute authority and control over the lives of its subjects. No longer is the government beholden and accountable to the public but rather, through Acts like the ECPA, the public is beholden and accountable to the government.