Return to Privacy Module IV

Statutory Protections

A. Quick Summaries:

(detailed summaries of Title III of the Omnibus Crime Control and Safe Street Act of 1968 and the Electronic Communications Privacy Act (ECPA) of 1986 follow at the end of this section)

1. Title III of the Omnibus Crime Control and Safe Street Act of 1968 (Wiretap Act)

In 1968, Congress enacted the Wiretap Act, which set out the specific requirements for conducting wiretaps. Under this statute, law enforcement must obtain a warrant from a judge to conduct a wiretap. To obtain such a warrant, the law enforcement officials must demonstrate to the judge that "there is probable cause [to believe] that an individual is committing, has committed, or is about to commit a particular offense . . . [and that] normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous." The Wiretap Act only applied to wire (telephone) communications. Further, the Wiretap Act only applied to the contents of communications. Nothing in the act prevented the government from using a pen register to obtain lists of telephone numbers a suspect had contacted.

2. Electronic Communications Privacy Act (ECPA) of 1986

The Electronic Communications Privacy Act of 1986 (ECPA) (18 U.S.C. §§ 2510-2521 (1998)) (optional), an amendment to the Wiretap Act, extends protection of the Wiretap Act to electronic communications. ECPA provides civil and criminal penalties for intentional, unauthorized interception of private electronic communications. ECPA is divided into two parts. Title I prohibits the interception of wire, oral, or electronic communications. To intercept such messages, the government must obtain a court order based on probable cause (the same requirement as required under the Wiretap Act for a warrant). Title II prevents unauthorized access to stored wire and electronic communications. The government may access stored communications with only a search warrant. This is a less stringent procedure than for obtaining a court order to conduct a wiretap as provided for in Title I. If the government violates either title, it can be sued for civil damages under either Title.

3. Statues Regulating Pen Registers

In addition to the provisions regarding interception of electronic communications and access to stored communications, the ECPA provides some protection against use of pen registers. A pen register is a device that allows the government to determine the phone numbers to which a suspect places calls and those from which he receives calls. To receive a pen register warrant, law enforcement officials must demonstrate that "the information likely to be obtained by such installation and use is relevant to an ongoing criminal investigation." This relevancy requirement is a much lower standard than the probable cause requirement necessary to obtain a court order to intercept an electronic communication.

In 1994 the Communications Assistance for Law Enforcement Act (CALEA) http://epic.org/privacy/wiretap/calea/calea_law.html was adopted to amend both the Wiretap Act and the ECPA. While the main provisions of CALEA require telephone companies to update their digital telephone equipment so that the government can wiretap these lines, CALEA also has provisions relating to email and Internet Service Providers (ISPs). Under CALEA, a court order is required for law enforcement officials to wiretap and eavesdrop on phone conversations and to intercept electronic communications. Such a court order is obtainable only with a showing that there is probable cause to believe that a crime is being committed, that communications about the crime will be intercepted and that the equipment being tapped is used by the suspect in connection with the crime. This standard under CALEA is higher than the standard required by the Fourth Amendment alone, which just requires probable cause that a crime has been committed.

4. Privacy Protection Act of 1980 (http://www.privacycouncil.com/maps/UnitedStates/federal/Privacy_Protection_Act.htm)

The Privacy Protection Act of 1980 (PPA) was enacted to protect the freedom of the press. The original goal of the PPA was to allow reporters to investigate and develop sensitive stories without fear of government interference. Under the PPA, the government cannot conduct a search or seizure of materials from a “publisher” without probable cause. The probable cause standard under the PPA is higher than the usual standard for warrants. The government can only obtain a warrant under the PPA if there is probable cause to believe that the materials sought are themselves involved in the commission of a crime.

Under the PPA, “publisher” is defined as "a person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication.” Online systems that provide publishing services (such as online newsletters) or engage in publishing related activities (e.g., collection of documentary information via email) are protected under the PPA. Whenever a system does qualify as a “publisher,” protection under the PPA extends to the entire system, not just the parts of it engaged in the publishing activity. Monetary damages are available as a remedy for violations under the PPA.

5. USA Patriot. (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism, USAPA), H.R. 3162, was passed on October 26, 2001. This post-September 11, 2001 legislation will be considered in Module V.

B. Detailed Summary of Title III of the Omnibus Crime Control and Safe Streets Act of 1968. and the Electronic Communications Privacy Act of 1986 (ECPA)

Title III of the Omnibus Crime Control and Safe Streets Act of 1968[1] attempted to codify the Fourth Amendment principles set forth by Katz. Title III proscribes the interception of oral and wire communications, "while making provision for law enforcement to intercept these communications for use in criminal investigations."[2]

The Electronic Communications Privacy Act of 1986 ("ECPA") amended Title III when it became clear that Title III was not adequate to deal with developing technologies in the field of electronic communication. The ECPA was designed to align Title III with new innovations such as "cellular telephones, computer-to-computer transmissions, and electronic mail systems . . . ."[3]

Title I of the ECPA prohibits unauthorized interception of electronic communications.[4] “Unauthorized” includes communications obtained without the authority of an appropriate court order. Title II proscribes the unauthorized access to stored wire and electronic communications.[5] However, although the ECPA was designed to update Title III, it did not resolve conflicting understandings of what would be protected under the “reasonable expectation of privacy” standard. While the privacy standard still governs communications obtained by the government, the standard is difficult to apply because it is not obvious whether a user’s hope of privacy is one a court will protect as “reasonable.”

Outline:

• Title III of the Omnibus Crime Control and Safe Streets Act of 1968 regulates the interception of wire, oral and electronic communications

• Description/Standards
• Any government attorney may apply for an order
• The standard for granting order is that it is ‘relevant to an ongoing criminal investigation’
• An order is valid for 60 days and 60 day extensions may be applied for as well

• Title III Does Not Apply If
• The parties do not have a reasonable expectation of privacy
• Searches must follow the procedures in Title III if the subject of the search has a ‘reasonable expectation of privacy.’ This ensures that the Fourth Amendment protections are upheld. If the parties don’t have a reasonable expectation of privacy, the government need not comply with the standards of Title III.
• Examples
• Katz v. U.S., 389 U.S. 347 (1967)
• Court finds that a person in a telephone booth has a reasonable expectation of privacy and is thus entitled to ‘assume that the words he utters into the mouthpiece will not be broadcast to the world.’ Thus, the defendant in this case was entitled to the protections of the Fourth Amendment. Where there is a reasonable expectation of privacy, the Fourth Amendment protections against unreasonable searches and seizures apply. However, where a person knowingly exposes information to the public, even if they do so in their own home or office, they are not subject to the protections of the Fourth Amendments.
• The search is being conducted under intelligence authority (for example an investigation by the FBI or CIA under Foreign Intelligence Security Act (FISA))
• Example
• U.S. v. U.S. Dist. Court for E. Dist. of Mich., S. Div., 407 U.S. 297 (S.D. Mich.)
• Federal government conducted searches and electronic surveillance without a warrant. Government justifies this by claiming that they are acting under intelligence authority. However, evidence shows that the suspects are all U.S. citizens who acted within U.S. borders to destroy U.S. government property. Because there is no evidence of ties to foreign nations (i.e. this is a purely domestic matter) the intelligence power of the federal government is not invoked. Rather, the federal government is bound by the rules for electronic surveillance set out in Title III.
• Prior consent to surveillance has been given by one of the parties to the conversation
• Title III does not cover ‘tone only paging devices, transponders and beepers.’
• However, cellular telephones, display pagers and voice pagers are protected by Title III.
• Title III does not cover Pen Registers.
• Because this information is already being monitored and collected for billing purposes by the communications service provider, an order is not required for collection of the data. Rather, the investigators must simply take steps to have the service provider disclose the information that they have gathered in their normal course of business. Note that Trap and Trace Orders do fall under Title III because the information gathered by a Trap and Trace Order us not collected in the ordinary course of business.
• Example
• U.S. v. New York Telephone Company, 434 U.S. 159
• Court held that Title III, which is concerned solely with ‘orders authorizing or approving the interception of a wire or oral communication’ does not govern use of pen registers. This is because pen registers do not ‘intercept.’

• Use of Pen Register and Trap and Trace Orders Do Not Implicate the Fourth Amendment
• Example
• Smith v. Maryland, 442 U.S. 735
• Installation and use of a pen register not a ‘search’ under the Fourth Amendment because the defendant lacks an actual or legitimate expectation of privacy in destination of outgoing calls because telephone company monitors outgoing calls for billing purposes.

• Application for a surveillance order must include:
• A full and complete statement of the alleged offense
• A listing of the facilities from which the communications are to be intercepted
• A specific description of the communications sought to be intercepted
• The identity of the persons committing the offense (if known) and of the persons whose communications are to be intercepted
• Example
• U.S. v. Kahn, 415 U.S. 143...
• Title III requires that the identity of the suspect to be listed on the wire tap order if known. Here, the husband was the only named party listed on the wiretap order because police had probable cause to believe that he was running an illegal booking operation. However, the tap yielded information implicating his wife as well. Because the order listed the husband and ‘other persons yet unknown’ as the subject of the wiretap order, the information implicating the wife was properly gained.
• Statement of the necessity
• This is a full and complete statement of whether other investigative procedures have been tried and why they failed, appear unlikely to succeed, or are too dangerous
• A full and complete statement of the period of time for which the interception is to be maintained

Stored Wire and Electronic Communications

· A search warrant may be used to gain access to any electronic information that has been stored for less than 180 days. If the information has been stored for more than 180 days, law enforcement may gain access either via warrant, court order, or subpoena. The standard for granting an order or subpoena is that information is ‘relevant to an ongoing criminal investigation.’ Also note that notice to the person being searched is usually required with an order or subpoena. However, notice may be delayed up to 90 days if it is found that giving notice would put someone in danger or harm the investigation.

Roving Wiretaps

· Examples

o U.S. v. Bianco, 998 F.2d 1112.

§ Defendants were members of a mafia organization and were convicted of organized crime and racketeering related offenses. Defendants appeal conviction claiming that the roving wiretap, which was used to gather evidence leading to the conviction, is unconstitutional. Appeals court determined that law enforcement officials need to identify the specific location for the surveillance. However, law enforcement officers may apply for an exception to this rule and thus get permission to conduct a roving wiretap. A roving wiretaptap allows police to target the suspects communications in all necessary locations. Thus, the court held that ‘roving wiretap did not violate the particularity requirement of the Fourth Amendment because surveillance was limited to communications involving an identified speaker and relating to crimes in which the speaker was suspected of participating.’

o U.S. v. Gaytan, 74 F.3d 545.

§ Defendants convicted of possession of cocaine and intent to distribute cocaine. On appeal, the defendants claimed that the roving wiretap that was used to gain evidence against them was unconstitutional. However, the prosecution presented evidence that the defendants ‘engaged in conduct to thwart surveillance by changing facilities.’ In fact, the defendants had changed cellular phones several times in an effort to evade police surveillance. Thus, the court found that a roving wiretap was warranted. The court held that that a roving wire or electronic communication intercept is warranted where ‘the targeted persons have engaged in conduct to thwart surveillance by changing facilities.’

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[1] 18 U.S.C. § § 2510-2520 (1968).

[2] 18 U.S.C. § 2510.

[3] Michelle Skatoff-Gee, Changing Techologies and the Expectation of Privacy: A Modern Dilemma, 28 Loy. U. Chi. L.J. 189, 201 (1996).

[4] 18 U.S.C. § § 2701-2711 (1994). Section 2701(a) provides:

“[W]hoever (1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or (2) intentionally exceeds an authorization to access that facility; and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system shall be punished …”

[5] See 18 U.S.C. § § 2510-2521.