Electronic Communications Privacy Act Research Articles

Information Privacy Analysis: The USA Perspective

Abstract: Informational privacy has become a cornerstone of individual liberties in the United States, gaining prominence in an age where digital technologies and data-driven systems permeate every aspect of daily life. This paper explores the intricate fabric of the United States’ Constitutional Right to Informational Privacy, meticulously tracing its historical roots, dissecting pivotal legal precedents, scrutinizing legislative milestones, and shedding light on contemporary challenges. The paper commences by unraveling the historical foundations of informational privacy, harking back to early legal and philosophical tenets that laid the groundwork for the right to privacy as we know it today. It then pivots to a meticulous analysis of the Fourth Amendment, which, through a series of landmark Supreme Court decisions, extended protection against unreasonable searches and seizures to encompass the realm of electronic communications and data. In an era defined by rapid technological advancements, section four of the paper scrutinizes the implications of the digital age on privacy rights. From electronic surveillance to data collection and cybersecurity, this section elucidates the multifaceted landscape in which informational privacy operates. Key Supreme Court cases, such as Griswold v. Connecticut and Roe v. Wade, which have significantly expanded the ambit of informational privacy, are exhaustively examined in section five. The paper then transitions to section six to an exploration of legislative developments that have sought to safeguard informational privacy, including the Electronic Communications Privacy Act (ECPA) and other federal and state laws like HIPAA, COPPA, and CCPA. However, in an era rife with technological innovations and data-driven commerce, challenges and controversies abound. Section seven investigates ongoing debates surrounding informational privacy, including the conundrum of government surveillance, the specter of data breaches, and the intricacies of online privacy regulation. Section eight delves into the delicate balance between privacy and national security, particularly in the wake of post-9/11 policies and practices. The inherent tension between individual privacy rights and the imperatives of national security forms a critical facet of the contemporary discourse on informational privacy. Anticipating the ever-evolving landscape of information technology and data governance, section nine explores emerging trends and potential future directions in informational privacy law. This section scrutinizes proposed legislation and anticipates the impact of technological advancements on the evolution of privacy rights. Finally, this paper synthesizes the historical trajectory and current state of the constitutional right to informational privacy in the United States. It underscores the enduring relevance of this right in a society where data has become both a precious commodity and a potential threat. As information technology continues to redefine the boundaries of privacy, the protection of informational privacy remains an essential facet of individual liberty and autonomy

Cross-Border Data Access Reform: A Primer on the Proposed U.S.-U.K. Agreement

Cross-border data access reform may be on the legislative agenda in late 2017, with recent House and Senate judiciary committee hearings revisiting the topic. In light of this increasing interest, we thought it would be helpful to provide a brief primer on how cross-border data access requests currently work, options for reform, and major challenges to reform ahead. This document presents a short, high-level background review of the debate as it currently stands, particularly focusing on the DOJ’s 2016 proposal for reform. Governments need evidence to investigate and prosecute crimes, but increasingly that evidence takes the form of data stored on the servers of U.S. tech companies. In July 2016, the U.S. Department of Justice (DOJ) released draft legislation that would address some of the challenges foreign governments face when seeking data related to criminal investigations from U.S. companies. Interest in making such changes continues to grow, with relevant laws, including the Electronic Communications Privacy Act (ECPA), maybe seeing Congressional attention in late 2017, especially as the Foreign Intelligence Surveillance Act (FISA) comes up for renewal. To access electronic content – including email, social media messages, and more – held by U.S. companies, a foreign country currently relies primarily on the processes set out in agreements called Mutual Legal Assistance Treaties (MLATs), if that country has negotiated one with the U.S. MLATs with the U.S. require countries to meet U.S. legal standards when making requests for electronic content data, with less strict standards for metadata. Countries have grown frustrated with both the normative implications of the MLAT process and its typical lengthiness. After substantial debate, and with many proposed ideas from civil society, industry, and academia, the Department of Justice (DOJ) in July 2016 released draft legislation intended to address these concerns. The proposal moves away from the treaty-based system currently underpinning the mutual legal assistance process. Instead, the new legislation would require “lighter touch” bilateral agreements on this issue between the United States and participating countries. Once countries are approved for these bilateral agreements, the legislation would allow them to submit requests for data, made pursuant to the requesting countries’ laws and stipulations in the legislation, directly to U.S. electronic service providers, instead of first going through U.S. courts. The U.K. would likely be the first country approved to make requests under this new legislation, but the legislation would also pave the way for agreements with other qualifying countries. This legislation advances a legal solution for crossborder data access that proponents hope is sufficiently appealing to foreign governments to forestall more damaging alternative responses to data access concerns, including country-wide service bans, mandated data localization, or forcing companies to make decisions in the face of a conflict of laws.

How Both the EU and the U.S. Are Stricterr Than Each Other for the Privacy of Government Requests for Information

This article presents and analyzes significant ways that both the European Union and the United States are stricter in certain respects than the other, for the privacy of government requests for information. The ways that both sides are stricter in significant respects has not been clearly analyzed previously, but is important to two distinct topics: (1) whether the United States provides “adequate” protection for personal data under EU law, and thus is an appropriate destination for data flows from the EU; and (2) how to reform the system of Mutual Legal Assistance (MLA). This article is part of the broader Georgia Tech Cross-Border Requests for Data Project. Part I of this Article provides background for both the current adequacy debates and MLA reform. Part II highlights ways that the EU’s comprehensive data protection regime creates privacy protections, including for law enforcement access, that are stricter than those applied to the United States. Part III highlights ways the United States has stricter rules governing law enforcement and other government access to information. We introduce the term “plus factors” as a way to highlight how specific provisions of U.S. law and practice provide greater protection than the EU approach. Some of these plus factors are structural, such as the assurances of lawfulness provided by over two centuries of the U.S. independent judiciary and operation of a written constitution of checks and balances. Other plus factors are more specific, such as the probable cause standard under the Fourth Amendment and specific provisions of statutes, such as the Electronic Communications Privacy Act (ECPA). Part IV focuses on the implications for MLA reform. Based on our study of both the EU and U.S. systems, we believe there are generally effective rule-of-law protections against excessive law enforcement surveillance in both the U.S. and EU member states. We therefore conclude that these generally effective safeguards provide a promising basis for MLA reform, even where details of the systems differ and specific safeguards on one side do not have precise counterparts on the other.

Defining the Limits of Governmental Access to Personal Data Stored in the Cloud: An Analysis and Critique of Microsoft Ireland

Defining the Limits of Governmental Access to Personal Data Stored in the Cloud: An Analysis and Critique of <i>Microsoft Ireland</i>

Defining the Limits of Governmental Access to Personal Data Stored in the Cloud: An Analysis and Critique of Microsoft Ireland

Defining the Limits of Governmental Access to Personal Data Stored in the Cloud: An Analysis and Critique of <i>Microsoft Ireland</i>

Internet Privacy Policy Paradoxes: The Electronic Communications Privacy Act (ECPA) Amendments Act of 2013 &amp; the Consumer Privacy Bill of Rights of 2012

Internet Privacy Policy Paradoxes: The Electronic Communications Privacy Act (ECPA) Amendments Act of 2013 &amp; the Consumer Privacy Bill of Rights of 2012

The Intersection of the Electronic Communications Privacy Act and the Open Internet's 'Reasonable Network Management' Exception

Both the Electronic Communications Privacy Act (ECPA) and the FCC's Open Internet Rules have an exception for network management (ECPA's is called necessary incident to rendition of service, and to protection of property and service). ECPA has over forty years of caselaw navigating the waters of its exception. This paper seeks to explore what guidance ECPA's history can provide as the FCC embarks on its network management case-by-case analysis.With the Open Internet rules, the FCC will potentially be confronted with a number of case-by-case analyses of what lies within network management, with limited precedent guiding such determinations. A review of ECPA caselaw could contribute to a preliminary exploration of what network service provider activity has been identified as network management in the context of ECPA. These would generally be examples of how ECPA was implemented in the context of the legacy public telephone network, and these legacy examples might be intriguing but somewhat inapposite. More importantly, however, this review can explore the process by which courts traditionally conducted their ECPA analysis, offering a potential model framework for the FCC's case-by-case analyses. A network service provider's ability to intercept or access communications is not without limits. Generally, courts exploring whether a network's activity falls within the ECPA exceptions have engage in a three part analysis:• Does the network service provider have reasonable cause? • Is there a substantial nexus between the target of the service provider's actions and its concern?• Are the actions of the service provider narrowly tailored to the protection of the network or the rendition of service?Throughout the history of the network neutrality debate pizza has been a paradigm hypothetical. The pizza hypothetical can help demonstrate the intersection of ECPA and the OI Rules. For the purposes of this memo, Joe goes online to order pizza. Joe enters Pizza attempting to go to the ACME pizza site. Joe's ISP is a partner with ZEDA Pizza. Joe's ISP intercepts Joe's traffic, determines that Joe is attempting to order pizza, and redirects Joe's traffic to ZEDA Pizza. Two questions: (1) has Joe's ISP violated ECPA; and (2) has Joe's ISP violated the FCC's Open Internet order? The point for the moment is not to answer these questions, but rather to demonstrate that one set of facts calls into question both sets of authorities. Both authorities potentially have been violated. The process by which a decision maker resolves these questions has commonality. The facts are the same; the questionable activity is the same; the first-principles of public policy involved here are similar if not the same (as a matter of public policy we disfavor the unauthorized interception of communications traffic by public networks). Indeed the most significant difference between the two questions is that one is a criminal statute and the other is a communications regulatory policy.Forty years of ECPA caselaw has helped establish the boundaries where a communications network's activity does not run afoul of ECPA, and the method by which a court determines if an ISP is there. The question raised by this paper is what activities have been found to be permissible, and, more importantly, how did courts conduct this analysis?

Can a Computer Intercept Your Email?

In recent years it has become feasible for computers to rapidly scan the contents of large amounts of communications traffic to identify certain characteristics of those messages: that they are spam, contain malware, discuss various products or services, are written in a particular dialect, contain copyright-infringing files, or discuss symptoms of particular diseases. There is a wide variety of potential uses for this technology, such as research, filtering, or advertising. But the legal status of automated processing, if it is done without advance consent, is unclear. Where it results in the disclosure of the contents of a message to others, that clearly violates the federal law governing communications privacy, the Electronic Communications Privacy Act (ECPA). But what if no record of the contents of the communication is ever made? Does it violate communications privacy simply to have a computer scan emails? I argue that automated processing that leaves no record of the contents of a communication does not violate the ECPA, because it does not “intercept” that communication within the meaning of the Act. The history, purpose, and judicial interpretation of the ECPA all support this reading: interception requires at least the potential for human awareness of the contents. Furthermore, this is not simply an accident of drafting, an omission due to the limited foresight of legislators. Under most theories of privacy, automated processing does not harm privacy. Automated processing may in some cases lead to harm, but those harms are not, in fact, privacy harms, and should be analyzed instead under other legal regimes better adapted to dealing with such issues.

Toward a Cohesive Interpretation of the Electronic Communications Privacy Act for the Electronic Monitoring of Employees

Professor Levinson proposes a cohesive interpretation of the Electronic Communications Privacy Act (ECPA) designed to protect employees’ fundamental right to privacy in their electronic communications. The difficulty of new technology outpacing the law’s ability to protect employees’ privacy from electronic monitoring by employers is widely acknowledged. Yet, scholars have generally overlooked or dismissed the potential of the ECPA to provide privacy protection for employees in the electronic workplace, calling instead for reform through the legislative process. Nevertheless, despite increasing calls from a broad range of entities for stronger privacy protections, passage of new legislation designed to adequately protect employees is, at best, not close at hand, and, at worst, unlikely. On the other hand, several recent cases suggest that the courts are beginning to interpret the ECPA in ways that accommodate the changes in technology. Indeed, despite the admittedly limited scope of its coverage, the ECPA can and should be interpreted to provide employees some significant level of protection for their electronic communications. This article describes the details of how this can be done.

From Facebook to Mug Shot: How the Dearth of Social Networking Privacy Rights Revolutionized Online Government Surveillance

Each month, Facebook’s half billion active users disseminate over 30 billion pieces of content. In this complex digital ecosystem, they live a parallel life that, for many, involves more frequent, fulfilling, and compelling communication than any other offline or online forum. But even though Facebook users have privacy options to control who sees what content, this Article concludes that every single one of Facebook’s 133 million active users in the United States lack a reasonable expectation of privacy from government surveillance of virtually all of their online activity. Based on Facebook’s own interpretations of federal privacy laws, a warrant is only necessary to compel disclosure of inbox and outbox messages less than 181 days old. Everything else can be obtained with subpoenas that do not even require reasonable suspicion. Accordingly, over the last six years, government agents have worked the beat by mining the treasure trove of personal and confidential information on Facebook. But while Facebook has been justifiably criticized for its weak and shifting privacy rules, this Article demonstrates that even if it adopted the strongest and clearest policies possible, its users would still lack reasonable expectations of privacy under federal law. First, federal courts have failed to properly adapt Fourth Amendment law to the realities of Internet architecture. Since all Facebook content has been knowingly exposed to at least one third party, the Supreme Court’s current Fourth Amendment jurisprudence does not clearly stop investigators from being allowed carte blanche to fish through the entire site for incriminating evidence. Second, Congress has failed to meaningfully revise the Electronic Communications Privacy Act (ECPA) for over a quarter century. Even if the ECPA were amended to cover all Facebook content, its lack of a suppression remedy would be one of several things that would keep Facebook a permanent open book. Thus, even when the government lacks reasonable suspicion of criminal activity and the user opts for the strictest privacy controls, Facebook users still cannot expect federal law to stop their private content and communications from being used against them. This Article seeks to bring attention to this problem and rectify it. It examines Facebook’s architecture, reveals the ways in which government agencies have investigated crimes on social networking sites, and analyzes how courts have interpreted the Fourth Amendment and the ECPA. The Article concludes with an urgent proposal to revise the ECPA and reinterpret Katz before the Facebook generation accepts the Hobson’s choice it currently faces: either live life off the grid or accept that using modern communications technologies means the possibility of unwarranted government surveillance.

Applying the Electronic Communications Privacy Act in the Workplace: Struggling to Keep Pace with Paradigm Shifts in Technology

What are the legal boundaries of an employee’s privacy in this interconnected, electronic-communication age, one in which thoughts and ideas that would have been spoken personally and privately in ages past are now instantly sent to friends and family via computer? This paper analyzes employee privacy rights in light of modern work-related monitoring and surveillance technologies and practices and the possible application of the Electronic Communications Privacy Act (ECPA) to those monitoring practices. The analysis in this paper demonstrates that employees have minimal work-related privacy rights. While the ECPA may provide some privacy protections for employees, due to rapid changes in technology, the extent of privacy protections are unclear and in flux. Until the ECPA can be modernized to take into account twenty-first century technologies, there will be no clear boundaries for employee privacy.

The USA PATRIOT Act: Implications for Private E-Mail

ABSTRACT In the aftermath of the terrorist attacks of September 11, 2001, the USA PATRIOT Act was enacted to “enhance domestic security.” One of the means to accomplish this was to give law enforcement increased authority for the surveillance, interception, and disclosure of private e-mails. The USA PATRIOT Act negated several of the privacy protections afforded private e-mail under the Electronic Communications Privacy Act (ECPA). While the USA PATRIOT Act itself lessened the privacy protection of e-mail, did this in reality occur? Following up on an earlier study (2001) of e-mail and privacy policies, the communication privacy policies at three public Internet service providers (ISPs), three educational institutions, and three private ISPs (Internet access offered by employers to their employees) were re-examined and the organizations re-interviewed to determine if the privacy of e-mail since September 11, 2001 and the passage of the USA PATRIOT Act has, in actuality, been lessened under the law. Surprisingly, only one of the policies was changed: that of a public ISP. It is believed that the lack of change is due to several factors, such as uncertainty regarding the definition of an ISP to the public, circumstances that did not necessitate a change, and extraneous issues affecting libraries.

State Wiretaps and Electronic Surveillance After September 11

This article examines the changing landscape for wiretaps and other electronic surveillance at the state level in the wake of the events of September 11. Based on available statistics, over two-thirds of law enforcement wiretaps in the United States in 2001 were authorized by state rather than federal judges, and there is evidence of significant under-reporting of state wiretaps. Part I of the Article explains the constitutional and statutory framework for government interception of: the content of a communication (wiretaps); to/from information (such as phone numbers or e-mail addresses); and stored communications records. Appendix A to the Article provides a survey and analysis of the interception, to/from, and stored records laws for all 50 states. Appendix B provides a survey of proposed and enacted changes to state laws in the initial period from September 11, 2001 to June 1, 2002. This research was performed on behalf of the Liberty and Security Initiative of the Constitution Project. Part II analyzes the proposed and enacted changes following September 11. Legislation principally addressed these issues: expanding the list of offenses eligible for interception orders; expanding the list of officials with wiretap authority; expanding the categories of persons who may execute wiretaps; authorizing roving and statewide surveillance; and expanding the types of communications and devices subject to interception. The conclusions in Part III highlight the weaker internal and external controls that apply to wiretaps and other electronic surveillance at the state level. At a formal/legal level, the Electronic Communications Privacy Act (ECPA) does provide that state wiretap laws may have effect only if they meet federal minimum standards for nature of the offense, minimization, and other features. Based on our review of state laws, however, we consider it likely that state wiretaps are systematically less subject to training requirements and other institutional controls on prosecutorial and police discretion. External controls are also likely more substantial at the federal level. Academics, the press, advocacy groups, and Congressional oversight have all provided important checks on any temptation by federal officials to overstep the limits of their surveillance powers. These oversight efforts are less developed in most states, and our research on state laws is intended in part to facilitate better understanding of how these laws in fact operate. A separate implication of this research concerns the interplay of federal and state surveillance law. Passage of the USA-PATRIOT Act in 2001 focused essentially exclusively on the scope of surveillance powers appropriate for federal officials. The preemption provision in ECPA, however, means that a change in federal law also permits an equivalent change in state law. Many of the bills recently proposed mirror the reduction of privacy rights in the USA-PATRIOT Act. In considering changes to federal surveillance law, the relatively weak internal and external oversight of state wiretaps is thus relevant. Even where sufficient controls can be created to justify actions by federal officials, the additional issue is whether appropriate safeguards will be created at the state level, where the large majority of wiretaps actually occur.

Employer monitoring Act proposed

On 20 July, Senator Charles Schumer of New York and Representatives Bob Barr of Georgia and Charles Canady of Florida introduced the Notice of Electronic Monitoring Act (NEMA). The legislation seeks to end unjustified secret monitoring of employees by their bosses. The Bill does not prohibit electronic monitoring but merely requires that employers give their employees clear notice about what types of communications are being monitored. Whether it be by E-mail or telephone notice should include the means for such interception, the kinds of information obtained from the surveillance, the frequency of the monitoring, and how the intercepted information is stored, used, or disclosed. If passed, NEMA will amend the Electronic Communications Privacy Act (ECPA) of 1986.

Bulletin boards and the US Secret Service

Although the Constitution affords protection against “unreasonable searches and seizures”, the extent to which this privacy protection extends to BBS publishers and operators, and the private E-mail they contain was not clearly delineated until Congress enacted two federal statutes back in the 1980s. The first of these, The First Amendment Privacy Protection Act, was enacted in 1980 while the second was introduced during the 99th term of Congress and became the Electronic Communications Privacy Act (ECPA) of 1986. Both Acts create specific tort claims for damages caused by unlawful searches and seizures, as defined by the statutes. 1

Ideas or Interests: Privacy in Electronic Communications

This article examines why the idea of privacy failed to structure policymaking in the case of the Electronic Communications Privacy Act (ECPA). Although the relatively quick passage of ECPA might appear to be a case of the politics of ideas, the model of interest group politics more simply explains policy making. The analysis of this case suggests several factors as important in establishing the conditions under which a politics of ideas will be realized.