What is the Electronic Communications Privacy Act of 1986 (“ECPA”)?
The Electronic Communications Privacy Act of 1986 ("ECPA") was enacted by the United States Congress to extend restrictions on government wire taps of telephone calls to include transmissions of electronic data by computer (18 U.S.C. § 2510 et seq.), added new provisions prohibiting access to stored electronic communications, i.e., the Stored Communications Act (SCA, 18 U.S.C. § 2701 et seq.), and added so-called pen trap provisions that permit the tracing of telephone communications (18 U.S.C. § 3121 et seq.).
ECPA was an amendment to Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (the Wiretap Statute), which was primarily designed to prevent unauthorized government access to private electronic communications.
The ECPA has been amended by the Communications Assistance for Law Enforcement Act (CALEA) of 1994, the USA PATRIOT Act (2001), the USA PATRIOT reauthorization acts (2006), and the FISA Amendments Act (2008).
"Electronic communications" means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptic system that affects interstate or foreign commerce, but excludes the following:
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Wire or oral communication
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Communication made through a tone-only paging device
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Communication from a tracking device (as defined in section 3117)
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Electronic funds transfer information stored by a financial institution in a communications system used for the electronic storage and transfer of funds
Title I of the ECPA protects wire, oral, and electronic communications while in transit. It sets down requirements for search warrants that are more stringent than in other settings.[3] Title II of the ECPA, the Stored Communications Act (SCA), protects communications held in electronic storage, most notably messages stored on computers. Its protections are weaker than those of Title I, however, and do not impose heightened standards for warrants. Title III prohibits the use of pen register and/or trap and trace devices to record dialing, routing, addressing, and signaling information used in the process of transmitting wire or electronic communications without a court order.
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