From: fergp@sytex.com (Paul Ferguson)
Date: Wed, 5 May 93 13:44:28 PDT
To: cypherpunks@toad.com
Subject: Additional amendments to the ECPA?
Message-ID: <muD43B2w165w@sytex.com>
MIME-Version: 1.0
Content-Type: text/plain


Doing some research on existing laws and ran across this snippet
concerning the ECPA and amendments made in 1986-87. Can someone with
more legalese comment on whether this has again been amended or
changed? How does this relate to LEA's selectively wiretapping
private e-mail and other electronic communications? Or does it?
 
8<----- Begain forwarded text ------------
 
     On October 21, 1986, President Reagan signed the new Electronic 
Communications Privacy Act of 1986 amending the federal wiretap law.
ECPA went into effect during the beginning of 1987.  (P.L.  99-508,
Title I, sec. 111, 100 Stat. 1859; P.L. 99-508, Title II, sec. 202,
100 Stat. 1868.)  ECPA created parallel privacy protection against
both interception of electronic communications while in transmission
and unauthorized access to electronic communications stored on a system.
 
     The new ECPA first provides privacy protection for any 
 
     'electronic communication' ... [by] 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 photooptical system that 
     affects interstate or foreign commerce...."  
 
(18 U.S.C. secs. 2510(12), 2511.)  The Senate Report noted examples of 
electronic communications to include non-voice communications such as 
"electronic mail, digitized transmissions, and video teleconferences."
(S. Rep. No. 541, 99th Cong., 2d Sess. 14 reprinted_in 1986 U.S. Code
Cong. & Ad. News 3568.)  Electronic communication is defined in terms of
how it is transmitted.  So long as the means by which a communication is
transmitted affects interstate or foreign commerce, the communication is
covered ECPA. (18 U.S.C. sec. 2510(12).)  Generally, that would include
all telephonic means including private networks and intra-company
communications.  (S. Rep. No. 541, 99th Cong., 2d Sess. 12 reprinted_in
1986 U.S. Code Cong. & Ad. News 3566.)
 
     Second, ECPA protects the electronic communication when it has been 
stored after transmission, such as e-mail left on an electronic computer 
communication system for later pickup by its intended recipient.  (18
U.S.C. sec. 2510(17).)  The legislation makes it a federal criminal
offense to break into any electronic system holding private
communications or to exceed authorized access to alter or obtain the
stored communications. (18 U.S.C. sec. 2701(a).)
 
     The legislation would protect electronic computer communication
systems from law enforcement invasion of user e-mail without a court
order.  (18 U.S.C. secs. 2517, 2518, 2703.)  Although the burden of
preventing disclosure of the e-mail is placed on the subscriber or
user of the system, the government must give him fourteen days
notice to allow him to file a motion to quash a subpoena or to vacate
a court order seeking disclosure of his computer material.  (18 U.S.C.
sec. 2704(b).)  However, the government may give delayed notice where
there are exigent circumstances as listed by the Act (18 U.S.C. sec.
2705.)  Recognizing the easy user destruction of computer data, ECPA
allows the government to include in its subpoena or court order the
requirement that the provider or operator retain a backup copy of
electronic communications when there is risk of user destruction.
(18 U.S.C. sec. 2704(a).)
 
     The legislation gives a civil cause of action to the provider or 
operator, subscriber, customer or user of the system aggrieved by an 
invasion of an electronic communication in the system in violation of
the ECPA.  (18 U.S.C. secs. 2520, 2707.)  If the provider or operator
has to disclose information stored on his system due to a court order,
warrant, subpoena, or certification under ECPA, no cause of action can
be brought against him by the person aggrieved by such disclosure.
(18 U.S.C. sec. 2703(e); see_also 18 U.S.C. secs. 2701(c), 2702(b),
2511(2)(a)(i), 2511(3)(b)(iii) where the systems operator or provider
is not held criminally liable, may observe a private communication
while performing employment duties or according to authorization,
etc., may intercept private communication while making quality
control checks or during the course of forwarding communications to
another system.)
 
8<----- End of forwarded text ---------
 
 

Paul Ferguson                  |  Uncle Sam wants to read
Network Integrator             |       your e-mail...
Centreville, Virginia USA      | Just say "NO" to the Clipper
fergp@sytex.com                |          Chip...
-------------------------------+------------------------------
         I love my country, but I fear it's government.