What is the Electronic Communications Privacy Act?
The Electronic Communications Privacy Act of 1986, or the ECPA, consists of three parts. The first, sometimes referred to as Title III, outlaws the unauthorized interception of wire, oral, or electronic communications. It also establishes a judicially supervised procedure to permit such interceptions for law enforcement purposes. The second, the Stored Communications Act, focuses on the privacy of, and government access to, stored electronic communications. The third part creates a procedure for governmental installation and use of pen registers as well as trap and trace devices for use in law enforcement and foreign intelligence investigations. This article focuses on part one or “Title III,” including its prohibitions and potential penalties.
Title III Prohibitions
Under Title III, unless certain exceptions apply, it is a federal crime to (1) engage in wiretapping or electronic eavesdropping; (2) to possess wiretapping or electronic eavesdropping equipment; (3) to use or disclose information obtained through illegal wiretapping or electronic eavesdropping; or (4) to disclose information secured through court-ordered wiretapping or electronic eavesdropping in order to obstruct justice.
Illegal wiretapping and electronic eavesdropping
The ban on illegal wiretapping and electronic eavesdropping generally prohibits any person from intentionally intercepting, or attempting to intercept, wire, oral, or electronic communications. The prohibition covers electronic, mechanical, and other types of devices and app Such prohibition applies unless the interception is specifically authorized or expressly not covered. Some examples of authorized or non-covered interceptions include:
- one of the parties has consented to the interception
- the interception occurs in compliance with a statutorily-authorized law enforcement or foreign-intelligence-gathering interception
- the interception occurs as a part of providing or regulating communication services
- certain radio broadcasts
- in some jurisdictions, spousal wiretappers.
Excepted interceptions by law enforcement must comply with the warrant procedures set forth in the Act and be consistent with the Fourth Amendment protections against unreasonable searches and seizures.
The statute prohibits unlawful interception by any “person,” which includes any employee or agent of the United States or political subdivision thereof, as well as any individual, partnership, association, joint stock company, trust, or corporation. The interceptions proscribed by Title III are limited to those that capture the communication’s “contents.” In other words, the statute prohibits interception of “any information concerning the substance, purport, or meaning.” Importantly, however, not all substantive communication is protected. For example, there can be no violation when the speakers involved in oral face-to-face communication have no justifiable expectation of privacy, e.g., in a public setting.
Possession of wiretap equipment
Section 2512 makes it unlawful for a person to manufacture, assemble, possess, or sell any device “knowing or having reason to know that the design of such device renders it primarily useful for the purpose of surreptitious interception of wire, oral, or electronic communications.” This section of the Act has been utilized to prosecute sellers and dealers of bugs and other listening devices (e.g., spy shops).
Title III contains three separate disclosure offenses. For each, the person making the prohibited disclosure can be subject to the same penalties as the person guilty of the underlying wiretap or eavesdropping offense. First, the statute makes it illegal for any person to intentionally disclose or attempt to disclose to another person the contents of unlawfully intercepted communication. The second type of prohibited disclosure applies to efforts to obstruct justice by revealing information gleaned from federal wiretaps, including court-ordered wiretaps. The third type of prohibited disclosure applies only to electronic communications service providers who “intentionally divulge the contents of the communication while in transmission” to anyone other than the sender and intended recipient. As with all of these prohibitions, this section comes with specific exemptions (e.g., when consent is obtained, inadvertent discovery of information relating to commission of a crime, or when otherwise authorized by law).
Consequences of a Title III Violation
Depending on the circumstances, a violation of Title III could result in criminal penalties such as federal imprisonment or monetary fines, civil liability, disciplinary action of law enforcement, or exclusion of evidence.
Interception, use, or disclosure in violation of Title III generally is punishable by federal imprisonment for not more than five years and/or a fine of not more than $250,000 for individuals and not more than $500,000 for organizations. Equipment used to violate Title II is also subject to confiscation by the United States, either as part of the prosecution of the offender or in a separate civil proceeding.
Victims of a Title III violation may be entitled to equitable relief, damages ($100 per day per violation or $10,000, whichever is greater), punitive damages, reasonable attorney’s fees and litigation costs. The United States government may be held liable for a willful violation of Title III. A majority of courts hold that governmental entities other than the United States (e.g., state and local law enforcement agencies) may be liable for violations of the statute.
Although individual law enforcement officers typically will receive qualified immunity from suit, they may be subject to disciplinary action upon a judicial or administrative finding of a willful or intentional Title III violation.
Exclusion of evidence
Information gathered in violation of Title III generally is inadmissible as evidence before any federal, state, or local court. Individuals whose conversations have been intercepted have standing to claim the benefits of exclusion through a motion to suppress.
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Dr. Nick Oberheiden, founder of Oberheiden P.C., focuses his litigation practice on white-collar criminal defense, government investigations, SEC & FCPA enforcement, and commercial litigation.