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Should the Electronic Communications Privacy Act (ECPA) be Reformed, Is It Still Adequate Protection?

In this Emerging Issues commentary, Carey Lening, Kirsten Koepsel, and Ron Weikers reviews the Electronic Communications Privacy Act (ECPA), which protects electronic communications from being intercepted or obtained by another absent a specific exemption. They discuss whether the ECPA still provides adequate protection with all the changes in technology. They write:


"Generally, it is considered a crime for individuals or entities to intercept or obtain the 'electronic communications' of another, absent certain exemptions. However, the ECPA treats electronic communications obtained 'in transmission' differently from communications that have reached their final destination. If an electronic communication is intercepted when it is in transit Title I of the ECPA applies, whereas a communication that has been transmitted is governed by Title II of the ECPA, otherwise known as the Stored Communications Act, 18 U.S.C. §§ 2701-2712."

"Although the ECPA was designed to provide clarity when it comes to monitoring electronic communications, the law itself has routinely been criticized by commentators and the courts for being 'famous (if not infamous) for its lack of clarity[.]' Much of this stems from the fact that Title I and Title II differ markedly on standards of evidence and requirements that must be met in order for government (or private entities) to obtain electronic records. But courts have even expressed difficulty in applying consistent readings within each Title of the Act. For example, while most courts agree that an e-mail intercept under Title I must be contemporaneous with the transmission of the communication, they have disagreed on whether an e-mail residing in 'transient electronic storage' prior to delivery qualifies."

"In May 2010, Congress began holding a series of hearings on reform of the ECPA. Testimony on the need for ECPA reform has centered both on the law's famous 'lack of clarity,' and the belief that the law has simply been outpaced by a generation's worth of technological development. In the four hearings to date convened by the House and the Senate, academics, law enforcement personnel, service providers, and 'digital due process' advocates weighed in on the need (or lack thereof) for reform. At the September 22, 2010, Senate Judiciary Committee hearing, Committee Chairman Patrick Leahy (D-Vt.) stated that '[b]ringing this privacy law into the Digital Age will be one of Congress's greatest challenges' and that the 'ECPA is a law that is often hampered by conflicting privacy standards that create uncertainty and confusion for law enforcement, the business community and American consumers.'"

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