three types of communications: wire communications,
165 oral communications,
166
and electronic communications.
167 As amended, the ECPA, not only protects wire,
oral, and electronic communications while those communications are being made
and are in transit, but also when they are stored on computers.
168 The ECPA creates a
tiered system of protections based on the level of privacy interests in the data.
169 For
example, the ECPA grants higher privacy protection to the content of stored emails
than in basic subscriber information.
170 In some respects, these levels of protection
track with established Fourth Amendment case law.
171 For example, a customer or
subscriber has no reasonable expectation of privacy in her subscriber information or
transactional records under the U.S. Supreme Court’s Third Party doctrine.
172 The
ECPA also blocks third parties and internet service providers (ISPs) from accessing
these communications without legitimate authorization.
173
Unfortunately, attempts to invoke the provisions of the ECPA under Title I
(Wiretap Act) or Title II (Stored Communications Act) to curtail the use of personal
information by commercial entities are typically unsuccessful because the ECPA
does not apply in cases of user consent.
174 The one exception appears to apply to
cases where website users do not explicitly consent to the scope of the interception.
In Campbell v. Facebook Inc., 77 F.Supp.3d 836 (N.D. Cal. 2014), a Federal District
165 Pursuant to 18 U.S.C. § 2510(1), a “‘wire communication’ means any aural transfer made in
whole or in part through the use of facilities for the transmission of communications by the aid of
wire, cable, or other like connection between the point of origin and the point of reception
(including the use of such connection in a switching station) furnished or operated by any person
engaged in providing or operating such facilities for the transmission of interstate or foreign
communications or communications affecting interstate or foreign commerce.”
166 “Oral communications” are typically intercepted through bugs or other recording and transmitting devices and consist of “any oral communication uttered by a person exhibiting an expectation
that such communication is not subject to interception under circumstances justifying such expectation, but such term does not include any electronic communication.” See 18 U.S.C. § 2510(2).
167 Pursuant to 18 U.S.C. § 2510(12), “electronic communication” 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 photooptical system that affects interstate or
foreign commerce, but does not include—
(A) any wire or oral communication;
(B) any communication made through a tone-only paging device;
(C) any communication from a tracking device (as defined in section 3117 of this title); or
(D) electronic funds transfer information stored by a financial institution in a communications
system used for the electronic storage and transfer of funds.”
168 ECPA 1986, supra note 164.
169 Id.
170 Id.
171 Id.
172 See United States v. Perrine, 518 F.3d 1196, 1204 (10th Cir. 2008) (holding that individuals
retain no Fourth Amendment privacy interest in subscriber information and transactional records).
173 ECPA 1986, supra note 164.
174 Solove and Hartzog (2014), p. 178.
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S. M. Boyne
165 oral communications,
166
and electronic communications.
167 As amended, the ECPA, not only protects wire,
oral, and electronic communications while those communications are being made
and are in transit, but also when they are stored on computers.
168 The ECPA creates a
tiered system of protections based on the level of privacy interests in the data.
169 For
example, the ECPA grants higher privacy protection to the content of stored emails
than in basic subscriber information.
170 In some respects, these levels of protection
track with established Fourth Amendment case law.
171 For example, a customer or
subscriber has no reasonable expectation of privacy in her subscriber information or
transactional records under the U.S. Supreme Court’s Third Party doctrine.
172 The
ECPA also blocks third parties and internet service providers (ISPs) from accessing
these communications without legitimate authorization.
173
Unfortunately, attempts to invoke the provisions of the ECPA under Title I
(Wiretap Act) or Title II (Stored Communications Act) to curtail the use of personal
information by commercial entities are typically unsuccessful because the ECPA
does not apply in cases of user consent.
174 The one exception appears to apply to
cases where website users do not explicitly consent to the scope of the interception.
In Campbell v. Facebook Inc., 77 F.Supp.3d 836 (N.D. Cal. 2014), a Federal District
165 Pursuant to 18 U.S.C. § 2510(1), a “‘wire communication’ means any aural transfer made in
whole or in part through the use of facilities for the transmission of communications by the aid of
wire, cable, or other like connection between the point of origin and the point of reception
(including the use of such connection in a switching station) furnished or operated by any person
engaged in providing or operating such facilities for the transmission of interstate or foreign
communications or communications affecting interstate or foreign commerce.”
166 “Oral communications” are typically intercepted through bugs or other recording and transmitting devices and consist of “any oral communication uttered by a person exhibiting an expectation
that such communication is not subject to interception under circumstances justifying such expectation, but such term does not include any electronic communication.” See 18 U.S.C. § 2510(2).
167 Pursuant to 18 U.S.C. § 2510(12), “electronic communication” 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 photooptical system that affects interstate or
foreign commerce, but does not include—
(A) any wire or oral communication;
(B) any communication made through a tone-only paging device;
(C) any communication from a tracking device (as defined in section 3117 of this title); or
(D) electronic funds transfer information stored by a financial institution in a communications
system used for the electronic storage and transfer of funds.”
168 ECPA 1986, supra note 164.
169 Id.
170 Id.
171 Id.
172 See United States v. Perrine, 518 F.3d 1196, 1204 (10th Cir. 2008) (holding that individuals
retain no Fourth Amendment privacy interest in subscriber information and transactional records).
173 ECPA 1986, supra note 164.
174 Solove and Hartzog (2014), p. 178.
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