Court in California held that Facebook’s notification to consumers that it might use
information for data analysis was insufficient to allow the company to scan users’
private messages to guide targeted advertising.
175
4 Data Protection and Digital Forensics
4.1 Interception of Communication Data: Electronic
Communications Privacy Act of 1986 (ECPA)
176
Since the ECPA’s original enactment, Congress has sought to keep pace with the
rapid evolution of technology and the nation’s security threats by clarifying and
updating the ECPA. Some of these updates, most notably the USA Patriot Act, have
eased restrictions on law enforcement’s ability to access stored communications.
177
In some cases, courts have struck down Congress’s attempts to liberalize privacy
requirements. Most notably, in Doe v. Ashcroft, a federal district court held that
Section 2709 of the Patriot Act violated the First Amendment as it permitted the FBI
to use National Security Letters to obtain internet service providers’ customer
records without giving the ISP a vehicle to challenge the request.
178
Unfortunately, despite the name of the Act, the ECPA allows the government to
routinely request information collected by cell phone providers, search engines,
social networking sites, and other websites every day with relative ease.
179 The
Act consists of three parts. Title I, which applies to wire, oral, and electronic
communications while in transit, affords the highest level of protections.
180 Title II
or the Stored Communications Act (SCA), applies to communications stored by
service providers and records about the subscriber such as the subscriber name,
billing records and ISP addresses.
181 The privacy protections available under Title II
are weaker than Title I protections as they allow state and federal prosecutors to
obtain records without meeting the heightened protection standards of search
warrants.
182
175 77 F.Supp.3d 836, 848 (N.D. Cal. 2014).
176 18 U.S.C. §§2510–3127.
177 The amendments include: Communications Assistance to Law Enforcement Act (CALEA)
(1994), the USA Patriot Act (2001), the USA Patriot reauthorization acts (2006), and the FISA
Amendments Act (2008).
178 334 F. Supp. 2d 471 (S.D.N.Y. 2004).
179 “Modernizing the Electronic Communications Privacy Act (ECPA)”, ACLU, Available online
at: https://www.aclu.org/feature/modernizing-electronic-communications-privacy-act-ecpa Last
accessed on 13 August 2017.
180 Title 1 includes “The Wiretap Act”, 18 U.S.C. §§2510–2522.
181 18 U.S.C. §§2701–2711.
182 “Electronic Communications Privacy Act”, University of Cincinnati IT@UC Office of Information Security, Available online at: http://www.uc.edu/infosec/compliance/ecpa.html.
Data Protection in the United States: U.S. National Report
433
information for data analysis was insufficient to allow the company to scan users’
private messages to guide targeted advertising.
175
4 Data Protection and Digital Forensics
4.1 Interception of Communication Data: Electronic
Communications Privacy Act of 1986 (ECPA)
176
Since the ECPA’s original enactment, Congress has sought to keep pace with the
rapid evolution of technology and the nation’s security threats by clarifying and
updating the ECPA. Some of these updates, most notably the USA Patriot Act, have
eased restrictions on law enforcement’s ability to access stored communications.
177
In some cases, courts have struck down Congress’s attempts to liberalize privacy
requirements. Most notably, in Doe v. Ashcroft, a federal district court held that
Section 2709 of the Patriot Act violated the First Amendment as it permitted the FBI
to use National Security Letters to obtain internet service providers’ customer
records without giving the ISP a vehicle to challenge the request.
178
Unfortunately, despite the name of the Act, the ECPA allows the government to
routinely request information collected by cell phone providers, search engines,
social networking sites, and other websites every day with relative ease.
179 The
Act consists of three parts. Title I, which applies to wire, oral, and electronic
communications while in transit, affords the highest level of protections.
180 Title II
or the Stored Communications Act (SCA), applies to communications stored by
service providers and records about the subscriber such as the subscriber name,
billing records and ISP addresses.
181 The privacy protections available under Title II
are weaker than Title I protections as they allow state and federal prosecutors to
obtain records without meeting the heightened protection standards of search
warrants.
182
175 77 F.Supp.3d 836, 848 (N.D. Cal. 2014).
176 18 U.S.C. §§2510–3127.
177 The amendments include: Communications Assistance to Law Enforcement Act (CALEA)
(1994), the USA Patriot Act (2001), the USA Patriot reauthorization acts (2006), and the FISA
Amendments Act (2008).
178 334 F. Supp. 2d 471 (S.D.N.Y. 2004).
179 “Modernizing the Electronic Communications Privacy Act (ECPA)”, ACLU, Available online
at: https://www.aclu.org/feature/modernizing-electronic-communications-privacy-act-ecpa Last
accessed on 13 August 2017.
180 Title 1 includes “The Wiretap Act”, 18 U.S.C. §§2510–2522.
181 18 U.S.C. §§2701–2711.
182 “Electronic Communications Privacy Act”, University of Cincinnati IT@UC Office of Information Security, Available online at: http://www.uc.edu/infosec/compliance/ecpa.html.
Data Protection in the United States: U.S. National Report
433