In addition to the ECPA’s Title I, the Communications Assistance for Law
Enforcement Act of 1994 (CALEA) also seeks to regulate the interception of
electronic communications. This Act requires telecommunications carriers to redesign their network architectures to make it easier for the government to wiretap
digital telephone calls.
183 In 2005, the Act was updated to include service providers
(ISPs) and VoIP services. To comply with CALEA, communications providers must
be “able to isolate all wire and electronic communications to and from any account
targeted by law enforcement and identify the numbers or accounts with which the
target has communicated”.
184 While the legislation mandates that the carriers design
their networks in a manner that protects “the privacy and security of communications
and call-identifying information not authorized to be intercepted”,
185 CALEA’s
critics argue that the Act, and its continuing expansion, is a massive infringement
on user’s rights.
186
4.2 Preservation and Access to Computer Data Hosted
on a Computer System
The Stored Communications Act sets forth the procedures that government actors
must follow to obtain communications records and the content of electronic or wire
communications. Pursuant to 18 U.S.C. §2703, the Act requires the government to
obtain a court order or warrant to access customer data held by ISPs.
187 The SCA
distinguishes between communications data stored for 180 days or less and data
stored for longer than 180 days. In the case of the former, the government must
obtain a warrant supported by probable cause to obtain the data. To obtain communications stored in excess of 180 days, the government need only provide prior
notice to the subscriber and meet the standard mentioned above showing that there
are “reasonable grounds” to believe that the communications are relevant to an
ongoing criminal investigation. In the case in which the government elects not to
provide prior notice to the subscriber, the government must obtain a warrant.
In addition, where a public electronic communication service (ECS) provider or a
public remote computing service (RCS) provider inadvertently discovers information pertaining to the commission of a crime, the provider may disclose the information directly to the government in a situation where the provider believes in good
183 “CALEA: The Communications Assistance for Law Enforcement Act (CALEA) of 1994”,
Electronic Frontier Foundation. Available online at: https://www.eff.org/issues/calea.
184 Zetter (2014).
185 47 U.S.C. § 1002(a)(4)(A).
186 Zetter (2014).
187 This includes customer data such as the name, address, length of service, and means of payment.
See 18 U.S.C. §2703(c).
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S. M. Boyne
Enforcement Act of 1994 (CALEA) also seeks to regulate the interception of
electronic communications. This Act requires telecommunications carriers to redesign their network architectures to make it easier for the government to wiretap
digital telephone calls.
183 In 2005, the Act was updated to include service providers
(ISPs) and VoIP services. To comply with CALEA, communications providers must
be “able to isolate all wire and electronic communications to and from any account
targeted by law enforcement and identify the numbers or accounts with which the
target has communicated”.
184 While the legislation mandates that the carriers design
their networks in a manner that protects “the privacy and security of communications
and call-identifying information not authorized to be intercepted”,
185 CALEA’s
critics argue that the Act, and its continuing expansion, is a massive infringement
on user’s rights.
186
4.2 Preservation and Access to Computer Data Hosted
on a Computer System
The Stored Communications Act sets forth the procedures that government actors
must follow to obtain communications records and the content of electronic or wire
communications. Pursuant to 18 U.S.C. §2703, the Act requires the government to
obtain a court order or warrant to access customer data held by ISPs.
187 The SCA
distinguishes between communications data stored for 180 days or less and data
stored for longer than 180 days. In the case of the former, the government must
obtain a warrant supported by probable cause to obtain the data. To obtain communications stored in excess of 180 days, the government need only provide prior
notice to the subscriber and meet the standard mentioned above showing that there
are “reasonable grounds” to believe that the communications are relevant to an
ongoing criminal investigation. In the case in which the government elects not to
provide prior notice to the subscriber, the government must obtain a warrant.
In addition, where a public electronic communication service (ECS) provider or a
public remote computing service (RCS) provider inadvertently discovers information pertaining to the commission of a crime, the provider may disclose the information directly to the government in a situation where the provider believes in good
183 “CALEA: The Communications Assistance for Law Enforcement Act (CALEA) of 1994”,
Electronic Frontier Foundation. Available online at: https://www.eff.org/issues/calea.
184 Zetter (2014).
185 47 U.S.C. § 1002(a)(4)(A).
186 Zetter (2014).
187 This includes customer data such as the name, address, length of service, and means of payment.
See 18 U.S.C. §2703(c).
434
S. M. Boyne