faith that an emergency “involving danger of death or serious physical injury to any
person requires disclosure”.
4.3 Pen Register and Trap and Trace Devices
Title III, which applies to the use of pen register and trap and trace devices that
record dialing, routing, signaling, and signaling information used in the process of
transmitting wire or electronic communications, requires law enforcement to secure
an ex parte court order before installing a device to obtain that information.
188 To
obtain a court order to install a pen register and trap and trace devices, the government must only demonstrate that “the information likely to be obtained by such
installation and use is relevant to an ongoing criminal investigation”.
189 Obviously,
this standard offers a lowest level of privacy protection among all three titles of
the ECPA.
Title III permits government officials to intercept the wire or electronic communications of individuals who “trespass” into protected computers if:
(I) the owner or operator of the protected computer authorizes the interception of the
computer trespasser’s communications on the protected computer; (II) the person acting
under color of law is lawfully engaged in an investigation; (III) the person acting under color
of law has reasonable grounds to believe that the contents of the computer trespasser’s
communications will be relevant to the investigation; and (IV) such interception does not
acquire communications other than those transmitted to or from the computer trespasser.
190
Title III opens the door to criminal sanctions under three circumstances. First,
pursuant to 18 U.S.C. 2511(1)(c), anyone who intentionally “discloses or endeavors
to disclose to another person the contents of any wire, oral, or electronic communication having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication” may be punished. Second, it is
a federal crime to disclose, “with an intent to obstruct criminal justice, any information derived from lawful police wiretapping or electronic eavesdropping”.
191
Finally, the third proscription against disclosure applies to electronic communications service providers “who intentionally divulge the contents of the
188 18 U.S.C. §§3121–3127. “Electronic Communications Privacy Act”, University of Cincinnati
IT@UC Office of Information Security, Available online at: http://www.uc.edu/infosec/compli
ance/ecpa.html.
189 18 U.S.C. §3123(a)(1).
190 18 U.S.C. 2511(2)(i(I). Pursuant to 18 U.S.C. 2510(21), a computer trespasser is a person who:
(A) “accesses a protected computer without authorization and thus has no reasonable expectation of
privacy in any communication transmitted to, through, or from the protected computer; and (B) does
not include a person known by the owner or operator of the protected computer to have an existing
contractual relationship with the owner or operator of the protected computer for access to all or part
of the protected computer.”
191 Doyle (2012), p. 18.
Data Protection in the United States: U.S. National Report
435
person requires disclosure”.
4.3 Pen Register and Trap and Trace Devices
Title III, which applies to the use of pen register and trap and trace devices that
record dialing, routing, signaling, and signaling information used in the process of
transmitting wire or electronic communications, requires law enforcement to secure
an ex parte court order before installing a device to obtain that information.
188 To
obtain a court order to install a pen register and trap and trace devices, the government must only demonstrate that “the information likely to be obtained by such
installation and use is relevant to an ongoing criminal investigation”.
189 Obviously,
this standard offers a lowest level of privacy protection among all three titles of
the ECPA.
Title III permits government officials to intercept the wire or electronic communications of individuals who “trespass” into protected computers if:
(I) the owner or operator of the protected computer authorizes the interception of the
computer trespasser’s communications on the protected computer; (II) the person acting
under color of law is lawfully engaged in an investigation; (III) the person acting under color
of law has reasonable grounds to believe that the contents of the computer trespasser’s
communications will be relevant to the investigation; and (IV) such interception does not
acquire communications other than those transmitted to or from the computer trespasser.
190
Title III opens the door to criminal sanctions under three circumstances. First,
pursuant to 18 U.S.C. 2511(1)(c), anyone who intentionally “discloses or endeavors
to disclose to another person the contents of any wire, oral, or electronic communication having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication” may be punished. Second, it is
a federal crime to disclose, “with an intent to obstruct criminal justice, any information derived from lawful police wiretapping or electronic eavesdropping”.
191
Finally, the third proscription against disclosure applies to electronic communications service providers “who intentionally divulge the contents of the
188 18 U.S.C. §§3121–3127. “Electronic Communications Privacy Act”, University of Cincinnati
IT@UC Office of Information Security, Available online at: http://www.uc.edu/infosec/compli
ance/ecpa.html.
189 18 U.S.C. §3123(a)(1).
190 18 U.S.C. 2511(2)(i(I). Pursuant to 18 U.S.C. 2510(21), a computer trespasser is a person who:
(A) “accesses a protected computer without authorization and thus has no reasonable expectation of
privacy in any communication transmitted to, through, or from the protected computer; and (B) does
not include a person known by the owner or operator of the protected computer to have an existing
contractual relationship with the owner or operator of the protected computer for access to all or part
of the protected computer.”
191 Doyle (2012), p. 18.
Data Protection in the United States: U.S. National Report
435