ECPA Title I: Wiretap Act

ECPA Wire Communications

"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 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."

ECPA 2511(3)

- (a) Except as provided in paragraph (b) of this subsection, a person or entity providing an electronic communication service to the public shall not intentionally divulge the contents of any communication (other than one to such person or entity, or an agent thereof) while in transmission on that service to any person or entity other than an addressee or intended recipient of such communication or an agent of such addressee or intended recipient - (b) [Except if:] a. (i) as otherwise authorized in § 2511(2)(a) or 2517 of this title; b. (ii) with the lawful consent of the originator . . .addressee...intended recipient of such communication; . . . c. (iv) [commission of crime/disclosure to law enforcement]

ECPA Electronic Communications

Any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in party 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;

TitleI: Wiretap Act

Can't intercept wire, oral, or electronic communication Meant to apply to intercepting communication

Title II Stored Communications Act

Covers Communications in electronic storage Standard for order (180+ days) less strict - less than probable cause Civil Damages up to $1,000 per violation, max prison 1 year.

Title I Wiretap Act Covers:

Covers communications in transit Requires law enforcement to obtain "super warrant" to intercept probable cause + Civil Damages up to $10,000 per voilation; max prison 5 years

In Re Pharmatrak, Inc. (2003)

Facts: In sum, pharmaceutical companies invited users to visit their websites to learn about their drugs and to obtain rebates. An enterprising company, Pharmatrak, sold a service, called "NETcompare," to these pharmaceutical companies. That service accessed information about the internet users and collected certain information meant to permit the pharmaceutical companies to do intra-industry comparisons of website traffic and usage. Most of the pharmaceutical companies were emphatic that they did not want personal or identifying data about their web site users to be collected. In connection with their contracting to use NETcompare, they sought and received assurances from Pharmatrak that such data collection would not occur. As it turned out, some such personal and identifying data was found, using easily customized search programs, on Pharmatrak's computers. Plaintiffs, on behalf of the purported class of internet users whose data Pharmatrak collected, sued both Pharmatrak and the pharmaceutical companies asserting, inter alia, that they intercepted electronic communications without consent, in violation of the ECPA. - Held: The District court incorrectly interpreted the "consent" exception to the ECPA statute; we also hold that Pharmatrak "intercepted" the communication under the statute. - Q1: Did D have consent? Hard to say, b/c clients were adamant that this information NOT be collected and conditioned their purchase on this fact. - Q2: Whether D actually intercepted here: D's arg: Not intercept b/c always two separate communications - one between client and user and between user and D - not contemporaneous. Court says separate but simultaneous counts. - Q3: Whether or not D has requisite intent: This was a bug/mistake. They didn't use it or even mean to have it. Inadvertent intercept does NOT satisfy intent requirement. - There was an intercept but no intent. Inadvertent intercept does NOT count for ECPA.

Konop v. Hawaiin Airlines (2002)

For a website to be intercepted in violation of the Wiretap Act, the website data must be acquired during transmission and not while the data is in electronic storage. - Facts: Robert Konop (plaintiff) was a pilot for Hawaiian Airlines, Inc. (Hawaiian) (defendant). Konop maintained a website where he wrote posts critical of Hawaiian. Konop controlled access to his website by requiring visitors to log in with a user name and password. Konop also controlled who was eligible to access the site. Eligible people could enter their own names, create a password, and access the site. Konop had granted access to the website to Gene Wong, another pilot. An executive at Hawaiian asked Wong for permission to use Wong's name to access Konop's website. Wong agreed. Konop later received a call from the chairman of the pilots' union. The union chairman told Konop that the president of Hawaiian had seen the website and was upset by Konop's disparaging statements. Konop sued Hawaiian, alleging that Hawaiian viewed Konop's website without his permission, disclosed the contents of the website, and took other actions in violation of the federal Wiretap Act, as amended by the Electronic Communications Privacy Act (ECPA). - Is this stored communication? Court said yes, but here are arguments a. Argue for intercepted: Posts were up there to be commented on, active, closed conversation b. Argue stored: Each individual communication, once posted, is over. Not in transit in the same way as it was in Steve Jackson Games. - Court sided with airline, and found no stored communications liability either b/c management had the consent of the oer two users. - ***Note: This is NOT a 4A violation, b/c it was NOT a state actor.

Elements of ECPA Title I

Intentionally Intercepted, endeavored to intercept or procured from another person to intercept The contents of an electronic communicatoin Using a device

Title II: Stored Communications Act (SCA)

Makes it illegal to access stored communications Uses definitions of "electronic storage" from Title I.

In re Zynga (2014)

Social network and social gaming users brought class action against a social networking company and a gaming company, claiming that the companies violated the Wiretap Act and Stored Communications Act provisions of the Electronic Communications Privacy Act (ECPA) by disclosing confidential user information to third parties. - Held: "Contents" under ECPA's disclosure prohibition refers to the intended message conveyed by the communication and does not include record information regarding the characteristics of the message, and referrer header information did not constitute the contents of any communications under ECPA.

Steve Jackson Games v. U.S. Secret Service (1994)

The seizure of a computer that stored private, unread emails is not considered an interception of electronic communications under the ECPA. - Facts: Offered an email bulletin board system to anyone part of the gamer community. Housed on one server. Private, unopened emails stored on hard drive at Steve Jackson Games office until addressee called w/ modem and extracted emails. Feds took the computers from these offices. - Q: Whether or not seizure of stored emails on the computers was an intercept in violation of ECPA. - Best arg: That intercepted: literal definition of intercept. Hasn't gone from point A to point B. - Best arg: that not and that it's just in storage: It's just sitting there on there server getting stored until further use. - Held No. Professor Green does not like this opinion.

United States v. Warshak (2010)

a subscriber enjoys a reasonable expectation of privacy in the contents of emails that are stored with, or sent or received through, a commercial ISP, and the government may not compel a commercial ISP to turn over the contents of a subscriber's emails without a warrant. - Rule: Obtaining stored emails w/o warrant is unconstitutional under the 6th Cir + SCA is facially unconstitutional to this extent in the 6th Cir. Court buys good faith reliance on the SCA b/c the law had been around for a long time, but after this case, that is unlikely to be a good argument. - Facts: The government suspected that Berkeley Premium Nutraceuticals, Inc. (Berkeley) was defrauding its customers. To seek to prove this, the government requested that NuVox Communications (NuVox), an internet service provider (ISP), warehouse the emails of Steven Warshak (defendant), the owner of Berkeley. The government then compelled NuVox to turn over those warehoused emails. The government did not obtain a warrant. Based on the contents of the emails, the trial court convicted Warshak. He appealed, alleging that the government's search and seizure of his emails constituted a violation of his Fourth Amendment rights. The United States Supreme Court granted certiorari.

ECPA Oral Communications

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