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Electronic Communications Privacy Act (18 U.S.C. §§ 2510-21, 2701-11)

Bruce L. McDonald
2005

In 1986, Congress revised the scope of certain federal privacy protections to reflect changes in the computer and telecommunications industries. The Electronic Communications Privacy Act (“ECPA”) amended Title III of the Omnibus Crime Control and Safe Streets Act. Recently, the ECPA has received considerable attention in the context of individual privacy and the Internet.

The ECPA seeks to protect individuals from interception and monitoring of their electronic communications. The ECPA provides that liability may be imposed on any individual who “intentionally intercepts, endeavors to intercept, or procures any person to intercept or endeavor to intercept, any wire, oral, or electronic communication.” Because e-mail, telephone conversations and data stored electronically are covered by this definition, monitoring of such communications is generally prohibited. The ECPA does, however, provide several exceptions that allow interception and disclosure of communications which might extend specifically to organizations using e-mail or doing business on the Internet. The ECPA allows all network providers, under certain conditions, to monitor employee communications. These statutory exceptions include a provider exception, business extension or ordinary course of business exception, and a consent exception.

First Amendment issues concerning the ECPA civil damages liability provisions as applied to persons or entities that disseminate unlawfully intercepted communications will be addressed by the U.S. Supreme Court during its 2000 term in Bartnicki v. Vopper. Read summary.

For more information, please contact Bruce L. McDonald at 202.719.7014 or bmcdonald@wileyrein.com.


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