Cloud Computing and Electronic Discovery

CHAPTER 5 Electronic Communications Privacy Act

James P. Martin and Harry Cendrowski

The Electronic Communications Privacy Act of 1986 (ECPA) amended the Omnibus Crime Control and Safe Streets Act to provide broader protection for electronic communications and increased penalties for violation. The ECPA closed many loopholes perceived in the Safe Streets Act and increased the protection of privacy of electronic communications. The ECPA is structured with a series of classifications meant to distinguish the type of information being communicated and stored, and to provide varying legal protection based on the perceived importance of the privacy interest of such information.

Title I of the ECPA defines federal penalties for the interception of communications for persons who intentionally intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication. Penalties also apply to persons who disclose or use information that they knew or had reason to know was intercepted illegally, and also to persons who disclose communication gathered legally as part of a criminal investigation for purposes of impeding the investigation.¹ Title I prohibits interception of communication by any person not authorized, thus closing a loophole in the Safe Streets Act; the Safe Streets Act did not address nongovernmental interception.

The ECPA continues the distinction between contents and message data included in prior laws. ...