Can the government read my email? Can my employer? Can the government, through the internet, try to get access to my computer and scan the contents of my disk? Can my neighbor?
We've said that the courts interpreting the constitution have slowly come to protect "reasonable expectations" of privacy. Congress has come around as well. First, in 1968, Congress passed an important statute to limit the government's power to tap phones. In 1986, the same act was broadened to include digital electronic communications. This was ECPA - the Electronic Communications Privacy Act. ECPA makes it illegal (with important exceptions we discuss below) for an individual or the government to intercept or disclose private electronic communications. To enforce this right, it gives victims the right to sue for damages.
The precise protections of ECPA are complex to describe. (See our web page - http://www.counsel.com/cyberspace - for a link to the statute and some cases interpreting it.) In the next few messages, we want to provide some basics.
The first point is this: ECPA protects against *interception* of electronic messages. Whether you are the police, or a private citizen, or system operator (sysop), if you intentionally intercept any electronic communication, or if you intentionally use or disclose an electronic communication that you know (or should know) has been intentionally intercepted, then you have violated the statute.
"Interception" means real-time interception. A tap on a computer line, monitoring every thing that is passed across the network; a program that monitors every keystroke typed on a keyboard -- these are examples of interceptions that might invoke the protection of ECPA. And "disclose" means passing the contents of the message on to someone other than the one intended to receive the message, whether you pass the information on in an email, or publish it in a newspaper.
The second point is this: the protections of ECPA are not absolute. There are exceptions. Some of these exceptions are particular to the sysop; others are more general. In this message, we discuss four exceptions that apply to the sysop. Next time we discuss the more general exceptions.
The four sysop exceptions are these:
And finally,
authors:
Larry Lessig | David Post | Eugene Volokh |
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