Lesson 19 - Privacy 7:

Statutory Protections for Privacy

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:

There are other parts of ECPA that explicitly give the sysop powers to intercept electronic communications - we discuss some of these below. These are obvious exceptions to the general protection ECPA gives.
If the sysop gets the consent either of the sender, or any of the intended recipients, then the sysop can disclose the content of the message.
If the sysop must look at the content to forward the message, then the interception is permitted.
And finally,
if the message appears to pertain to the commission of a crime, then the sysop can disclose it, but only to law enforcement officials.

These are not the only exceptions to the protection of ECPA. In our next message, we describe the other general exceptions to ECPA. (Once we're finished with those, you might wonder whether the exceptions swallow the rule.)

authors:

Larry Lessig David Post Eugene Volokh

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