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Congress had enacted a wiretap statute, but it was only designed to protect government secrets during World War Ilo and remained in effect only until the end of the War. It was not until the Federal Communications Act of 1934 that Congress passed general legislation to protect the privacy of telegraph and telephone conversations. "1

Congress enacted Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 12 when it had become apparent that technology bad outstripped the protection of the Communications Act and after the Supreme Court repudiation of Olmstead necessitated a procedural scheme for electronic surveillance for law enforcement purposes.

13

Title III was subsequently supplemented with the Foreign Intelligence Surveillance Act," which afforded more specific authorization and more specific protection in the area of national security intelligence gathering.

Most recently, Congress again sought to bring the law abreast of surveillance technology with the Electronic Communications Privacy Act of 1986 (ECPA). The Act followed the general outline of Title III with adjustments and additions. Like Title III, it sought to strike a balance between the interests of privacy and law enforcement, but it also reflected a Congressional desire to avoid unnecessarily crippling infant industries in advanced communications technology. 16

wiretapping accomplished without a trespass onto private property.

40 Stat.1017 (1918).

10

56 Cong.Rec. 10761-765 (1918).

11 48 Stat. 1064, 1103-104 ("No person receiving or assisting in receiving, or transmitting, or assisting in transmitting, any interstate or foreign communication by wire or radio shall divulge or publish the existence, contents, substance, purport, effect, or meaning thereof ... and no person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication. ..." 47 U.S.C. 605 (1940 ed.)).

The Communications Act amended the Radio Act of 1927, 44 Stat. 1162, 1172 (1927), which as enacted contained the radio portion of this section.

12 87 Stat. 197, 18 U.S.C. 2510 - 2520 (1970 ed.).

18

Berger v. New York, 388 U.S. 41 (1967); Katz v. United States, 389 U.S. 347 (1967).

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15 H.R.Rep.No. 647, 99th Cong., 2d Sess. 18-9 (1984); S.Rep.No. 541, 99th Cong., 2d Sess. 5 (1986).

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INTERCEPTION

ECPA, in its revision of Title III, outlaws electronic surveillance, possession of electronic surveillance equipment, disclosure of information obtained through illegal electronic surveillance, and use of information secured through illegal electronic surveillance. 16

In separate chapters it regulates stored wire and electronic communications and transactional records access," and pen registers and trap and trace devices. 18

At ECPA's heart lies the prohibition against (1) intentionally, (2) intercepting, (3) wire, oral or electronic communications, (4) by using a mechanical device, (5) without permission or some other form of exception such as that provided for (6) some kinds of radio broadcasts, (7) the police, (8) the telephone company and others who help provide communications services, and (9) in some places, spousal wiretappers.''

18 18 U.S.C. 2511. For citations to state statutes see Appendices A., D. and

E.

17

18 U.S.C. 2701 - 2711. For the citation to state statutes see Appendix B.

18

18 U.S.C. 3121 - 3127. For the citations to state statutes see Appendix

C.

19 "(1) Except as otherwise specifically provided in this chapter any person* who -- (a) intentionally intercepts, ** endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communications***

(b) intentionally uses, or endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device*^ to intercept any oral communication when

(i) such device is affixed to, or otherwise transmits a signal through, a wire, cable, or other like connection used in wire communication; or

(ii) such device transmits communications by radio, or interferes with the transmission of such communication; or

(iii) such person knows, or has reason to know, that such device or any component thereof has been sent through the mail or transported in interstate or foreign commerce; or

(iv) such use or endeavor to use (A) takes place on the premises of any business or other commercial establishment the operations of which affect interstate or foreign commerce; or (B) obtains or is for the purpose of obtaining information relating to the operations of any business or other commercial establishment the operations of which affect interstate or foreign commerce; or

(v) such person acts in the District of Columbia, the Commonwealth of Puerto Rico, or any territory or possession of the United States. ... shall be punished as provided in subsection (4) or shall be subject to suit as provided in subsection (5)." 18 U.S.C. 2511(1)(a), (b)

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ECPA contains two versions of the basic prohibition because Congress was

"person' means any employee, or agent of the United States, or any State or political subdivision thereof, and any individual, partnership, association, joint stock company, trust, or corporation," 18 U.S.C. 251006).

"intercept' means the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device," 18 U.S.C. 2510(4).

*** "wire communication' means 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 a switching station) furnished or operated by any person engaged in providing or operating such facilities for the transmission of interstate or foreign communications for communications affecting interstate or foreign commerce and such term includes any electronic storage of such communication, but such term does not include the radio portion of a cordless telephone communication that is transmitted between the cordless telephone handset and the base unit;

'oral communication' means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such exception, but such term does not include any electronic communication;

'electronic communication' means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system that affects interstate or foreign commerce, but does not include -

(A) the radio portion of a cordless telephone communication that is transmitted between the cordless handset and the base unit;

(B) any wire or oral communication;
(C) any communication made through a tone-only paging device; or

(D) any communication from a tracking device (as defined in section 3117 of this title)," 18 U.S.C. 2510(1),(2),(12).

*^ "electronic, mechanical, or other device' means any device or apparatus which can be used to intercept a wire, oral, or electronic communication other than -

(a) any telephone or telegraph instrument, equipment or facility, or any component thereof, (i) furnished to the subscriber or user by a provider of wire or electronic communication service in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business or furnished by such subscriber or user for connection to the facilities of such service and used in the ordinary course of its business; or (ii) being used by a provider of wire or electronic communication service in the ordinary course of its business, or by an investigator or law enforcement officer in the ordinary course of his duties;

(b) a hearing aid or similar device being used to correct subnormal hearing to not better than normal," 18 U.S.C. 2510(7).

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uncertain of the bounds of its constitutional authority to enact a simple generic proscription.20 The Justice Department has honored that caution by employing subparagraph (a) to prosecute wiretapping, while using subparagraph (b) to prosecute other forms of electronic surveillance.21

"INTENTIONALLY"

Conduct can only violate ECPA if it is done "intentionally," inadvertent conduct is no crime; the offender must have done on purpose those things which are outlawed.22

"INTERCEPT"

ECPA proscribes intentional interceptions. Interception "means the aural23 or other acquisition of the contents" of various kinds of communications. ECPA enlarged the definition by adding the words "or other acquisition" to the definition so that it is no longer limited to interceptions that can be heard.

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"Subparagraph (a) establishes a blanket prohibition against the interception of wire communication. Since the facilities used to transmit wire communications form part of the interstate or foreign communications network, Congress has plenary power under the commerce clause to prohibit all interception of such communications whether by wiretapping or otherwise.

"The broad prohibition of subparagraph (a) is also applicable to the interception of oral communications. The interception of such communications, however, does not necessarily interfere with the interstate or foreign commerce network, and the extent of the constitutional power of Congress to prohibit such interception is less clear than in the case of interception of wire communications.

"Therefore, in addition to the broad prohibitions of subparagraph (a), the committee has included subparagraph (b), which relies on accepted jurisdictional bases under the commerce clause, and other provisions of the Constitution to prohibit the interception of oral communications." S.Rep.No.1097, 90th Cong., 2d Sess. 91-2 (1968).

21

9 Department of Justice Manual $9-60.221 (1989 Supp.).

22 "In order to underscore that the inadvertent reception of a protected communication is not a crime, the subcommittee changed the state of mind requirement under title III of the Omnibus Crime Control and Safe Streets Act of 1968 from 'willful' to 'intentional.' ... This provision makes clear that the inadvertent interception of a protected communication is not unlawful under this Act." S.Rep.No. 541, 99th Cong., 2d Sess. 23 (1986); H.R.Rep.No. 647, 99th Cong., 2d Sess. 48-9(1986).

23 The dictionary definition of "aural" is of or relating to the ear or to the sense of hearing.

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"WIRE, ORAL OR ELECTRONIC COMMUNICATIONS"

An interception can only be a violation of ECPA if the conversation or other form of communication intercepted is among those kinds which the statute protects. Congress used the definitions of the three forms of communications to describe the communications beyond the Act's reach as well as those within its grasp. For example, the definition of "wire communications" expressly excludes that portion of a cordless phone conversation which could be easily and inadvertently captured by an everyday radio. 24 The definition has been expanded, however, to embrace telephone conversations involving a private telephone system, systems once beyond the reach of Title III.26

An "oral communication" includes one uttered under circumstances justifying an expectation of privacy but does not embody "electronic communications."28

24

"[W]ire communication' means 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 a switching station) furnished or operated by any person engaged in providing or operating such facilities for the transmission of interstate or foreign communications for communications affecting interstate or foreign commerce and such term includes any electronic storage of such communication, but such term does not include the radio portion of a cordless telephone communication that is transmitted between the cordless telephone handset and the base unit," 18 U.S.C. 2510(1)(emphasis added).

"A cordless telephone consists of a handset and a base unit wired to a landline and a household/business electric current. A communication is transmitted from the handset to the base unit by AM or FM radio signals. From the base unit the communication is transmitted over wire, the same as a regular telephone call. The radio portions of these telephone calls can be intercepted with relative ease using standard AM radios." S.Rep.No. 541, 99th Cong., 2d Sess. 9 (1986)

26 Prior to enactment of ECPA, federal law did not extent to wiretapping on private systems, see 18 U.S.C. 2510(1)(1982 ed.)(definition of "wire communications"); United States v. Christman, 375 F.Supp. 1354 (N.D.Cal. 1974). The definition was modified to specify "that wire, cable, or similar connections furnished or operated by any person engaged in providing or operating such facilities for the transmission of 'communications affecting interstate or foreign commerce,' are within the definition of a 'wire communication. This language recognizes that private networks and intracompany communications systems are common today and brings them within the protection of the statute." S.Rep.No. 541, 99th Cong., 2d Sess. 11-2 (1986).

26 *[O]ral communication means any oral communication uttered by a person. exhibiting an expectation that such communication is not subject to interception under circumstances justifying such exception, but such term does

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