There are numerous federal statutes that govern access by law enforcement to electronic information that may be sought as part of a criminal investigation. There is significant legal debate in the courts about how these laws, none of which contemplated modern smartphones or social media sites, apply in the 21st century. Law enforcement and prosecutors will need to comply with state law provisions concerning the search and seizure of electronic information if they differ from federal requirements, creating additional challenges. A brief description of the dominant statute, Electronic Communications Privacy Act (ECPA) is provided, followed by additional provisions and related laws that govern the search and seizure of electronic information.
Electronic Communications Privacy Act (ECPA): 18 U.S.C. §§ 2510-2522
The Electronic Communications Privacy Act (ECPA) sets forth the standards and processes for law enforcement to obtain information about electronic communications. The Act prohibits real-time interception or recording of wire, oral, or electronic communications; however, law enforcement may obtain a court order to permit the interception and recording of electronic communications, as well as oral (physically spoken) and wire (telephone) communications, in specific circumstances.
Section 2516(2) of the Act describes how a state prosecutor may apply to a state court judge for an order authorizing or approving the interception of wire, oral, or electronic communications by investigative or law enforcement officers having responsibility for the investigation of the offense, “when such interception may provide or has provided evidence of the commission of the offense of murder, kidnapping, gambling, robbery, bribery, extortion, or dealing in narcotic drugs, marihuana or other dangerous drugs, or other crime dangerous to life, limb, or property, and punishable by imprisonment for more than one year, designated in any applicable State statute authorizing such interception, or any conspiracy to commit any of the foregoing offenses.”
- Office of Justice Programs summary: https://it.ojp.gov/PrivacyLiberty/authorities/statutes/1285
- Congressional Research Service summary: https://www.fas.org/sgp/crs/misc/R41733.pdf
Given the changes in technology that have occurred since ECPA was passed in 1986, it is unsurprising that there have been a number of attempts to update it. Information regarding proposed amendments to ECPA is available through several sources. The text of proposed amendments to ECPA and the history of these bills is available online through the Library of Congress. Additional information about the role ECPA plays in criminal investigations and potential reasons why it may need to be updated is available through testimony presented at Congressional hearings. Finally, prominent scholars have discussed several ways ECPA could be updated.
- Information regarding proposed legislation can be found at: http://thomas.loc.gov/home/thomas.php
- Congressional testimony from Department of Justice officials regarding potential updates to ECPA can be found at: http://www.justice.gov/opa/speech/acting-assistant-attorney-general-elana-tyrangiel-testifies-us-house-judiciary
- Records from the Congressional Hearing concerning potential updated to ECPA can be found at: http://fas.org/irp/congress/2013_hr/ecpa.pdf
- Orin S. Kerr, A User’s Guide to the Stored Communications Act, and a Legislator’s Guide to Amending it: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=421860
Stored Communications Act (“SCA”): 18 U.S.C. §§ 2701-2712
- The SCA permits law enforcement access to electronic communications (such as email) that have been stored for 180 days or less only pursuant to a warrant.
- Law enforcement may obtain access to the content of electronic communications (such as email) that have been stored for more than 180 days without providing notice to the subscriber or customer if the state prosecutor has obtained a warrant, administrative subpoena , grand jury or trial subpoena. See Section 2703 (a) and (b). However, at least one federal circuit court has found that the content of electronic communications is protected by the Fourth Amendment and can only be obtained with a search warrant, regardless of the length of storage. See United States v. Warshak, 631 F.3d 266 (6th Cir. 2010).
- Law enforcement may obtain specific records about electronic communications of a subscriber or customer with an administrative, grand jury, or trial subpoena. Although the content of the electronic communications cannot be obtained, law enforcement may obtain name, address, records of sessions, including times and duration, local and long distance connection records, length of service and types of services utilized, telephone and instrument number or other subscriber number or identity, including any temporarily assigned network address, and the means and source of payment, including credit card or bank account number. See Section 2703 (c) (2) (a – f).
- Law enforcement may only obtain historic Cell Site Location Information (CSLI) of a subscriber or customer with a traditional search warrant. See Carpenter v. United States, 138 S.Ct. 2206 (2018) (recognizing “the deeply revealing nature of CSLI, its depth, breadth, and comprehensive reach, and the inescapable and automatic nature of its collection” and finding “the fact that such information is gathered by a third party does not make it any less deserving of Fourth Amendment protection.
Pen Register and Trap and Trace (“PR/TT”): 18 U.S.C. §§ 3121-3127
- PR/TT permits law enforcement to obtain electronic wire and dialing and routing information, such as email headers and IP address information. See United States v. Forrester, 512 F.3d 500, 510 (9th Cir. 2008) (email to/from addresses and IP addresses constitute addressing information).
- Section 3122 (a) (2) provides, “Unless prohibited by State law, a State investigative or law enforcement officer may make application for an order or an extension of an order under section 3123 of this title authorizing or approving the installation and use of a pen register or a trap and trace device under this chapter, in writing under oath or equivalent affirmation, to a court of competent jurisdiction of such State.”
- Section 3122 (b) (1) and (2) outline what the contents of an application for a trap and trace or pen register shall include:
(1) “the identity of the attorney for the Government or the State law enforcement or investigative officer making the application and the identity of the law enforcement agency conducting the investigation;” and
(2) ”a certification by the applicant that the information likely to be obtained is relevant to an ongoing criminal investigation being conducted by that agency.”
Privacy Protection Act (“PPA”): 42 U.S.C. §§ 2000aa
- The PPA prohibits law enforcement from searching or seizing work product from a person reasonably believed to publish public communications, like a newspaper, book or broadcast.
- A warrant can be obtained for such work product if there is probable cause to believe that the person possessing such materials has committed, or is committing, a crime to which the materials relate, or if seizure is necessary to prevent death or serious bodily injury, among several other narrow exceptions. See 42 U.S.C. 2000aa (a) (1) and (2)