Federal Surveillance Statutes

Electronic Communications Privacy Act of 1986 (“ECPA”)

ECPA amended the Wiretap Act.  Specifically, it:

  • extended the privacy protection of the Wiretap Act so it covered not only telephone conversations but also cellular radio calls and computer transmissions.  The exception for lawful electronic surveillance was also extended to the new services.
  • added a group of provisions known as the “Pen Register Act,” which permits a court to authorize a law enforcement agency, upon a showing of “relevance,” to monitor the inbound and outbound signaling of a suspect’s communications but not the suspect’s communications content.  The monitoring of signaling information is legally considered less privacy sensitive than the monitoring of communications content.
  • added a group of provisions known as the “Stored Communications Act” to protect the privacy of communications records such as telephone or cellular billing records.  A law enforcement agency may collect these “stored” records from a communication service provider under legal standards lower than “probable cause” because records disclosures are legally deemed less privacy-sensitive than the real-time content surveillance permitted under the Wiretap Act.

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Foreign Intelligence Surveillance Act of 1978 (“FISA”)

FISA authorized the collection of “foreign intelligence information” regarding “foreign powers” and “agents of foreign powers.”  The purpose of FISA surveillance could be to protect against espionage, terrorism, or other national security threats.  FISA surveillance is authorized by a rotating group of federal court judges who collectively make up the FISA court.

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The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (the “USA PATRIOT Act”)

After the 9/11 terrorist attack Congress amended FISA by passing the PATRIOT ACT, which among other things permitted surveillance of terrorists even when they were not associated with a foreign power or agent of a foreign power.

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FISA Amendments Act of 2008

This amendment to FISA permitted the intelligence community to access domestic communications facilities when conducting surveillance on “persons reasonably believed to be outside the US,” provided that sufficient “minimization” techniques were employed to avoid intercepting the communications of U.S. citizens inside or outside the U.S., or non-U.S. citizens inside the U.S.  The law sought to address the legal difficulties of tracking terrorists who use Internet communications, which frequently cross national borders and do not identify the nationalities of the communicating parties.

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The Omnibus Crime Control and Safe Streets Act of 1968 (the “Wiretap Act”)

The Wiretap Act protected the privacy of telephone conversations and created various exceptions from the general privacy-protection rule.  For example, the Act stated that a criminal court may authorize a law enforcement agency, upon a showing of “probable cause,” to conduct lawful electronic surveillance on a criminal suspect.

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FTC Act – Section 5 – 15 USCS § 57a  The FTC regulates privacy through case-by-case investigations and consent decrees in response to consumer complaints.  However, their source of authority is Section 5 of the FTC Act (“unfair and deceptive trade practices”).

Cable Act – 47 USCS § 551  Section 551 The United States Cable Act establishes the legal process by which government and non-government entities must adhere to in order to obtain subscriber data from cable companies.