Author’s Comment: Your cell phone tells police a lot about you.A Judge recently provided written testimony about about the impact of the ECPA (Electronic Communications Privacy Act — that is a law that appears to be about anything but ensuring privacy of electronic communications). Title I of the ECPA 18 U.S.C.A. § 2510 allegedly protects wire, oral, and electronic communications while in transit. It was enacted to set down requirements for search warrants that are more stringent than in other settings. If you have issues or questions about this sweeping federal law, call me toll free at (813) 222-2220.
Excerpts from the written testimony are below. We will be posting the complete testimony and will link to that for our readers.
“ECPA was passed in 1986 as a laudable attempt to balance the privacy rights of citizens and the legitimate interests of law enforcement, given the communications technology of that day.”
Author’s Comment: The ECPA provides that many of the requests and records are to remain secret. Title II of the ECPA, the Stored Communications Act (SCA) 18 U.S.C. §§ 2701 to 2712 protects communication held in electronic storage, most notably messages stored on computers.
“By contrast, the SCA does not require $ 2703(d) orders to be sealed, and allows for “preclusion of notice” to others only if there is reason to believe the investigation would be jeopardized or other adverse consequences would result. 18 U.S.C. §§ 2705(b)(l)-(5).”
“There are over 500 federal magistrate judges serving in district courts around the country. In addition to civil matters, our responsibilities on the criminal side generally include almost everything except conducting felony trials.”
“One of our chief functions is to issue search warrants and other orders in aid of criminal investigations. These include electronic surveillance orders for pen registers, trap and trace devices, tracking devices, 2703(d) orders for telephone and e-mail account records and activity.”
“With rare exceptions, ECPA orders pertain to ordinary crimes and criminals, not national security or terrorism cases.”
“The process is exparte, meaning only one party – law enforcement – appears before the magistrate judge. Since this is at the criminal investigation stage, no defendant has yet been charged so no defense counsel is there to challenge the government’s request. Likewise, no representative of the electronic service provider or the target phone’s subscriber is present. In fact, the orders routinely contain gag orders precluding the service providerfromadvising their customers that the government is accessing their cell phone or e-mail account records. The public rarely learns about these orders, even long after issuance, because they are routinely placed under indefinite (i.e., permanent) seal.”
“A reasonable estimate is that the total number of electronic surveillance orders issued at the federal level each year substantially exceeds 10,000”
“The application sought “the location of cell site sector (physical address) at call origination (for outbound calling), call termination (for incoming calls) and, if reasonably available, during the progress of a call,” in addition to “the strength, angle, and timing of the caller’s signal measured at two or more cell sites, as well as other system information such as a listing of all cell towers in the market area, switching technology, protocols, and network architecture.” 390 F. Supp. 2d at 749. “
“Under ECPA, secrecy is achieved in two-ways: (1) gag orders preventing service providers from informing customers about law enforcement monitoring of their cell phone and e-mail usage; and (2) sealing orders denying public access to judicial orders. Typically, electronic surveillance orders contain both types of provisions, but rarely impose an expiration period; instead, those orders remain in place “until further order of the court.”29 The catch is that there is no mechanism in place for the judge to revisit the sealing order. She does not retain jurisdiction over the case, which is not a “case” at all but an investigation that may or may not ripen into a real case.”
“The brunt of such secrecy is not necessarily borne by the surveillance targets who are ultimately charged with a crime. After all, they are entitled to discover the nature and source of the prosecution’s evidence, including electronic surveillance orders leading to arrest. Suppression motions are available in the event of a constitutional violation. But not everyone caught up in the web of electronic surveillance is ultimately charged with a crime. Any target is likely to call or be called by family, friends, associates, or even total strangers who have no connection to a criminal enterprise. Yet by the fortuity of a single call, these by-standers may be swept up in a criminal investigation, their cell phone use monitored and their location tracked in real time. Unlike criminal defendants, however, these presumably law abiding citizens will never find out. The phone company cannot tell them, and courthouse records will disclose nothing. Ordinarily, a citizen whose house or office is searched is provided a warrant duly signed by a judicial officer, giving notice of the particulars of the search.33 When a citizen wishes to challenge the legitimacy of a law enforcement search of his home pursuant to a warrant, the law affords due process for that purpose. But when searches are shrouded in permanent secrecy, as in most cases of electronic surveillance, due process becomes a dead letter. Such secrecy also has a pernicious impact on the judicial process . . . .”
Author’s Comment: There are proposals to restrict the scope of this federal law, but as of today, November 22, 2010, the law and its ability to gather a diverse array of data about your cell phone usage remains a frequently used tool of federal law enforcement, including DHS (Department of Homeland Security) , DEA (Drug Enforcement Administration), FBI (Federal Bureau of Investigation), State, and Local Law Enforcement.
If you have issues or questions about this sweeping federal law, call me toll free at (813) 222-2220.
Cell Phone, Surveillance ,SCA, Stored Communications Act ,ECPA , 18 U.S.C. § 2510, 18 U.S.C. § 2701, , Electronic Communications Privacy Act
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