Transcript ECPA Primer
ISPs and Federal Privacy Law:
Everything You Need to Know About
the Electronic Communications
Privacy Act (ECPA)
Mark Eckenwiler
Computer Crime and Intellectual Property Section
U.S. Department of Justice
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The Computer Crime and
Intellectual Property Section
Founded in 1991 as Computer Crime Unit
Current staff of 22 attorneys
Mission of CCIPS
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Combat computer crime and IP crimes
Develop enforcement policy
Train agents and prosecutors
Contribute to public awareness of the issues
Promote international cooperation
Propose and comment on federal legislation
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Why You Might Care
About ECPA
Comprehensive privacy framework for
communications providers
Regulates conduct between
– different users
– provider and customer
– government and provider
Civil and criminal penalties for violations
Note: state laws may impose additional
restrictions/obligations
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Why ECPA Matters to
Law Enforcement
As people take their lives online, crime
follows; no different from the real world
Online records are often the key to
investigating and prosecuting criminal
activity
– “cyber” crimes (network intrusions)
– traditional crimes (threats, fraud, etc.)
ECPA says how and when government can
(and cannot) obtain those records
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Substantive Provisions
of ECPA
Or,
Everything you know is wrong
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ECPA & The Courts:
A Love Affair
“famous (if not infamous) for its lack of
clarity”
– Steve Jackson Games v. United States Secret
Service, 36 F.3d 457, 462 (5th Cir. 1994)
“fraught with trip wires”
– Forsyth v. Barr, 19 F.3d 1527, 1543 (5th Cir.
1994)
“a fog of inclusions and exclusions”
– Briggs v. American Air Filter, 630 F.2d 414,
415 (5th Cir. 1980)
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The Matrix
Acquisition in
Real Time
Historical
Information
Contents of
Communications
Other Records
(Subscriber and
Transactional
Data)
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Real-Time Acquisition of
Communications (Interception)
The default rule under § 2511(1): do not
– eavesdrop on others’ communications
– use or disclose illegally intercepted contents
Applies to oral/wire/electronic comms.
Violations may lead to
– criminal penalties (5-year felony) [§ 2511(4)]
» exception for first offense, wireless comms.
– civil damages of $10,000 per violation
– suppression
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Relevance to Computer Networks
Makes it illegal to install an unauthorized
packet sniffer
In several recent federal prosecutions,
defendants have pled guilty to interception
violations
– e.g., Cloverdale minors
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Exceptions to the
General Prohibition
Publicly accessible system [§ 2511(2)(g)(i)]
– open chat room/IRC channel
Consent of a party
System provider privileges
Court-authorized intercepts
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Consent of a Party
May be implied through
– login banner
– terms of service
Implied consent may give an ISP authority
to pass information to law enforcement and
other officials
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System Operator Privileges
Provider may monitor private real-time
communications to protect its rights or
property [§ 2511(2)(a)(i)]
– e.g., logging every keystroke typed by a
suspected intruder
– phone companies more restricted than ISPs
Under same subsection, a provider may also
intercept communications if inherently
necessary to providing the service
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Court-Authorized Monitoring
Requires a kind of “super-warrant”
– a/k/a “Title III order” (or T-3)
– § 2518
Good for 30 days maximum
Necessity, minimization requirements
Ten-day reporting
Sealing
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Types of Wiretap Orders
You May Encounter
Keystroking
– common in network intrusion cases
Cloning an e-mail account
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The Matrix
Acquisition in
Real Time
Contents of
Communications
Historical
Information
Title III order or consent,
generally
Other Records
(Subscriber and
Transactional
Data)
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Real-Time Transactional Records
The pen register/trap and trace statute (same
as for telephones) applies
Law enforcement may obtain a court order
to gather prospective non-content
information about a user, such as
– addresses on in/outbound e-mail
– inbound FTP connections
– where remote user is logging in from (dialup?
remote IP address?)
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The Matrix
Acquisition in
Real Time
Contents of
Communications
Title III order or consent,
generally
Other Records
(Subscriber and
Transactional
Data)
Pen register/trap and trace
order or consent
Historical
Information
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Stored Communications
and Historical Records
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Dichotomies ‘R’ Us
Permissive disclosure vs. mandatory
– “may” vs. “must”
Content of communications vs. non-content
– content
» unopened e-mail vs. opened e-mail
– non-content
» transactional records vs. subscriber information
Basic rule: content receives more protection
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Penalties for Stored Records &
Communications Violations
Civil remedies [18 U.S.C. § 2707]
– $1,000 minimum per violation
– attorneys’ fees
Criminal remedies [§ 2701]
– only for accessing stored communications
without authorization (e.g., one user snooping
in another’s inbox)
– inapplicable to the provider [§ 2701(c)(3)]
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Subscriber Content
and the System Provider
Any provider may freely read stored
e-mail or files of its customers
– Bohach v. City of Reno, 932 F. Supp. 1232 (D.
Nev. 1996) (pager messages)
While ECPA imposes no prohibition,
contractual agreement with customer may
limit right of access
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Public Providers and
Permissive Disclosure
General rule: a public provider (e.g., an ISP)
may not freely disclose customer content to
others [18 U.S.C. § 2702]
Exceptions include
– subscriber consent
– necessary to protect rights or property of
service provider
– to law enforcement if contents inadvertently
obtained, pertains to the commission of a crime
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Government Access to Stored
Communications Content
For unretrieved e-mail < 181 days old
stored on a provider’s system, government
must obtain a search warrant [18 U.S.C.
§ 2703(a)]
– Warrant operates like a subpoena
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Government Access to Stored
Communications Content
For opened e-mail (or other stored files),
government may send provider a subpoena
and notify subscriber in advance [18 U.S.C.
§ 2703(b)]
– government may delay notice 90 days in certain
cases (§ 2705(a))
– no notice to subscriber required if not a
provider “to the public”
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The Matrix
Contents of
Communications
Acquisition in
Real Time
Historical
Information
Title III order or consent,
generally
Warrant (for unopened
email) or consent
Subpoena with notice (for
files, opened e-mail) or
consent
Other Records
(Subscriber and
Transactional
Data)
Pen register/trap and trace
order or consent
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Permissive Disclosure and NonContent Subscriber Information
Rule is short and sweet
Provider may disclose non-content records
to anyone except a governmental entity
Government needs
– appropriate legal process
– or consent of subscriber
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The Two Categories of
Non-Content Information
Basic subscriber information
– §2703(c)(1)(C)
Transactional records
– § 2703(c)(1)(B)
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Basic Subscriber Information
Can be obtained through subpoena
Provider must give government
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name of subscriber
address
local and LD telephone toll billing records
telephone number or other account identifier
type of service provided
length of service rendered
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Transactional Records
Not content, not basic subscriber info
Everything in between
– past audit trails/logs
– addresses of past e-mail correspondents
Government may compel via a “section
2703(d) court order”
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Section 2703(d) Court Orders
a/k/a “articulable facts” order
– “specific and articulable facts showing that
there are reasonable grounds to believe that [the
specified records] are relevant and material to
an ongoing criminal investigation”
A lower standard than probable cause
Like warrant (& unlike subpoena), requires
judicial oversight & factfinding
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The Matrix
Contents of
Communications
Acquisition in
Real Time
Historical
Information
Title III order or
consent, generally
Warrant (for unopened
email) or consent
Subpoena with notice (for
files, opened e-mail) or
consent; may delay notice
Other Records
(Subscriber and
Transactional
Data)
Pen register/trap and
trace order or consent
Subpoena (for basic
subscriber info only),
consent
2703(d) “specific and
articulable facts” court
order (for all other noncontent records), consent
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Summary:
Legal Process & ECPA
Warrant
– unopened e-mail
Court order under § 2703(d)
– transactional records
Subpoena
– opened e-mail, unopened e-mail >180 days old,
or stored files
– basic subscriber info
Higher-order process always valid
– e.g., warrant can compel transactional logs
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ECPA In Practice: A Scenario
A victim reports a threat of physical injury
via e-mail from [email protected]
To determine StalkNU’s identity, gov’t
would serve a
on isp.com
For the target’s login records, gov’t serves a
_______ on isp.com
To obtain all the e-mail (opened and
unopened) in target’s account, gov’t serves a
________
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Preclusion of Notice
In criminal investigations, general policy is
to avoid tipping off target
Under ECPA, government may ask a court
to prohibit ISP from notifying subscriber
that records have been requested from ISP
[§ 2705(b)]
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§ 2703(f) Requests to Preserve
Government can ask for any existing
records (content or non-content) to be
preserved
– no court order required
– does not apply prospectively
Government must still satisfy the usual
standards if it wants to receive the preserved
data
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Summary
For better or worse, ECPA shapes your
destiny
Benefits of understanding (and complying
with) the statute include
– avoiding civil & criminal liability
– smoother relations with law enforcement
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Where To Get More Information
Computer Crime Section’s phone number:
202-514-1026
Computer Crime Section’s home page:
http://www.cybercrime.gov
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