20. What is the “Electronic Communication Privacy Act of 1986” (ECPA)?
The ECPA protects individuals against unlawful interception of electronic communications by the Federal Government or individuals. Specifically, it restricts the ability to undertake wire taps, computer transmissions, stored electronic communications, and tracing of telephone communications, etc. It is a federal crime to undertake such activity without first receiving a court order or obtaining consent from a party to the communication. This means that one party to the conversation may record the conversation without another party’s knowledge. The Act protects communications while being made, as well as records of past communications. It is also a crime to use or disclose information obtained through this illegal means.
• Note: The ECPA does not cover video recordings without an audio recording component. States may further restrict the ability of individuals and the government to record private communications. Notably, some states require the consent of both parties before a communication may be recorded. The ECPA establishes higher standards for search warrants for active communications. The standard is not raised for records of communications.
• Discussion: How do you feel about the ability of the Federal Government and individuals to record private communications? Should the government have broader or narrower rights to record communications? Should both individuals be required to consent before recording an communication? Why or why not?
• Practice Question: ABC Corp has a retail store that is very popular. In order to gain greater understanding of their customer’s purchasing habits, ABC Corp sets up cameras and microphones in its stores in hopes of recording information about consumer preference for their products. Is what ABC Corp doing illegal?