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Congress passed the Electronic Communications Privacy Act of 1986 (ECPA) in order to expand the restrictions on the ability of the government to set up wiretaps on telephone calls. The act that it expanded was the Omnibus Crime Control and Safe Streets Act in the year 1968. This expansion of the act included transmissions of electronic data by computer. Subsequent updates to the law have included prohibiting the government’s access to stored electronic communications through the Stored Communications Act and Pen Register Act, which prevent the government from tracing electronic data sent through telephones and computers. Some additional changes to the Omnibus Crime Control and Safe Streets Act include the Patriot Act of 2001, which expanded the government’s ability to trace communications and its reauthorization in 2006. The FISA Amendments Act of 2008 also granted the federal government additional powers to trace electronic and telephone communications. This act is important because it describes which communications may be listened to, traced or followed by the federal government when investigating crimes.
The Omnibus Crime Control and Safe Streets Act of 1968 protects individuals from the unlawful monitoring of electronic communications by the federal government. It essentially grants individuals some rights to privacy when communicating domestically or internationally. The act makes it a federal crime for the government to trace telephone, wire, computer or stored electronic communications without a court order or the consent of the party whose communications are being recorded or traced. The 1968 Omnibus Crime Control and Safe Streets Act includes in-the-moment and past communications. The act also includes language that makes it a federal crime to distribute any information collected without a court order or consent of the affected party.
The ECPA specifically prohibits the government from conducting wire, telephone and computer surveillance without a court order or consent. It also has provisions for private individuals who do this. It makes eavesdropping, wire tapping or attempting to wiretap or record private conversations a crime if these activities are done by a private individual. Keep in mind that the ECPA only includes surveillance of communications with the aid of an electronic device. If the communications are monitored aurally, or simply listened to, the ECPA doesn’t prohibit this.
The ECPA and its amendments stop the government from recording or using any aural transfers made through wire, cable or similar connections. If a person engages in an oral conversation with another party when there is no expectation of anyone listening to the conversation, the ECPA protects these communications. For example, if a person calls their mother and describes a crime they committed, they have a reasonable expectation that law enforcement are not listening to the call. However, if the mother consented to recording the conversation, the government may do so. If the government has a court order to record the mother’s calls or the child’s calls, it may do so.
None of the expansions of the ECPA include video recordings that do not have an audio component. A person should expect to have no right to privacy when they are in a public setting or in a business. Businesses, the government and individuals have the right to create video recordings of others engaging in normal activities in a public setting. For example, the government can place security cameras at the entrances of post offices, and the video recordings can be used in the investigation of a crime. No court order or consent of the recorded party is required in this case. Businesses can set up video cameras near cash registers and checkouts and use them in the investigation of theft crimes, so long as no audio is included in the recordings.
The penalties for individuals who are convicted of violations of the ECPA include as much as five years in prison and fines up to $250,000. A victim can file a civil suit for additional damages. Victims who are illegally recorded under the ECPA cannot sue the United States government. However, illegally collected material cannot be used in court.