US Internet Law/ECPA

The Electronic Communications Privacy Act (ECPA) sets out the provisions for access, use, disclosure, interception and privacy protections of electronic communications. The law was enacted in 1986 and covers various forms of wire and electronic communications. The Stored Communications Act is part of the Electronic Communications Privacy Act, and is discussed separately.

Two federal statutes govern real-time electronic surveillance in federal criminal investigations. The first and most important is the wiretap statute, 18 U.S.C. §§ 2510-2522, first passed as Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (and generally known as "Title III"). The second statute is the Pen Registers and Trap and Trace Devices chapter of Title 18 ("the Pen/Trap statute"), 18 U.S.C. §§ 3121-3127, which governs pen registers and trap and trace devices.

Title III and the Pen/Trap statute coexist because they regulate access to different types of information. Title III permits the government to obtain the contents of wire and electronic communications in transmission. In contrast, the Pen/Trap statute concerns the real-time collection of addressing and other non-content information relating to those communications. See 18 U.S.C. § 2511(h)(i) (stating that it is not a violation of Title III to use a pen register or trap and trace device); United States Telecom Ass'n v. FCC, 227 F.3d 450, 454 (D.C. Cir. 2000); Brown v. Waddell, 50 F.3d 285, 289-94 (4th Cir. 1995) (distinguishing pen registers from Title III intercept devices).