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Electronic Communications Privacy Act
The Electronic Communications Privacy Act ("ECPA") was enacted in 1986 as an extension of the Federal Wiretap Statute to include electronic communications. This Act protects our constitutional right to privacy by preventing cellular service companies, social networking sites, email communications and other forms of electronic messaging corporations from releasing personal data without legal process.
Forms of electronic communication generally fall under three categories: subscriber information, content-based information, and pen traps and trace. Subscriber information is information a user initially submits to create an account. For example, when someone signs up for an email account their registration information is considered subscriber data. Content-based information would typically be any information that is not considered subscriber data. Finally, when a pen trap and trace is installed the user's whereabouts can be monitored by the electronic messaging provider.
Each category of electronic data is afforded a different level of protection under ECPA with subscriber information being the least protected. Authors of ECPA believed ready release of subscriber data was largely innocuous. However, as technological advancements continue the distinctions between subscriber information and wire taps will be less apparent.
A new coalition of technology companies and advocacy groups called "Digital Due Process" is lobbying congress to amend ECPA thereby resulting in more privacy protection for online users. Currently, only a subpoena is required to obtain a user's online personal content. Depending upon the jurisdiction, a subpoena can be issued by an attorney or a judge. However, this new coalition plans to lobby congress for a complete overhaul of ECPA. Advocates expect law enforcement to procure a search warrant in order to obtain personal profile data. Since only judges can issue search warrants based on probable cause, law enforcement would have to satisfy a higher legal threshold under this amendment to ECPA.