Questions upon First Reading of
Electronic Communications Privacy Act
This statute is long, detailed, and complex. As you read it, please
keep the following questions in mind and try to answer them, or at least
to identify the statutory provisions most relevant to answering them.
Start by reading the whole statute quickly, for an overview, with
these questions in mind.
1. Why are there two separate but similar chapters in this statute
(Chapters 119 and 121, as codified)? What does one chapter cover
that the other does not, and is there any overlap?
2. Which definitions are most important in determining the statute's
overall coverage and its application vel non to particular cases?
What categories of communications do the definitions describe? Is
there any overlap among the categories, and, if so, to what extent?
3. What parts of the statute protect private communications against
snooping by private, i.e., nongovernmental, parties? What parts
of the statute protect private communications against snooping by various
branches of the government?
4. What definitions and statutory provisions determine whether communications
are "private" (not a statutory term, but a useful concept nevertheless)
and eligible for protection, and whether they are "open" and therefore
5. What are the principal exceptions and exemptions to the statute's
protection? with respect to private (nongovernmental) snooping?
with respect to governmental snooping? Are the exceptions
and exemptions appropriate? Are they clear and well defined?
6. What sanctions does the statute provide for violating its protection
of "private" communications? what criminal penalties? what
civil sanctions? Are the penalties and sanctions appropriate? Are
they clear and well defined?
7. What portions of the statute provide procedural protection against
court-ordered and otherwise permissible snooping? Does the statute
contain any analogue to the "exclusionary rule" familiar from
general criminal procedure? Does this protection adequately address
the constitutional rights of criminal suspects and other targets of investigations?
What risks, if any, do these statutory sources of procedural protection
pose to law enforcement and investigation? Are the risks justified?
What risks does the statute's procedural protection pose to foreign
intelligence and counterintelligence activities? Are they justified?
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