FALL 2010
Course No.: 9200-710 (& 810)-001
Course ID:  85723 & 85725
Time: M, W 4:45-6:15 p.m.
Room TBD
Professor Jay Dratler, Jr.
Across from Room 231D (IP Alcove)
Home: 330-835-4537
Copyright © 2000, 2001, 2002, 2003, 2004, 2005, 2006, 2008, 2010  Jay Dratler, Jr.  
For permission, see CMI.

Questions and Notes on the ECPA and Steve Jackson Games

1.  The ECPA's definitional section, 18 U.S.C. § 2510, is an important key to understanding the statute's purpose and scope.  The statute's most basic definitions are those governing three types of communications—"electronic." "wire," and "oral" communications—in subsections (12), (2), and (1), respectively.  Study those definitions carefully, and make a Venn diagram of their overlap (or lack thereof).

Which of the three definitions (if any) are mutually exclusive, and which might overlap (and in what respects)?  What key concepts differentiate the definitions, each from the others?

What was Congress' apparent purpose in defining these terms separately?  Under which of the three definition(s) would the following communications between two individuals fall: (1) a face-to-face conversation; (2) a telephone conversation; (3) a telephone conversation that is digitized and transmitted over the Internet; and (4) an exchange of electronic mail messages?

2.  Now look at the definition of "electronic, mechanical, or other device" in subsection (5) of 18 U.S.C. § 2510.  What is the purpose of the exceptions to this definition?  Whom or what do they protect from possible legal action for privacy violations?

3.  How is the definition of "readily accessible to the general public" used in the statute?  Whom or what does it protect?  Is the definition consistent with common understanding of what communications ought and ought not be protected?  Is it consistent with the standard for protecting private communications under the Fourth Amendment?

4.  The definitions of "electronic communications system," "electronic communications service," and "electronic storage" are primarily (but not exclusively) used in Chapter 121.  How do they control the scope of that chapter?  What types of Internet service providers might these definitions cover?

5. The ECPA has two chapters: Chapter 119, 18 U.S.C. §§ 2510 -2521, and Chapter 121, 18 U.S.C. §§ 2701-2712.  Both cover various type of communications. Generally speaking, Chapter 119 covers communications in transit, while Chapter 121 covers communictions in storage.  Which chapter provides greater protection of privacy?  Is the difference appropriate?  Note the difference in treatment between communications stored for 180 days or less, and those stored for more than 180 days.  Is the difference appropriate?

6.  Steve Jackson games involved private e-mail messages stored on a private computer, which the Secret Service Seized without complying with the Act's procedures.  Is the court right in concluding that the Secret Service, in seizing the computer and reviewing the messages on it, did not "intercept" those messages?  The court analogizes the case of United States v. Tank, in which authorities seized audio tapes from a car's trunk.  Is that case analogous?

7.  Is the Steve Jackson court right in concluding that only Chapter 121, and not Chapter 119, was intended to covered stored communications such as e-mail?  In interpreting the statute, the court looks at the statute's plain language, congressional intent, the statute's organization, the interaction of its various provisions, and the differing penalties for violating the two chapters.  Which technique of statutory interpretation do you find most convincing?  Are you persuaded that no "interception" occurred?

8.  The court suggests that the ECPA is hardly crystal clear.  Do you agree?  Did the amendments made by the USA Patriot Act of 2001, which responded to the terrorist attacks on September 11 of that year, make the statute any clearer?  Do you detect any consistent themes running through those amendments?

9.  The ECPA attempts to control both private and governmental invasions of privacy.  Which provisions address private action, and which address governmental action?  Section 2515 provides an "exclusionary rule" for evidence obtained in violation of Chapter 119.  Does Chapter 121 have any similar provision?

In any event, is the ECPA the "last word" on what evidence can be excluded from legal proceedings?  Or does the Fourth Amendment provide an additional basis for excluding evidence that is relevant but improperly obtained?  What light, if any, do Crowley and McNulty (In re Askin) shed on whether the Fourth Amendment imposes any additional restrictions on the government's ability to collect evidence for use in judicial proceedings?

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