The Electronic Communications Privacy Act (“ECPA”) prohibits interception of “any wire, oral, or electronic communication.” 18 U.S.C. § 2511. Electronic communication is defined as “any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photo-electronic or photo-optical system.” 18 U.S.C. § 2510. This does not include stored communications (see the Stored Communications Act), wire or oral communications, or tracking devices. Users may also not use any device designed to intercept electronic communications, disclose to another the means to intercept electronic communications, or knowingly use the contents of any intercepted electronic communications. 18 U.S.C. § 2511.
Social media sites may not intercept users’ electronic communications outside of the normal course of business. This means that Facebook, for example, may not indiscriminately peruse private messages between two users absent authorization from at least one of those users. See, e.g., In re Subpoena Duces Tecum to AOL, LLC, 550 F. Supp. 2d 606, 609 (E.D. Va. 2008) (preventing AOL from accessing e-mail messages of two insurance claims adjusters). Exceptions exist, naturally, such as authorization from the owner of a computer who was victim to trespass or verification of transmission to protect someone from fraud or abuse. Likewise, a social media site may read electronic communication to comply with a legal court order, though it is not required to follow a subpoena in a civil case. Additionally, ECPA provides an exception for messages that are “readily accessible to the general public.” 18 U.S.C.A. § 2511(2)(g)(i)).
ECPA treats law enforcement agencies differently, however. A court order obtained by a government entity opens up a 30-day (renewable) window to conduct an interception. Emergency exceptions exist for situations that involve 1) imminent risk of death or serious bodily injury, 2) actions or conspiracies that threaten national security, or 3) actions or conspiracies relating to organized crime. 18 U.S.C. § 2518(7). Even so, the government entity must obtain the requisite court order within 48 hours or terminate the interception. In complying with a court order of this nature, the social media site may request appropriate reimbursement for reasonable expenses. 18 U.S.C. § 2518(4).
Seth Jaffe (sjaffe@fulbright.com / +1 713 651 5370) is an associate in Fulbright’s Intellectual Property Practice Group.
