Most people do not realize that the ECPA is made up of two main parts: one that
amended the Wiretap Act, and the other than amended the Stored Communications Act,
each of which has its own definitions, provisions, and cases interpreting the law.
The Wiretap Act has been around since 1918, but the ECPA extended its reach to electronic
communication when society moved that way. The Wiretap Act protects communications,
including wire, oral, and data during transmission, from unauthorized access
and disclosure (subject to exceptions). The Stored Communications Act protects some
of the same type of communications before and/or after it is transmitted and stored
electronically somewhere. Again, this sounds simple and sensible, but the split reflects
recognition that there are different risks and remedies associated with stored versus
active communications.
The Wiretap Act generally provides that there cannot be any intentional interception
of wire, oral, or electronic communication in an illegal manner. Among the continuing
controversies under the Wiretap Act is the meaning of the word ???interception.??? Does it
apply only when the data is being transmitted as electricity or light over some type of
transmission medium? Does the interception have to occur at the time of the transmission?
Does it apply to this transmission and to where it is temporarily stored on different
hops between the sender and destination? Does it include access to the information
received from an active interception, even if the person did not participate in the initial
interception? The question of whether an interception has occurred is central to the
issue of whether the Wiretap Act applies.
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