The Electronic Communications Privacy Control Act (EPCA, Public Law 99-508) was intended to address perceived vulnerabilities in privacy protections previously enacted, such as the Radio Control Act of 1927 and the Communications Act of 1934, which had been undermined both by government surveillance practices and by advances in communications and information technologies that early-20th century legislation could not have foreseen. In short, the Electronic Communications Privacy Act was an effort to close loopholes and make those previous efforts at protecting individual privacy more applicable in the contemporary technological environment.
Federal, state, and local law enforcement and federal intelligence agencies have wiretapped and bugged communications since the technology to do so has been available. Al Capone, the world-famous mobster from the 1920s, was the target of federal eavesdropping efforts, with wiretaps on Capone’s phones providing important intelligence on his activities. Today, the technologies for eavesdropping on telephone and internet communications enable governments and nongovernment hackers to intercept electronic communications through a variety of means. Basically, as Edward Snowden illuminated prior to his exile in Russia, the federal government has perfected the science of listening in on and reading the private communications of hundreds of millions of people. Legislation like the EPCA seeks to protect personal privacy by legally proscribing certain types of activities by law enforcement and intelligence agencies.
One prominent example of how EPCA sought to adapt the provisions of earlier legislation to the challenges posed by today’s electronic communications possibilities involves what are known as “pen registers” and “trap and trace” devices. Whereas most discussions of electronic communications focus on spoken and/or written words, pen registers and trap and trace devices do not capture the substance of communications. Rather, they allow users, presumably law enforcement and intelligence agencies, to identify the phone numbers from which communications are originating. As these technologies did not exist when earlier legislation was enacted, EPCA incorporated them into modern privacy protections by prohibiting their use, except under specified conditions. These specified conditions, however, provide for additional loopholes, such as the provision that allows for use of pen registers and trap and trace devices when it is suspected that conspiratorial activities on the part of organized crime elements are underway.
Individuals, per constitutional provisions and myriad court interpretations over the years, have an expectation of privacy when communicating via computer. That expectation is reaffirmed under EPCA. A major challenge, however, lies in the motivations of those seeking to intrude on the privacy of others.
The intractability of the issue of privacy protections was demonstrated yet again following the terrorist attacks of September 11, 2001. The Patriot Act revived debates about legal protections for citizens and the authority of the government, with the pendulum swinging back towards the government. Subsequently, members of Congress along with privacy activists continue to pursue legislative fixes to the seemingly unending litany of cases involving electronic communications and the balance between public safety and privacy.