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Am I Liable for Republishing Defamatory Statements?
Find out if a person would be held liable for republishing defamatory statements online, including: multiple publications & publisher liability.
This was an act enacted by the United States Congress to extend government restrictions on wiretaps from telephone calls to include transmissions of electronic data by computer. The Electronic Communications Privacy Act (ECPA) was an amendment to Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (the Wiretap Statute), which was primarily designed to prevent unauthorized government access to private electronic communications.
The ECPA also added new provisions prohibiting access to stored electronic communications, including the Stored Communications Act. The ECPA also included provisions that permit the tracing of telephone communications. The ECPA has been amended by the Communications Assistance to Law Enforcement Act (CALEA) (1994), the USA Patriot Act (2001), the USA Patriot reauthorization acts (2006), and the FISA Amendments Act (2008). The law entitles federal agencies to subpoena 180-day-old emails.
The electronic communication means 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 that affects interstate or foreign commerce. This does not include:
Title I of the ECPA protects wire, oral, and electronic communications while in transit. Title II of the ECPA, the Stored Communications Act (SCA), protects communications held in electronic storage, most notably messages stored on computers. Its protections are weaker than those of Title I, however, and do not impose heightened standards for warrants. Title III prohibits the use of trace devices to record dialing, routing, addressing, and signaling information used in the process of transmitting wire or electronic communications without a court order.
In Katz v. United States, the Supreme Court held that telephone conversations are protected by the Fourth Amendment and establishing the principle of a reasonable expectation of privacy.
In Smith v. Maryland (1979), the Supreme Court held that the use of trace devices does not constitute a search requiring a warrant.
In United States v. Warshak (2010), the 6th Circuit court held that law enforcement must have a warrant to obtain emails stored by email providers.
Lastly, in Application of the US (2010), the 3rd Circuit held that judges might require the government to obtain a warrant to access stored location information.
There are both civil and criminal penalties for a violation of the ECPA. A court can award damages to the victim of eavesdropping. The damages are calculated in a way that each day of continuation of the violation gives rise to a higher amount of damages. A court may also impose additional, punitive damages if the violation is especially malicious. Finally, a court may impose a term of imprisonment not to exceed five years for a violation of the ECPA.
Under the Act, it is illegal to:
Two main exceptions allow communications to be intercepted without violating the Act are:
Minc Law does not typically litigate ECPA claims. However, understanding the ECPA is critical for defamation cases in terms of the scope of discovery that can be obtained from third party service providers. This is especially the case in John Doe lawsuits, where obtaining as much information from email accounts and online service providers is critical to identify online defamers. The law of the right of privacy and wiretapping is complex. If you believe you are a victim of a violation of the ECPA then contact the experienced extortion lawyers at Minc Law to evaluate your case. The laws regarding the ECPA vary depending on the state. Call today to find out more information at (216) 373-7706.
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