From EPIC 2.06: ======================================================================= [4] Appeals Court Rules on Pager Privacy ======================================================================= The US Court of Appeals for the 4th Circuit ruled on March 30 that communications of digital pagers are protected by the Electronic Privacy Communications Act (ECPA). The appeals court overturned a lower court decision that ruled that duplicate "clone pagers" could be obtained using a lower legal standard usually reserved for transactional information. The Appeals court found that since pagers could receive more information than just telephone numbers they were therefor protected as electronic communications. Under ECPA, interception of electronic communications requires that a judge issue a warrant showing "probable cause." However, ECPA only requires that for pen registers, which are devices that capture the telephone numbers dialed by a particular telephone line, that a judge "certify" that the "information likely to be obtained is relevant to an ongoing criminal investigation," a much lower standard. Since 1985, when the use of those devices were regulated by the ECPA, no federal judge has rejected any of the 22,000 warrant requests made by law enforcement officials. This lower standard is also now used to regulate law enforcement access to electronic transactional records under the recently passed Law Enforcement Communications Assistance Act of 1994. The court rejected the lower courts analysis based on legislative history of ECPA and a recognition that digital pagers can receive additional messages beyond mere telephone numbers: [A] digital display pager programmed to receive numeric transmissions has the capability to receive by that means coded substantive messages--whether or not it happens to do so during a particular period of interception by clone pager--is what makes the interception subject to the authorization requirements of sections 2516 and 2518. The case began when the Durnham, NC police department began to investigate one of its own employees and obtained a court order using the pen register standard for obtaining a "clone pager" that would intercept messages intended for Jamie Brown. The police department has also obtained a court order authorizing pen requesters to be placed on Brown's telephones. After a month, the police department was unable to find any evidence of wrong doing and sent a letter to brown apologizing for the investigation, describing it as "failing to meet high standards of professionalism." Brown then filed suit against the police department under the civil action available under the ECPA. The case has been remanded back to the lower court, which will now decide if the police are not liable because they are immune or they acted in good faith.
Lenny Foner Last modified: Thu May 18 00:41:39 1995