The framers of the Constitution established into law the basic right of privacy through the Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

While the framers likely did not consider the technological advancements that would be forthcoming over the coming years and centuries, the interpretation of the Constitution continued to evolve. New technologies often create issues that exceed the definitions within existing law, and courts must attempt to rationalize the new technology allegorically to an understood and defined issue until new laws are passed. The framers understood written correspondence, and the importance of privacy in the mail. The telegraph represented a leap forward in communication in the mid-1800s, as did telephone communication in the late 1800s.

As technology advanced, so did the law enforcement capabilities of the U.S. government. The U.S. Marshal Service began on September 24, 1789, when President George Washington appointed the first 13 U.S. Marshals following the passage of the first Judiciary Act. The Secret Service Division was created on July 5, 1865, in Washington, D.C., to suppress counterfeit currency. In 1908, President Theodore Roosevelt transferred Secret Service agents to the Department of Justice; they formed the nucleus of what is now the Federal Bureau of Investigation (FBI). The scope of enforcement of the federal law enforcement agencies grew in the 20th century to include pursuit of organized crime, drug trafficking, political insurgencies, and terrorism, among others.

New communication technologies provide benefit to the users of such technology, and also create new potential sources of evidence in the investigation of criminal activities. Law enforcement investigation and surveillance techniques have been adept at exploiting emerging technologies, often because legal limits regarding access to the contents carried by the new technology have not yet been defined.

Legislation in the 20th century and beyond became a struggle to balance the protection of an individual’s right of privacy from government intrusion and the legitimate needs of law enforcement in the conduct of their duties. At a federal level, numerous laws were passed dealing with privacy and access issues. Several of the notable acts in this area are discussed below.

Communications Act of 1934

In the early part of the 20th century, radio and telephone were bourgeoning industries in the United States, and law enforcement had already begun to mine these communications for evidence. Roy Olmstead, an alleged bootlegger from the Pacific Northwest, was convicted on evidence including wiretapped telephone conversations obtained by federal agents without judicial approval.¹ The Supreme Court of the United States determined that obtaining such evidence did not violate the Fourth or Fifth Amendment rights of the defendant. (For additional discussion of this case, see Chapter 10.)

By 1930, telephones were installed in more than 40 percent of homes. Radios were in more than 35 percent of homes, and adoption rates approached 10 percent per year.² The government felt it was time to bring increased organization and oversight to these technologies and passed the Communications Act of 1934.

Notably, this act created the Federal Communications Commission (FCC), including procedural and administrative provisions to enforce the orders of the commission, and codified the government’s oversight of the broadcast spectrum. The act also transferred oversight of the telephone industry from the interstate commerce commission to the FCC. The act was signed by President Franklin Roosevelt on June 19, 1934.

The Act provided protection for communication via wire or radio, however, communication could be revealed “in response to a subpena[sic] issued by a court of competent jurisdiction, or on demand of other lawful authority”:

SEC. 605. No person receiving or assisting in receiving, or transmitting, or assisting in transmitting, any interstate or foreign communication by wire or radio shall divulge or publish the existence, contents, substance, purport, effect, or meaning thereof, except through authorized channels of transmission or reception, to any person other than the addressee, his agent, or attorney, or to a person employed or authorized to forward such communication to its destination, or to proper accounting or distributing officers of the various communicating centers over which the communication may be passed, or to the master of a ship under whom he is serving, or in response to a subpena[sic] issued by a court of competent jurisdiction, or on demand of other lawful authority; and no person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person; and no person not being entitled thereto shall receive or assist in receiving any interstate or foreign communication by wire or radio and use the same or any information therein contained for his own benefit or for the benefit of another not entitled thereto; and no person having received such intercepted communication or having become acquainted with the contents, substance, purport, effect, or meaning of the same or any part thereof, knowing that such information was so obtained, shall divulge or publish the existence, contents, substance, purport, effect, or meaning of the same or any part thereof, or use the same or any information therein contained for his own benefit or for the benefit of another not entitled thereto: Provided, That this section shall not apply to the receiving, divulging, publishing, or utilizing the contents of any radio communication broadcast, or transmitted by amateurs or others for the use of the general public, or relating to ships in distress.³

The Communications Act of 1934 was replaced by the Telecommunications Act of 1996, which redefined the regulatory oversight of communications in the United States, but privacy issues were reconsidered much earlier than that.

Title III—Omnibus Crime Control and Safe Streets Act, 1968

The 1960s were a time of change in the United States, and the law enforcement process was no exception. New laws and court decisions focused on the procedures employed by law enforcement agencies in the conduct of their duties, including renewed interest in the rights of the accused.

The problem of crime in the United States became a campaign issue in the 1964 election. Lyndon B. Johnson was reelected by a landslide, and soon after, he acknowledged the need for a federal response to crime and public safety. On July 23, 1965, Johnson established the President’s Commission on Law Enforcement and Administration of Justice through executive order 11236.⁴ In February 1967, eighteen months after receiving Johnson’s mandate, the Commission issued its report, “The Challenge of Crime in a Free Society.”

The Commission examined every facet of crime and enforcement in the United States.⁵ Relative to wiretapping and electronic eavesdropping the commission noted the struggle to balance the protection of an individual’s right of privacy from government intrusion and the legitimate needs of law enforcement in the conduct of their duties. The report observed “the state of the law in this field is so thoroughly confused that no policeman, except in States that forbid both practices totally, can be sure about what he is allowed to do.”⁶

The great majority of law enforcement officials believe that the evidence necessary to bring criminal sanctions to bear consistently on the higher echelons of organized crime will not be obtained without the aid of electronic surveillance techniques. They maintain these techniques are indispensable to develop adequate strategic intelligence concerning organized crime, to set up specific investigations, to develop witnesses, to corroborate their testimony, and to serve as substitutes for them—each a necessary step in the evidence-gathering processes in organized crime investigations and prosecutions.⁷

Enactment of Section 605 of the Federal Communications Act in 1934 precluded interception and disclosure of wire communications. The Department of Justice has interpreted this section to permit interception so long as no disclosure of the content outside the Department is made. Thus, wiretapping may presently be conducted by a Federal agent, but the results may not be used in court. When police officers wiretap and disclose the information obtained, in accordance with State procedure, they are in violation of Federal law.⁸

In a democratic society privacy of communication is essential if citizens are to think and act creatively and constructively. Fear or suspicion that one’s speech is being monitored by a stranger, even without the reality of such activity, can have a seriously inhibiting effect upon the willingness to voice critical and constructive ideas. When dissent from the popular view is discouraged, intellectual controversy is smothered, the process for testing new concepts and ideas is hindered and desirable change is slowed. External restraints, of which electronic surveillance is but one possibility, are thus repugnant to citizens of such a society.⁹

The report concluded that “The present status of the law with respect to wiretapping and bugging is intolerable. It serves the interests neither of privacy nor of law enforcement. One way or the other, the present controversy with respect to electronic surveillance must be resolved. The Commission recommends: Congress should enact legislation dealing specifically with wiretapping and bugging.”¹⁰

Congress passed legislation to implement many of the recommendations of the Commission on Law Enforcement and Administration of Justice in the Omnibus Crime Control and Safe Streets Act of 1968. This act was a broad legislative work, including the establishment of federal resources and funding for local law enforcement efforts, additional controls over firearm sales, and provisions that a court may authorize limited interception of electronic communications if certain procedural requirements are met.¹¹

The procedures under the Act stated, “The Attorney General, or any Assistant Attorney General specially designated by the Attorney General, may authorize an application to a Federal judge of competent jurisdiction for, and such judge may grant in conformity with section 2518 of this chapter an order authorizing or approving the interception of wire or oral communications by the Federal Bureau of Investigation, or a Federal agency having responsibility for the investigation of the offense as to which the application is made,” when such interception may provide evidence of certain crimes, including violations of the Atomic Energy Act, espionage, sabotage, treason, and activities of organized crime.¹² Additionally, the Act defined that a state Attorney General could authorize an application to a State Judge for interception of communication if such interception may provide evidence of felony offenses.¹³

The Act specified several restrictions to ensure that surveillance procedures were focused and limited. To be approved, the application needed to state details of the offense that had been or was about to be committed; a description of the facilities from which the interception was to take place; description of the type of communication to be intercepted; the identity of the, person, if known, whose communications were to be intercepted; and the length of time the interception would continue. There also needed to be a showing that other investigative procedures had been tried and failed, or would probably fail or be too dangerous, and if other interceptions involving the same individuals or facilities had taken place.¹⁴

The Act also made clear that the results of legally obtained intercepted communications could be shared with other law enforcement personnel engaged in the conduct of their duties, or to a state or criminal proceeding or Grand Jury.¹⁵

Despite the number of considerations that would need to be documented within the application to authorize the interception of communications, President Johnson did not believe the restrictions were adequate to protect the rights of citizens. Comments made by President Lyndon B. Johnson upon signing the Omnibus Crime Control and Safe Streets Act on June 9, 1968, noted his concern with several of the Act’s provisions:

Title III of this legislation deals with wiretapping and eavesdropping.

My views on this subject are clear. In a special message to Congress in 1967 and again this year, I called—in the Right of Privacy Act—for an end to the bugging and snooping that invade the privacy of citizens.

I urge that the Congress outlaw “all wiretapping and electronic eavesdropping, public and private, wherever and whenever it occurs.” The only exceptions would be those instances where “the security of the Nation itself was at stake—and then only under the strictest safeguards.”

In the bill I sign today, Congress has moved part of the way by

• –banning all wiretapping and eavesdropping by private parties;
• –prohibiting the sale and distribution of “listening-in” devices in interstate commerce.

But the Congress, in my judgment, has taken an unwise and potentially dangerous step by sanctioning eavesdropping and wiretapping by Federal, State, and local law officials in an almost unlimited variety of situations.

If we are not very careful and cautious in our planning, these legislative provisions could result in producing a nation of snoopers bending through the keyholes of the homes and offices in America, spying on our neighbors. No conversation in the sanctity of the bedroom or relayed over a copper telephone wire would be free of eavesdropping by those who say they want to ferret out crime.

Thus, I believe this action goes far beyond the effective and legitimate needs of law enforcement. The right of privacy is a valued right. But in a technologically advanced society, it is a vulnerable right. That is why we must strive to protect it all the more against erosion.

I call upon the Congress immediately to reconsider the unwise provisions of Title III and take steps to repeal them. I am directing the Attorney General to confer as soon as possible with the appropriate committee chairmen and warn them of the pitfalls that lie ahead, in the hope that the Congress will move to repeal the dangerous provisions of this title.

Until that can be accomplished we shall pursue–within the Federal Government–carefully designed safeguards to limit wiretapping and eavesdropping. The policy of this administration has been to confine wiretapping and eavesdropping to national security cases only–and then only with the approval of the Attorney General.

This policy, now in its third year, will continue in force. I have today directed the Attorney General to assure that this policy of privacy prevails and is followed by all Federal law enforcement officers.

Many States have protected the citizen against the invasion of privacy by making wiretapping illegal. I call upon the State and local authorities in the other States to apply the utmost restraint and caution if they exercise the broad powers of Title III. We need not surrender our privacy to win the war on crime.¹⁶

Title III remained the law governing the interception of communications for the next 19 years.

Advancements in Telephone System Technologies

The telecommunications industry continued to evolve and grow through the 1970s and 1980s. In 1971, Erna Schneider Hoover, a researcher at Bell Labs, received a patent for a computerized switching system for telephone call traffic. This ushered in the age of digital switched voice communications, where voice traffic was transmitted in digital format rather than in analog format. Telephone companies soon began offering ISDN (Integrated Services Digital Network) services that included both voice traffic and data traffic, and computer networking continued to grow.

The Electronic Mail Association, a Washington-based trade association of the fledgling industry, was created in 1983, and by 1985 included over 60 members. The association predicted that “during the next decade, electronic mail will become a regular part of the communications mix that a substantial number of Americans use in the workplace, and increasingly at home as well.”¹⁷

Surveillance techniques continued to grow as well. A pen register is a device that surreptitiously records the numbers of all outgoing calls dialed on a telephone line. In 1979, the Supreme Court of the United States held that such a device was not a search within the meaning of the Fourth Amendment, and, thus, no warrant was required to use such a device.¹⁸ Trap and trace devices were similarly used to capture the numbers of inbound calls.

The emergence of data communications (i.e., computers and devices transmitting data between themselves, the digitization and transmission of voice traffic, and communication through microwave broadcast) substations exceeded the definitions within Title III of the Omnibus Crime Control and Safe Streets Act. In 1977 the Supreme Court held that the Act only covered communication that could be heard.¹⁹ The court opined “Title III is concerned only with orders ‘authorizing or approving the interception of a wire or oral communication. . . .’” Congress defined “intercept” to mean “the aural acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical, or other device.” Thus, the gathering of number dialed, such as through the use of a pen register, or accessing digital communications was not covered by the Act. There were also unresolved issues related to communication interception by non-law enforcement personnel.

The Foreign Intelligence Surveillance Act (FISA) of 1978 defines procedures for requesting judicial authorization for electronic surveillance by law enforcement of persons believed to be engaged in espionage or international terrorism against the United States on behalf of a foreign power; this was a question unanswered by Article 3 of the Omnibus Crime Control Act. The FISA required probable cause to believe that “the target of the electronic surveillance is a foreign power or an agent of a foreign power; provided, that no United States person may be considered a foreign power or an agent of a foreign power solely upon the basis of activities protected by the first amendment to the Constitution of the United States.”²⁰ Article 3 of the Omnibus Crime Control Act also was not clear on penalties for electronic eavesdropping by non-law-enforcement personnel; this remained unanswered by the FISA:

The criminal provisions in FISA only apply to law enforcement officers inasmuch as they state that a person is guilty of an offense only if he engages in electronic surveillance “under color of law” except as authorized by statute. Thus, a private person who without authority makes a nonaural acquisition of information from a telephone line between two computers, or from a radio transmission between two computers for the purpose of personal financial gain does not violate either the criminal provisions in FISA or in Title III, while an FBI agent who does the same thing in the course of a complicated criminal investigation, is himself in violation of the law.²¹

The Congressional Office of Technology Assessment (OTA) conducted a review of the technology and policy history of electronic surveillance, and the mid-1980s technological environment. Their observations included:

• The contents of phone conversations that are transmitted in digital form or calls made on cellular or cordless phones are not clearly protected by existing statutes.
• Data communications between computers and digital transmission of video and graphic images are not protected by existing statutes.
• There are several stages at which the contents of electronic mail messages could be intercepted: (1) at the terminal or in the electronic files of the sender, (2) while being communicated, (3) in the electronic mailbox of the receiver, (4) when printed into hard copy, and (5) when retained in the files of the electronic mail company or provider for administrative purposes. Existing law offers little or no protection at most of these stages.
• Legislated policy on electronic physical surveillance (e.g., pagers and beepers) and electronic visual surveillance (e.g., closed circuit TV and concealed cameras) is ambiguous or nonexistent.
• Legislated policy on database surveillance (e.g., monitoring of transactions on computerized record systems and data communication linkages) is unclear.
• There is no immediate technological answer to protection against most electronic surveillance, although there are emerging techniques to protect communication systems from misuse or eavesdropping (e.g., low-cost data encryption).²²

The increasing complexity of telecommunications and the growth of computer networking and data services caused many in the legislature to wonder if eavesdropping and surveillance issues had outgrown Title III of the Omnibus Crime Control and Safe Streets Act. The year 1984 brought increased focus on and awareness of the issue of electronic surveillance, due to the famous book by George Orwell of the same name.

Electronic Communications Privacy Act of 1986

On January 26, 1984, Senator Patrick J. Leahey (D–Vermont) sent a letter to Attorney General William French Smith requesting clarification on the Justice Department’s need for a court order to intercept electronic communications in light of the requirements of Title III of the Omnibus Crime Control and Safe Streets Act and FISA.

Assistant Attorney General Stephen S. Trott provided the response on behalf of the Attorney General on March 9, 1984, which included:

Thus, the question whether a warrant or court order is legally required to conduct a nonaural interception of the radio portion of a hybrid wire-radio communication is, in our view, dependent upon whether there exists a reasonable expectation of privacy on the part of the individual whose communications are to be intercepted. If there exists such an expectation, a search warrant or court order is clearly necessary. If, however, the individual can claim no such justifiable privacy expectation in the communication, neither FISA nor the Fourth Amendment prohibits the warrantless interception of that communication. See Katz v. United States, 389 U.S. 347 (1967); Smith v. Maryland, 442 U.S. 735, 740-741 (1979).

In this rapidly developing area of communications, which range from cellular non-wire telephone connections to microwave-fed computer terminals, distinctions such as that set out above are not always clear or obvious. Consequently, while we do not believe that there is currently a statutory requirement that a court order or search warrant be obtained in all instances involving nonaural interception, it is the policy of the Department of Justice to obtain such an order or warrant when nonaural electronic surveillance techniques are employed and our analysis indicates there is a reasonable expectation of privacy.²³

On June 14, 1984, Mr. Trott sent a letter to clarify that:

We [the Justice Department] wish to make clear that we believe that the microwave radio portion of a telephone call is normally accompanied by a justifiable expectation of privacy. Consequently, a judicial warrant would be required for the nonconsensual interception of such calls.²⁴

On September 12, 1984, Senator Leahy chaired hearings by the Committee on the Judiciary, Subcommittee on Patents Copyrights, and Trademarks. Titled “Oversight on Communications Privacy,” the hearings included testimony from representatives of American Telephone and Telegraph Co. (AT&T), Assistant Attorney General John C. Keeney, and representatives of the cellular communications industry.

Dr. Roy P. Weber, formerly of Bell Laboratories and currently division manager of service concepts at AT&T Communications, described the advancements taking place within the telecommunications industry, and why the definition of “aural communication” was becoming blurred:

The key point that I will make, and I think is relevant to this subcommittee, is that the distinction between voice, data, image, and video is rapidly diminishing. What was once a telephone system that carried only voice is rapidly becoming an Integrated Services Digital Network, which carries the four forms of communication: voice, data, video, and image.²⁵

What you are doing today when you make an average call in this country, part of the voice is transmitted in an analog form, as represented on the top of that chart, and in many places in the network today in our switching machines, and over the wires that the voice is carried on, a process goes on where your voice is digitized and is represented as a string of bits and may go back and forth between analog and digital several times in an average conversation today.

It is my belief that the way technology is going, it will soon be all bits; not in our lifetimes will it be all bits, but it will happen and that is the direction, but today it is a mixture.²⁶

The Electronic Surveillance Act of 1984 was introduced in the U.S. House of Representatives on October 14, 1984, by Robert Kastenmeier (D–Wisconsin). In introducing the bill, Mr. Kastenmeier highlighted many of the issues with the current surveillance laws:

Mr. Speaker, today I rise to introduce the Electronic Surveillance Act of 1984, a bill that I hope will serve as a study document in the remaining days of the 98th Congress and get the serious attention it deserves when the 99th Congress convenes in January.

Mr. Speaker, for the past year the subcommittee I chair, the Subcommittee on Courts, Civil Liberties, and the Administration of Justice, has held a series of hearings entitled “1984: Civil Liberties and the National Security State.” These hearings began on the eve of the Orwellian year, 1984, with the purpose of taking stock of the state of civil liberties in the very year Orwell used to warn us of the dangers of letting our precious freedoms slip away.

Testimony at these hearings has made it clear that technology has outstripped existing law on electronic surveillance, leaving loopholes for wiretappers, public and private. My bill closes those loopholes, restoring the result intended by Congress when it passed the law criminalizing wiretapping, the Omnibus Crime Control and Safe Streets Act of 1968.

The major loophole of that law is that it pertains only to aural communications, those capable of being heard by the human ear. Increasingly, however, telephone lines carry human conversation in digitized form, a series of computer signals that falls outside the law. Moreover, other forms of communications now carried over telephone lines, such as data transmissions and visual display, are also legally unprotected. My bill cures that, bringing all these forms of communication under legal protection.

My bill also sets legal standards for the use of video surveillance, which is currently unregulated, and for pen registers and electronic tracers. Subcommittee hearings early last session examined the operation of the Foreign Intelligence Surveillance Act. My bill, drawing on those hearings, makes a number of improvements, including the extension of the requirement of reporting to Congress, which otherwise would expire this year.

I urge my colleagues to consider the Electronic Surveillance Act of 1984 as a thoughtful response to changing technology; I welcome your suggestions and your support.²⁷

The following year, after much discussion and debate, the Electronic Communications Privacy Act of 1985 was introduced simultaneously in the Senate and House of Representatives. On September 19, 1985, Senators Patrick J. Leahey (D–Vermont) and Charles McCurdy Mathias (R–MD) introduced the Act as Senate Bill 1667. As explained by Mr. Leahey:

“Let me describe a problem that grows as we sit here.

At this moment phones are ringing, and when they are answered, the message that comes out is a stream of sounds denoting one’s and zero’s. Nothing more. I am talking about the stream of information transmitted in digitized form, and my description covers everything from interbank orders to private electronic mail hookups.

By now this technology is nothing remarkable. What is remarkable is the fact that none of these transmissions are protected from illegal wiretaps, because our primary law, passed back in 1968, failed to cover data communications, of which computer-to-computer transmissions are a good example.”

Mr. Mathias: “More than half a century ago, Justice Louis Brandeis sounded an eloquent warning about the challenge to privacy posed by technological advances. In his famous dissent in the wiretapping case of Olmstead versus United States, Brandeis emphasized that if the right to privacy is to be meaningful, it must be strong enough to meet this challenge. As he put it:

The progress of science in furnishing the government with means of espionage is not likely to stop with wiretapping. Ways may someday be developed by which the government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home.

That prospect must have appeared fanciful to most of Brandeis’ contemporaries. But we know better. Brandeis’ ‘someday’ has arrived, and the law must respond.

Technological wizardry offers a variety of new communications media: electronic mail, the cellular telephone, local area networks, computer-to-computer data transmissions, and many more. Individuals and businesses are taking advantage of these new ways to share information of every kind and description.

Some of the messages that these new media carry are highly sensitive. A translation of the digital bits that race across our country by wire, microwave, fiber optics, and other paths could reveal proprietary corporate data, or personal medical or financial information. The users of these networks—and that means more and more of us—expect and deserve legal protection against unwarranted interceptions of this data stream, whether by overzealous law enforcement officers or private snoops.

The laws on the books today may not provide that protection. The major statutory bulwark against one form of data interception—wiretapping—forbids only the unauthorized ‘aural acquisition’ of wire communications. This definition does not fully encompass the complex web of transmission media that have become the nervous system of our economy and our society. Nor does it explicitly protect the growing volume of messages that cannot be acquired ‘aurally’ because, even though they may be intended as confidential, they never take the form of the spoken word. Clearly, Brandeis’ warning must be heeded; the law must be brought up to date with the progress of science.”²⁸

On September 19, 1985, Congressman Kastenmeier introduced House Resolution 3378, identical to the bill introduced in the Senate. Introducing the bill, the Congressman stated:

Mr. Speaker, when Congress passed the wiretap law [Title III of the Omnibus Crime Control and Safe Streets Act] in 1968, there was a clear consensus that telephone calls should be private. Earlier Congresses had reached that same consensus regarding mail and telegrams.

But in the almost 20 years since Congress last addressed the issue of privacy of communications in a comprehensive fashion, the technologies of communication and interception have changed dramatically.

Today we have large-scale electronic mail operations, cellular and cordless telephones, paging devices, miniaturized transmitters for radio surveillance, light weight compact television cameras for video surveillance, and a dazzling array of digitized information networks, which were little more than concepts two decades ago.

These new modes of communication have outstripped the legal protection provided under statutory definitions bound by old technologies. The unfortunate result is that the same technologies that hold such promise for the future also enhance the risk that our communications will be intercepted by either private parties or the Government. Virtually every day the press reports on the unauthorized interception of electronic communications ranging from electronic mail and cellular telephones to data transmissions between computers. The communications industry is sufficiently concerned about this issue to have begun the process of seeking protective legislation. This bill is, in large part, a response to these legitimate business concerns.” ²⁹

The bill was referred to the Subcommittee on Courts, Civil Liberties, and the Administration of Justice where hearings were held. The Justice Department opposed the broadening of the scope of the existing laws, indicating they appropriately balanced the need for privacy with the needs of law enforcement activities:

With respect to the legislation’s attempt to bring within the proscriptions of Title III the newer types of non-aural transmissions such as computer transmissions and electronic mail, it is our current belief that with respect to authorization for the government to seize the contents of these transmissions, they are covered by an ordinary search warrant process based on probable cause pursuant to Rule 41 of the Federal Rules of Criminal Procedure. For example, if the government presently wishes to intercept a letter posted with the Postal Service, a search warrant under Rule 41 is procured. The Department believes that electronic mail is entitled to no greater protection than regular mail. Including these transmissions in Title III would, in effect, be adding an entire new scope to the existing statute. Had Congress intended that in 1968, it would have added non-aural communications such as ordinary mail in the statute at that time. The Department feels that changing the entire thrust of Title III is not warranted at this time and that intercepting this type of non-aural communication by private individuals could better be handled by separate legislation. The safeguards regulating government interception at this time are adequately covered by Rule 41 of the Federal Rules of Criminal Procedure. A similar analysis appears appropriate for computer transmissions.³⁰

The results of the hearings and amendments were clean bill H.R. 4952, the Electronic Communications Privacy Act of 1986, which was introduced by Congressman Kastenmeier on June 24, 1986. An identical bill, S 2575, was simultaneously introduced in the Senate.

The following day, Assistant Attorney General John R. Bolton sent a letter to the Senate Committee on the Judiciary Chair Senator Strom Thurmond that the Justice Department strongly supported the enactment of S 2575.³¹

The bill passed the House on June 23, 1986, by voice vote, and passed the Senate on October 1, 1986, also by voice vote. On October 21, 1986, the law was signed by President Ronald Reagan.

More than 27 years later, the Electronic Communications Privacy Act remains the central legislation governing the interception and monitoring of electronic communications in the United States. Given the continuing evolution of telecommunications and computing over this time, many legislators and privacy advocates are again advocating an update to the Act to provide guidance and oversight that reflects modern technology.