Sunday, June 10, 2007


One of the attorneys where I work asked me the other day if I had taken any classes that dealt with ECPA ("Electronic Communications Privacy Act"). ECPA (usually spoken as "eck-puh") was enacted to extend privacy protections to electronic communication on computers, like the Wiretap Act protects phone calls. The Act is notoriously opaque, so it's difficult to get an intern up to speed on it quickly. I winced when he asked.

"To be honest," I said, "I know enough about it to know that I don't know anything about it."
He visibly brightened and exclaimed: "You do know ECPA!"

Daniel Solove (internet privacy guru who blogs on Concurring Opinions) on ECPA: 72 Geo. Wash L. Rev 1264, 1292-93.
"If one is not willing to study ECPA like a biblical scholar studies the Bible, there is little hope of figuring out ECPA."

And an amusing jab at Orin Kerr (who blogs on The Volokh Conspiracy):
"Kerr, who can probably recite the ECPA by memory, and perhaps even in verse, admits that it its surprisingly difficult to understand."


greg said...

Regrettably, it's pretty clear that even those responsible for its upkeep don't understand the ECPA. Partly, of course, it's because the ECPA just wedged itself into the Wiretap Act. Partly it's because Congress has chosen to amend the ECPA, mixing ambiguous terminology with dated terminology.

Not that you didn't know that. I've just been racking my brain the last several months trying to tease out how best to go after what I consider some of these failings in a very narrow portion of the act. It's maddening.

Sansserif said...

It definitely is maddening. I'm also doing research for Freiwald on how to improve it...