/1/ This is the World Wide Web HTML version of the original draft version of my article published in the Federal Communications Law Journal which is published by the UCLA School of Law and the Federal Communications Bar Assocation. The published printed version of this article appears in the aforementioned law review journal at 41 Fed. Comm. L.J. 17 (Nov. 1988) with some minor editorial changes. Please refer to the published printed version for citation purposes. This World Wide Web HTML version is electronically published for comparison purposes. An early version of this article was published as Computer Electronic Mail and Privacy, 3 Computer L. & Sec. Rep. 4 (Great Britain) (Nov./Dec. 1987).

I. Introduction
II. Environment
III. Initial Criminal Procedure Conflict IV. Inadequacy of Old Law
A. Pre-ECPA Case Law
B. Old Federal Wiretap Statutes

V. ECPA -- The New Law

A. Systems Covered
B. Escaping Coverage

VI. ECPA and Thompson v. Predaina

A. Federal Civil Claims
B. Thompson as Precedent?

VII. ECPA and Corporate Systems
A. The Cracker Situation
B. The Corporate Big Brother Situation
C. Corporate Protection

VIII. Conclusion
IX. Endnotes

Approximately three to four years ago, Congress introduced legislation which sought to provide federal statutory guidelines for the privacy protection of electronic communications, including electronic mail (email), found on commercial computer-based services and on other remote computer systems. This culminated in the Electronic Communications Privacy Act of 1986 (ECPA). Federal law before ECPA did not provide any guidelines for protecting technologically-advanced forms of communications. Case law also did not provide adequate helpful guidance. The peculiarities of computers and computer storage were not addressed by the old wiretap laws. Electronic communications privacy could not stand up against constitutional privacy law as defined by the United States Supreme Court. The then existing law was "hopelessly out of date."/2/ Under the old law, there was no contemplation that computer-based electronic communications would be used to transmit messages across telephone lines to remote computer systems to be stored on disk for later retrieval by an intended recipient. Fortunately, with ECPA, email and other private electronic communications are given federal statutory privacy protection. In particular, ECPA gave both criminal law guidelines and rules for obtaining civil remedies.

The situation that prompts this discussion of ECPA and related areas is the first ever civil lawsuit using ECPA as one basis for its claims. The lawsuit, Thompson v. Predaina, was filed this past March 1988 in federal district court for the Southern District of Indiana, Civil Division./3/ There, Linda Thompson, a third-year law student, filed a pro se complaint against Bob Predaina, the systems operator (sysop) of the Professional's Choice Bulletin Board, a fee-based "hobbyist" electronic bulletin board system, for intruding, without any right or privilege, into her private email. She based her action on three federal theories, including two under ECPA, and a few common law state claims. The Thompson case appears to provide an excellent ECPA "test" case./4/ The situation provides an excellent opportunity to see how ECPA and other related law operate to protect, or not protect, one's privacy in the electronic communications context.

The following will be discussed: (1) the computer communications environment; (2) an initial pre-ECPA criminal situation; (3) the old law before ECPA; (4) a preliminary discussion of ECPA with some emphasis on its criminal procedure aspects; (5) ECPA, plus one other statute, as applied in the civil context to the Thompson situation; and (6) ECPA as applied in the civil context to the corporate situation.

ENVIRONMENT

The computer communications environment can be divided into three parts: (1) commercial systems and networks; (2) "hobbyist" systems and networks; and (3) corporate systems and networks.

Commercial systems and networks would include the popular consumer computer online services of CompuServe, GEnie, the Source, BIX, the WELL, Portal, QuantumLink, AppleLink, and Prodigy. These and other services electronically provide private email, public discussion conferences, real- time "chat" facilities, public domain software exchange, and access to news and various databases. Also included in this catagory are the more specialized computer databases, such as LEXIS, WestLaw, DIALOG, and Dow Jones News Retrieval, where some limited private email and private user area facilities may be provided. Commercial data communications networks, such as Telenet and Tymnet, would be included in this catagory too. In his "geodesic network report," Peter W. Huber writes that there are "[h]undreds, perhaps thousands of [commercial] information service providers ... offering immediate access to vast amounts of electronically stored information in an extremely broad range of fields."/5/ He also writes that "[t]he industry has grown explosively since 1979."/6/

"Hobbyist" systems and networks would include "electronic bulletin boards" (BBS's) and the various cooperative networks. "Hobbyists" in this area are generally "recreational" computer users who use computers and modem communications as a hobby./7/ They are akin to amateur ham radio and citizen band radio operators. Here, BBS's are typically stand-alone personal computers provided and maintained by computer hobbyists out of their own personal resources and their enjoyment. The individuals who provide the BBS's are specifically known as "sysops" (systems operators). Access to a BBS may be with or without a charge. Sysops may ask that users pay a charge in order to pay for the phone line for the BBS. In addition to providing public domain software and "shareware" exchange, these systems generally provide free public and private electronic mail exchange to computer/modem-equipped members of local communities./8/ Some sophisticated systems, such as the UNIX-like ProLine system/9/ written for Apple II computers, provide users with personal user directory areas much like the CompuServe personal file areas where users may keep personal files./10/ The ECPA Senate Report provides a definition of "electronic bulletin boards":

Electronic "bulletin boards" are communications networks created by computer users for the transfer of information among computers. These may take the form of proprietary systems or they may be noncommercial systems operating among computer users who share special interests. These noncommercial systems may [or may not] involve fees covering operating costs and may require special "passwords" which restrict entry to the system. These bulletin boards may be public or semi- public in nature, depending on the degree of privacy sought by users, operators or organizers of such systems./11/

Corporate systems and networks may include whole private networks, private-line service between two points with no connection to the public telephone network, and private branch exchanges handling computer calls within an organization. They may be privately-owned or leased facilities dedicated to the exclusive use of a company. "They may range from point-to- pont telephone lines to nationwide switched voice and data systems.... Stations connected to the network may call one another without using public toll facilities."/13/ On private networks, Huber writes:

Private networks are used primarily by business and governmental customers whose telecommunications expenditures are $10 million or more annually. A private network consists of transmission facilities, nodal switches, and other customer premises equipment configured for the exclusive use of a single, geographically dispersed organization. The transmission facilities used in the network may, however, be provided largely or entirely by public (i.e. common) carriers, both local and interexchange. Many private networks rival public networks in their geographic scope and in the number of telephones they serve..../14/

Many of these are just LAN [Local Area Networks] within particular buildings, although some are international or even intercontinental in scope. The administration and funding of such networks usually come from a single company and their users are mostly employees of that company./16/

In addition to the three different catagories of commercial, "hobbyist," and corporate systems and networks, there are "gateways," either network routing addresses or specific services, that allow the linking up of the separate "hobbyist" networks and commercial and corporate systems and networks. In many cases, this computer interconnectivity allows the sending of mail across "network boundaries."/18/ On commercial systems, they typically allow a subscriber to cross over from the host to use another commercial system's database without breaking the login connection to call the other system directly. "Together, these networks form a metanetwork (sometimes called Worldnet) that is used daily by many communities of interest throughout the world."/19/

The pervasive use of computers for information transmission underscores the need for privacy. However, the complexity of the software, the networking schemes, and the actual use of computer communications show that any privacy protection must be both comprehensive and flexible./20/

Law enforcement seeks criminal evidence stored as private email or other data on a commercial computer service, such as CompuServe, GEnie or the Source, or on a hobbyist BBS. For example, a computer user calls up a computer communication system: By using the electronic mail function, he leaves a private message that can only be read by a particular intended recipient. The message is to inform the recipient of a conspiracy plan that would violate a federal or state criminal statute. Law enforcement gets a tip about the criminal activity and learn that incriminating evidence may be found on the computer system.

In 1982, such a situation occurred./21/ A Detroit federal grand jury, investigating a million-dollar cocaine ring, issued a subpoena ordering a commercial service, the Source, to hand over a private user's data files./22/ The files were routinely backed up to guard against system crashes./23/ The grand jury was looking for evidence to show that the cocaine ring was using the Source as a communications base to send messages to members of the ring./24/ With such evidence, the grand jury could indict those suspected of being part of the cocaine ring. The Source refused to obey the subpoena on the basis of privacy./25/ The prosecution's argument was that since the files containing messages were duplicated by the service, any user's expectation of privacy would be extinguished./26/ A court battle ensued. However, before a ruling could be made, the kingpin of the cocaine ring entered a surprise preemptive guilty plea to federal drug trafficking charges and the case against the Source was discontinued./27/

Publicly posted messages and other public material found on an online system or service may be easily retrieved by law enforcement. For example, a police officer could easily use a modem-equipped computer to call into a local BBS or an online service and read publicly posted messages on the BBS or online service. It is the private material, such as email, which poses the problem. In the police officer example, the officer may only have a mere user's account without greater privileges to access certain parts of the system. More specifically, he cannot access the private email of others with his mere user's account.

Law enforcement's task is to gather enough evidence to substantiate a criminal case. Specifically, law enforcement would want the private email, or other private files, transmitted between suspected criminals on a particular online system. In opposition, the service provider or sysop of the computer communications system, in his assumed role as keeper of transmitted private electronic messages, would not want to turn over the private data. Needless to say, the user would also not want any privacy invasion of his private electronic communications. Unfortunately, the pre- ECPA privacy law would not provide much protection.

Before ECPA, there was no adequate privacy protection for electronic communications. "Any law enforcement authority can, for example, confiscate a local BBS and examine all the message traffic," including private email and other private files./28/

PRE-ECPA CASE LAW

There is little pre-ECPA case law available on computer communications and Fourth Amendment constitutional problems.

Of the available cases, there are those which primarily dealt with financial information found in bank and consumer credit database computers. In U.S. v. Davey, the government had the right to require the production of relevant information wherever it may be lodged and regardless of the form in which it is kept and the manner in which it may be retrieved, so long as it pays the reasonable costs of retrieval./29/ In a California case, Burrows v. Superior Court, a depositor was found to have a reasonable expectation that a bank would maintain the confidentiality of both his papers in check form originating from the depositor and the depositor's bank statements and records of those checks./30/ However, in U.S. v. Miller, customer account records on a bank's computer were held to not be private papers of the bank customer, and, hence, there was no Fourth Amendment privacy problem when they are subpoenaed directly from the bank./31/

Although these cases have more of a business character in contrast to personal email found on computer systems such as CompuServe or a hobbyist BBS, they may hold that there would be very little to legally stop law enforcement access to a user's private email found on an online system. For example, although under Burrows a user may have a reasonable belief that an online system would maintain the confidentiality of his private email stored on the system, such material may be held to not be the private papers of the user under Miller./32/ Therefore, there would be no Fourth Amendment privacy problem. Law enforcement may have the right to require the material's production wherever it may be held so long as the reasonable costs of retrieval are paid as required by Davy./33/

Additionally, a prosecutor, as in the Detroit situation, may note how files are duplicated and backed up on computer systems by the provider or systems operator. If duplicated, the user may have no reasonable control of the duplicates. However, the nature of computers always requires the duplication and backup of any computer data as a safety precaution in case of power failure or computer magnetic media destruction. All computer users know of this common practice./34/ Knowing this common practice, a user has reason to believe that the duplicated data would be stored away and not given to others to examine. The user's subjective belief would be that his email is private even if it is duplicated along with other system files for backup purposes. Such a belief may be seen as objectively reasonable and therefore may be a constitutionally protected expectation of privacy./35/ In other words, if the user subjectively expects privacy within the email area of the system, and his expectation when viewed objectively is reasonable, as may be found with the commonly known practice of data backups, then the user's privacy expectation may be constitutionally protected by the Fourth Amendment.

However, despite common practices and his expectations, a user may still have to protect his electronic mail from any privacy intrusion./36/ The provider or operator of the system has ultimate control over the system. He has complete access to all areas of the system. He could easily examine all material on the system. The user could not reasonably protect his "private" data from provider or operator invasion on a remote system. This "knot-hole," where an observer can make an observation from a lawful position, would exclude any reasonable expectation of privacy./37/ If there is no privacy, there can be no search. If there is no search, there can be no Fourth Amendment constitutional violation. Law enforcement can retrieve the material.

The Justice Department noted the ambiguity of this knothole in a response to Senator Leahy's question whether the pre-ECPA wiretap law was adequate to cover computer communications. It was "not always clear or obvious" whether a reasonable expectation of privacy ever existed./38/

OLD FEDERAL WIRETAP STATUTES

Although email appears to come under the old 18 U.S.C. sec. 2510(1) definition of "wire communication," wire communication was limited to audio transmissions by wire or cable./39/ The old 18 U.S.C. sec. 2510(4) required that unlawful interception be of "any wire or oral" communications and, as such, there must be a human voice in the transmission and therefore be heard as in normal non-telephonic voice conversations./40/ There would be a problem as to whether an electronic communication could be intelligently heard by the human ear. Data transmissions over telephone lines generally sound like unintelligible noisy static or high pitched tones./41/

Also, there would certainly be no protection after a communication has completed its transmission and was stored on a computer./42/ The communication's conversion into stored computer data, thus no longer in transmission until later retrieved or forwarded as transmission to another computer system, would clearly take the communication out of the old statutory protected coverage./43/

"Eighteen years ago ... Congress could not appreciate - or in some cases even contemplate - [today's] telecommunications and computer technology...."/44/

Courts could have tried to read computer communications protection into the old federal wiretap statute or into existing state law. However, they were reluctant to do so. The courts were "in no hurry to [revise or make new law in this area] and some judges [were] openly asking Congress for help.... [F]ederal Appeals Court Judge Richard Posner in Chicago said Congress needed to revise current law, adding that 'judges are not authorized to amend statutes even to bring them up-to-date.'"/45/

On October 21, 1986, President Reagan signed the Electronic Communications Privacy Act of 1986 amending the federal wiretap law. ECPA created parallel privacy protection against both interception of electronic communications while in transmission and unauthorized intrusion of electronic communications stored on a system.

The ECPA provides privacy protection for electronic communications made by

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, photoelectronic or photooptical system that affects interstate or foreign commerce..../46/

ECPA also protects the electronic communication when it has been stored after transmission, such as email left on an electronic computer communication system for later pickup by its intended recipient. The legislation makes it federal offenses to break into any electronic system holding electronic communications or to exceed authorized access, to alter or obtain stored communications, and to subsequently disclose the contents of the electronic communications./52/

ECPA would protect electronic computer communication systems from law enforcement invasion of user email without a court order./53/ Although the burden of preventing disclosure of the email is placed on the subscriber or user of the system, the government must give the subscriber or user fourteen days notice to allow him to file a motion to quash a subpoena or to vacate a court order seeking disclosure of his computer material./54/ However, the government may give delayed notice where there are exigent circumstances or no notice when the exigent circumstances are extreme as listed by the Act./55/ Recognizing the easy user destruction of computer data, ECPA allows the government to include in its subpoena or court order the requirement that the provider or operator retain a backup copy of electronic communications when there is risk of destruction./56/ In instances where the material sought is unusually voluminous or burdensome to supply, there may be reimbursement for any extra effort to obtain it or for any disruptions in business./57/

SYSTEMS COVERED

ECPA provides that "'electronic communication service' means any service which provides to users thereof the ability to send or receive wire or electronic communications."/58/ A "remote computing service" is defined in the Act as an electronic communications system that provides computer storage or processing services to the public./59/ With regard to stored communications, the "remote computing service" definition also sets public online systems and services apart from wholly private corporate systems. Again, in the context of corporate online communications systems, ECPA coverage may be limited to situations involving "cracker" intrusions and unauthorized employee access. Language in ECPA refers to "the person or entity providing the wire or electronic communication service."/60/ Such broad language would indicate the inclusion of individuals and businesses who provide commercial, "hobbyist," and corporate systems and networks.

ECPA takes note of the different levels of security found on commercial and "hobbyist" systems, i.e. the difference between system areas configured to contain private electronic mail and other areas configured to contain public material./61/ The electronic communications which a user seeks to keep private, through methods provided by the system, would be protected by ECPA./62/ In contrast, there would be no liability for access to features configured by the system to be readily accessible by the general public./63/ An indicia of privacy on the system, such as passwords, prompts asking if a message is to be kept private, or no warnings that there is no privacy facilities on the system, may trigger ECPA coverage./64/

ESCAPING COVERAGE

There are at least two possible ways to escape ECPA coverage. The first is to simply not provide any means of privacy, e.g., no private email. The second is to provide adequate notice that all material on a system are to be publicly accessible by all users even though methods of providing privacy appear to remain on the system. The bulletin board system maintained by DePaul University College of Law in Chicago, Illinois, provides an example of an electronic notice which is displayed upon user access:

PURSUANT TO THE ELECTRONIC AND [sic] COMMUNICATIONS PRIVACY ACT OF 1986, 18 USC 2510 et. seq., NOTICE IS HEREBY GIVEN THAT THERE ARE NO FACILITIES PROVIDED BY THIS SYSTEM FOR SENDING OR RECEIVING PRIVATE OR CONFIDENTIAL ELECTRONIC COMMUNICATIONS. ALL MESSAGES SHALL BE DEEMED TO BE READILY ACCESSIBLE TO THE GENERAL PUBLIC.

Do NOT use this system for any communication for which the sender intends only the sender and the intended recipient or recipients to read./65/

Although not necessarily a way to escape ECPA coverage, one way of foiling the intent of a government subpoena or court order requirement to provide duplicate copies of private electronic communications would involve the use of passworded private email as encrypted by certain services or systems. Specifically, the private email capabilities of a particular commercial service or hobbyist BBS may involve user-toggled passwording which utilizes an encryption technique that no one, not even the provider, knows how to decipher./68/ Thus, although law enforcement may be able to get a backup copy of private messages, authorities may not be able to get pass the encryption scheme to find the evidence sought out.

In her civil complaint against Predaina, Thompson alleges 10 counts and asks for $112,250 in damages. The general situation is that Thompson was exchanging private email via an "echo" intermail networked conference, on the Predaina BBS. After reading her messages, she deleted them. Predaina allegedly restored the private email and caused the email to become public./69/ On the particular network the Predaina system is associated with, the email was also allegedly "echoed" publicly on other BBS's along the network. In addition to her federal claims, Thompson is also alleging that Predaina then made remarks which were libelous, concerning her reputation both in the public eye and with regard to the legal profession, and which resulted in infliction of emotional distress. Such remarks would presumedly be read on the Predaina BBS and along the network. In BBS slang, such conduct would be the most extreme form of "flame" (as in inflaming one's emotions)./70/

With regard to federal law, Thompson essentially brings three separate federal claims. Two are under ECPA and a third under the Cable Communications Policy Act of 1984 which amended the Communications Act of 1934 to include encrypted satelite cable broadcasts./71/

FEDERAL CIVIL CLAIMS

First, under Title I of the ECPA ("Wire and Electronic Communications Interception and Interception of Oral Communications"), "any person whose wire, oral, or electronic communications is intercepted, disclosed, or intentionally used in violation of this chapter may in a civil action recover from the person or entity which engaged in that violation such relief as may be appropriate."/72/ Here, for example, a wrongdoer would intercept a private communications while in transmission and divulge its contents to someone other than the intended recipient (or his agent)./73/

The civil relief may include:

(1) equitable or declaratory relief;
(2) punitive damages;


and


(3) reasonable attorney's fees and litigation costs./74/

(1) a court warrant or order, a grand jury subpoena, a legislative authorization, or a statutory authorization (even it turns out to be invalid);
(2) a request by an investigative or law enforcement officer in emergency situations such as:

(i) immediate danger of death or serious bodily injury to any person,
(ii) conspiratorial activities threatening the national security interest, or
(iii) conspiratorial activities characteristic of organized crime;


or

(3) a good faith determination that ECPA allowed the intrusion./75/

Next under Title II of the ECPA ("Stored Wire and Electronic Communications and Transactional Records Access"), "any provider of electronic communication service, subscriber, or customer aggrieved by any violation of this chapter in which the conduct constituting the violation is engaged in with a knowing or intentional state of mind may, in a civil action, recover from the person or entity which engaged in that violation such relief as may be appropriate."/76/ Here, a wrongdoer would intentionally access private communications that is stored, including the forwarding of email along a network, on a system and/or knowingly divulge its contents to someone other than the intended recipient and other persons allowed by the statute./77/

A plaintiff could seek the same types of relief as under Title I of the ECPA./78/ In addition, a plaintiff can seek any actual damages suffered by her and any profits made by the wrongdoer as the result of his unlawful access to the private communications, such as obtaining privileged information by unlawfully accessing private electronic communication and using it to gain a financial advantage he would not have gotten otherwise, provided that damages can be no less than $1000./79/

Thompson's final federal claim is under Title VII of the Cable Communications Policy Act of 1984 dealing with unauthorized publication or use of communications. It provides:

no person receiving, assisting in receiving, 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,
(1) to any person other than the addressee, his agent or attorney,
(2) to a person employed or authorized to forward such communication to its destination,
(3) to proper accounting or distributing officers of the various communication centers over which the communication may be passed,
(4) the master of a ship under whom he is serving,
(5) in response to a subpena issued by a court of competent jurisdiction,
(6) on demand of other lawful authority./80/

The civil remedies allowed under this section are:

(1) an injunction against the wrongdoer to stop what he is doing;
(2) actual damages suffered by the plaintiff, plus any profits made by the wrongdoer who would not have made them if not for the unlawful use of the communications;


or

(3) $250 damages for each violation, but not more than $10,000./83/

However, if it is found that the wrongdoer did not know and had no reason to know that his actions constituted a violation of section 605, a judge has the discretion to reduce an award under this section to plaintiff downward to $100./86/

THOMPSON AS PRECEDENT?

Could this be a precedent-setting case? Certainly as the first case under ECPA and also the first BBS case under the Cable Communications Policy Act. Hypothetically, if the case is never decided, in a similar situation, and depending on the evidence, a user may win and the sysop may have to pay some form of remedy to the user. In the situation of stored communications, as in the Thompson situation, where a user received private email, read it and deleted it, a sysop may face civil liability under both Title II of the ECPA and the Cable Communications Policy Act if he should undelete it on the host system and then cause the message to become public. There may be no liability under Title I of the ECPA since the private communications was already received by the intended recipient and was not necessarily intercepted while in transmission. More facts may be required to draw the latter conclusion.

Thompson commented on her status as a user of an online service or system: "Generally sysops are good at policing themselves and their boards.... The reason for the lawsuit was that there apparently was going to be no resolution between [Predaina and myself]. I think that if you have a board that has a facility for private mail, you have a right to expect that private mail stays private and is not spread all over."/87/

In tackling the question of whether ECPA could be found to apply to corporate computer communications systems, one may find that the answer may be both "yes" and "no." In other words, coverage and liability may have to be limited to certain situations. The question would be who would be liable under ECPA for snooping around a company's wholly private online system? Two situations must be looked at. One is the "cracker" situation. The second is the corporate "big brother" situation.

THE CRACKER SITUATION

Examination of Title I of the ECPA provides some clues as to who may be the wrongdoer in the cracker situation. Private and public systems must first be contrasted.

It shall not be unlawful under this chapter or chapter 121 of this title for any person (i) to intercept or access an electronic communication made through an electronic communication system that is configured so that such electronic communication is readily accessible to the general public./88/

The legislative history of ECPA provides evidence of ECPA's applicability to corporate systems. In the "Purpose" section of the Senate Report, there is the following paragraph:

Today we have large-scale electronic mail operations, computer-to-computer data transmissions, cellular and cordless telephones, paging devices and video teleconferencing. A phone call can be carried by wire, by microwave or fiber optics. It can be transmitted in the form of digitized voice, data or video. Since the divestiture of AT&T and deregulation, many different companies, not just common carriers, offer a wide variety of telephone and other communication services. It does not make sense that a phone call transmitted via common carrier is protected by the current [pre-ECPA] federal wiretap statute, while the same phone call transmitted via a private telephone network such as those used by many major U.S. corporations today, would not be covered by the statute./91/

Congress went one step further when it amended the definition of "wire communications" to include "communication affecting interstate or foreign commerce."/93/ The Senate Report says that this new "language recognizes that private networks and intra-company communications systems are common today and brings them within the protection of the statute."/94/ Although the definition change applied to wire communications, this change along with the legislative history are more evidence to show the Congress intended ECPA be applied to both public and private systems.

With specific attention to stored electronic communications, ECPA added several new sections of law, starting with the new Section 2701, to address "the growing problem of unauthorized persons deliberately gaining access to, and sometimes tampering with, electronic or wire communications that are not intended to be available to the public."/95/ This would again show how not-ordinarily-public systems, including wholly private corporate systems, would come within the purvey of ECPA.

Further in the Senate Report, the legislative history then notes the differences "between offenses committed for purposes of commercial advantage, malicious destruction or damage, or for private commercial gain and all other types of violation."/96/ Although "private commercial gain" may include logging unauthorized time on a pay subscription service with a stolen password, "commercial advantage ... and other types of violation" may include a competitor unlawfully accessing a closed, private company computer to read company intra-company memoranda sent through an in-house company computer online system./97/

Wholly private corporate systems are statutorily protected by ECPA from unauthorized intrusions by those not privileged to access and use the privacy of the system. More specifically, this would be protection against crackers and unauthorized employees.

THE CORPORATE BIG BROTHER SITUATION

If an employee is authorized to use a company's in-house private system for communications purposes, does he have the same privacy rights against his employer under ECPA as a user on a hobbyist BBS or consumer commercial online service has against others? The answer to this question may be found in Title II of the ECPA.

Section 2701 provides that although it may be illegal to gain access without authorization or to exceed authorized access to a system (and then possibly do some damage in addition to examining into private electronic communication), "the person or entity providing a wire or electronic communications service" is not liable for any offenses regarding stored communications (voice mail, email, and other recorded communications)./98/ One may think that corporate entities providing wholly private electronic communications services would follow good faith standards as discussed with regard to commercial and hobbyist systems and networks. However, that is not the case with corporate systems. There is no offense if "the person or entity providing a wire or electronic communications service" intentionally, and not for the purpose of system quality control checks, examines everything on the system./99/ Section 2701(c)(1) would appear to be a statutory license allowing corporate "big brother" to access and shift through private email on the company online computer system to check up on its employees./100/

Section 2702(b)(5) may allow a company to divulge the contents of an employee's electronic communications on its wholly private system "as may be necessarily incident to the rendition of the service or to the protection of the rights or property of the provider or the service...."/101/ An employer may try to extend "the rights or property of the provider or the service" to include the private internal business interests of a company which happens to have a private in-house online system. All of the company secrets, private corporate communications, and other material within the company would be corporate property. As such, electronic communications or other material found on a corporate online system, which system is to be used for company purposes, may be accessed, examined, and disclosed by the corporate sysop or owner. Telelaw expert and writer Brock Meeks writes:

If the "entity" is a corporate sponsored system, then the sysop of that corporate system could indeed make any private files public without fear of coming under the jurisdiction of the ECPA. Because all [those] using the corporate system are "employees" of the entity, there is no expectation of privacy./102/

Perhaps rightly so, the corporate exception acknowledges an employer's private property rights in his business and all parts of it. However, to the say the least, it may not benefit the employee./104/

CORPORATE PROTECTION

Generally, in the corporate context, ECPA would only protect from without, but not from the within. In other words, a corporate online system may be statutorily protected from outside crackers and unauthorized employees, but an employee authorized to use an in-house company system for business purposes may not protected from his employer looking over his electronic shoulder to shift through any "private" material transmitted or stored on the system.

Therefore, with regard to the two situations:

First, one may only be liable under ECPA if (a) he is not part of the company, i.e., he is a "cracker" invading the system from the outside with a remote modem-equipped computer, or (b) he is an employee, or other person, who is not authorized, or exceeds his authorization, to use the system.

Second, however, an employer, or one authorized by the company, would be committing no offense under ECPA if he electronically eavesdrops on email correspondence found on the system. This would be the corporate "big brother" exception allowed under ECPA./105/

As we are about to move into the 21st century, we may be seeing more cases like Thompson. We may also be seeing more "electronic" legislation like ECPA. For instance, California was in the process of developing an "information bill of rights" in Assembly Constitutional Amendment No. 36 before it unfortunately "died" in committee./106/ Despite that one setback, formulation of similar legislation should continue in both the Congress and the state legislatures so the law can keep a steady pace with the constantly advancing technology. Fortunately, ECPA set the stage for needed changes in the law by closing some of gaps and holes in electronic communications privacy law.

/1/ This is the World Wide Web HTML version of the original draft version of my article published in the Federal Communications Law Journal which is published by the UCLA School of Law and the Federal Communications Bar Assocation. The published printed version of this article appears in the aforementioned law review journal at 41 Fed. Comm. L.J. 17 (Nov. 1988) with some minor editorial changes. Please refer to the published printed version for citation purposes. This World Wide Web HTML version is electronically published for comparison purposes. An early version of this article was published as Computer Electronic Mail and Privacy, 3 Computer L. & Sec. Rep. 4 (Great Britain) (Nov./Dec. 1987).

/2/ S. Rep. No. 541, 99th Cong., 2d Sess. 2 reprinted in 1986 U.S. Code Cong. & Ad. News 3556 (statement of Sen. Leahy).

/3/ Thompson v. Predaina, C.A. No. IP-88 93C.

/4/ It previously appeared that the case would be settled out of court. Thompson said, "Initially I said to him [Predaina], 'Let's shake hands and stipulate to dismiss the case,' and he agreed ... but then he got an attorney, and he asked for a continuance." Meeks, Federal Privacy Suit Filed Against Bulletin Board Sysop, Microbytes Daily, April 2, 1988 (electronic newspaper).

/5/ P.Huber, The Geodesic Network: 1987 Report on Competition in the Telephone Industry, U.S. Dept. of Justice, Antitrust Div., 7.1 (1987).

/6/ Id.

/7/ See Steven Dick, Towards A Rational Private Policy For Recreational Telecomputing (September 1, 1988) (unpublished Michigan State University Mass Media Ph.D. Program paper).

/8/ In a legal sense, public domain software is computer software that its author does not claim a copyright on. "Public domain," in the common computer user jargon, also means a free form of distribution of software which may or may not have a copyright. A software's copyright owner may retain a copyright to the software, but he is giving free licenses to interested users to copy and distribute copies of the software. "Shareware" is computer software distributed according to a unique marketing concept: a user may freely download the software from the host BBS computer to his personal computer, try out the software, and if he likes the software or continues to use it, he must pay a registration fee to the software author or publisher.

/9/ UNIX is a sophisticated operating system normally run on computers made by AT&T, Sun Microsystems, and other computer manufacturers. It is a popular operating system that has been configured or duplicated for other computers. UNIX "allows for the most flexible implementation available for a telecommunications system. The UNIX architecture has proven to be an excellent environment for networked mail, public conferencing, and private electronic mail." Morgan Davis, ProLine Information (August 1988) (electronic documentation). The ProLine system was designed very much with UNIX in mind.

/10/ A CompuServe user has his own "personal file area" on CompuServe where he may privately keep his own personal electronic files. See CompuServe Information Service Users Guide 4-25 - 4-27 (Sept. 1985). This is very useful for people who travel or who are constantly away from their regular computer systems. For instance, a reporter, a writer, or a businessman on a trip can call CompuServe with his laptop computer and upload an electronic document or file to his personal file area on CompuServe for later retrieval when he returns home to download the document or file for more permanent storage on his regular computer system. Likewise, "[e]ach member on a ProLine system has a directory area in which to store [private] files." M.Davis, supra.

/11/ S. Rep. No. 541, 99th Cong., 2d Sess. 8-9 reprinted in 1986 U.S. Code Cong. & Ad. News 3562-3563. Congress may have made a poor choice of words by broadly describing BBS's as "communications networks." Individual BBS's may not be affiliated with an outside network system. They may be mere computers set up to take incoming modem telephone calls from users. However, Congress may have been trying to indicate that users can "network" together when calling a single BBS.

/12/ "Echoing" is a process by which message traffic contained in an echo conference is automatically uploaded to other BBSs linked via an "echo mail" program. This allows users to call different systems, but yet participate in the same echo conference. Depending on the toggles or flags set on particular messages, the echoed messages may be seen publicly along the network or only by a particular user. This is just one of the many different message distribution processes available. There are other processes depending on the network involved. See Quarterman & Hoskins, Notable Computer Networks, 29 Communications of the ACM 932 (October 1986). Echo and other networked conferences are different from "local" conferences where messages remain on the local system or service.

/13/ W. John Blyth & Mary M. Blyth Telecommunications: Concepts, Development, and Management 89 (1985).

/14/ P.Huber, supra, at 3.45.

/15/ Quarterman & Hoskins, supra, at 933.

/16/ Id.

/17/ Keaveney, Custom-Built Bulletin Boards, Personal Computing, August 1987, 91. "Telephone tag" is a common office place occurrence where a busy person in one office cannot reach another person in different office by telephone. The original caller leaves a message asking that the other person to call him back. When the other person returns the call, he may not be able to reach the original caller and he too leaves a call-back message. An electronic mail system can eliminate this round-robin. A voice mail system, as is being used in some companies, can also eliminate the problem. See TE&M Special Report Electronic/Voice Mail, Telephone Engineer & Management, Sept. 1, 1987 (series of articles on voice mail), at 57-81.

/18/ Quarterman & Hoskins, supra, at 941. Each network is bound within itself. Fortunately, there are ways to interconnect different networks, i.e., to cross a "network boundary" from one network to another. For example, in the case of electronic mail, one can send email from from an ARPA Internet affiliated node to a mailbox on the MCI Mail service and vice versa using specific address routing instructions. See A.DeSchon and J.Postel, Mail Forwarding Between MCI-Mail and ARPA-Mail Using Intermail (October 1985) (electronic documentation). Likewise, a CompuServe user can send email to and receive email from a MCI Mail user. See CompuServe online instructions (GO QAMCI) (electronic online instructions). However, some boundaries may not be crossed. For instance, one will find that although email may be sent from a CompuServe mailbox to MCI Mail and then on to a mailbox on an ARPA Internet node, email from an ARPA Internet node cannot be sent through MCI Mail to CompuServe unless there is special government or industry clearance.

/19/ Quarterman & Hoskins, supra, at 932 (emphasis in original).

/20/ Privacy protection for computer communications must be comprehensive enough to cover the different types of computer comunications whether while in transmission or while stored waiting for retrieval by an intended recipient. The protection must also be flexible enough to account for the practical aspects of maintaining and operating a computer communications system or network. For example, the operator of such a system or a network must in the course of business come in contact with the private material of others on the system or network. Such maintenance or course of business contact should not be seen as a privacy invasion.

/21/ Meeks, Life at 300 Baud: Crime on the BBS Network, Profiles, Aug. 1986, at 12-13.

/22/ Id. at 12.

/23/ Id. at 13.

/24/ Id. at 12.

/25/ Id.

/26/ Id. at 13. Another prosecution argument, although not reported by Meeks, would be that the Source could not vicariously assert a user's privacy rights. Fourth Amendment rights are personal and could only be asserted by the person whose rights are invaded. Rakas v. Illinois, 439 U.S. 128, 133, 99 S.Ct. 421, 425 (1978) (petitioners lacked standing to object to prosecution evidence of a rifle and shells seized by police during a search of an automobile in which petitioners were passengers).

/27/ Id.

/28/ Meeks, Life at 300 Baud: Crime on the BBS Network, at 13.

/29/ U.S. v. Davey, 426 F.2d 842, 844-845 (2d Cir. 1970) (IRS-issued summons requiring a consumer credit corporation to produce certain credit reports of named individuals).

/30/ Burrows v. Superior Court, 13 Cal. 3d 238, 243, 529 P.2d 590, 593, 118 Cal. Rptr. 166, 169 (1974) (police detective illegally obtained photostatic copies of an attorney's bank statements from attorney's bank without the aid of legal process).

/31/ U.S. v. Miller, 425 U.S. 435, 96 S.Ct. 1619 (1976) (tax evader who possessed an unregistered liquor still under state whiskey tax laws has no protectible Fourth Amendment interest in his bank records).

/32/ Burrows, supra; Miller, supra.

/33/ Davy, supra.

/34/ The common refrain among computer users, computer manufacturers, and software publishers is "backup your data." Otherwise, a user may suffer an irretrievable loss of information or software. The magnetic media, e.g., diskette, hard drive, or ramdisk, may encounter a problem, such as a power surge, causing the data to be lost.

/35/ Katz v. U.S., 389 U.S. 347, 88 S.Ct. 507 (1967) (police bugged a telephone booth by placing a sensitive electronic survellience device outside the booth without any penetration). For there to be a constitutionally protected expectation of privacy under the Fourth Amendment, a person's subjective privacy expectation must be seen as objectively reasonable. For example, a person in a closed telephone booth may subjectively believe that he has privacy within the booth even if the booth is a glass enclosure that other people could look into. By closing the door, others could objectively see that the person is expecting some privacy. But see infra note 36 and accompanying text.

/36/ California v. Ciraolo, 476 U.S. 207, 106 S.Ct. 1809 (1986) (police airplane observing illegal marijuana plants in the yard of a home).

/37/ Id., 476 U.S. at 210, 106 S.Ct. at 1811 ("[I]f there is an opening, the police may look").

/38/ S. Rep. No. 541, 99th Cong., 2d Sess. 4 reprinted in 1986 U.S. Code Cong. & Ad. News 3558.

/39/ 18 U.S.C.S. sec. 2510(1) (Law. Co-op. 1979).

/40/ 18 U.S.C.S. sec. 2510(4) (Law. Co-op. 1979).

/41/ Modem communications involves a process where the digital signals of a computer are converted into analog signals which can be transmitted over telephone lines. Once the signals are received at another computer, the signals are converted back into digital signals easily understood by the other computer. This modulation and demodulation process requires the use of a modem device as the interface between the computer and the telephone network. While the signals are on the telephone line, they sound like unintelligible static or high-pitched tones to the human ear. Only a computer equipped with a modem can understand the signals. See W.Blyth & M.Blyth Telecommunications: Concepts, Development, and Management 70, 306 (1985).

/42/ 18 U.S.C.S. secs. 2510, 2511 (Law. Co-op. 1979).

/43/ Id.

/44/ 132 Cong. Rec. S7992 (daily ed. June 19, 1986) (statement of Sen. Leahy).

/45/ Cohodas, Congress Races to Stay Ahead of Technology, Congressional Quarterly Weekly Report, May 31, 1986, (Magazine) 1233.

/46/ 18 U.S.C.S. secs. 2510(12) (Law. Co-op. Supp. May 1988); see also 18 U.S.C.S. sec. 2511 (Law. Co-op. Supp. May 1988).

/47/ 18 U.S.C.S. 2510(12)(B) (Law. Co-op. Supp. May 1988).

/48/ 18 U.S.C.S. sec. 2510(12) (Law. Co-op. Supp. May 1988).

/49/ S. Rep. No. 541, 99th Cong., 2d Sess. 14 reprinted in 1986 U.S. Code Cong. & Ad. News 3568.

/50/ Id.

/51/ 18 U.S.C.S. sec. 2511(1) (Law. Co-op. Supp. May 1988). ECPA coverage in the corporate situation may be limited to "cracker" and unauthorized employee situations as will be discussed later.

/52/ 18 U.S.C.S. secs. 2701(a), 2702(a) (Law. Co-op. Supp. May 1988).

/53/ 18 U.S.C.S. secs. 2516, 2517, 2518, 2703 (Law. Co-op. Supp. May 1988).

/54/ 18 U.S.C.S. sec. 2704(b) (Law. Co-op. Supp. May 1988).

/55/ 18 U.S.C.S. sec. 2705(a)(2) (Law. Co-op. Supp. May 1988) (endangering the life or physical safety of an individual; flight from prosecution; destruction or tampering with evidence; intimidation of potential witness; or otherwise seriously jeopardizing an investigation or unduly delaying a trial).

/56/ 18 U.S.C.S. sec. 2704(a) (Law. Co-op. Supp. May 1988).

/57/ 18 U.S.C.S. sec. 2706 (Law. Co-op. Supp. May 1988).

/58/ 18 U.S.C.S. secs. 2510(15), 2710(1) (Law. Co-op. Supp. May 1988) (emphasis added).

/59/ 18 U.S.C.S. sec. 2710(2) (Law. Co-op. Supp. May 1988).

/60/ 18 U.S.C.S. secs. 2701(c)(1), 2702(a)(1) (Law. Co-op. Supp. May 1988).

/61/ 18 U.S.C.S. sec. 2511(2)(g)(i) (Law. Co-op. Supp. May 1988); S. Rep. No. 541, 99th Cong., 2d Sess. 18 reprinted in 1986 U.S. Code Cong. & Ad. News 3572; S. Rep. No. 541, 99th Cong., 2d Sess. 36 reprinted in 1986 U.S. Code Cong. & Ad. News 3590.

/62/ 18 U.S.C.S. secs. 2511(1), 2701(a), 2702(a) (Law. Co-op. Supp. May 1988).

/63/ 18 U.S.C.S. sec. 2511(2)(g)(i) (Law. Co-op. Supp. May 1988).

/64/ See Wiley & Leibowitz, Electronic Privacy Act is Progress -- But It Still Is Not a Panacea, The National Law Journal, January 12, 1987, at 20:

Restrictions on access to stored communications, however, are not intended to apply to electronic bulletin boards and similar services readily available to the general public. One seeking access may imply authorization where the means of access are widely known and there are no "warnings, encryptions, password requests, or other indicia of intended privacy" encountered.

/65/ Most modem programs have the ability to "capture," or to record, a user's call to a BBS or online service for later review or editing. For instance, a user examining the database on an online service may want to "capture" important information he is reading on the computer screen. Or he may want to "capture" received email for permanent storage on his own computer diskettes. This eliminates the need for notetaking by hand or the use of printouts to capture the information. The screen "capture" of the DePaul notice is just one example of this ability. Other computer software, not necessarily modem programs, provide similar abilities to "capture" screen information also.

/66/ Print and broadcast journalists have unfortunately confused the terms "hacker" and "cracker." Hackers are computer users who happen to very good at computer programming. Like magazine writer "hacks," hackers happen to very good at writing computer software programs. Crackers, on the other hand, are individuals who criminally try to "crack" into computer networks for illegal access. See Steven Levy, Hacker: Heroes of the Computer Revolution (1984).

/67/ See infra note 64. If there are no privacy toggles, the warning would certainly be adequate.

/68/ There is a commercial consumer service that finds itself in this situation. "Not even [their] 'god' number could ever read the [passworded] mail." Hernandez, Computer Electronic Mail and Privacy, 3 The Computer Law and Security Report 4, 8 (Great Britain) (Nov./Dec. 1987).

/69/ Some BBS software programs do not completely remove a message from the system when the user "deletes" or "erases" it. Although the message may no longer be in a user's queue to read, the message may still be in the message base until completely purged from the system by the sysop. Until then, depending on the software, the sysop may be able to "undelete," "unerase" or "restore" the message for anyone to read. Depending on what toggles the sysop activates, the restored message may become public or private. Unlike a mere user who only has a limited number of privileges on the BBS, a sysop has the greater ability to manipulate his system in almost any way he chooses. Of course, such manipulation depends on the software that the sysop is using.

/70/ News of the Thompson case has heightened the liability awareness of sysops all around the nation. Articles for online electronic publications have been distributed about the case. Discussions about the case are held on various commercial and hobbyist online services and systems. A live May 1988 conference was even held at the John Marshall Law School Center for Information Technology and Privacy Law. Also, shortly after news of the Thompson case became known, but perhaps more in response to the general problem situation, a book discussing privacy, copyright, state criminal laws, and other BBS legal issues was published by two New York attorneys who also happen to be veteran sysops. See J.Wallace & R.Morrison SYSLAW: The Sysop's Legal Manual (1988) (published by LLM Press, 150 Broadway, Suite 607, New York, New York 10038).

/71/ Cable Communications Policy Act of 1984 sec. 5(b), 47 U.S.C.S. sec. 605 (Law. Co-op. Supp. May 1988). The original section 605 of the Communications Act of 1934 was previously replaced with a substitute section 605 under the Omnibus Crime Control and Safe Streets Act of 1968. S. Rep. No. 1097, 90th Cong., 2d Sess. reprinted in 1968 U.S. Code Cong. & Ad. News 2112, 2196-2197.

/72/ 18 U.S.C.S. sec. 2520(a) (Law. Co-op. Supp. May 1988)

/73/ 18 U.S.C.S. secs. 2520(a), 2511 (Law. Co-op. Supp. May 1988).

/74/ 18 U.S.C.S. sec. 2520(b) (Law. Co-op. Supp. May 1988).

/75/ 18 U.S.C.S. sec. 2520(d) (Law. Co-op. Supp. May 1988).

/76/ 18 U.S.C.S. sec. 2707(a) (Law. Co-op. Supp. May 1988).

/77/ 18 U.S.C.S. secs. 2707(a), 2701(a), 2702(a) (Law. Co-op. Supp. May 1988).

/78/ 18 U.S.C.S. sec. 2707(b) (Law. Co-op. Supp. May 1988).

/79/ 18 U.S.C.S. sec. 2707(c) (Law. Co-op. Supp. May 1988).

/80/ 47 U.S.C.S. sec. 605(a) (Law. Co-op. Supp. May 1988).

/81/ Id.

/82/ S. Rep. No. 1097, 90th Cong., 2d Sess. reprinted in 1968 U.S. Code Cong. & Ad. News 2112, 2197; 47 U.S.C.S. sec. 605(a) (Law. Co-op. Supp. May 1988).

/83/ 47 U.S.C.S. secs. 605(d)(3)(B), 605(d)(3)(C) (Law. Co-op. Supp. May 1988).

/84/ 47 U.S.C.S. sec. 605(d)(3)(C)(ii) (Law. Co-op. Supp. May 1988).

/85/ Thompson v. Predaina, C.A. No. IP-88 93C.

/86/ 47 U.S.C.S. sec. 605(d)(3)(C)(iii) (Law. Co-op. Supp. May 1988).

/87/ Moran, Federal Privacy Suit Against BBS Operator, Online Today daily edition, March 26, 1988 (CompuServe electronic magazine).

/88/ 18 U.S.C.S. sec. 2511(2)(g)(i) (Law. Co-op. Supp. May 1988) (emphasis added).

/89/ 18 U.S.C.S. secs. 2511(1), 2701(a), 2702(a) (Law. Co-op. Supp. May 1988).

/90/ 18 U.S.C.S. sec. 2511(2)(g)(i) (Law. Co-op. Supp. May 1988).

/91/ S. Rep. No. 541, 99th Cong., 2d Sess. 2-3 reprinted in 1986 U.S. Code Cong. & Ad. News 3556-3557.

/92/ But see infra corporate big brother discussion.

/93/ 18 U.S.C.S. sec 2510(1) (Law. Co-op. Supp. May 1988).

/94/ S. Rep. No. 541, 99th Cong., 2d Sess. 12 reprinted in 1986 U.S. Code Cong. & Ad. News 3566 (emphasis added).

/95/ S. Rep. No. 541, 99th Cong., 2d Sess. 35 reprinted in 1986 U.S. Code Cong. & Ad. News 3589 (emphasis added).

/96/ S. Rep. No. 541, 99th Cong., 2d Sess. 36 reprinted in 1986 U.S. Code Cong. & Ad. News 3590; 18 U.S.C.S. sec. 2701(b)(1) (Law. Co-op. Supp. May 1988).

/97/ Id.

/98/ 18 U.S.C.S. sec. 2701 (Law. Co-op. Supp. May 1988).

(a) Offense -- Except as provided in subsection (c) of this section whoever --
(1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or
(2) intentionally exceeds an authorization to access that facility;
and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage shall be punished as provided in subsection (b) of this section....

....

(c) Exceptions -- Subsection (a) of this section does not apply with respect to conduct authorized --

(1) by the person or entity providing a wire or electronic communications service;
(2) by a user of that service with respect to a communication of or intended for that user....

/100/ Id.

/101/ 18 U.S.C.S. sec. 2702(b)(5) (Law. Co-op 1979 & Supp. May 1988) (emphasis added).

/102/ Electronic message from Brock Meeks (March 30, 1988) (discussing "ECPA and Corporate Systems").

/103/ This legislative intent to exclude corporate monitoring of employees from ECPA was confirmed by those who followed the drafting of the legislation. Electronic message from Brock Meeks (March 31, 1988) (discussing "Re: ECPA Application to Corporate Systems?"). Meeks quoting Jerry Berman, counsel for the American Civil Liberties Union, a participant in the drafting of the legislation: "ECPA 'goes right up to the water's edge [of employee privacy protection] but stops short' and to have included some employee privacy protection against employers in the corporate context 'would have killed the bill.'" Id. A similar exception may be allowed for wire communications within a company's private telephone network. See 18 U.S.C.S. sec. 2511(2)(a)(i) (Law. Co-op. Supp. May 1988).

/104/ Although an employer may argue that employee monitoring ensures the quality of employee work, an employee may argue that such monitoring may causes employee stress and perhaps even feelings of distrust in the workplace.

/105/ Needless to say, the same ECPA criminal procedures may apply in the corporate context as in the commercial and "hobbyist" contexts if law enforcement seeks to obtain evidence on a corporate system. However, a corporate entity may have more discretion whether to seek protection from governmental intrusion under ECPA or to voluntarily turn over the evidence to law enforcement on a mere request under the corporate "big brother" exception.

/106/ Information Age Bill of Rights, Calif. Assembly Const. Amend. No. 36, introduced by Assemblywoman Gwen Moore, March 6, 1987. ACA 36 "died" in the California Senate Judiciary Committee on June 21, 1988. Electronic message from Bob Jacobson, Principal Consultant to Assemblywoman Moore (June 21, 1988) (discussing "Info Age Bill of Rights Rides Again! (Part II)"). Although ACA 36 is dead, the result at the state level is an awareness of the need for new law to keep up with changing technology.

(end)

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