Monday, February 7, 2011

What Happens When the Government Violates the ECPA?

A new appeals court cases addresses what happens when the government violates the Electronic communications privacy act (ECPA).  The answer is:  nothing, at least in the criminal trial.
The case is U.S. v. Clenney from the Fourth Circuit. 
In this case, the defendant was charged with possession of a firearm by a convicted felon.  The police initially were investigating an attempted extortion matter.  They obtained a warrant to search the defendant’s home and, there, observed “a Boost Mobile phone, which, according to the phone records, was the make of the phone belonging to the phone number from which the” allegedly illegal calls had originated.  During the search, the officers also found a firearm. 
One of the issues raised in the case is that the police violated the ECPA by obtaining the defendant’s cellular phone records during the investigation.  Normally, the government must use a subpoena for basic information like call records and subscriber info, or must obtain a ocurt order or search warrant for more detailed information.  The court held, however, that even if the statute had been violated, the evidence could still be used at trial:

The usual avenue for suppression — operation of the exclusionary rule occasioned by a Fourth Amendment violation —is not available to [the defendant.  The police officer] did not violate the Fourth Amendment when he obtained the cellular phone records. Phone customers have no constitutionally cognizable privacy interests in basic subscriber information.

The reason is that the ECPA provides for civil remedies, but does not explicitly require the court to exclude the evidence. 

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