At a Glance: ECPA’s Unresolved Questions

Courts have struggled to apply the Electronic Communications Privacy Act—with its segmented data types and prioritization of service providers—to communications services that did not exist when the statute was enacted in 1986.

Fourth Amendment issues aside, key legal questions under the law include:

• When does a private e-mail server qualifies as “a facility through which an electronic communication service is provided”? See Devine v. Kapasi, No. 09–6164 (N.D. Ill. June 7, 2010) (holding that a private e-mail server was not an e-communications “facility,” after identifying a split on the issue).
• Who has the authority to consent to the disclosure ...