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Electronic Communications Privacy Act of 1986

ELECTRONIC COMMUNICATIONS PRIVACY ACT OF 1986

CHAPTER 121--STORED WIRE AND ELECTRONIC COMMUNICATIONS
AND TRANSACTION RECORDS ACCESS

Section 2701.  Unlawful access to stored communications

(a) Offense.--Except as provided in subsection 9c)  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 in such system shall be
punished  as  provided  in  subsection (b)  of this section.

(b) Punishment.-- The punishment for an offense  under  sub-
section (a) of this section is--                            
(1)  if  the  offense  is  committed  for  purposes  of
commercial  advantage,  malicious  destruction  or  damages,
or private commercial gain--                                
(A)a fine of not more than $250,000 or            
imprisonment for not more than one year,  or  both,  in  the
case of a first offense under this subparagraph; and        
(B)a fine  under  this  title or  imprisonment for
not more than two years  or  both  for an subsequent offense
under this subparagraph; and                                
(2)  a fine of not more than $5,000 or imprisonment for
not more than six months, or both in any other case.        

Section 2702. Disclosure of Contents

(a) Prohibitions.--Except   as provided  in subsection (b)--
(1) a  person  or  entitle  providing   an   electronic
communication  service  to  the  public  shall not knowingly
divulge   to  any  person  or  entity  the  contents   of  a
communication  while in electronic storage by that service; 
and;
(2)  a person  or  entity  providing  remote  computing
service to the public shall  not  knowingly  divulge  to any
person  or  entity  the contents of any communication  which
is carried or maintained on that service--                  
(A) on   behalf  of,  and  received  by  means  of
electronic  transmission  from   (or  created  by  means  of
computer processing  of  communications  received  by  means
of electronic transmission from),  a  subscriber or customer
of such service; and
(B) solely for the purpose of providing storage or
computer processing services to such subscriber or customer,
if the provider is not authorized to access the contents  of
any   such  communications  for  purposes  of  providing any
services   other  than  storage   or  computer   processing.

(b) Exceptions.--A  person   or  entity   may  divulge   the
contents of a communication ---                             
(1) to  an  addressee  or intended  recipient  of  such
communication  or  an  agent  of  such addressee or intended
recipient;
(2) as otherwise authorized in section 2516,           
2511(2)(a) or 2703 of this title;                           
(3) with the lawful  consent  of  the  originator or an
addressee or intended recipient  of  such  communication, or
the subscriber in the  case  of  remote  computing  service;
(4)to  a  person  employed   or   authorized  or  whose
facilities are sued  to  forward  such  communication to its
destination;
(5)as may be necessarily incident to the  rendition  of
the service or to the protection of the rights  or  property
of the provider of that service;or                          
(6)to  a  law  enforcement  agency,  if such contents--
(A) were inadvertently obtained by service provider;
and,
(B) appear to pertain to the commission of a  crime.

*******

REPORT LANGUAGE

Proposed section 2701 provides  a new criminal offense.  The
offense   consists  of  either:(1)intentionally   accessing,
without   authorization,   a   facility  through  which   an
electronic  communication  service  is   provided   or   (2)
intentionally exceeding the authorization of such facility. 
in addition, the offense requires that the offender must, as
a  result  of  such  conduct,  obtain,  alter,  or   prevent
unauthorized access to a wire  or  electronic  communication
while it  is  in  electronic  storage in such a system.  The
term electronic storage is  defined  in  section 2510(17) of
Title   18.  Electronic   storage   means   any   temporary,
intermediate  storage  of a wire or electronic communication
incidental  to  the electronic transmission thereof and  the
storage   of   such   communication    by    an   electronic
communications service for the purpose of back-up protection
of such communication. 

Section 2701(a) makes it an  offense intentionally to access
without  authorization, or to  exceed  an  authorization  to
access,  an  electronic communication  service  and  thereby
obtain, later  or prevent authorized access  to  a  wire  or
electronic communication  while  it is in electronic storage
in  such  system.   This  provision  addresses  the  growing
problem of unauthorized persons deliberately gaining  access
to,  and   sometimes  tampering  with,  electronic  or  wire
communication that are not intended to be available  to  the
public.     *******(emphasis   added)****   The    Committee
recognizes   however   that  some  electronic  communication
services   offer  specific  features,  sometimes  known   as
computer  "electronic   bulletin   boards,"   through  which
interested person may communicate  openly with the public to
exchange  computer  programs in the public domain and  other
types of information that  may  be distributed without legal
constraint. 

It is not the intent to  hinder  the  development  or use of
"electronic bulletin  boards"  or other comparable services.
The  Committee  believes   that  where  communications   are
readily accessible to the  general  public,  the sender has,
for   purposes   of   Section   2701(a)    ,   extended   an
"authorization"    to    the   public   to   access    those
communications.   A person may reasonably  conclude  that  a
communication is readily accessible to the  general   public
if the telephone number  of  the  system  and other means of
access are widely known, *and if a  person  does not, in the
course  of   gaining   access,   encounter   any   warnings,
encryptions,  password requests  or other **indications  of 
intended  privacy.   To  access  a communication on  such a 
system should not be a violation of the law. 

Some communication systems offer a mixture of services, some
such as bulletin boards,  which  maybe readily accessible to
the   general  public,  while  others--such  as   electronic
mail--may  be  intended  to be confidential.  Such a  system
typically  has two or more distinct levels of  security.   A
user may  be  able  to access electronic bulletin boards and
the  like merely with a password  he  assigns  to   himself,
while access to such  features as electronic mail ordinarily
entails a higher level of security (i.e., the  mail  must be
addressed  to  the  user  to  be  accessible specifically). 
Section  2701  would  apply  differently  to  the  different
services.  Those wire or electronic communications which the
service  provider attempts  to  keep confidential  would  be
protected, while the statute  would  impose no liability for
access to feature configured to be readily accessible to the
general public. 

*****

Section 2702  specifies that  a person or entity  providing 
wire or  electronic communication  service  to  the  public 
may divulge  the  contents  of  a  communication  while  in 
electronic storage by that service with the  lawful  consent
of  the originator or any addressee or  intended   addressee
or intended recipient  of  such communication. The committee
emphasizes  that "lawful consent" in this context, need  not
take the form of a formal  written document  of  consent.  A
grant  of  consent  electronically would protect the service
provider from liability  for disclosure  under section 2702.
Under  various  circumstances,  consent might be inferred to
have arisen from a  course  of  dealing  between the service
provider  and  the  customer or  subscriber--e.g.   where  a
history  of transactions between the parties offers a  basis
for  a reasonable understanding that a consent to disclosure
attaches to a particular class  of  communications.  Consent
may also flow  from a user having had a reasonable basis for
knowing that disclosure or use may be made with respect to a
communications  ,  and having taken  action  that  evidences
acquiescence  to such disclosure or use--e.g., continued use
of such an electronic communication system.  Another type of
implied consent might be  inferred  from  the very nature of
the electronic transaction.   for example,  a subscriber who
places  a  communication on a computer  "electronic bulletin
board,"  with  a  reasonable  basis  for  knowing that  such
communications  are  freely  made  available to the  public,
should be considered to have given consent to the disclosure
or  use  of   the  communication.   if  conditions governing
disclosure or  use  are  spelled  out  in  the  rules  of an
electronic   communication  service,  and  those  rules  are
available to users or in contracts for the provision of such
services, it would  be  appropriate  to imply consent on the
part of a user to disclosures or uses consistent with  those
rules. 

Section 2702(a) specifies that  a person or entity providing
a  wire   or  electronic  communication  service  or  remote
computer services to the  public shall not knowingly divulge
the  contents  of  any  communication  while  in  electronic
storage by  that service to any  person or entity other than
the addressee or intended recipient of such communication or
an  agent  of such addressee or  intended  recipient of  the
communications.    Under  some  circumstances,   however,  a
customer   of  or  subscriber   to   a  wire  or  electronic
communication  service  may  place  a  communication on  the
service  without specifying an addressee.  The Committee  in
tends,  in  that situation,  that  the  communication  at  a
minimum be deemed addressed  to  the  service  provider  for
purposes  of  Section  2702(b).  Because  an  addressee  may
consent to the disclosure of  a  communication  to any other
person,  a  service provider or system operator, as  imputed
address,   may  disclose  the  contents  of  an  unaddressed
communication. 

A   person  may   be   an   "intended   recipient"    of   a
communication, for purpose of  section  2702 , even if he is
not  individually  identified  by  name   or  otherwise.   A
communication may be addressed to the members  of  a  group,
for example.  In the case of an  electronic  bulletin board,
for  instance, a communication  might  be  directed  to  all
members of a previously formed "special interest group"  or,
alternatively,  to  all  members   of  the  public  who  are
interested in  a particular topic of discussion.  In such an
instance,  the service  provider  would  not  be liable  for
disclosure to any person who  might reasonably be considered
to fall in the class of intended recipients. 


COMMENTS

The entire document has to be read and studied to draw final
conclusions on a number  of  important issues.  However, the
following observations I think are fair at this point:

1.  SYSOPS  are,  under the  Act,  going  to  be  considered
providers of  an electronic communications service. In other
words,  whenever  a  BBS  goes  up, it becomes an electronic
communication service subject to the requirements of the new
law, should it be enacted. 

2. Users of the  BBS  are protected by the law, and may have
grounds to take action against or ask that criminal  charges
be brought if their communications are improperly disclosed.

3. SYSOPs do have  added  protection  against  hackers,  and
federal law enforcement should now be available. 

4. Any "general" messages addressed to  all  members  of the
board, provided the board is open to the general public, may
be disclosed and are not protected. 

5. How other messages and  files  are  handled  gets complex
thereafter. 

a.  It  is  unclear whether a sysop may legally read private
mail  on  his  board addressed to another user, unless sysop
discloses in a warning message  that  he/she  may  read such
messages. 

b.  Conferences that are not generally open  to  the  public
probably create an expectation of privacy and there  will be
limited rights to disclose information. 

c.  Major changes in security procedures might require  user
consent, or their messages might have to be removed. 

6. It would be  prudent  to  have  a major disclaimer in the
introduction of each BBS session,  stating  that there is no
expectation of privacy and that  anything  left on the board
may be read or disclosed by the sysop. 

 
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