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The Fourth Amendment and the Wiretap Act Fail to Protect Against Random ISP Monitoring of E-mails for the Purpose of Assisting Law Enforcement

Byline:

Jim W. Ko

Issue:

VOL. XXII • Winter 2004 • NO. 2 (table of contents)

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Abstract:

This article takes the position that the Wiretap Act and the Electronic Communications Privacy Act (ECPA) does little to provide protection against internet service providers (ISPs) that randomly monitor e-mails for the purpose of turning over evidence of criminal activities to law enforcement officials. The article provides a background to the special privacy issues that arise in the context of computer technology and ISPs. An analysis of the Wiretap Act, as amended by the ECPA, reveals that an implicit statutory prohibition against random surveillance by ISPs for the purpose of assisting law enforcement does in fact exist. Further, remedies for violations of this provision are deficient because of many exceptions, and because criminal sanctions and the exclusionary rule are not included. Recent court decisions are analyzed which collectively suggest that the Fourth Amendment does not protect against evidence obtained from ISP surveillance. Finally, the article concludes by providing suggestions as to how the publicís privacy interests against random ISP monitoring can and should be protected.

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