The “electronic communication” means 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, but does not include (A) any wire or oral communication; (B) any communication made through a tone-only paging device; (C) any communication from a tracking device (as defined in section 3117 of this title); or (D) electronic funds transfer information stored by a financial institution in a communications system used for the electronic storage and transfer of funds.

Title I of the ECPA protects wire, oral, and electronic communications while in transit. It sets down requirements for search warrants that are more stringent than in other settings. Title II of the ECPA, the Stored Communications Act (SCA) protects communication held in electronic storage, most notably messages stored on computers. Its protections are weaker than those of Title I, however, and do not impose heightened standards for warrants. Title III prohibits the use of pen register and/or trap and trace devices to record dialing, routing, addressing, and signalling information used in the process of transmitting wire or electronic communications without a search warrant.

The ECPA has been met with criticism through the years including its failure to protect all communications and consumer records. Under the ECPA it is relatively easy for a governmental agency to demand service providers hand over consumer data that has been stored on servers. All that is required of the agency is a written statement certifying that the information is relevant to an investigation of foreign counterintelligence with no judicial review required. It also increased the list of crimes that can justify the use of surveillance as well as the number of judicial members who can authorize such surveillance. Data can be obtained without a warrant on traffic and calling patterns of an individual or group allowing an agency to gain valuable intelligence and possibly invade privacy without coming under fire because the actual content of the communication is left untouched. While workplace communications are in theory protected an employer must simply give notice or a supervisor must feel that the employee’s actions are not in the company’s “interest” to gain access to communiqu?©. This means that with minimal assumptions an employer can monitor communications within the company. The ongoing debate is where to limit the government’s power to see into civilian lives while balancing the need to curb national threats. The ECPA falls directly in the middle of this debate both sides wanting revisions and clarifications made by the courts and legislation.