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State must pay for phone records

A district attorney must pay for records of telecommunications companies that it subpoenas pursuant to the Electronic Communications Privacy Act (ECPA), U.S. District Court Judge Rudolph T. Randa held on March 16.


In October 1986, Congress enacted the ECPA to “protect against the unauthorized interception of electronic communications.”

Section 2703 of the Act sets forth the requirements for government access to private communications and states that electronic communications providers shall furnish certain records to governmental entities only under specific circumstances.

Section 2706(a) of the ECPA obligates a “governmental entity” obtaining electronic records under Section 2703 to “pay the person or entity assembling or providing such information a fee for reimbursement for such costs as are reasonably necessary and which have been directly incurred in searching for, assembling, reproducing, or otherwise providing such information.” However, “governmental entity” is not defined.

As the District Attorney for Milwaukee County, E. Michael McCann occasionally obtains court orders requesting automated message accounting studies (“AMAs”), which are compilations of information detailing the origin of incoming telephone calls to a particular telephone number.

A search for calls made to one number over three days takes approximately a half-hour of computer time. A 60-day search takes approximately 32.86 hours.

Pursuant to the ECPA, Ameritech requested reimbursement for the costs associated with compiling AMAs. McCann refused, maintaining that Ameritech is not entitled to reimbursement.

Ameritech sued McCann in his official capacity, seeking a declaratory judgment that McCann must comply with sec. 2706 of the ECPA. McCann moved to dismiss, arguing that the Eleventh Amendment barred Ameritech’s suit.

U.S. District Judge Rudolph T. Randa granted the motion on Eleventh Amendment grounds. Ameritech Corp. v. McCann, 176 F.Supp.2d 870 (E.D.Wis.2001).

What the court held

Case: Ameritech Corp. v. E. Michael McCann, No. 99-C-0675.

Issue: Is a State a “governmental entity” pursuant to 18 U.S.C. 2706(a) of the Electronic Communications Privacy Act, such that it must pay for communications records?

Holding: Yes. The definition of “governmental entity” is not limited to federal agencies, but includes state and local entities.

Ameritech appealed, and the Seventh Circuit reversed, holding that, because the action sought only prospective relief, it was not barred. Ameritech Corp. v. McCann, 297 F.3d 582 (7th Cir.2002).

On remand, Judge Randa held that McCann and the State are governmental entities subject to the ECPA. However, Randa held that the relief sought is purely advisory, and the issue is reserved for state courts.

Case or Controversy

Randa first held that a case or controversy existed, and the court had power to decide the case, because McCann conceded as much in his answer to the complaint.

McCann argued that it is individual police agencies that request information, receive information, and are billed by Ameritech for information. However, in his answer, McCann admitted that Ameritech had requested that he reimburse it pursuant to sec. 2706(a).

Randa thus found the undisputed facts establish a cooperative relationship between McCann and various law enforcement agencies, and that legal assistance is necessarily involved in obtaining orders for the records. Accordingly, the case or controversy requirement was satisfied.

Tenth Amendment

Randa also held that the suit was not barred by the Tenth Amendment. Quoting the Seventh Circuit’s decision in MCI Telecommunications Corp. v. Illinois Bell Telephone Co., 222 F.3d 323, 342 (7th Cir.2000), Randa iterated, “It is clear that Congress, in exercising its Commerce Power, could determine that all regulation of the telecommunications industry ought to be entrusted to the federal government (emphasis in original).”

Because communications services are channels and instrumentalities of interstate commerce, Randa held the ECPA is a valid exercise of Congress’ authority under the Commerce Clause.

Randa acknowledged that even validly enacted statutes may violate the Tenth Amendment if they “commandeer the states’ executive officials.” Printz v. U.S., 521 U.S. 898, 933 (1997).

Nevertheless, Randa concluded, “While the ECPA requires McCann to pay for the telecommunications records provided pursuant to subpoena, the power to subpoena these records is not proscribed, controlled or directed by the Act. The payment requirement is a minor burden. Thus, the Act neither commandeers the states’ executive officials, or legislative processes, and therefore does not violate the Tenth Amendment (cites omitted).”

“Governmental Entity”

The court then held that the term, “governmental entity,” as used in the statute, applies to state and local governments, rejecting McCann’s argument that it applies only to federal agencies.

Randa noted that the term “governmental entity” is repeated throughout sec. 2703, as well as sec. 2706. Section 2703 establishes the standards that must be satisfied before a governm
ental entity can obtain specified information.

Discussing the Federal Wiretap Act, the court noted that the majority of courts have held that the 1986 amendments indicate that local governments may be liable in a civil suit for violations of the Act. Adams v. City of Battle Creek, 250 F.3d 980, 985 (6th Cir.2001); Conner v. Tate, 130 F.Supp.2d 1370, 1374-1375 (N.D.Ga.2001); Dorris v. Absher, 959 F.Supp. 813, 819-820 (M.D.Tenn.1997); PBA Local No. 38 v. Woodbridge Police Dep’t., 832 F.Supp. 808, 822-823 (D.N.J.1993); and Tucker v. Waddell, 83 F.3d 688, 691 (4th Cir.1996).

Also, various provisions of sec. 2703 make reference to both federal and state statutes, grand juries, and warrants. For an example, sec. 2703(d) provides, “in the case of a State governmental authority, such a court order shall not issue if prohibited by the law of such State.”

Randa concluded, “The references in sec. 2703 to state entities are relevant because sec. 2706(a) expressly applies to ‘a governmental entity obtaining … records, or other information under section … 2703. …’ Therefore, a ‘governmental entity’ under sec. 2706(a) would have the same meaning as a ‘governmental entity’ referenced in sec. 2703.”

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Case Analysis

The court acknowledged that the Congressional Budget Office Estimate stated it would impose “no significant cost to the federal government and no cost to state or local governments.” Looking at the entire ECPA, however, Randa concluded this was insufficient to conclude that Congress did not intend that sec. 2706 apply to state governmental entities.

Accordingly, the court rejected McCann’s argument that the compensation requirements only apply to federal agencies.

Advisory Opinion

Nevertheless, Randa declined to hold whether McCann is required to pay for a request, because the issue is not squarely before the court, and any opinion would be advisory.

The statute provides that any disputes should be resolved by the court which issued the order for production. Because Randa had issued no order for production, nor are any criminal prosecutions pending before the court, Randa concluded that he is not authorized to resolve the issue.

Accordingly, Randa reserved any resolution of the issue for state courts empowered by the statute to render such a decision.

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David Ziemer can be reached by email.

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