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Criminal Resource Manual

1045. Definition—"Electronic Communication"

The definition of an "electronic communication" appears in 18 U.S.C. § 2510(12). This form of communication was added to Title III by the 1986 Act to cover most forms of electronic communications existing today. It includes 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. Moreover, because the 1994 Act specifically eliminated the exclusion from this definition the radio portion of a cordless telephone communication that is transmitted between the cordless telephone handset and the base unit, such communications are now protected by the statute. See H.Rep. No. 103-827, 103d Cong., 2d Sess. (1994), reprinted in 1994 U.S.Code Cong. & Ad.News 3489, 3510. See McKamey v. Roach, 55 F.3d 1236, 1238 n.1 (6th Cir. 1995) (noting change in law). Nonetheless, this definition does not include "electronic storage" of communications, as defined in 18 U.S.C. § 2510(17), because unlawful access to stored communications is governed by 18 U.S.C. § 2701 et seq.

The definition of an "electronic communication" specifically excludes: a "wire" or "oral" communication, as defined in Title III; communications from tone-only paging devices; communications from tracking devices; and electronic funds transfer information stored by a financial institution in a communications system used for the electronic storage and transfer of funds. This last exception was added as part of the Antiterrorism and Effective Death Penalty Act of 1996 in order to enable "law enforcement to obtain such bank records through the usual grand jury subpoena, or other court order procedure, without requiring a wiretap order for these purposes." H. Conf. Rep. No. 104-518, 104th Cong., 2d Sess. (1996), reprinted in 1996 U.S.Code Cong. & Ad.News 924, 956-57.

[cited in USAM 9-60.200]