What Level of Protection Do LEAFs Have Under the Electronic Communications Privacy Act?
The contents of an ordinary conversation on the telephone, even one that is not encrypted, are a “wire communication” and hence entitled to the highest statutory protection provided by Title III, as well as the full protection of the Fourth Amendment. It is clear that an encrypted voice communication, even one digitized by a Clipper Chip, remains a “wire communication” for Title III purposes.{328} By contrast, an “electronic communication”–digitized data–receives a lower level of statutory protection, although it is still illegal to intercept it without a judicial order, and the Fourth Amendment still applies with full force. A LEAF on its own, without a conversation following it, would only be an electronic communication, not a wire communication.
