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26 decision support efforts. It is a centralized database con- I of the ECPA amended the Federal Wiretap Act so that taining data from various existing operational systems, it is applicable to the interception of electronic commu- providing the ability to combine data from two or more nications,293 whereas Title II of the ECPA created the systems and to access such data by way of common fields. Stored Communications Act (SCA) to cover unauthor- The DW is a query only database--no updates can be ap- ized access to stored communications and records.294 plied directly to it. To protect its right to the information collected, the LIRR has created the Data Distribution Pol- icy. 1. Federal Wiretap Act WMATA stated that it The Federal Wiretap Act295 proscribes the intercep- tion of electronic communications, as well as wire and has a draft data sensitivity policy that is currently under oral communications. Thus, the Act applies, inter alia, approval review. The policy provides explicit classification to any person who "intentionally intercepts, endeavors of information (data) and intended audience. It identifies certain types of documents as public, internal use only, to intercept, or procures" another person to intercept an proprietary, or confidential. Unless specifically desig- electronic communication.296 The Act also applies to nated for public consumption, all Metro information is to someone who intentionally discloses or uses or endeav- remain at Metro unless it is intentionally provided by an ors to disclose or use the contents of any electronic appropriate management authority or data owner to a re- communication knowing or having reason to know that questing party. the electronic communication was intercepted in viola- As for whether any outside developers have requested tion of the statute.297 An interception means the acquisi- or required any limitations on the disclosure of data to tion of an electronic communication "`through the use of anyone beyond the agency's or developer's control or any electronic, mechanical, or other device'"298 contem- supervision, 34 agencies responded that no such re- poraneously with the transmission of the electronic quests had been made of them. The Maryland Transit communication.299 Administration stated that "[t]he developers of our real- Section 2520 authorizes a civil action for an intercep- time systems require [the] execution of licensing tion, disclosure, or intentional use of an electronic agreements that limit use beyond MTA business pur- communication in violation the Act. A plaintiff may poses. Generally this applies to software, but not neces- seek preliminary and other equitable or declaratory sarily the data." BART stated that it "does not out- relief; damages, including punitive damages in appro- source the collection of real-time data, so `rights' are not priate cases; and "reasonable attorney's fees and other in dispute as with other agencies using third-party litigation costs reasonably incurred."300 technology for this task." 2. Stored Communications Act Guidance Number 14 Section 2701 of the SCA prohibits the intentional ac- Transit agencies' responses to the survey indicated cessing of electronic data without authorization or in that they would rely mostly on their contracts and pos- excess of one's authorization.301 Section 2701(a) applies sibly use some copyright-like controls, such as data en- to anyone, except as provided in subsection (c), who cryption, to protect real-time data. No transit agency "intentionally accesses without authorization a facility suggested that it would attempt to copyright real-time through which an electronic communication service is data as a compilation or database. provided; or...intentionally exceeds an authorization to access that facility; and thereby obtains, alters, or pre- VI. PROTECTION OF REAL-TIME DATA UNDER vents authorized access to a wire or electronic commu- OTHER FEDERAL AND STATE LAWS nication while it is in electronic storage...." Section 2701 prohibits only unauthorized access and not the misappropriation or disclosure of information.302 A. Electronic Communications Privacy Act The Electronic Communications Privacy Act (ECPA), 100 Stat. 1848 (1986) (codified at 18 U.S.C. 1367, 25102521, although a criminal statute, creates a cause of action 27012710, 31213126 (2000)). for damages and other relief against electronic tres- 293 291 United States v. Steiger, 318 F.3d 1039, 1046 (11th Cir. passers or "computer hackers." If an unauthorized 2003), cert. denied, 538 U.S. 1051, 123 S. Ct. 2120, 155 L. Ed. party gains access to a transit agency's real-time data 2d 1095 (2003). "by intercepting an electronic communication or access- 294 Id. at 1047 (citing 18 U.S.C. 2701(a)). ing information stored about such communication," the 295 18 U.S.C. 25102522 (2009). unauthorized interception may violate the ECPA.292 Title 296 Id. 2511(1)(a) (2009). 297 Id. 2511(c) (2009). 298 291 Crowley, 166 F. Supp. 2d 1263, 1268 (N.D. Cal. 2001) Sherman & Co. v. Salton Maxim Housewares, Inc., 94 F. (quoting 18 U.S.C. 2510). Supp. 2d 817, 820 (2000) (quoting State Wide Photocopy Corp. 299 Steiger, 318 F.3d at 1047 (citations omitted). v. Tokai Financial, Inc., 909 F. Supp. 137, 145 (S.D.N.Y. 300 1995)). 18 U.S.C. 2520. 301 292 Lars Smith, supra note 22, at 751; see Electronic Com- Sherman, 94 F. Supp. 2d at 820. 302 munications Privacy Act of 1986, Pub. L. No. 99-508, 101-303, Therapeutic, 488 F. Supp. 2d at 99798.