The House just passed the Cyber Electronic Security Act last night (7/15/02) by an overwhelming margin of 385-3. Buried in an otherwise draconian bill that raises penalties for computer hacking that causes death or serious injury to life in prison and allows government monitoring of communications and email without warrants in even more circumstances is the following seeming obscure language:

SEC. 108. PROTECTING PRIVACY.

(a) Section 2511- Section 2511(4) of title 18, United States Code, is amended--

(1) by striking paragraph (b); and

(2) by redesignating paragraph (c) as paragraph (b).

For those of you who don't realize what this means .... Section 2511 subsection 4 of title 18 (the ECPA) currently reads as foilows.... the CESA will strike part (b) of this language. Penalties..

(a)

Except as provided in paragraph (b) of this subsection or in subsection (5), whoever violates subsection (1) of this section shall be fined under this title or imprisoned not more than five years, or both.

[The following section will be eliminated by the new law...]

(b)

If the offense is a first offense under paragraph (a) of this subsection and is not for a tortious or illegal purpose or for purposes of direct or indirect commercial advantage or private commercial gain, and the wire or electronic communication with respect to which the offense under paragraph (a) is a radio communication that is not scrambled, encrypted, or transmitted using modulation techniques the essential parameters of which have been withheld from the public with the intention of preserving the privacy of such communication, then -

(i)

if the communication is not the radio portion of a cellular telephone communication, a cordless telephone communication that is transmitted between the cordless telephone handset and the base unit, a public land mobile radio service communication or a paging service communication, and the conduct is not that described in subsection (5), the offender shall be fined under this title or imprisoned not more than one year, or both; and

(ii)

if the communication is the radio portion of a cellular telephone communication, a cordless telephone communication that is transmitted between the cordless telephone handset and the base unit, a public land mobile radio service communication or a paging service communication, the offender shall be fined under this title.

What this does is change the penalty for the first offense of intercepting an unscrambled and unencrypted radio communication that is not supposed to be listened to (eg AMPS cellular calls, commercial pagers, cordless phones, common carrier communications) for hobby purposes (eg not a tortuous or illegal purpose or for direct or indirect commercial advantage or private commercial gain) from a misdemeanor (one year or less prison time) to a federal FELONY (5 years prison time). And further this changes the status of the specific offense of listening to a cell call, cordless call, a pager, or a public land mobile radio service communication (eg a telephone interconnect) from a minor offense for which one can be fined a maximum of $500 to a federal FELONY for which one can be imprisoned for up to 5 years. In effect this removes a safe harbor created during the negotiations over the ECPA back in 1985-86 which ensured that first offenses for hobby radio listening were only treated as minor crimes - after this law is passed simply intentionally tuning a common scanner to the (non-blocked) cordless phone frequencies could be prosecuted as a felony for which one could serve 5 years in jail. And in case any of my readers have forgotten, a federal felony conviction (even without any jail time) deprives one of the right to vote, to own firearms, to be employed in a number of high level jobs and professions, to hold certain professional licenses and permits, and important for certain readers of these lists absolutely eliminates for life the possibility of holding any kind of security clearance whatever (a recent change in the rules) - something required for many if not most interesting government and government related jobs. So merely being stopped by a cop with the cordless phone frequencies in your scanner could conceivably result in life long loss of important rights and privileges. For some of you out there this may seem small potatoes and irrelevant since it merely changes the penalties for an already illegal act (which you are not supposed to be engaged in) and doesn't make anything new illegal. But this is a rather naive view. The federal government was certainly not going to prosecute a hobbyist for radio communications interception under the old version of the ECPA if the worst penalty that could be levied was a $500 fine - there simply is not the budget or the staff to prosecute people for what would be a very minor offense (equivalent of a speeding ticket). And even prosecuting hobbyists for more serious interception (eg not cellular, cordless or pagers) was still a misdemeanor offense prosecution with jail time unlikely. So in practice the only prosecutions were of people who clearly had a commercial purpose or otherwise engaged in egregious and public (eg the Newt call) conduct - no ever got prosecuted. And this was doubtless the intent of Congress back in 1985-86 - it would be illegal to monitor certain radio traffic but only a minor offense if you did so for hobby type personal curiosity or just to hack with the equipment or technology - and a serious felony if one engaged in such conduct for the purpose of committing a crime or gaining financial or commercial advantage (eg true spying or electronic eavesdropping). But after this bill is signed into law (and clearly it will be), it will be quite possible for a federal prosecution of a hobbyist for illegal radio listening to be justified as a serious felony offense worth the time and effort and money to try and put in jail even if the offense is not for a commercial purpose or part of an illegal scheme. Thus "radio hacker" prosecutions have now become possible, and even perhaps probable. And federal prosecutors and law enforcement agents get career advancement and attention from senior management in their agencies in direct proportion to the seriousness of the offense they are investigating and prosecuting - nobody ever advances to senior agent for going after jaywalkers, thus by raising the level of less than legal hobby radio monitoring offenses from a jaywalking class offense to a serious felony for which there can be real jail time it becomes much more interesting from a career perspective to prosecute radio listening offenses. And needless to say, such prosecutions would be shooting fish in a barrel type things given that many individuals are quite open on Internet newsgroups and mailing lists about their activities. And of course this MAJOR change in the ECPA also has the effect of making the rather ambiguous and unclear meaning of "readily accessible to the general public" in 18 USC 2510 and 2511 much more significant, since intercepting something that isn't readily accessible to the general public is now clearly a serious crime even if done for hobby purposes as a first offense. Thus one has to be much more careful about making sure that the signal is a legal one... And further than all of this, and perhaps even MUCH more significant to radio listeners on Internet scanner lists .... The careful, thoughtful reader will note that section 4 has been revised a bit lately, and that this new section 4 (see above) now makes it a federal felony with 5 years in jail penalties to violate section 1 INCLUDING the following provisions of section 1: 18 USC 2511:

(1) Except as otherwise specifically provided in this chapter any person who -

(c)

intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection;

(d)

intentionally uses, or endeavors to use, the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection; or

shall be punished as provided in subsection (4) or shall be subject to suit as provided in subsection (5).

This seems to have changed the status of revealing as part of a hobby list posting any hint of the contents of a radio communications that might or might not have been legally intercepted from a potentially minor misdemeanor offense or less to a serious felony. Thus if a court finds that any communication reported on an Internet list was not legally intercepted, felony penalties apply for publishing the information even if the interception was for hobby purposes (which of course most scanner list intercepts are). Thus the legal climate has fundamentally changed, and one can assume that since the Bush administration has been pushing for the passage of this bill that they perhaps intend to start prosecuting at least some category of radio under the new provisions - no doubt as an example meant to scare the rest of us into handing our radios in at the nearest police station... -- Dave Emery N1PRE, die@die.com DIE Consulting, Weston, Mass. PGP fingerprint = 2047/4D7B08D1 DE 6E E1 CC 1F 1D 96 E2 5D 27 BD B0 24 88 C3 18