Another restriction on technology - cell and cordless scanning now a felony

[Dave Emery]

	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 at 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