[ScanIndiana] Re: [TrunkCom] House Bill - impact on scanning?

[MONIX]

----- Original Message -----
From: "Tomas Hood - NW7US" <nw7us@hfradio.org>
To: "Trunkcom" <trunkcom@mailman.qth.net>; "swl@qth.net"
<swl@mailman.qth.net>
Sent: Wednesday, July 17, 2002 5:44 PM
Subject: [TrunkCom] House Bill - impact on scanning?


> Forward:
>
> == start ==
> >Subject: [WUN] Major change to the ECPA that impacts everyone...
> >Date: Wed, 17 Jul 2002 11:46:01 -0400
> >From: Dave Emery <die@die.com>
> >To: fedcom@mailman.qth.net, wun@mailman.qth.net
>
> Sorry to be the bearer of bad news, but something of enormous
> importance to radio hobbyists has just happened in Washington, and
> so far I haven't seen any mention or discussion of it on any
> scanner or ham lists I follow.
>
> I hope this message will alert others to what has just happened and
> get people thinking about the consequences...
>
> The House just passed the Cyber Security Enhancement Act (HR3482)
> 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 ....
>
> USC Section 2511 subsection 4 of title 18 (the ECPA) currently
> reads as foilows....  the CSEA 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 hobbyist 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 the guy 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 listeners.
>
> 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 hobbyists  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 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).
>
> Most significant for many of us, the section 18 USC 2510 exceptions
> to the prohibitions on intercepting radio communications in 18 USC
> 2511 are pretty silent about military communications - not
> prohibited, or specifically allowed except as "governmental
> communications".  So it is possible that military comms might be
> found to be illegal to intercept and thus passing around
> information about them a potential felony, even though of course
> the military has complete access to the world's best COMSEC
> technology and uses for anything sensitive.   But in a paranoid age
> (post 9/11) anything goes... and if the government wants to go
> after scanner lists (like Milcom) it might now be able to do so
> with prosecutions with real teeth and jail time.
>
> 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 hobbyists 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...
>
> So yet another blow to the radio hobbies.... and a big one
> indeed...
>
> --
>         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
>
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> == end ==
>
> --
> 73 de Tomas, NW7US // AAR0JA
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