[TrunkCom] House Bill - impact on scanning?
Tomas Hood - NW7US
[email protected]
Wed, 17 Jul 2002 14:44:55 -0700
Forward:
== start ==
>Subject: [WUN] Major change to the ECPA that impacts everyone...
>Date: Wed, 17 Jul 2002 11:46:01 -0400
>From: Dave Emery <[email protected]>
>To: [email protected], [email protected]
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, [email protected] 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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--
73 de Tomas, NW7US // AAR0JA
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