[Lf] [Fwd: New Laws ?!]

Sat Jul 20 21:24:47 CDT 2002

Maitland Bottoms wrote:

> This is worth discussion on Tacos, I think:
>
>   ------------------------------------------------------------------------
>
> Subject: [Discuss-gnuradio] VERY important change to the ECPA....
> Date: Tue, 16 Jul 2002 15:06:06 -0400
> From: Dave Emery <die at die.com>
> To: discuss-gnuradio at gnu.org
>
>         The following is a note I posted to a number of scanner and other
> radio lists.
>
>         But the legal changes also directly impact the gnu-radio project
> as any use of gnuradio to intercept a radio transmission not "readily
> accessible to the general public" under 18 USC 2510 and 2511 even for
> hobby curiosity or testing purposes may well have just become a federal
> felony with 5 years in jail as a penalty and no safe harbor for hobby
> activities or a first offense.
>
>         Specifically, of course, this applies to paging and cell
> transmissions and probably electronic email like Blackberries...
>
>         Prior to the passage of this bill (expected momentarily)
> intentional hobby type interceptions of radio communications that
> weren't "scrambled or 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
> communications" were treated either as a misdemeanor offense with fines
> or a year or less penalty or for interceptions of cell calls, pagers,
> and cordless phones and phone patches on trunked systems as an "offense"
> for which the maximum penalty was a $500 fine.
>
>                 --------  posting follows --------
>
>         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 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 .
>
>         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" 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  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  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 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
>
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Randy,
above url as discussed

aren't you on the Tacos mailing list any longer?
André