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Sun May 13 10:46:53 EDT 2007


** U S A. House Radio Bill
http://www.mail-archive.com/cypherpunks-moderated%40minder.net/msg01671.html

Dave Emery (N1PRE)'s outstanding review of the radio reception provisions in 
the Cyber Electronic Security Act passed by the House on Monday, July 15.

"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 there's more, including changed provisions related to the publication of 
material heard by radio.

http://www.newsignals.com http://www.spectrumfinder.net
(Benn Kobb, July 17, DX LISTENING DIGEST)

** U S A. [WUN] MAJOR CHANGE TO THE ECPA THAT IMPACTS EVERYONE...
Date: Wed, 17 Jul 2002 11:46:01 -0400
From: Dave Emery die at die.com
To: fedcom at mailman.qth.net, wun at mailman.qth.net

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 (e.g. 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
misdemeanour (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 naïve 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 or political purpose or otherwise engaged in egregious and public 
(e.g. the Newt Gingrich 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 
(e.g. 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 at die.com  DIE Consulting, Weston, Mass.

_______________________________________________
WUN mailing list WUN at mailman.qth.net
http://mailman.qth.net/mailman/listinfo/wun == end ==
(via Tomas NW7US // AAR0JA Hood, swl via DXLD)

This bill is not limited to just cell phone communications. But to
ANY communication not intended for general public consumption. So,
that could include listening in to the Coast Guard rescue
communications, local police and fire, and so on.

I know that listening to any Shortwave Frequency that some
governmental agency decides is not for general public use would be
covered by this bill. Making even scanning through those frequencies a
federal crime. Cell phones are a very limited part of what this bill
impacts. 73 de (Tomas, NW7US // AAR0JA, ibid.)

Next step, you'll have to register your radio down at the local Police
department obtaining a permit. And then later you'll only be able to
buy radios that cover the FM and Mediumwave broadcast bands, and
'maybe' if you're lucky the International Broadcast bands. Anyone
owning a vintage general coverage receiver such as a Hallicrafters,
Hammarlund, Icom etc will be "suspect" and possibly open to criminal
charges. And, God forbid that you should even think of owning a ``DC
to Daylight`` receiver. Of course, criminals will always be able to
"buy them on the street", for the right price. Does that sound like
any other kind of government control we know of?
(Phil, KO6BB Atchley, ibid.)


Many other countries do limit what radios their citizens can own and
operate.  With only a handful of amateurs, most non-democratic
countries do keep their licensed amateurs under some scrutiny. In
China, unless you are a loyal and ranked 'party member, having even a
legal amateur station subjects you to frequent inspections and
monitoring. I've been there and seen it... Many of our in-country
employees who were amateurs, would come to work to use our own company
stations for conversations with their friends in other countries -
afraid of being called on the carpet to (McCarthy era like) to explain
their actions.

Could the US force you to 'register' your radio and limit ownership to
only standard broadcast band receivers? Sure. Probably not in the next
generation or so, but in the 'brave new world' of the mid 21st
century, who knows... 73 (Frank ----, swl)


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