Subject: [[email-masked]: Re: [NEXTEL-1] Current Homeland Security bill makes some hobby radio listening a felony]

From: Dave Emery <[email-masked]>
Date: Fri, 15 Nov 2002 21:39:42 -0500

On Fri, Nov 15, 2002 at 05:44:42PM -0500, Alan Dixon wrote:
> Dave-  Suddenly your story sounds almost identical to mine.  I note your
> concession below containing the words, "Yes the new language does not
> change one whit... ".
> 
	Alan, I respect you for what you write, but please respect me
for what I write too.   I never said that this bill would ban scanners
or end scanning - now or in any other post I authored.   I am not
"conceding" to you, but merely trying to point out what I meant and said
and what I did not mean and did not say.

	There were a number of ill-informed hysterical postings to
various lists - some of which I have read, others I may have missed -
that did claim this Cyber Security Enhancement Act language banned
scanners and radio listening and would end scanning.  I did not write
those posts, do not agree with them, and had nothing to do with their
hysterical claims.

> There is still one sticking point.  You keep referring to the alleged
> removal of a "hobby safe harbor" in the ECPA.  To what do you refer?  The
> ECPA has never had a hobby safe harbor - not even close.  It has always
> treated overzealous hobbyists and hackers alike - as criminals!  And
> whether or not I agree with these bills has no bearing on this
> discussion, of course.
> 
	Safe harbor may be an unfortunate choice of words.  The original
ECPA incorporated a carefully crafted and negotiated compromise
regarding hobby type listening activity.   Some but not all of it was
made ILLEGAL, but penalties for violating those laws as a first offense
for a hobby type intercept (eg not for private financial gain or
commercial advantage, not in furtherance of a crime, and not for
tortuous purposes) would be kept minor (not a serious felony).  So
hobbyists would not face draconian penalties for casual intercepts -
only real spies would face felony charges for listening to off limit
radio signals.

	This Homeland Security Bill change removes this compromise
language so ANY illegal radio listening AT ALL by anyone is a FELONY, no
matter how minor, how casual, and how motivated by "innocent" curiosity
- and penalties are 5 years in prison whether or not it is a first
offense.

	I guess I will avoid using the term "safe harbor" again.
But if it was not a safe harbor, at least it was not the open sea in
the midst of a storm either...

-- 
	Dave Emery N1PRE,  [email-masked]  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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