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

From: Alan Dixon <[email-masked]>
Date: Fri, 15 Nov 2002 17:44:42 -0500

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... ".

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.

Kind regards,

Alan Dixon
"The Iconoclast"
[email-masked]

--------- Original Messages ----------
From: Dave Emery <[email-masked]>
To: Alan Dixon <[email-masked]>
Cc: [email-masked]
Date: Fri, 15 Nov 2002 14:33:16 -0500
Subject: Re: [NEXTEL-1] Current Homeland Security bill makes some hobby
radio listening a felony

On Fri, Nov 15, 2002 at 01:12:22PM -0500, Alan Dixon wrote:
> Dave,
> 
> Just what are you trying to tell us here?  This message allegedly
> confirms something, but I see that even this much is not likely true. 
> One clue is that various versions of this message have been circulating
> since *before* the House voted on the Homeland Security Act (H.R.
5710). 
> Another clue is the very obvious (for those familiar with the language
of
> the ECPA) self-contradiction in this post, immediately below.

	Please read what I wrote carefully.  You may and may not agree
with the congressional action which removes a hobby safe harbor in the
ECPA.   But I certainly am not perpetrating a hoax or (knowingly)
misrepresenting what the legislation does.

	The reason you have seen previous versions of this message is
that the original Cyber Security Enhancement Act HR3482 which failed in
the Senate was bodily incorperated into the Homeland Security Bill
HR5710 in a closed door deal in the house.   And my original message was
written about HR3482 when it passed the House in July - but exactly the
same precise language is now part of HR5710 the Homeland Security Bill. 
So the same considerations apply.

> 
> The alleged proposed restrictions in this post reflect existing,
> long-standing illegal activities in the ECPA (18 USC ?2510, et seq.) 
> "This now means..."?  Now??  These restrictions have been in place for
a
> number of years.  And the penalty mentioned is proposed, not extant.

	All this language does is make the EXISTING  illegal acts all
FELONIES  with a potential 5 year sentance.  To me that is a pretty
dramatic change from the previous penalties which were a 500 dollar fine
for most common interceptions or a max of one year in jail misdemenor
charges for all others except interception of scrambled or encrypted 
signals or signals in an unpublished proprietary format.

	Yes the new language does not change one whit what signals are
legal or illegal to receive.  But it does change the status of a first
offense  illegal reception for hobby purposes (no private financial
gain, no commercial advantage, no use as part of a crime or tortious
act) from a relatively minor offense to a serious felony.

	And as serious felonies, the possiblity is much greater that the
some ambitious federal prosecutor will actually try to nail hobbyists
for hobby type radio listening.   Prosecutors don't in general bother to
spend tax dollars on prosecutions if the biggest penalty is a 500 dollar
fine.

	And yes, the legistlation has not passed the senate and been
signed by the President, so the penalties do not YET apply. But  passage
of the Homeland Security Act is a very high priority of the President
and very likely to happen very soon.   And it seems very likely that
this language will be part of it.

	And yes these all have been illegal acts before, so one should
not engage in them.  But should one choose to do so, the penalties and
consequences of getting prosecuted for doing so will be much greater.
And some might think somewhat out of proportion with the true seriousness
of the acts involved, especially considering the ease with which one
can carry them out with common equipment and the fact that encryption
is increasingly available to protect sensitive traffic and should
be used rather than figleaf legal protections.

> 
> Are you perpetuating a hoax that has been circulating for at least a
> week, or do you have something constructive to add?  And how about some
> legal citations to back up things please, Dave??

	I have not had anything whatsoever to do with other's posts
claiming that scanners or scanning will be banned by this or other
legislation. If you read what I have actually written on the subject, I
think you will find it accurate.    I would be the very first to
acknowlage that as currently written this legislation has NO impact on
fully legal users of scanners.   But I would have to immediately add to
that comment the obvious truth that many many legal users of scanners do
not  scrupulously aviod signals they are not supposed to overhear, and
many if not most of them probably do not realize that there are more
banned signals than just cell and cordless phones (such as broadcast
remote pickups).  Nor do current scanners give the user any kind of
warning about which are illegal signals except of course the banned 800
mhz cell phone frequencies.

	As for whether I have anything constructive to add, that is in
the eye of the beholder I guess.  I was the first person to point out
the impact of the original CSEA to the radio hobby community, and I
think the news that while the actual CSEA died in the Senate, the same
exact provision is part of the Homeland Security Act is relevant news
for most interested parties.

	As for the specific language it is Section 225 paragraph J(1) of
HR5710 as passed by the House.   One clearly needs to refer to 18 USC
2511 to understand what the language of the bill does, however.   I have
written and recently reposted my thumbnail analysis of the way the
change works - your milage may vary...

> On the other hand, the news snippet far below, comes from a reasonably
> credible source.  Given that Declan's statements are true, as I have
> reason to believe they are, then nothing in the language of this bill
> outlaws existing legitimate uses of radio scanning receivers.  Here
> again, penalties for violations would increase under the proposed
> legislation.

	I will agree with you that someone who understands the ECPA and
uses his scanner or other radio monitoring tools entirely within the
framework of its confusing, technically illiterate and vague provisions
has nothing to fear from this legislation.

	And I have never said anything aqt all to suggest otherwise.

	But making easy to engage in hobby radio listening explorations
serious felonies even for the first offense rather than minor $500 fine
offenses IS news of interest to many if not most users of scanners and
other recreational radio equipment.

-- 
	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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