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 01:13:42 -0500

> 
> Any link to a marked-up version of the bill?

	It is HR5710 - Homeland Security Act of 2002 as passed by House.

	The text can be found on http://thomas.loc.gov  under HR5710
(can't give more of a link because of the way Thomas works).

	The relevant section is Section 225 Cyber Security Enhancement Act
Paragraph J(1)  (Protecting Privacy)

-- 
	Just by way of explanation of why I think this innocent little
section is important I include a comment on it I wrote last July...

        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.  (Note the current
Homeland Security Bill HR5710, includes this language verbatim).

        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 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 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 listeners  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-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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---

From: Marcel <[email-masked]>
Date: Fri, 15 Nov 2002 01:25:15 -0500

You can cheat and use this
http://thomas.loc.gov/cgi-bin/query/C?c107:./temp/~c107Hc9KiB

--
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     The Complete Resource for Wireless Homeland Security.
Subscribe to WFHSG:  http://www.groups.yahoo.com/subscribe/WFHSG

---

From: Don Root <[email-masked]>
Date: Thu, 14 Nov 2002 23:00:51 -0800

> > (1) by striking paragraph (b); and
< snip for brevity >

> anything new illegal.   But this is a rather naive view.

Maybe I am naive.  But I still don't see where this impacts the hobby
listener monitoring his local public safety agency, or the public 
safety volunteers and professionals who listen to the adjacent 
agencies.  In fact, 18 USC 2511 seems to cover this:

    Sec. 2511. Interception and disclosure of wire, oral, or electronic
        communications prohibited
< snip for brevity >
      (2)
< snip for brevity >
      (g) It shall not be unlawful under this chapter or chapter 121 of
    this title for any person -
        (i) to intercept or access an electronic communication made
      through an electronic communication system that is configured so
      that such electronic communication is readily accessible to the
      general public;
        (ii) to intercept any radio communication which is transmitted -
          (I) by any station for the use of the general public, or that
        relates to ships, aircraft, vehicles, or persons in distress;
          (II) by any governmental, law enforcement, civil defense,
        private land mobile, or public safety communications system,
        including police and fire, readily accessible to the general
        public;
< snip >
 
> cellular, cordless or pagers) was still a misdemeanor offense prosecution

Not even one or two "let's make an example of them" cases?  If it was 
truly a concern, I think we would have seen some prosecutions by now.

> scheme. Thus "radio hacker" prosecutions have now become possible, and

I won't argue; the Nixon administration showed us that.  :)
 
> Internet newsgroups and mailing lists about their activities.
 
< snip for brevity >

> now be able to do so with prosecutions with real teeth and jail time.

Valid observation.  It appears that some list activities will need 
to be modified.  And maybe the best hobbyist defense is a good offense - 
by working with some friendly staffers to get the true flavor of 
what the boundaries are, then go public to get the new base line 
established and show that those who are responsible about their 
listening are complying.

>         So yet another blow to the radio hobbies.... and a big one

I don't know; maybe I am naive. :)

We endured the total shutdown of Amateur Radio in WWII, and the hobby
survived. The country managed to survive the McCarthy era. I don't
see where (at the worst) this is any different.  Yes, the extremists
may call for the surrender of all receivers; but I think in this time
of encouraged volunteerism on the part of the Bush administration there
will be a middle line.

Time will tell...

Don

---

From: "arclight_arclight" <[email-masked]>
Date: Fri, 15 Nov 2002 13:14:40 -0000

Hmmmm...time to follow the money (and the power), methinks.  I see 
two possibilities here:

1. Wireless LAN stuff is already doing rather well in an overall 
segment (telecom / IT) that is not doing well at all.  I suspect, but 
I certainly don't know, that the real focus of this is more the 
INTERCEPTION of LAN traffic than the other stuff.  It seems to me 
that these changes could be used to attack those who carry out LAN 
intercepts.  The hacking provisions don't seem to apply, because a 
hack is generally intrusive.  I stipulate (how's that for a nice 
legal term, Alan T.?) that I am NOT an attorney; the attorneys around 
here slap my hand every time I come close to committing law.

2. Remember Newt Gingrich and the intercepted cellphone call?  I 
suspect, but again I don't know, that part of this is to ensure that 
the next time a political operative pulls what was done there, that 
the penalties are more than the slap on the wrist given to the Dem 
activists in that case.  Rather than punish the individuals involved 
(particularly the Dem Congressmen who helped make it all happen) the 
lawmakers will now punish an entire class of people.  Of course, NONE 
of the lawmakers will really object to this, because far more than 
any consideration of left vs. right is their concern that the same 
thing might be done to THEM.  Sigh.

Just food for thought, and strictly my own.  All opinions welcome, 
and as Jack sez, "I could be wrong..."

Dave Maples

---

From: Rick Parrish <[email-masked]>
Date: Sat, 16 Nov 2002 03:27:01 -0600

<soapbox warning="on">

> truly a concern, I think we would have seen some prosecutions by now.

If it is not a concern - then why strengthen the language even more? Why 
have it to begin with? As for prosecutions - I think we have seen some 
(though not necessarily this exact law). Some prosecutions of 
"commercial purpose" applications involved hobbyists selling simple 
circuits in kit form - Commtronics and Ramsey.

http://slashdot.org/features/00/01/04/2316228.shtml
http://www.2600.com/news/display.shtml?id=348

As a purely hobbyist example - Keith Knipschild (who I've seen on this 
list) was prosecuted for intercept.

http://users.netropolis.net/maverick/Scanners/keith.htm

And then there is the issue of the Orwellian term "intercept" in this 
context. Listening to okay signals is called "receiving" but listening 
to not-okay signals is called "interception". Is this distinction really 
necessary? Is someone with a short-wave receiver or scanner 
"eavesdropping"? What's up with that? Isn't the emission of RF called a 
broadcast? Hmm...

> <snip>

Sorry, I've slept since then - could you provide some pointers/references?

> of encouraged volunteerism on the part of the Bush administration there

What we *really* need is to roll some of this legislation back to the 
Communicaions Act of 1934. That and return from a spectrum auction to a 
spectrum lease! Any law that binds itself to a specific technology (like 
ECPA coverage of analog cellphones) is doomed to be a temporary band-aid 
measure addressing a social issue that the technology will take care of 
in time.

Eventually I think the public will get tired of the legislative branch 
passing laws to help a particular business or trade protect some flawed 
business model. Let the market forces take their toll and keep the 
government out of it!

Regards,
Rick

</soapbox>

---

From: Dave Emery <[email-masked]>
Date: Sat, 16 Nov 2002 15:44:55 -0500

> circuits in kit form - Commtronics and Ramsey.

	I hesitate to comment without doing careful research, but as I
remember it, these were prosecutions under the "Spy Devices" laws (Title
III) for FM wireless microphones that could be used for bugging.   While
this is vaguely related, these devices were not hobby or professional
radio receivers and the law banning them was meant to ban people from
using such devices to bug each other rather than listen to in-the-clear
readily receivable radio signals.

	There is, of course, a potentially frightening possiblity that
some court will decide that (some) scanners or other more specialized
radio receivers and related gear that some of us who are collectors of
cold war antique electronics own ARE Title III electronic eavesdropping
devices  even though they have many legitimate and entirely legal uses
both for hobby activities and many kinds of ham and professional
engineering purposes.   If they are found to be illegal, mere possession
or sale might be a crime - no actual use required and even non-working
and completely obselete gear kept for a collection might qualify as
illegal.

	The Bill Cheek prosecution involved sales of gear including
software to an undercover agent who specifically asked for equipment
to intercept commercial paging transmissions which have been banned
by the ECPA since it was passed.   I don't think Bill Cheek was 
actually prosecuted for interception of paging, just selling gear
that an earlier court decision had found to be illegal Title III
devices.  (But this is written from failible memory...).

> list) was prosecuted for intercept.

	He is one of the very very few who have been.   I have never
read any of the legal record of his case, so I cannot comment on exactly
what he was charged with or how the case was finally settled. As I
understand it, it turned on his publishing in real time MDT police
traffic on Long Island on a web site.   Most readers of the ECPA would
doubt that it forbids interception of non-encrypted public safety  MDT
traffic, at least unless it is in a proprietary format not disclosed to
protect its privacy.   But publishing intercepted communications on the
web might be a violation of the disclosure rules of section 605, and MDT
intercepts may be illegal under federal laws involving access to
protected computer systems rather than the ECPA radio intercept rules.

> measure addressing a social issue that the technology will take care of 

	While I think the ECPA rules are confusing and technically
illiterate, oddly enough they don't bind themselves to analog
cellphones. They also forbid interception of digital cell phones too... 

	The only technology specific legislation involving cellphones is
the ban on scanners that tune the 800 mhz band.   With PCS allocations
elsewhere, this is mildly technology specific.

	Of course a purist might point out that the actual ECPA bans
interception of any signals at all on the domestic cellular frequencies
whether or not they are cellphone signals whilst PCS phones are only
protected because they are common carrier communications over the
facilities of a common carrier.   (I have often wondered if Congress was
bright enough to realize that such bans on reception on certain
frequencies were an invitation for locating bugging devices there -
since it would technically illegal (and now a felony) to search those
frequencies to locate a bug).

> business model. Let the market forces take their toll and keep the 

	Reports have it that it was the Department of Justice that 
asked for the elimination of the ECPA hobby reduction in penalties for
radio monitoring (aka "safe harbor"), not the cellphone industry
which is mostly digital now.

	This may imply that the DOJ has some group of hobbyists in
mind as targets of a future prosecution.

---

From: Rick Parrish <[email-masked]>
Date: Sat, 16 Nov 2002 18:29:19 -0600

Dave Emery wrote:

One of the Ramsey kit items was a 800Mhz to 400Mhz downconverter that could
be used to circumvent the analog restriction on current type-accepted receivers.
Agreed - not the same law but my concern is the overall trend - re-interpreting
innocuous hobbyist pursuits as some form of threat. It's like persecuting
bird watchers as a threat to national security should the need arise to revert
back to using carrier pidgeons.

illegal.

My bad - I'm blending the FCC type-acceptance rules. Okay - roll those back
too!

There is a loop-hole involving interference that might permit one to track
down the offending signal emitter.

After reports of the "rail-fan" community getting trounced - this does not
suprise me. Time to start writing letters again.

<snip>

Wrong Side of the Tracks?

'Railfans' Complain of Police Scrutiny in Terror Era

Don Phillips Washington Post Staff Writer

November 15, 2002; Page A1

Section: A

Word Count: 1724

On a balmy Sunday afternoon late last month, Richard Whitenight did what
he often does on his days off: He went to a busy railroad junction in Fort
Worth to watch the trains roll by. But as he sat making notes about
passing freight trains, two police cruisers approached. Over the next five
hours, Whitenight -- who works for the police department in nearby Arlington,
Tex. -- identified himself to the officers. Then he identified himself to
the officers' supervisor, then a detective

</snip>

Regards,

Rick

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