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

From: Dave Emery <[email-masked]>
Date: Fri, 15 Nov 2002 14:33:16 -0500

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signals or signals in an unpublished proprietary format.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

Your use of Yahoo! Groups is subject to http://docs.yahoo.com/info/terms/

---

From: Alan Dixon <[email-masked]>
Date: Fri, 15 Nov 2002 13:12:22 -0500

Dave,

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.

Kind regards,

Alan Dixon
"The Iconoclast"
[email-masked]

--------- Original Messages ----------
From: Dave Emery <[email-masked]>
To: [email-masked], [email-masked],
	 Scan-L list <[email-masked]>
Date: Fri, 15 Nov 2002 00:29:18 -0500
Subject: [NEXTEL-1] Current Homeland Security bill makes some hobby radio
listening a felony

	I have confirmed that the version of the Homeland Security Act
passed in the House does in fact contain the language eliminating the
hobby safe harbor for interception of radio communications not "readily
accessible to the general public" under the ECPA.   Such an
interception, once a minor offense for the first offender if not for
commercial advantage or private financial gain or in furtherance of a
crime will now be a major felony with 5 years in jail as penalties.

	No mercy for a first offense, or for signals extremely
readily intercepted on common scanners.

	This now means that tuning in the audio from the flying
traffic reporter's feed to the local radio stations to see about
a tie up ahead on the freeway is a felony that could land you
in jail for five years.   And woa under him who even thinks about
tuning the 46 and 49 mhz band to see what is there... or ever listening
to the beeps and buzzes of powerful pager transmitters that still
transmit the odd voice page intermixed with the POCSAG and FLEX.

---

http://news.com.com/2100-1001-965750.html

   House considers jailing hackers for life
   By Declan McCullagh
   November 13, 2002, 5:57 PM PT

   WASHINGTON--A last-minute addition to a proposal for a Department of
   Homeland Security would punish malicious computer hackers with life in
   prison.

   The U.S. House of Representatives on Wednesday evening voted 299 to
   121 to approve the bill, which would reshape large portions of the
   federal bureaucracy into a new department combining parts of 22
   existing federal agencies, including the Secret Service, the Coast
   Guard, and the FBI's National Infrastructure Protection Center.

   During closed-door negotiations before the debate began, the House
   Republican leadership inserted the 16-page Cyber Security Enhancement
   Act (CSEA) into the Homeland Security bill. CSEA expands the ability
   of police to conduct Internet or telephone eavesdropping without first
   obtaining a court order, and offers Internet providers more latitude
   to disclose information to police.

   In July, the full House approved CSEA by a 385-to-3 vote, but it died
   in the Senate. By inserting CSEA into the Homeland Security bill, the
   measure's backers are hoping for a second chance before Congress
   adjourns for the holidays.

   [...]

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----- End forwarded message -----

-- 
	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: Rick Parrish <[email-masked]>
Date: Sat, 16 Nov 2002 03:49:07 -0600

Dave Emery wrote:

> > Just what are you trying to tell us here?  

> signals or signals in an unpublished proprietary format.

Seems clear to me.

-rick