The New Electronic Communications Privacy

The hotly debated Efectronic Communications Privacy Aci of 1985 became an act of 1906 before it finally became law In early October of 1986, the ECPA passed both houses of Congress The radio protection provisions of the new taw will go into effect in mid-January. 1987, about the time you read this column. The final draft of the bill was printed in the October 11 1986, issue of the Congressional Recordt starting on page S-14441,

Throughout the proceedings, a number of persona* radio groups were active in fighting against the most restrictive aspects of the bil], At one point, provisions were about to be included that would have forced the communications privacy statutes to cover even ham radio phone-patch and auiopatch. There was also a fairly well-founded rumor that certain business interests, eyeing the amateur VHF and UHF spectrum, were attempting to get provisions added thai would ban any ''ciphered" amateur communications.

What was meant by ciphered communications? That's hard to say. Many think that it would have meant an end to packet, AMTQRh and possfby even CW! But we can forget all of this. For the most part radio amateurs fared pretty well wrth regard to their own service, but with regard to other communications hams now fait into the category of the general public.

And, it is really the générai pub-tic that the radio communications aspects of the ECPA can hurt the most, The radio hobbyist who wants to listen to everything coming into his home is no longer free to do so In fact, John Q, Public does not know it yet, but if he turns a radio to the wrong frequency— even by accident—he technically becomes a criminal. It s doubtful that he will ever pay a fine or go to jail, but that threat now tooms over everyone's head.

One of the best-versed people

Number 19 on your Feedback card on the subject of the ECPA is Robert Horvitz, the Washington DC based government affairs liaison officer for the Association of North American Radio Clubs. Robert is with ANARC's political arm, representing the interests of SWLs and other radio-monitoring hobbyists. He is also a very intuitive individual and an excellent analyst of matters such as these, What follows is his preliminary analysis of the Electronic Communications Privacy Act of 1986." Read it carefully, as it affects you.

The New Law

The ECPA amends the U,S code title 18, chapter 119, the federal law governing the interception of wire1' and "oral" communications, to protect a new legal category of "electronic communication ,IT It sets new rules for electronic surveillance by law enforcement agencies, andl for investigative access to electronic mail and computer files, tt also increases criminal penalties for malicious interference with satellite transmissions.

"Taken literally, the new law makes listening to FM stereo broadcasts and the audio portion of television broadcasts a federal crime."

Electronic communication is defined as "signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in pan by a wire, radio, electromagnetic, photo-electronic, or photo-optical system that affects interstate or for-etgn commerce, but does not include a) the radio portion of a cordless telephone communication, b) any w ire or oral communication, c) any communication made through a tonenDnly paging device, or d) any communication from a tracking device/'

Radio and wire transmissions are thus merged in this new term. However, the new lau also retains and adapts the earlier legal definition of wire communication as a category separate from electronic communication Wire communication now means voice telepho-nyi regardless of whether the transmission is by wire, radio, or other electronic means, in other words, non-voice communications by wire are considered electronic' communications, as are communications by radio that do not involve telephone transmission

Unauthorized interception of the radio portion of a wire or elec* ironic communication carries lesser penalties than does interception of the wire segment of the same communication—if it's not for an illegal, commercial, or tortious purpose, See the "Penalties" section below for details.

What May Be Legally Monitored

1) Any marine or aeronauticaf radio communication,

2) Any amateur, C8, or general mobile radio service transmission,

3) Any communication transmitted "for the use of the general public, or that relates to ships, aircraft, vehicles, or persons in distress."

4) The radio portion of cordless telephone communications linking the handsel and the base unit,

5) Tone-only paging signals

6) Certain types of audio subcarriers {to be specified un a Senate report}.

7) Signals causing harmful interference to any lawfully operating station or consumer electronic equipment to the extent necessary to identify the source of the interference."

8) Satellite transmissions of "network feeds/ some satellite audio subcarriers, and cable-destined programming covered by section 705Z(b) of the Communications Act.

9) Any governments, law enforcement. civil defense, private land mobile, or public safety (including police and fire) radio communications system that is 'readily accessible to the general public/'

10) Any other electronic communication made through a system "configured so that such electronic communication is read-

ily accessible to the general public."

In most cases, radio communications defmed as not " 'readify accessible" will be legal to monitor, unless one of the foregoing exemptions appiies, "Readily accessible to the generaf public" is defined lo mean that the communication is not:

1) Scrambled or encrypted.

2) "Transmitted using modulation techniques whose essential parameters have been withheld from the public with the intention of preserving the privacy of such communication." (The House report says that this means and includes spread-spectrum signals.)

3) "Carried on a subcarrier or other signai subsidiary to a radio transmission."

4) "Transmitted over a communication system provided by a common earner" (except for tone-only paging signafs).

5) Transmitted on frequencies allocated under FCC rules Part 25 (communication-relay satellites}, Part 74(d) (remote broadcast pickup stations}, Pan 74(e) (aural broadcast auxiliaries, including studio-to-transmitter links), Part 74(f) (tefevision broadcast auxiliaries and studio-to-transmitter links), or Part 94 (private fixed microwave).

As mentioned above, there are some exceptions to the general ban of allegedly "inaccessible" signals. For example, the radio emission of a cordless phone may be monitored, even though it relays common carrier communications, Similarly, marine and aeronautical radiotelephone signals are legal to monitor. (In contrast phone patches in the 800-MHz specialized mobile radio service are legally protected, since the phrase "readily accessible" qualifies the exception for prvate land mobile radio, which includes SMRs.)

The forthcoming Senate repon on the ECPA is expected to identify the types ot audio subcarners that may legally be monitored, even though the new law declares that ail subcarriers are inaccessible, (Taken literally, that makes listening to FM stereo broadcasts and the audio portion of tetevision broadcasts a federal crime.)

Although broadcast remote pickup (flPU) stations authorized under FCC Part 74(d) are declared to be "inaccessible," they operate near 26, 153, 1611 166. 170, 450, and 455 MHz. usually with citywide audio coverage

Used by broadcasters to coordinate the coverage of events outside the studio. RPUs can be received on most scanners. They are a favorite among scanner owners because of their news-gathering role. As the result of an amendment to the ECPA introduced by Senator Paul Simon at ANARC's request, the ECPA ere-ates no criminal liability for monitoring RPUs when monitoring is for no bad purpose. (The following section supplies information about civil liabilities.)

Penalties

For most unencrypted radio communications protected under the ECPA, intentional unauthorized interception carries a crimina! penalty of up to one year in jail and/or afine of up to Si 00,000 for a first offense that is not ior a bad purpose—i,e>, "not for a tortious or illegal purpose or for purposes of direct or indirect commercial advantage or private commercial gain '

If it is a "private land mobile radio service" communication (Le , a cellular or a traditional IMTS radiotelephone cail) or any type of paging except for tone-onty, and if the signal is not scrambled or encrypted, and if the interception is intentional but not for a bad purpose, the penalty for a first offense is a fine of up to $500.

If the communicai ion is scrambled or encrypted or if the interception is for bad purposes or is a second or subsequent offense. the penalty is up to five years in jail and/or a fine of up to $100,000,

Intentional interception of an unencrypted Pan 74(d) transmission, without bad intent, carries no criminal penalties. However, the federal government may seek a court injunction against a specific interceptor and assess civil damages of up to S500, Any violation of the injunction carries with it a mandatory $500 civil fane, liability for any actual damage suffered by the plaintiff, or statutory damages of up to $1000

Any criminal violation of the ECPA exposes the interceptor to civil liabilities (risk of a lawsuit). For any violation other than those described in the last paragraph, courts may reclaim any profits made from or damages caused by ihe interception, or assess statutory damages of $100 for each day of violation, or impose a fine of $10t000: whatever is greatest

Intentional Versus Inadvertent

The ECPA makes it a federal crime to intentionally intercept, disclose, or use electronic communications protected under this act. Even endeavors to intercept" are a crime Jsection 2511(1 )(a)]—even if you do not succeed* Under me ECPA. acting on the intention is sufficient to constitute a crime.

Obviously, the exact legat meaning of "intentional" and the kind of proof required to establish intent in court are crucial. The House report says that intentional means that acquiring the contents of an electronic communication is one s "conscious objective," According to Ihis House report, requiring inient "precludes the application of civil or criminal liability for acts of inadvertent interception/'

However the report adds "The term "intentional does not require that the act was committed tor a particular purpose or motive rt The ECPA thus does not criminate the act so much as the "state of mind" or attitude relating to the act. Interception achieved by accident is not a crime.

"It's ironic that the thanks for our salvation must go primarily to a non-ham group."

Unfortunately, this distinction is rather murky in the case of recreational scanning with a multi-band radio receiver. Does casual browsing constitute intentional or inadvertent interception? What about automatic band-searching? And, what constitutes proof of intent—the possession of a frequency list? We hope for answers in !he upcoming Senate report. In any event, requiring proof of intent should limit a hobbyist's chances of being successfully prosecuted for recreational monitoring that causes no detectable harm to those whose radio communications were tuned in

Surreptitious Interception Devices

An easy way to enforce the ECPA would be to criminate own ership of devices capable of receiving protected communications. In fact, the ECPA amends sections 2512 and 2513 of the U.S. code title 18 in an attempt to do just that. When the new law goes into effect, it will become illegal lo manufacture, assemble, possess, sell, advertise, or send through the mail any electronic device whose design "renders it primarily useful for the purpose of surreptitious interception of wire, oral, or electronic communications."

Due to imprecise drafting, the ECPA s ban on 'surreptitious interception devices ' does not distinguish between electronic communications that are legal to receive and those that are illegal Depending on how Ihe word "surreptitious" is defined, an AM-FM broadcast receiver concealed in a siuffed animal could qualify as an illegal device: similarly, a microcomputer with a modem and built-in code-breaking software might also constitute an illegal device, depending on how the word "primarily" is defined, We can only hope that the Senate report defines surreptitious interception devices in a way that is both clear and narrow We aiso hope for insight into the legal status of subcarrier tuners, voice inverters (simple descramblers), teletext readers., radiotefetype terminals with bit-code translation features, and programmable scanners.

A Final Look

I ihmk that what Robert Horvitz has written requires little explanation by me Therefore, I will not dwell on the effect that the ECPA has on the general public But as radio amateurs concerned with ihe very narrow realm of our own Part 97. U S amateur service, we are totally unscathed by the ECPA,

The forces that hoped lo "quietly" clobber radio amateurs ihrough this new law not only backed away because of all of the negative publicity that our ranks generated, but now deny that they ever intended us any harm. To them i have only these few words: +'You declared yourselves to be our enemies when you started this farce, and there is no reason to think that corporate "leopards will ever change their spots/'

They envy what we have, and when it comes to spectrum, whai we have is worth hundreds ol billions of dollars in corporate profits if reallocated to potentially paying users. I suspect that, given the chance, they would pounce on us and damage or destroy our service s viability so as to eventuaîiy gain access to the very lucrative spectrum we now possess.

ltTs romc that the thanks for our salvation must go primarily to a non-ham group. It was an SWL organization called the Association of Nonh American Radio Clubs that readied up the very best opposition of all It was the only radio hobbyist group that had full-time personnel in Washington DC following the ECPA from tne day of its inception until it cleared Congress it was the one group that really made a difference Of special note is the work on this matter done by ANARC's outgoing executive secretary Richard T "Terry" Cotgan WD5GWC. Terry and his crew lead a valiant battle to preserve the rights of ali radio hobbyists -ham and non-ham alike While other organizations such as the Scanner Association of North America, several CB groups, almost all of the Ham Radio Press, and finally even the ARRL provided some measure of support, in reality it was ANARC that stood at the head of the pack. To that end, ANARC, we salute you

ECPA Postscript: Help Wanted

The following appeared in the want-ads employment sectron of (he Washington Post shortly after ihe Electronic Communications Privacy Act of 1986 was signed into law:

"PUBLfC RELATIONS MANAGER FOR TELECOMMUNICATIONS ASSOCIATION.

A leading national trade association headquartered in Washington DC is seeking an experienced Public Relations Manager The person will be responsible for generaimg media coverage of the Mobile Communications industry; providing comprehensive information to members as well as the general public, and promoting the association and its position to the membership and me industry at large, Respond to Box M-6723, Washington Post, 1150 15ih Street NW, Washington DC 20071/*

Question Could Ihis be some early fallout from the inability of at least one of the communications lobbyists to get what his employer wanted included in the ECPA?»

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