[geeks] New Cyber/Electronic Security Laws...

[Rob]

For those of you who are HAMs and amateur radio enthusists, this may
interest you.

- Rob


 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.

 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 ....

 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
 underparagraph (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 trans-
 mitted 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 impris-
 oned 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 inter-
cepting an unscrambled and unencrypted radio communication
that is not supposed to be listened to (eg AMPS cellular calls,
commercial pagers, cordless phones, common carrier commun-
ications) 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 intercon-
nect) from a minor offense for which one can be fined a maxi-
mum of $500 to a federal FELONY for which one can be impris-
oned 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 prosec-
uted 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 listsabsolutely
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 govern-
ment related jobs.

So merely being stopped by a cop with the cordless phone freq-
uencies 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 prosec-
ute 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 - noever 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 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.

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" much more sign-
ificant, 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 radioon 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 commun-
 ication, knowing or having reason to know that the information
 was obtained through the interception of a wire, oral, or elect-
 ronic 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 commun-
 ications in 18 USC 2511 are pretty silent about military commun-
ications - not prohibited, or specifically allowed except as "govern-
mental 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 prosecut-
 ing atleast some category of radiounder 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...