[FedCom] IMPORTANT BAD NEWS - Homeland Security bill includes HR3482

[Dave Emery]

On Fri, Nov 15, 2002 at 11:10:41AM -0800, Harry Marnell wrote:
> According to the Library of Congress site (at
> http://thomas.loc.gov/cgi-bin/bdquery/z?d107:HR03482:@@@D&summ2=1&   <~ that "&"
> is part of the URL)
> or use  http://shorterlink.com/?ABNW8D
> 
> "Latest Major Action: 7/16/2002 Referred to Senate committee. Status: Received
> in the Senate and Read twice and referred to the Committee on the Judiciary"

	That is HR3482, which was incorperated essentially VERBATIM into
HR5710, the Homeland Security Act.     The original HR3482 CSEA died in
the Senate, this revives it and makes it part of must pass legislation
which is before the Senate as I write.

> 
> I've never heard of a "hobby safe harbor" provision in the ECPA "for
> interception of radio communications not "readily accessible to the general
> public."   Illegal has been illegal, hobbyist or not.
> 
	I use the term "safe harbor" loosely.  The provision in 2511
4(b) makes MUCH lower penalties (mostly only a federal offense with a
$500 fine) for intentional interception of common and easily intercepted
off-limits radio communications as a first offense IF it is not for
private financial gain, commercial advantage, in furtherance of another
crime, or a tortuous act (more or less the definition of a "hobby" type
intercept).

	This isn't quite a true safe harbor, and it is certainly still
not legal to intercept such communications and one clearly should NOT be
doing so, but the penalties are relatively minor, especially compared to
a federal felony with 5 years in jail as punishment for even a first
offense.

	And because of the minor offense status of such "hobby" radio
interception acts, it was relatively unlikely than anyone would be
prosecuted except for public and eggregious flouting of the law. Now it
is almost certain  to become a felony under the Homeland Security Axt,
it is of much greater prosecutorial  interest to actually indict someone
and try them.  Nobody does that for a $500 fine offense except under
unusual circumstances indeed.

> 
> This thing has taken on a life of its own on the internet, quite apart from the
> reality in Washington, and IMHO it's not quite as draconian as some have
> suggested.  Nothing whatsoever in there changing WHAT we can listen to, but they
> definitely are stiffening the potential penalties for stuff that's already
> illegal (like cellphone listening)

	I personally have never said it made anything else illegal.  I
do consider 5 years in jail for a first offense pretty draconian for
merely listening out of curiousity to an in the clear non-encrypted
radio communication receivable on common equipment by unskilled people. 
You may (and perhaps do) feel this is good social policy and
proportionate punishment. I'd hate to hear your idea of appropriate
punishment for a really serious crime.   I guess the gallows are
underutilized in your state.

	But it certainly will have a chilling effect on the radio hobby
in general because it makes it extremely easy to commit a serious 
felony by merely turning the dial on your radio.   Prior to the expected
passage of this law almost all illegal radio listening one could do with
a common garden variety scanner unmodified and without additional
equipment was at most a federal offense with a $500 fine, now tuning in
ANY forbidden signal is a federal felony with 5 years in jail.   That to
me is a massive change.

	And if I was a relatively inexperianced radio hobbyist, I would
be, I think justifiably, afraid of tuning around to see what I found for
fear of felony prosecution for listening to some signal I might not even
know was on the banned list (like a traffic reporter giving a traffic
report from his helicopter.  Not everybody is an expert in the arcanery
of ECPA, FCC frequency allocations and common carrier status of radio
system users.


-- 
	Dave Emery N1PRE,  die@die.com  DIE Consulting, Weston, Mass. 
PGP fingerprint = 2047/4D7B08D1 DE 6E E1 CC 1F 1D 96 E2  5D 27 BD B0 24 88 C3 18