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

[Dave Emery]

On Fri, Nov 15, 2002 at 01:16:43PM -0800, Jon wrote:
> At 11:10 AM 11/15/02, you wrote:
> .....snip........
> >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)
> >
> >Harry
> 
> 
> Thanks for the links Harry :)
> 
> I downloaded a current .pdf copy of the HSA (HR 5710) that was passed by the House from http://www.hsc.house.gov/ and ran multiple scans on the text using different search strings.  The only thing I could come up with was the following........
> 
> SECTION 2701.�Section 2701(b) of title 18, United States Code, is amended�
> 
> (A) in paragraph (1), by inserting ��, or in furtherance of any criminal or tortious act in violation of the Constitution or laws of the United States or any State�� after ��commercial gain��;
> 
> (B) in paragraph (1)(A), by striking ��one year�� and inserting ��5 years��;



	I just checked 5710EH on thomas.loc.gov and find that as of
6 PM EST on 11/15 it STILL INCLUDES THE FOLLOWING PARAGRAPH in 
section 225...

	5710EH is the version of the Bill actually passed by the recent
vote in the House.

	It includes the following language under section 225 
Cyber Security Act...


 (j) PROTECTING PRIVACY-

(1) SECTION 2511- Section 2511(4) of title 18, United States Code, is amended--

(A) by striking paragraph (b); and

(B) by re designating paragraph (c) as paragraph (b).


	This innocent sounding language removes the lowered penalties
provided in the original ECPA for a first offense interception of a
radio communication that was not scrambled or encrypted, or transmitted
using modulation whose essential parameters were withheld from the
public in order to protect privacy and for which the interception
was not for financial gain, commercial advantage, in furtherance of
a crime, or a tortuous act.   I read that as a "hobby" type
interception.   And penalties for the most common of these were merely
a federal offense with a $500 dollar fine maximum.

	And by removing such lowered penalties, ALL acts of intercepting
radio communications "not readily accessible to the general public",
even the most trivial,  become FELONIES with a 5 year jail term as
penalty.


Y

> 
> ======
> 
> Below is a copy of that "current" section from 18 USCS.......
> 
> ======
> 
> 18 USCS � 2701 (1999) 
> � 2701.  Unlawful access to stored communications 
> 

	That is a completely different subject of the CSEA as now
incorporated into the Homeland security act.  It has nothing to do with
radio signals but with stored email and the like....  the crime here is
hacking into someone's stored email...








> (a) Offense. Except as provided in subsection (c) of this section whoever--
> 
>    (1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or
> 
>    (2) intentionally exceeds an authorization to access that facility; and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system shall be punished as provided in subsection (b) of this section.
> 
> (b) Punishment. The punishment for an offense under subsection (a) of this section is--
> 
>    (1) if the offense is committed for purposes of commercial advantage, malicious destruction or damage, or private commercial gain--
> 
>       (A) a fine under this title or imprisonment for not more than one year, or both, in the case of a first offense under this subparagraph; and
> 
>       (B) a fine under this title or imprisonment for not more than two years, or both, for any subsequent offense under this subparagraph; and
> 
> =====
> 
> The way I read it, 18 USCS 2701(b)(1) states what we already know.  The only change will be changing 2701(b)(1)(B) from 2 years to 5 years "if the offense is committed for purposes of commercial advantage, malicious destruction or damage, or private commercial gain--".
> 
> So until I see something in print, and that is "verifiable", I'm not going to worry about my monitoring rights to be taken away any time soon.
> 
> That's not to say I'm blind or a "sheep", and although there may be other things in the current version of the HSA I do not like, I'm not going to loose any sleep over the monitoring issue.
> 
> Jon...
> 
> 
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-- 
	Dave Emery N1PRE,  die@die.com  DIE Consulting, Weston, Mass. 
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