[FedCom] Re: Interpretations of HR3482

[Harry Marnell]

Points well taken, Dave.  MY point was simply that it doesn't add to the list of
types of communications we're prohibited from monitoring, which HAS been stated
in a number of posts here and there on the net.

And no, I think it's terrible public policy, born of paranoia that seems to be
running rampant in many quarters.  I also happen to be a lifelong (so far)
railfan, and take a look at what this
"anything-goes-in-the-name-of-homeland-security" frenzy has done to that
harmless hobby, at
http://www.washingtonpost.com/wp-dyn/articles/A56984-2002Nov14.html

Guilty until proven innocent.  The Constitution is being turned upside-down
before our eyes.

Harry

----- Original Message -----
From: "Dave Emery" <die@die.com>
To: <fedcom@mailman.qth.net>
Sent: Friday, November 15, 2002 15:03
Subject: Re: [FedCom] IMPORTANT BAD NEWS - Homeland Security bill includes
HR3482


> 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.
>