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CSEA
Ups Penalties for Illegal Monitoring
By
Jorge Rodriguez
This
article appeared as a guest article for Washington Whispers, September
2002 Monitoring Times.
Editor's
Note 11/18/2002- CSEA was inserted into the Homeland Security bill which passed
the House Nov 13th.
Disclaimer:
Material in this article is provided for its news and informational value and
nothing here should be construed as legal advice. Persons wishing specific legal
advice should consult a licensed attorney in their jurisdiction.
When Congressman Lamar Smith of Texas introduced his Bill to provide
greater cybersecurity last December, he could never have imagined how hot the
Bill would get by July of the following year. Along with one of the hottest
summers on record, the Bill, H.R. 3284 titled the Cyber Security Enhancement Act
(CSEA) of 2002 has become a hot topic of discussion among radio hobbyists.
Scanner enthusiasts are opposed to a change made to Congressman Smith’s
original Bill that increases the penalties for some prohibited monitoring. That
amendment would do away with the lenient treatment reserved for first time
violators of the Electronic Communications Privacy Act (ECPA) of 1986, namely
those who violate the prohibition on certain types of monitoring, especially
those who listen to and monitor cellular phone calls.
In its original form, as introduced by Congressman Smith, CSEA didn’t
deal much with the parts of ECPA that concern radio hobbyists, except to add a
prohibition on the advertising of illegal interception devices through the
Internet as well as by other publications (18 USC Section 2512(1)(c)). This,
however, changed after Congressional hearings were held on the Bill in February
of this year.
One of the first endorsements of the CSEA changes to ECPA came in a
letter to Congressman Smith from the Justice Department by Daniel J. Bryant,
Assistant Attorney General. In the February 12, 2002 letter Bryant wrote,
“Section 105 attempts to address a serious loophole in the statute prohibiting
the distribution of advertisements for illegal interception devices. However,
the language used refers to a ‘publication’ of some sort and we are
concerned that a loophole might continue to exist. Today, one can advertise
illegal interception devices through such means as e-mail spam that may not
clearly constitute a ‘publication.’ Similarly, one could distribute
advertisements on computer networks that are not part of the Internet (such as
AOL’s proprietary network). To ensure that these other means of distribution
are covered, we propose the following language …” The Justice Departments
recommendation was for CSEA to prohibit any dissemination by electronic means.
The Bryant letter did not comment on the more controversial modification to ECPA
by CSEA because that amendment to the Bill was not made until later.
This second and more controversial recommendation to change ECPA also
came from the Justice Department. Only this time, it appears it was not a
recommendation in response to a part of the Bill already in existence, but
rather to something else the Department wanted added to the Bill, in order to
amend ECPA. After its introduction in December 2001, the House of Representative
had referred CSEA to its Committee on the Judiciary, and they in turn referred
it to their Subcommittee on Crime. On February 12, 2002, that Subcommittee held
one day of hearings on H.R.3482.
During those hearings, John G. Malcom, Assistant Attorney General,
Criminal Division of the Department of Justice, testified before the
Subcommittee and submitted a prepared statement recommending the controversial
change to ECPA. In his written statement, Malcom said, “[t]he Department has
also been concerned for some time about the adequacy of the penalties imposed
upon those who violate the privacy of others by intentionally intercepting their
cellular phone calls. Today, such privacy invasions are treated as a minor
infraction punished only by a fine. As cell phone use becomes more and more
prevalent, however, it is increasingly important to protect the privacy of all
wire and electronic communications without regard to the transmission technology
used.” The remarks seemed harmless to the casual listener, but to anyone who
remembered the debates that had produced the compromise written into ECPA, it
was cause to sit up and listen.
When given an opportunity to expand on his proposal by Congressman Coble,
Malcom explained, “…I do believe that two changes are appropriate for this
Committee to consider. Under current law, Congressman, illegal interceptions of
cellular telephone conversations are treated as mere infractions, subject only
to a fine. Now, this might have been appropriate back in 1986 when the law was
enacted and cell telephones were seldom used. However, that is no longer the
case, and the Department believes that it no longer makes sense to treat the
interceptions – illegal interceptions of cell telephone conversations – any
differently than illegal interceptions of any other electronic or wire
communication.
"…At the moment a first offense is treated as a 6-month petty
offense, and if somebody acts with a malicious intent, say, to—or an
aggravated intent in order to gain financially or maliciously destroy property,
it is still a misdemeanor, subject to a 1-year penalty.
"The Department believes that this does not provide adequate
protection to individuals and believes that it would be appropriate in today's
world if somebody accesses e-mail or stored communication improperly [violates
ECPA], that a first offense should be treated as subject to a penalty of up to a
year and that if somebody acts with an aggravated mental state seeking
commercial or financial gain, seeking to maliciously destroy property, acting
with a criminal or tortious—in furtherance of criminal and tortious conduct,
that that person ought to be subject to a 5-year penalty.”
When asked if such a change would affect the way the Department of
Justice goes after persons who violate the law, Malcom had this to say:
Mr.
SCOTT OF VIRGINIA. Mr. Malcolm, did I understand you to say that the
5-year penalty, does that have any effect on the Department's enthusiasm about
prosecution?
Mr.
MALCOLM. I am sorry. Congressman——
Mr.
SCOTT. The enthusiasm for prosecution, does the Department of Justice
more likely to go after somebody if you can get 5 years rather than the maximum
6 months?
Mr.
MALCOLM. Yes, Congressman
The amendment proposed ultimately by Malcom was adopted by the
subcommittee and incorporated into Congressman Smith’s Bill. It became section
108 entitled “Protecting Privacy” and amends the ECPA by eliminating the
safety valve treatment for first time offenders who listen to not only cellular
phone calls, but any other prohibited electronic communication (see Fig. 1a and
b) since 1986 and the ECPA.
In 1986 ECPA for the first time made the mere listening of certain
protected radio communications (electronic communications) illegal. The move was
so controversial that this safety valve provision was put in place to provide
lenient treatment to persons who broke the law but did so without any intent to
do harm or use the information they heard for gain. Today's Department of
Justice’s recommendation adopted by the Subcommittee on Crime would eliminate
the possibility of lenient treatment for hobbyists who accidentally or
intentionally listen to protected communications, merely in the pursuit of their
hobby.
H.R. 3482 is now before the Senate Judiciary Committee after passing the
House by a roll-call vote of 385 to 3 with 46 Representatives not voting.
Depending on the speed with which the Senate Committee handles the Bill, the
Cyber Security Enhancement Act of 2002 may be submitted to a Senate vote this
session. Persons wishing to comment on the Bill should call or write their
elected representatives and let them know how they feel about this proposed new
law and the changes it makes to ECPA.
FIG.
1a: Examples of Legal Listening According to ECPA:
-
an electronic communication made through an electronic communication system that
is configured so that such electronic communication is readily accessible to the
general public;
-any
radio communication which is transmitted by any station for the use of the
general public, or that relates to ships, aircraft, vehicles, or persons in
distress; by any governmental, law enforcement, civil defense, private land
mobile, or public safety communications system, including police and fire,
readily accessible to the general public; by a station operating on an
authorized frequency within the bands allocated to the amateur, citizens band,
or general mobile radio services; or by any marine or aeronautical
communications system
-listening
to intercept any wire or electronic communication the transmission of which is
causing harmful interference to any lawfully operating station or consumer
electronic equipment, to the extent necessary to identify the source of such
interference;
-listening
for other users of the same frequency to intercept any radio communication made
through a system that utilizes frequencies monitored by individuals engaged in
the provision or the use of such system, if such communication is not scrambled
or encrypted.
FIG
1 b: Examples of Illegal Listening According to ECPA
-scrambled
or encrypted communications;
-communications
transmitted using modulation techniques whose essential parameters have been
withheld from the public with the intention of preserving the privacy of such
communication (ie. Spread Spectrum);
-communications
carried on a subcarrier or other signal subsidiary to a radio transmission (eg.
FM Subcarrier Audio (SCA);
-communications
transmitted over a communication system provided by a common carrier, unless the
communication is a tone only paging system communication (eg. Cell phones and
audio and digital pagers);
-certain
communications transmitted by satellite not intended for rebroadcast to the
general public (eg. studio feeds, broadcast auxiliary feeds, microwave
point-to-point, and paging)
FIG.
2: CSEA Section that would change some penalties under ECPA
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).
(b)
Section 2701- Section 2701(b) of title 18, United States Code, is amended--
(1)
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";
(2)
in paragraph (1)(A), by striking "one year" and inserting "5
years";
(3)
in paragraph (1)(B), by striking "two years" and inserting "10
years"; and
(4)
so that paragraph (2) reads as follows:
"(2)
in any other case--
"(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 paragraph; and
"(B)
a fine under this title or imprisonment for not more than 5 years, or both, in
the case of an offense under this subparagraph that occurs after a conviction of
another offense under this section.".
FIG.
3: ECPA section that would be eliminated by CSEA Section 108
18
USC 2511
Section
(4)(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.
(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 under paragraph (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 transmitted 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 imprisoned 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.
(c)
Conduct otherwise an offense under this subsection that consists of or relates
to the interception of a satellite transmission that is not encrypted or
scrambled and that is transmitted –
(i)
to a broadcasting station for purposes of retransmission to the general public;
or
(ii)
as an audio subcarrier intended for redistribution to facilities open to the
public, but not including data transmissions or telephone calls, is not an
offense under this subsection unless the conduct is for the purposes of direct
or indirect commercial advantage or private financial gain.
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