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Monitoring and the
Law
Jorge Rodriguez
jorgerodriguez@monitoringtimes.com
Our E Pluribus
Unum Radio Laws
There
is no single radio law in the United States. We are, after all, a nation of many
“nations.” Our fifty states each have laws and legislative bodies that answer to
the citizens of that particular state. Within each state, county, and city and
in some places each township and village, each has limited law-making powers to
pass laws. In addition, the federal government establishes laws that all
citizens in every state must follow. Then there is international law and, in the
United States, the sovereign right of Native American tribal law for those
tribes that Congress recognizes.
Perhaps
no other piece of consumer electronics is fraught with more potential for legal
trouble than a scanning radio or even a shortwave radio in some nations. Even
when the user is fully within his rights and the law, the government is often
suspicious of those who listen, especially to law enforcement communications. In
fact, a correlation seems to exist between the power of the group or government
department one wishes to listen to and their power or attempts to regulate that
listening. This column will cover the past, present and future of those
regulations – the laws that apply to the radio listener.
State's Rights
Seventeen states have or have had laws specifically addressing the use or
possession of what we commonly refer to as a scanning radio. While each state's
law is different, a review of all of them reveals patterns and similarities.
Lawmakers don’t just sit down and decide, “there ought to be a law,” and then
write one from scratch. Rather, when the idea that regulating or restricting a
certain behavior is brought to their attention, they often assign staff members
or legislative assistants to research what other states and governing bodies
have done and how has it worked. From those successes and failures they draft
their own version, tailored to any special facts or circumstances in their
particular jurisdiction. It is not uncommon therefore to find striking
similarities between the laws of states that aren’t even neighbors.
The
statutory scheme typically works like this: In those states with laws pertaining
to scanning radios, approximately thirty-three states have no restrictions on
scanning radios. In the remaining states, possession is usually not illegal, but
sometimes possession outside your home maybe against the law. Mobile possession
– in an automobile or other vehicle may be illegal, but even that may be
narrowly defined. In some places having a scanner at your place of work is not
allowed, unless your place of work sells or repairs the radios. Then in recent
years, following the 1986 enactment of the Electronic Communications Privacy
Act, we’ve seen a shift to prohibiting the mere tuning and listening of certain
frequencies.
Some
states, like California, prohibit listening for the purpose of assisting someone
in committing a crime. Florida doesn’t allow you to install a scanner in your
car, but then defines what is considered "installation" narrowly. Indiana
outlaws possession, but then narrowly defines what a "police radio" is and
provides a “shopping list” of places and persons who are exempt.
One
type of person who is exempt under Indiana’s law – and those of most states that
regulate scanners -- is the federally licensed amateur radio operator. However,
even here, the vagaries and nature of the law conspire for some odd and probably
unintended results.
Mother, May I?
Since
the licensing of amateur radio is regulated by the federal government and the
licensing scheme has changed more than once in recent years, states must keep
up, but often don’t. Kentucky, for example, exempts persons who hold any valid
amateur radio license. Michigan’s outdated, but still valid law exempts amateur
radio operators with a Technician, General, Advanced or Extra class without
recognizing that while grandfathered in, the Advanced Class of license no longer
exists. Those states that regulate also usually exempt law enforcement persons
and journalists.
Among
the states that regulate, some provide for permits to listen. But that, too, has
proven problematic. Minnesota, for example, actually provides for permits in
their actual state law. The language of the law even seems encouraging when
first read, since it seems to be what the law calls “shall” language.
Many
laws can be divided into two areas “shall” laws and “may” laws. “May” laws give
courts or the authorities broad discretion in deciding whether to do something
or not. However, “shall” laws are supposed to take away that discretion and make
things black and white with no shades of gray. If you meet the rules or criteria
set out in a “shall” statute, the authorities are supposed to follow through on
their end of the bargain. When you read Minnesota’s law further, you find that
the “shall” language is tempered by the words that follow. That language
requires a good cause and, as anyone who has applied knows, "good cause" is
whatever the person deciding thinks it is. In other words, in Minnesota scanner
listeners may get a permit to listen, but never shall get a permit
to listen.
Sorting It Out
In
future issues we’ll sort out this jumble of laws across many jurisdictions, but
as always, nothing in this or any future article should be considered legal
advice. If you’re going to put yourself in a situation you believe is covered by
one of the laws discussed, and you’re not certain how the law applies to you,
you should contact an attorney licensed to practice law in your state for
direction. Nothing in this article or future articles should be construed as a
legal advice.
In
addition, if you have had a direct encounter of the legal kind, please share
your story with other MT readers. We'll keep your name confidential if
you prefer, but others may benefit from your experience, positive or negative.
Please write c/o Monitoring Times, or email jorgerodriguez@monitoringtimes.com
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