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Monitoring and the Law

Jorge Rodriguez


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