Monitoring and the Law

Jorge Rodriguez

jorgerodriguez@monitoringtimes.com

All Eyes on California

             California has perhaps one of the longest and most voluminous sets of laws dealing with monitoring and the scanner hobbyist. With all the attention the State has received with the recall election for the governor’s seat in California, this month we turn our attention West to the Golden State and its listening laws.

State Law

                Most of its laws can be found under Chapter 1.5, Title 15 Miscellaneous Crimes, California Penal Code, Sections 630 to 637.9 and cover the gamut of eavesdropping violations. However, of all the sections one is of particular interest to the scanner listener -- section 636.5 titled "Police Radio Communications; prohibited interceptions; penalty."

               Section 636.5 prohibits any person who is not authorized by the sender, to intercept any public safety radio service communication, by use of a scanner or any other means (such as online scanner audio on the Internet), for the purpose of using that communication to assist in the commission of a criminal offense or to avoid or escape arrest, trial, conviction, or punishment. It also punishes those who divulge to any person he or she knows to be a suspect in the commission of any criminal offense, the existence, contents, substance, purport, effect or meaning of that communication concerning the offense intending that the suspect avoid or escape arrest, trial, conviction, or punishment. Violations of Section 636.5 in California are considered a misdemeanor punishable by a fine or jail for less than one year or both.

               Section 636.5 goes on to say that, “Nothing in this section shall preclude prosecution of any person under Section 31 or 32.”

               Sections 31 and 32 of the California Penal Code are the state statutes that deal with and explain the liability of principals to a crime, those primarily involved in the planning and execution of criminal activity, and those who are mere accessories to a crime.

               This provision in the law allows California to prosecute the scanner listener who helps others commit a crime, not just for the illegal scanner use, but also for his or her part in the actual crime that was being committed to the extent that the law would already consider them either a principal or an accessory. For example, if Billy Badguy (as he is often called in law school examples) decides to help his buddies commit a robbery and offers to bring along his scanner to help. When he hears on his police scanner that the police are on their way and honks the car horn to signal his partners in crime, he not only violates Section 636.5 but may also remain guilty of his role in the robbery.

            Section 636.5 defines "public safety radio service communication" as a communication authorized by the Federal Communications Commission to be transmitted by a station in the public safety radio service. This is a common definition used by other states as well.

Listening in Los Angeles

             Southern California scanner listeners also have local laws to contend with. The City and County of Los Angeles both have ordinances dealing with scanners. In Los Angeles County a 1944 law still on the books makes it an infraction equip any vehicle with, or operate any vehicle equipped with, a short wave radio receiver. The ordinance defines a short wave radio receiver as any radio receiver or other device capable of receiving messages or communications transmitted on any radio transmission station operating on a frequency between 1600 kilocycles and 2500 kilocycles, or on a frequency between 30 megacycles and 40 megacycles, or between 150 megacycles and 160 megacycles.

            Similarly, the City of Los Angeles in two local ordinances restricts the use of scanners within the city limits. First, SEC. 52.44 titled "Willfully listening to Police and Fire Departments portable radio messages prohibited" makes it unlawful for any person to willfully listen by means of any radio receiving device located in or upon any vehicle to any official message which is being transmitted by the Police Department or Fire Department of the City of Los Angeles or any law enforcement agency over a radio transmitting station owned or operated by such city or agency.

            The City ordinance does not apply to persons to whom a permit to listen to such radio messages has been issued in writing by the Chief of Police of the City of Los Angeles. And those permits are completely discretionary, which means they may be issued after he determines that public interest will be served by the issuance of such permit but don’t have to be issued. The City law does not apply by its own language to any officer, agent, or servant of any government agency or public utility, the performance of whose duty as such officer, agent or servant, requires that he listen to such messages.

            The City of Los Angeles, like the State of California, also prohibits listening for financial or, most certainly, criminal advantage. Its Sec. 52.46 titled "Use of Short Wave Radios" provides that “[n]o person who intercepts, overhears or receives any message or communication transmitted by any radio transmission station operating upon a wave length or radio frequency assigned by the Federal Communication Commission for use by any police or law enforcement department shall, for the financial benefit of himself or another communicate such message or communication to another or directly or indirectly use the information so obtained.”

            California also has state versions of many prohibitions we see at the Federal level in the Electronic Communications Privacy Act (ECPA). For example, Californians have their own state ban on listening to cellular radio telephones (Penal Code Section 632.5). Cordless phone listening is prohibited by Penal Code Section 632.6 which requires the interception be malicious and without the consent of all parties to the communication.

One Recent Example

             California authorities do prosecute people who violate their police radio laws as they did in the summer of 2000 when a ham radio operator received a five-year prison sentence for interfering with police frequencies. It took the combined effort of the FCC, California Highway Patrol, and several local agencies to arrest Jack Gerritsen of Bell, Calif., six months earlier. CHP officers caught him in the act as he made an illegal transmission. At the time of his arrest Gerritsen had a tape recording of the transmissions that had been heard on frequencies since the fall of 1999. A cassette with the recording , "You Rampart pigs are a bunch of a****s," along with other recordings that had plagued many amateur, GMRS, law enforcement, and media radio systems was confiscated at the time along with several radios.

            Disclaimer: The information provided in this column is for informational use only. Nothing here should be construed as specific legal advice. Persons wishing legal advice for their situation should consult an attorney licensed in their jurisdiction.