Federal Monitoring Laws

47 USC s 302a 

Sec.  302a. Devices which interfere with radio reception

(a) Regulations

   The Commission may, consistent with the public interest, convenience, and necessity, make reasonable regulations (1) governing the interference potential of devices which in their operation are capable of emitting radio frequency energy by radiation, conduction, or other means in sufficient degree to cause harmful interference to radio communications;  and (2) establishing minimum performance standards for home electronic equipment and systems to reduce their susceptibility to interference from radio frequency energy.  Such regulations shall be applicable to the manufacture, import, sale, offer for sale, or shipment of such devices and home electronic equipment and systems, and to the use of such devices.

(b) Restrictions

   No person shall manufacture, import, sell, offer for sale, or ship devices or home electronic equipment and systems, or use devices, which fail to comply with regulations promulgated pursuant to this section.

(c) Exceptions

   The provisions of this section shall not be applicable to carriers transporting such devices or home electronic equipment and systems without trading in them, to devices or home electronic equipment and systems manufactured solely for export, to the manufacture, assembly, or installation of devices or home electronic equipment and systems for its own use by a public utility engaged in providing electric service, or to devices or home electronic equipment and systems for use by the Government of the United States or any agency thereof.  Devices and home electronic equipment and systems for use by the Government of the United States or any agency thereof shall be developed, procured, or otherwise acquired, including offshore procurement, under United States Government criteria, standards, or specifications designed to achieve the objectives of reducing interference to radio reception and to home electronic equipment and systems, taking into account the unique needs of national defense and security.

(d) Scanning receivers of cellular telecommunication transmissions

   (1) Within 180 days after October 28, 1992, the Commission shall prescribe and make effective regulations denying equipment authorization (under part 15 of title 47, Code of Federal Regulations, or any other part of that title) for any scanning receiver that is capable of--

      (A) receiving transmissions in the frequencies allocated to the domestic cellular radio telecommunications service,

      (B) readily being altered by the user to receive transmissions in such frequencies, or

      (C) being equipped with decoders that convert digital cellular transmissions to analog voice audio.

   (2) Beginning 1 year after the effective date of the regulations adopted pursuant to paragraph (1), no receiver having the capabilities described in subparagraph (A), (B), or (C) of paragraph (1), as such capabilities are defined in such regulations, shall be manufactured in the United States or imported for use in the United States.

47 USC s 605 (Section 705 of the Communications Act)

Sec.  605. Unauthorized publication or use of communications

(a) Practices prohibited

   Except as authorized by chapter 119, Title 18, no person receiving, assisting in receiving, transmitting, or assisting in transmitting, any interstate or foreign communication by wire or radio shall divulge or publish the existence, contents, substance, purport, effect, or meaning thereof, except through authorized channels of transmission or reception, (1) to any person other than the addressee, his agent, or attorney, (2) to a person employed or authorized to forward such communication to its destination, (3) to proper accounting or distributing officers of the various communicating centers over which the communication may be passed, (4) to the master of a ship under whom he is serving, (5) in response to a subpena issued by a court of competent jurisdiction, or (6) on demand of other lawful authority.  No person not being authorized by the sender shall intercept any radio communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person.  No person not being entitled thereto shall receive or assist in receiving any interstate or foreign communication by radio and use such communication (or any information therein contained) for his own benefit or for the benefit of another not entitled thereto.  No person having received any intercepted radio communication or having become acquainted with the contents, substance, purport, effect, or meaning of such communication (or any part thereof) knowing that such communication was intercepted, shall divulge or publish the existence, contents, substance, purport, effect, or meaning of such communication (or any part thereof) or use such communication (or any information therein contained) for his own benefit or for the benefit of another not entitled thereto.  This section shall not apply to the receiving, divulging, publishing, or utilizing the contents of any radio communication which is transmitted by any station for the use of the general public, which relates to ships, aircraft, vehicles, or persons in distress, or which is transmitted by an amateur radio station operator or by a citizens band radio operator.

(b) Exceptions

   The provisions of subsection (a) of this section shall not apply to the interception or receipt by any individual, or the assisting (including the manufacture or sale) of such interception or receipt, of any satellite cable programming for private viewing if--

      (1) the programming involved is not encrypted;  and

      (2)(A) a marketing system is not established under which--

         (i) an agent or agents have been lawfully designated for the purpose of authorizing private viewing by individuals, and

         (ii) such authorization is available to the individual involved from the appropriate agent or agents;  or

      (B) a marketing system described in subparagraph (A) is established and the individuals receiving such programming has obtained authorization for private viewing under that system.

(c) Scrambling of Public Broadcasting Service programming

   No person shall encrypt or continue to encrypt satellite delivered programs included in the National Program Service of the Public Broadcasting Service and intended for public viewing by retransmission by television broadcast stations; except that as long as at least one unencrypted satellite transmission of any program subject to this subsection is provided, this subsection shall not prohibit additional encrypted satellite transmissions of the same program.

(d) Definitions

   For purposes of this section--

      (1) the term "satellite cable programming" means video programming which is transmitted via satellite and which is primarily intended for the direct receipt by cable operators for their retransmission to cable subscribers;

      (2) the term "agent", with respect to any person, includes an employee of such person;

      (3) the term "encrypt", when used with respect to satellite cable programming, means to transmit such programming in a form whereby the aural and visual characteristics (or both) are modified or altered for the purpose of preventing the unauthorized receipt of such programming by persons without authorized equipment which is designed to eliminate the effects of such modification or alteration;

      (4) the term "private viewing" means the viewing for private use in an individual's dwelling unit by means of equipment, owned or operated by such individual, capable of receiving satellite cable programming directly from a satellite;

      (5) the term "private financial gain" shall not include the gain resulting to any individual for the private use in such individual's dwelling unit of any programming for which the individual has not obtained authorization for that use;  and

      (6) the term "any person aggrieved" shall include any person with proprietary rights in the intercepted communication by wire or radio, including wholesale or retail distributors of satellite cable programming, and, in the case of a violation of paragraph (4) of subsection (e) of this section shall also include any person engaged in the lawful manufacture, distribution, or sale of equipment necessary to authorize or receive satellite cable programming.

(e) Penalties;  civil actions;  remedies;  attorney's fees and costs; computation of damages;  regulation by State and local authorities

   (1) Any person who willfully violates subsection (a) of this section shall be fined not more than $2,000 or imprisoned for not more than 6 months, or both.

   (2) Any person who violates subsection (a) of this section willfully and for purposes of direct or indirect commercial advantage or private financial gain shall be fined not more than $50,000 or imprisoned for not more than 2 years, or both, for the first such conviction and shall be fined not more than $100,000 or imprisoned for not more than 5 years, or both, for any subsequent conviction.

   (3)(A) Any person aggrieved by any violation of subsection (a) of this section or paragraph (4) of this subsection of this section may bring a civil action in a United States district court or in any other court of competent jurisdiction.

   (B) The court--

      (i) may grant temporary and final injunctions on such terms as it may deem reasonable to prevent or restrain violations of subsection (a) of this section;

      (ii) may award damages as described in subparagraph (C);  and

      (iii) shall direct the recovery of full costs, including awarding reasonable attorneys' fees to an aggrieved party who prevails.

   (C)(i) Damages awarded by any court under this section shall be computed, at the election of the aggrieved party, in accordance with either of the following subclauses;

      (I) the party aggrieved may recover the actual damages suffered by him as a result of the violation and any profits of the violator that are attributable to the violation which are not taken into account in computing the actual damages;  in determining the violator's profits, the party aggrieved shall be required to prove only the violator's gross revenue, and the violator shall be required to prove his deductible expenses and the elements of profit attributable to factors other than the violation;  or

      (II) the party aggrieved may recover an award of statutory damages for each violation of subsection (a) of this section involved in the action in a sum of not less than $1,000 or more than $10,000, as the court considers just, and for each violation of paragraph (4) of this subsection involved in the action an aggrieved party may recover statutory damages in a sum not less than $10,000, or more than $100,000, as the court considers just.

   (ii) In any case in which the court finds that the violation was committed willfully and for purposes of direct or indirect commercial advantage or private financial gain, the court in its discretion may increase the award of damages, whether actual or statutory, by an amount of not more than $100,000 for each violation of subsection (a) of this section.

   (iii) In any case where the court finds that the violator was not aware and had no reason to believe that his acts constituted a violation of this section, the court in its discretion may reduce the award of damages to a sum of not less than $250.

   (4) Any person who manufactures, assembles, modifies, imports, exports, sells, or distributes any electronic, mechanical, or other device or equipment, knowing or having reason to know that the device or equipment is primarily of assistance in the unauthorized decryption of satellite cable programming, or is intended for any other activity prohibited by subsection (a) of this section, shall be fined not more than $500,000 for each violation, or imprisoned for not more than 5 years for each violation, or both.  For purposes of all penalties and remedies established for violations of this paragraph, the prohibited activity established herein as it applies to each such device shall be deemed a separate violation.

   (5) The penalties under this subsection shall be in addition to those prescribed under any other provision of this subchapter.

   (6) Nothing in this subsection shall prevent any State, or political subdivision thereof, from enacting or enforcing any laws with respect to the importation, sale, manufacture, or distribution of equipment by any person with the intent of its use to assist in the interception or receipt of radio communications prohibited by subsection (a) of this section.

(f) Rights, obligations, and liabilities under other laws unaffected

   Nothing in this section shall affect any right, obligation, or liability under Title 17, any rule, regulation, or order thereunder, or any other applicable Federal, State or local law.

(g)  Universal encryption standard

   The Commission shall initiate an inquiry concerning the need for a universal encryption standard that permits decryption of satellite cable programming intended for private viewing.  In conducting such inquiry, the Commission shall take into account--

      (1) consumer costs and benefits of any such standard, including consumer investment in equipment in operation;

      (2) incorporation of technological enhancements, including advanced television formats;

      (3) whether any such standard would effectively prevent present and future unauthorized decryption of satellite cable programming;

      (4) the costs and benefits of any such standard on other authorized users of encrypted satellite cable programming, including cable systems and satellite master antenna television systems;

      (5) the effect of any such standard on competition in the manufacture of decryption equipment;  and

      (6) the impact of the time delay associated with the Commission procedures necessary for establishment of such standards.

(h) Rulemaking for encryption standard

   If the Commission finds, based on the information gathered from the inquiry required by subsection (g) of this section, that a universal encryption standard is necessary and in the public interest, the Commission shall initiate a rulemaking to establish such a standard.

 Comment:

            Sections 2510-21 of the Federal Criminal Statutes (18 U.S.C.) were amended by the Electronic Communications Privacy Act on 1986 (ECPA) to make the mere act of listening to certain radio transmissions a federal crime.  This was done in reaction to federal court decisions such as Edwards v. Bardwell, 632 F.Supp. 584 (M.D. Louisiana, 1986) and United States v. Hoffa, 436 F.2d 1243 (7th Cir.1970) cert. den., 400 U.S. 1000, 91 S.Ct. 455, 457, 27 L.Ed.2d 451 (1971), where the court held that "there was no expectation of privacy in the ... calls ... which were exposed to everyone in that area who possessed an F.M. radio receiver or another automobile telephone tuned in to the same channel."

            Congress, at the request of the cellular telephone industry, reacted to this line of cases by enacting a statute which starts out by saying that it is illegal to intentionally intercept, disclose or use the contents of any wire or electronic communication.  An electronic communication includes all radio transmissions except for communications to pagers or tracking devices.  Initially, cordless telephone conversations were not included in the definition of an "electronic communication."  That anomaly has now been removed.

            After making a blanket prohibition of intercepting all electronic (i.e., radio) transmissions, the statute lists the exceptions.  The first exception is that it is legal to listen to all radio transmissions which are "readily accessible to the general public."  This term used to be defined in the statute to mean radio signals which are (1) not encrypted, scrambled, carried on a subcarrier or other signal subsidiary to a radio transmission; (2) not transmitted over a common carrier communications system (such as the phone company); (3) not special transmissions such as point-to-point private relay transmissions for the broadcast services, not meant for reception by the general public. 

            However, on October 25, 1994, Public Law 103-414 was enacted.  This law amended the ECPA to provide equal treatment to cordless telephone conversations as cellular ones.  However, it also amended the definition of "readily accessible to the general public" to exclude all "electronic communications."  As noted above, electronic communications include virtually all radio communications.  And so, as the law now stands, there is virtually no radio communication that is "readily accessible to the general public."  In essence, the lawmakers have closed up tight this most useful exception to the general rule.

            The federal government has cracked down hard on radio listening.  At this point the only legal listening outside the broadcast bands is:

            (a)  a communication relating to ships, aircraft, vehicles or persons in distress;

            (b)  a broadcast by any governmental, law enforcement, civil defense, private land mobile or public safety communications system, including police and fire;

            (c)  transmissions on the amateur bands, citizens band or general mobile radio services as well as any marine or aeronautical communications system;

            (d) satellite transmissions of cable programming as long as the transmission is not encrypted, there is no monetary gain by the viewer, and there is no marketing system available (meaning no one is selling the rights to view the programming via satellite).

            (e) a radio transmission which is causing interference with any lawfully operating station (including ham radio operators), or is causing interference with any consumer electronic equipment, to the extent necessary to identify the source of the interference.

            What if you are tuning around your general coverage receiver and come upon something not contained on the federal "approved listening" list? In order for a prosecution under 18 U.S.C. 2511 to be successful, the government must prove beyond a reasonable doubt that the listener intentionally intercepted a protected transmission.  Since even attorneys are unsure what frequencies are off limits, how can the government hope to prove that a listener who happens upon one of these federally-legislated minefields in the radio spectrum, actually intended to do so?  In fact, the Senate Judiciary Committee report on the ECPA states flat out that "the inadvertent interception of a protected communication is not unlawful under this Act." (Senate Report 99-541)  Case law appears to bear this out.  In United States v. Townsend, 987 F.2d 927 (2nd Cir. 1993), the court said that the word "intentionally" in the ECPA means that a jury must find that the defendant acted purposefully and the defendant's act must have been the product of the defendant's conscious objective, rather than a product of mistake or accident.

            It should be noted that section 705 of the Communications Act of 1934 (codified as 47 U.S.C. §605) has not been repealed by the ECPA.  It is still illegal, as it has been since 1912, to divulge the existence or contents of any transmission except for general broadcast stations, amateur radio and CB transmissions, and transmissions relating to ships, aircraft, vehicles or persons in distress.  In a 1987 case (Edwards v. State Farm Insurance Co., 833 F.2d 535 (5th Cir. 1987)) the court concluded that in order to prove an offense under this statute, the speaker must have held a subjective expectation of privacy that was justifiable under the circumstances.  This principle was also set forth in United States v. Basey, 816 F.2d 980 (5th Cir. 1987), where the Court said: "Apart from specific statutory protections, there is no reasonable expectation of privacy in broadcasts over the public airwaves which are exposed to everyone in the area having a radio tuned to the same nonexclusive channel."

            Although there have been no fundamental changes in Section 705 of the Communications Act, in Public Law 102-556 Congress recently added to another section of the Communication Act (codified at 47 U.S.C. §302a) to prohibit the manufacture or importation of "any scanning receiver that is capable of--

   (A) receiving transmissions in the frequencies allocated to the domestic  cellular radio telecommunications service,

   (B) readily being altered by the user to receive transmissions in such  frequencies, or

   (C) being equipped with decoders that convert digital cellular transmissions  to analog voice audio."

            Based on the recent enactments in two consecutive Congresses of P.L. 102-556 and P.L. 103-414, I don't believe that it would be paranoia to think that someone in Washington has it in for radio hobbyists.

            As for the other provisions of the ECPA, there is very little case law to be found construing the radio provisions of these statutes.  Interestingly, most of the reported litigation deals with Section 2512, which prohibits the manufacture, distribution, possession and advertising of devices "primarily useful for the purpose of the surreptitious interception of wire, oral, or electronic communications."  In United States v. Bast, 495 F.2d 138 (D.C. Cir. 1974), the Court said that the words "surreptitious interception" means secret listening and the fact that a device may be used for that purpose is not enough to ban it under 18 U.S.C. 2512.  It must be "primarily useful" for that purpose. 

            The meaning of the words, "primarily useful" has been at the heart of most litigation in this area.  In U.S. v. Bast the Court said that the phrase was "intended to establish a relatively narrow category of devices whose principal use is likely to be for wiretapping or eavesdropping.  A device will not escape the prohibition merely because it may have innocent uses.  The crucial test is whether the design of the device renders it primarily useful for surreptitious listening."  The Court listed objectionable devices such as the martini olive transmitter and a microphone disguised as a cuff link, fountain pen, wristwatch or cigarette pack.  This view of the phrase "primarily useful", based on the Senate Report of the original wiretap bill (S.Rep. No. 1097, 90th Congress, 2d Session, pp. 94-95)  was also adopted by the Courts in Flowers v. Tandy Corp., 773 F.2d 585 (4th Cir. 1985) and United States v. Wynn, 633 F.Supp. 595 (C.D. Ill. 1986).  Clearly, these Courts would not view a scanner with cellular telephone coverage as "primarily useful" for "surreptitious interception" since it has many other legal uses.  In fact, in FCC Docket No. 88-281, the Federal Communications Commission declined to restrict the sale of radios which receive cellular telephone frequencies, noting that there are other unprotected communications on those frequencies as well.  Proponents of radio sale restrictions got around that by forcing the FCC's hand with P.L. 102-556.

            As a sort of poetic justice, two cellular telephone companies have recently had to defend lawsuits claiming that they are violating the ECPA by broadcasting private telephone conversations unscrambled so that everyone could listen in.  In both Shubert v. Metrophone, Inc., Docket No. 89-1966 (E.D. Pa. July 13, 1989) and Margiotti v. Bell Atlantic, Docket No. 89-1967 (E.D. Pa. September 5, 1989), the plaintiffs claimed that the cellular telephone companies violated the ECPA.  The Court in Shubert, in denying these claims, stated that the word "interception" as used in Section 2511 "connotes a situation in which by surreptitious means a third party overhears a telephone conversation between two persons."  In Margiotti, the Court added: "The act of transmitting communications over radio frequencies does not, in and of itself, divulge the contents of such communications to a non-intended recipient.  The eavesdropping third party must act intentionally and independently of the communications provider in order to listen in on the communication, and such eavesdropping conduct is illegal."

            It should be noted that many states have now enacted local versions of the ECPA.  These state ECPA implementations do not stray far from the federal language, and they are not included here.

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