From: ANTENNA@CSEARN.BITNET (Robert Horvitz)
Newsgroups: comp.dcom.telecom
Subject: The Emperor's New Figleaf
Date: 7 Sep 92 11:28:13 GMT
Organization: TELECOM Digest
X-Submissions-To: telecom@eecs.nwu.edu
X-Administrivia-To: telecom-request@eecs.nwu.edu
X-Telecom-Digest: Volume 12, Issue 688, Message 1 of 13

Adrienne Voorhis recently asked readers of the TELECOM Digest:
 
> Could someone please explain how the federal government can allow
> you to legally monitor [mobile radio] broadcasts but can stop you
> from disclosing what was heard?
 
Adrienne said she was disappointed in the answers given.  I was, too,
but hadn't responded to her initial request because I assumed such a
knowledgable group would have a better grasp of the issues.  Let me
take a swing at it now and see if this helps.
 
Let's start with the distinction between a MEDIUM and a MESSAGE.  In
the case of radio, the public airwaves can be used to send and receive
private messages.  The information content of radio waves can be
owned, and copyrighted, but not the waves themselves.  By the same
token, the user of a radio frequency does not own the frequency.  They
are authorized by a public authority only to use it for a particular
purpose in a certain place for a set period (usually the duration of
the license).  They no more own the channel than a publisher owns the
light reflected by a page in a book that they published.  To come at
this from another angle, a license is needed to broadcast a TV
program.  But no license is needed to produce the program.
 
The public nature of radio airwaves was first recognized in US law by
the Radio Act of 1912, and has been upheld in all succeeding laws,
even the ECPA.  The ECPA criminalizes the "intentional interception"
of certain radio communications.  It defines "interception" as
"acquiring the contents" of the transmission.  Note that an
alternative definition was proposed by AT&T early in the drafting of
the ECPA: they proposed to define "interception" as "acquiring the
TRANSMISSION of the contents" (emphasis added).  That would have made
it a crime merely to hear the hiss of a DES-encrypted audio
transmission, or look at the garbled snow of a scrambled TV image.  It
would have become illegal to sweep the environment to determine what
kinds of RF radiation your body is absorbing.  Even having the energy
enter your body would pose a legal problem.  (The qualifying adjective
"intentional" was added much later in the drafting.)  Fortunately,
Congress rejected this definition as unreasonable and excessive.  The
distinction between medium and message was preserved: the ECPA is
supposed to protect information, not radio waves.
 
The Communications Act of 1934 allows you to receive any radio signal
that comes to you.  But when you aren't "authorized" to receive it,
you cannot tell others what you heard or exploit the content for
"gain" (courts usually interpret "gain" as "financial gain").  This
policy was a compromise between the well-understood public nature of
the physical medium, and the idea that for an act to be criminal, it
must BE an act: that is to say, one must act on the information in
some way.  Therefore, exploiting or divulging what you overheard was
criminalized, not mere passive reception.  This was, admittedly, a
legal "figleaf" owing to the practical impossibility of preventing
people from picking up signals intruding into their homes - and a
recognition that it was in fact not their fault that signals were
intruding into their homes.
 
Speaking on a cellular phone is like using a megaphone.  Anyone in
range can hear you, and the range is farther than the eye can see.  In
such a situation, who should be responsible for protecting the
"privacy" of the communication -- the transmitter, or everyone else
who happens to be in range?  Until passage of the ECPA, it was an
established policy, decades old, that the person (or corporation)
operating the transmitter bears the initial responsibility for
protecting the transmissions.  The person who transmits benefits from
the use of a public resource (radio frequencies), and is in the best
position to protect signal content.  If they take no precautions,
there's not much anyone else can do to compensate for their
carelessness.
 
Where the ECPA differs from all past US laws is in making it the
responsibility of everyone in range of a wide-area radio signal to
avoid receiving it.  That is why the law is the object of so much
derision even now, so long after its passage.  Its most serious defect
is that it absolves cellular companies of all responsibility for
protecting the privacy of their customers' phonecalls.  Courts, citing
the ECPA, have already dismissed several civil suits by customers who
argued that broadcasting their phonecalls "in the clear" constitutes a
"disclosure" to third parties which violates the Communications Act of
1934.
 
So rather than protecting the privacy of cellular, as it superficially
appears to do, the ECPA actually eliminated the meager protection
afforded by earlier laws: the Emperor's New Figleaf.