This information is presented for the edification of the scanning public and is not intended to encourage unlawful use of radio receiving equipment. Remember that if your portable or mobile scanning activities arouse any suspicion among Public Safety personnel, your scanner could be confiscated and you could be arrested. Consult a competent attorney for further advice or information on the legal aspects of scanning.
When analyzing the applicability of any law, it is especially important to understand that court interpretations of the statute are part of the law themselves. Anything in a law that appears to say something can be interpreted to mean something different by a court of law. Those judicial interpretations have every bit as much force as the actual text of the statute itself - sometimes even more. If you want to know how any law is likely to be enforced, you must review the case law that has been established by prior applications of the statute.
Remember that the information presented herein is merely a partial quotation of various statutes. I have not reproduced any case law interpretations here, except as noted under certain New York laws.
(Thanks to Todd Sherman, KB4MHH for the idea of indexing this information.)
To protect the users of the radio spectrum from misuse of their communications, the US Government has enacted legislation to spell out the obligations of any listeners. The earliest and possibly the best known of these laws is contained in the Communications Act of 1934 and is now called Section 705, or popularly "the Privacy Act."
Section 705 (47 USCA 605) states that it is unlawful to disclose the content of radio transmissions overheard unless they are amateur radio traffic, broadcasts to the public or distress calls. It is unlawful under this section to use traffic monitored for personal gain. This might include a tow truck operator going to accident calls heard over a scanner if a response has not been requested, or a taxicab driver jumping calls dispatched to other companies.
Recently, a scanner hobbyist and member of NYSING - New York Statewide Incident Notification Group wrote to the FCC requesting clarification of the law respecting online streaming of scanner audio. With his permission, here is the FCC's response. In summary, FCC personnel see no legal impediment to such activity.
The infamous Electronic Communications Privacy Act of 1986 is found in Title 18 of the United States Code, Sections 2510 through 2520. It is an amendment to the Omnibus Crime Control and Safe Streets Act of 1968 and became Public Law 99-508, 100 Stat. 1848 on October 20, 1986.
The Cellular Telephone Industries Association was not satisfied with the passage of ECPA. It was obvious to most people, including hobbyists and Justice Department officials, that enforcement of such a law would be, at best, very difficult. Some said that it would be unenforceable. Little interest was expressed by Federal officials in actually developing a way to consistently and effectively enforce ECPA.
This did not sit well with CTIA, the members of which are involved in the manufacturing and sale of cellular radio telephones. They wanted to be able to continue telling their customers that cellular radio telephone calls were totally private and impossible to overhear. The only way that they could continue to make such false claims was to have legislation in place that would make it so, regardless of the laws of physics or common sense.
In 1991, a provision was attached to the FCC Reauthorization Act that would require FCC to deny Part 15 certification to any receiver that was capable of receiving signals in the cellular radio phone frequency bands. This would make it illegal to buy, sell or import such receivers. It would apply to any scanner that could be easily modified by the user to receive that range. Most interestingly, it would have applied retroactively to existing receiver models that were already on the market.
The FCC Reauthorization Act was never acted upon by the full Congress. Near the end of the 102nd Congress it became clear that the bill would die from inaction. The CTIA was busy on this and quietly persuaded Congress to move the anti-scanner provisions to another bill that was ready to be passed into law. On October 8, 1992, Congress passed the Telecommunications Disclosure & Dispute Resolution Act with the anti-cellular-receiver provisions attached. Nobody in the scanning community or hobby press was even aware of this maneuver until it was too late.
The newest anti-scanner law is part of Public Law 102-556. It amends Section 302 of the Communications Act of 1934 to deny certification to cellular-capable scanners, and to ban the importation and manufacture of such scanners. The FCC released its Report and Order number 93-201 in April, 1993. This rulemaking carried out the Congressional mandate by amending Sections 2 and 15 of the Communications Act.
After April, 1994, existing scanners with cellular capability may be sold or offered for sale, but no new cellular-capable scanners may be manufactured or imported. The US Government has made statements to the effect that this import prohibition will also apply to scanners purchased from overseas by private individuals for their own use! The same goes for external frequency converters designed to be used with scanners.
Technology marches on. Cellular radio telephones still operate in analog FM mode on some older networks, but the trend is toward proprietary digital multiplex transmissions on frequency bands that scanners do not cover. ECPA's prohibition against receivers covering certain 800 MHz ranges has almost outlived its usefulness.
Public Law 103-414, known as the Digital Telephony Bill, was enacted in November, 1994. One of the amendments to this bill adds cordless telephones to the list of prohibited listening targets in ECPA.
The Supreme Court of Illinois recently announced an interesting interpretation of ECPA. That Court says that possession of a "police scanner" does not violate ECPA because a scanner is not "primarily useful" for intercepting cellphone calls in People v. Marcelo Ledesma (2003 Ill. LEXIS 1409). Scanners are also exempt from anti-wiretap statutes under Illinois law. The Court reasoned that interception of a cellular radio telephone call must be "intentional" in order to violate ECPA, citing an earlier federal appeals case that announced this requirement (U.S. v. Townsend, 987 F.2d 927, 2nd Cir. 1993). These aspects of the Ledesma decision have not been appealed to the federal courts.
Claims have been made that the anti-scanner legislation is driven by the need to protect the "Right to Privacy" of cellular radio phone customers. Does such a right exist in law?
Many of our expectations of privacy arise from English Common Law. When we close the doors of our houses and lower the shades, we reasonably expect that our neighbors will not try to see into the house. If someone violates this expression of our desire for personal privacy, there are statutory remedies (we can charge them with tresspass or other crimes). There are also common-law remedies (we can sue for trespass or other torts). When we seal a first-class postal envelope, we are assured by postal regulations that the contents will not be examined by anyone other than the recipient.
But are these things the same as a Constitutional right to privacy? Not at all. The Constitution does not protect us from the actions of other private citizens. That was not the reason it was written. United States Supreme Court Justice Brandeis once said that Americans' most cherished privilege is the "right to be let alone" by the government. The Supreme Court has flatly stated that the Fourth Amendment (unreasonable search and seizure) only applies to actions of the government or its agents in Burdeau v. McDowell (256 U.S. 465).
In short, there is no Constitutional basis for restricting access to open, unencrypted radio transmissions in any mode or frequency band. Privacy of radio communications is best ensured by "lowering the shades" by means of encryption.
Early 1997 saw the beginning of a witch hunt sponsored by the cellular industry in cooperation with certain congressmen who have received extensive financial support from industry representatives. (See the Grove Enterprises site for more details.)
The storm began when a Florida couple (the Martins) allegedly intercepted a cellular conversation that was being conducted between Dick Armey (House Majority Leader), John Boehner (Republican Conference Chairman), and Newt Gingrich (Speaker of the U.S. House of Representatives). This conversation included a discussion of certain questionable activities by Mr. Gingrich, including plans to violate an agreement that he had made with the House Ethics Committee. The Martins claim to have "accidentally" found this call using a recently-purchased Radio Shack scanner, and that they "just happened" to have a tape recorder in their car, with which they recorded the conversation "for their grandson" because it might be "historic."
How the Martins just happened to "accidentally" intercept and record this momentous conversation has been a matter of much discussion and speculation. Under existing Federal law, Radio Shack is not selling cellular-capable scanners any more. We are supposed to believe that the Martins' membership and activities in the Democratic Party are a coincidence, including the fact that they turned their "innocent" recording over to a Democrat politician (McDermott), who in turn passed it along to the news media.
According to several press reports, Congressman McDermott attempted to work out a "deal" whereby he wouldn't be prosecuted too seriously for violating Federal law. Congressman Boehner filed a civil suit against him for $30,000 plus punitive damages and court costs. The Martins were fined $5,000 each. The news media got at least part of the story wrong. The Martins were fined only $500 as a result of a plea of guilty to violating 18 U.S.C. Section 2511(1)(a) by unlawfully intercepting a cellular radio telephone call.
The House Telecommunications subcommittee held a public hearing, during which members of Congress with alleged cellular industry connections and CTIA representatives huffed and puffed and postured, while ambushing a representative of the scanner industry (Bob Grove). Representative Billy Tauzin chaired the hearing. It was claimed by Rep. Markey (a TDDRA sponsor) that ECPA makes it illegal to perform modifications to scanners that would render them capable of receiving cellular calls. (You are encouraged to read the text of the ECPA and see if you can figure out where it says that.) The Congressmen and cellular reps slandered all of us who have scanners, calling us "electronic stalkers" and implying that the only reason we own scanners is to intercept cellular radio phone calls!
In response, the FCC issued Notice DA 97-334, expressing their intention to prosecute persons who perform cellular modifications "on a substantial scale." It should also be noted that the FCC specifically does not preempt the States from making their own rules about interception of mobile telephone calls.
The civil suit, Boehner v. McDermott, 191 F.3d 463 (D.C. Cir. 1999), vacated and remanded 532 U.S. 1050 (2001) (Boehner I), went all the way to the U.S. Supreme Court, then was sent back down to the Federal District Court, which was instructed to be reconsider its summary judgment in favor of Congressman Boehner in light of Bartnicki v. Vopper (532 U.S. 514). The Bartnicki case involved disclosure of a cellular radio telephone conversation that was illegally intercepted by an unknown party and placed into a Mr. Yocum's mailbox anonymously. Neither Yocum nor the radio broadcaster who played the tape on the radio could be prosecuted, according to the Supreme Court, because neither of them took part in the unlawful interception. On March 28, 2006, the U.S. Court of Appeals for the Third Circuit announced its decision on the appeal from the second case, Boehner v. McDermott, No. 98cv00594 (3rd Cir. 2006) (Boehner II). The Circuit Court affirmed the District Court's finding that Congressman McDermott unlawfully obtained the recorded conversation from the Martins and therefore violated 18 U.S.C. Sect. 2511 (1)(c) by illegally divulging the contents of the cellular radio telephone conversation.
As of this writing, it is not known whether the Supreme Court will take up Boehner II on appeal.
Another outgrowth of the turmoil surrounding the scanning industry during 1997 was the controversy over whether or not service manuals and schematics for certain scanners should continue to be available to the general public. I have compiled a history of the situation for your edification.
Use of radio equipment aboard US-registered aircraft is regulated by the Federal Aviation Administration. You can read what the Federal Aviation Regulations (FAR) have to say about electronic devices.
Aboard a privately owned plane, the "operator of the aircraft" is the pilot. The "operator" of a commercial aircaft is legally the airline, not the pilot. Some airlines do allow scanner use during the cruise portion of the flight. In all cases, the scanner must be turned off and stowed during takeoff and landing for safety reasons.
One other interesting item came from the FCC although it was not specifically addressed to scanner users. The FCC's Private Radio Bureau issued a declaratory ruling on behalf of amateur radio operators. The hams were having trouble in several states with local laws banning or restricting antenna installations. The PRB ruled that such laws were invalid since they conflicted with Federal laws. PRB-1 reinforces the concept of Federal preemption of radio laws. In other words, only the Federal government is supposed to have the authority to make laws regarding the use of radios and related structures.
Late in 1993, the FCC issued another declaratory ruling that upholds the idea of Federal preemption of any state or local regulation that would impinge on the ability of licensed amateur radio operators to have mobile ham equipment that was incidentally capable of receiving police or other frequencies. The docket number for this ruling is P.R. 91-36.
The FCC further broadened its authority in 1996 with respect to antenna regulation to include local zoning laws and restrictive private covenants that affect TV antennae. P.R. 96-328 prohibits any such restriction on Direct Broadcast Satellite (DBS) dishes that are less than 1 meter in diameter, Multichannel Multipoint Distribution System (MMDS) antennas less than 1 meter in diameter, and all TV antennas. Restrictions on masts that are higher than 12 feet above the building may still be allowed.
With the exception of safety regulations and those restrictions that protect the historic character of properties listed in the National Register of Historic Places, the FCC says that:
"Restrictions are prohibited in state or local laws or regulations, including zoning, land-use or building regulations, private covenants, homeowners' association rules or similar restrictions relating to what people can do on land within their exclusive use or control where they have a direct or indirect ownership interest in the property."
While the 96-328 ruling was prompted by commercial interests and is designed to protect the competitive market between cable, satellite, MMDS and regular broadcast television stations, its broad application to private contracts may hold promise for hobbyists who wish to install antennas on their property for other purposes.
New York’s Vehicle and Traffic Law prohibits "equipping" a motor vehicle with a radio that is "capable" of receiving police frequencies unless one is a Peace Officer, has a permit, or is licensed by the Federal Communications Commission as an amateur radio operator. The so-called “ham exemption” is subject to conflicting interpretations, as are certain provisions of the mobile scanner law. New York’s various statutes governing lawful use of radio leave important gaps in their protection of communications that may be essential to homeland security from unauthorized interception and hostile use, while unduly restricting the activities of law-abiding citizens and even public safety personnel. They also appear to conflict with some Federal regulations.
I have written an in-depth analysis of the legal situation in New York. In No Scanner For You? New York's Flawed Approach to Protecting Police Radio Communications From Misuse by Criminals, I offer a summary of the history and previous interpretations of these laws, with special attention to the Vehicle and Traffic Law, a discussion of the idea that we might have a right to listen to police radio traffic, followed by suggestions for possible legislative remedies for the shortcomings of New York State law in this area. Follow this link for information on obtaining your own copy.The City of Rochester scanner ordinance is Code 44-2. Note that the ordinance goes beyond the State's restriction on mobile use of a police frequency receiver. The City sought to ban mobile and portable police and fire receivers.
This law does not appear to be well known among law enforcement officers in the City of Rochester. I have been told what channel to monitor during a major incident by a police officer who could see the portable receiver in my hand. A large number of volunteer firefighters from surrounding communities, as well as many other spectators, can be found at the scene of any multiple alarm fire in the City. They do not get arrested despite having portable fire receivers with them.
The New York City Administrative Code requires a $25.00 annual permit for anyone wishing to put a scanner into an automobile. There are no exceptions, although certain federal, state, or local government employees may have the fee waived - but they still need the permit. The application procedure is arduous and requires, among other things, a statement that the applicant has what the City would consider to be a legitimate need for a mobile scanner and a thorough background check. The Code also prohibits possession or use of any descrambling device that can decrpyt police communications.
For information about mobile scanner and RADAR detector laws in other states, check this excellent compilation.
Last updated on May 26, 2008 by Dave, NF2G