It is unfortunate that a guide such as this is necessary.  Most Americans are unaware of the laws contained here and, if asked, would probably be surprised to know that they could be arrested simply for listening to the radio.  The battle in many states to repeal or amend monitoring laws is continuing.  New Jersey and Kentucky have ameliorated their laws in the last few years to the form contained here.  On the other hand, California's law that made monitoring cordless telephone calls illegal in that state has now spread to become federal law.

            As you can see, the law is a continuing process.  Any compendium of laws such as this can be no more than a snapshot.  New laws are passed every day; old ones are amended.  The limitations of legal research today still leave a lag time of several months to a year before new laws are reflected in the materials in law libraries.  Even computerized legal research databases such as Westlaw have considerable lag times.  Thus, it is possible that there are more laws restricting monitoring than are set forth here, and it is also possible that some of the laws set forth here have been amended or even repealed by the time you read this.  That is inevitable.  This guide can do no more than to alert you to laws that have been passed.  It is your responsibility to check that the law, as set forth here, is still valid.  I can only point you in the right direction.

            The laws compiled here can be broken down into three classifications: (1) outright bans on monitoring by everyone (usually only in motor vehicles); (2) outright bans on monitoring by criminals; and (3) bans on illegal use of information heard on the radio.  Outright bans on monitoring exist in Florida, Indiana, Kentucky, Michigan, Minnesota and New York.  There are usually several exemptions granted to people like amateur radio operators, journalists, and law enforcement personnel.  South Dakota and Rhode Island prohibit certain criminals from having scanners.  The last (and in my opinion more rational) type of law, which forbids not listening, but improper use of information heard, exists in California, Minnesota, Nebraska, New Jersey, New York, Oklahoma, Vermont, and West Virginia.  North Dakota prohibits possession of a radio which will both transmit and receive police frequencies.  The other states have no laws restricting radio listening, as far as I can tell.  State implementations of the Electronic Communications Privacy Act (ECPA) are not included here since these statutes merely restate the ECPA in most cases.

            Any questions or comments regarding this guide (including any laws not found here) can be addressed to me at my office address, or via Compuserve (75006,2317).  Please note that nothing in this guide should be taken by anyone as constituting legal advice.

--Clifton, N.J., February 22, 1995

 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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