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"Privacy" Bill Resurrected as HR 514

A Special Report by Rachel Baughn, editor

The House of Representatives, anxious to show some accomplishments in the 106th Congress, has posted a number of "non-controversial" bills for quick action. One such bill is HR 514, introduced by Congresswoman Heather Wilson of the House Subcommittee on Telecommunications, Trade and Consumer Protection. The bill is identical to the final form of HR 2369, which passed the House last session with only one opposing vote.

HR 514 passed the House with equal ease in February. The only hope radio hobbyists have of resisting the bill is when it is referred to the Senate Commerce Committee, which last year did not act on it.

What's wrong with HR 514? Isn't this the version that several hobby spokesmen have called "the best we could hope for?"

While HR 514 is immensely improved from HR 2369 as Rep. Tauzin originally introduced it, there are two objections to it: (1) It is redundant legislation -- duplicating, on almost every point, already existing regulations in the US Code, and (2) in its eagerness to close all potential loopholes, the bill may also close the door to any future for scanning in a digital world. Its troubling and contradictory requirements could come to haunt radio hobbyists, manufacturers, and even the Federal Communications Commission, which is tasked with carrying out the bill's mandate.

Is "More" Always Better?

Let's take the redundancy issue first. Although the U.S. Code is fragmented and complicated, that doesn't mean it is improved by adding more legislation on top of it. The issues the bill was designed to address -- equipment modification, eavesdropping on phone calls or paging services, and divulgence of such intercepted communications -- are already well covered by existing law, found in three primary locations: Title 47 US Code Section 302; Title 47 US Code Section 605; and Title 18 Part I Chapter 119. In spite of this, HR 514 seeks to duplicate or unnecessarily complicate these existing laws.

The perception that such legislation is needed may arise in part because enforcement of existing restrictions (such as publication of the content of cellphone conversations) has been rare or extremely selective. However, in response to pressure from a number of sources, this is changing. Also, the Federal Communications Administration (FCC) has been prompt in posting clarifications and fact sheets to the public via the Internet when it is evident that there is confusion in interpretation of regulations.

HR 514 adds substantial text to the language regulating scanning receivers -- the only radio equipment singled out for such micromanagement by Congress. It does help bring several existing restrictions together in one place, but it reinforces a misguided approach to privacy enhancement. It forbids specific technology and frequency ranges, rather than allowing the industry to devise ways to avoid reception of the protected communications -- a task it has proven it can do. And that brings us to the second objection -- the threat to future product development.

Equipment Authorization

HR 514 instructs the FCC to deny equipment authorization to any scanning receiver that is capable of receiving, or of being readily altered to receive, frequencies allocated to the domestic cellular or personal communications services. Nor can the receiver be easily equipped with digital decoders for cellular radio telecommunications, personal communications, protected specialized mobile radio services, protected paging services, and any encrypted radio transmission. (Protected is defined as "secured by an electronic method that is not published or disclosed except to authorized users.")

On the other hand, the bill says in regard to privacy protection for shared frequencies: "The Commission shall, with respect to scanning receivers capable of receiving transmissions in frequencies that are used by commercial mobile services and that are shared by public safety users, examine methods, and may prescribe such regulations as may be necessary, to enhance the privacy of users of such frequencies."

This is an acknowledgment of the fact that Chapter 119 allows the public to listen to unscrambled public safety agency communication (along with a substantial number of other allowed services). Today, however, a great number of public safety agencies share frequencies with or lease space from commercial mobile services which interface with a variety of protected telecommunications services. These agencies share both frequencies and technology with services that are protected under this bill -- and such sharing can only be expected to increase in the future.

If scanners are denied access to those frequencies and to the technology, they are denied their future. New criteria for spectrum conservation and flexibility mandate that the future will be digital. It has largely been assumed that the APCO 25 standard being promoted by public safety advocates will use a digital standard, but one that will be available to the public so that compatible scanners may also be designed.

But public safety agencies aren't waiting for APCO-25-compliant radios to be developed by (for example) Motorola: they are signing on with Motorola's proprietary digital systems ... and with Nextel, or whoever promises to deliver whatever is top priority for the client. For some agencies top priority is cost; for others -- though they may not admit it publicly -- it is shutting out the criminals, the public, and the media.

Although today's trunk tracking scanners have managed to develop nonproprietary technology to follow public safety agencies using analog trunked systems, this bill would prohibit development of such technology if the agencies were to move to a proprietary digital system. APCO 25 may be too little, too late, if it arrives at all.

There is one ray of hope in the wording. Scanner manufacturers might have the freedom to develop a decoder to receive digital public safety communications due to the fact that specialized mobile radio frequencies are not declared off limits; if the receiver only decodes the data channel to enable receiver control, conversations on private services are not being decoded.

It's the FCC which is handed the gnarly task of determining how to allow access to public safety communications while protecting the privacy of commercial mobile services. If it comes to a choice between public access and big business, this House bill leaves no doubt as to which way the decision will go.

A Call to Action: Write Now!

So what should you write to your Senators? Ask them to remember their promise to deliver less government instead of more. Ask them to give the FCC enough resources to uphold the laws that are already on the books. Ask them to enquire of the providers what they are doing to ensure the privacy of their customers? Remember, encrypted communications are already protected by existing law.

Remind them of the great service provided to their country and communities by scanner equipped public service volunteers, ham radio operators, firefighters, and private citizens. These volunteers, as well as many fire and police departments with low budgets, will be out of the loop if their county agencies move to a digital system. A digital scanner could make the difference, if Congress doesn't try to micromanage scanner technology and spectrum issues.

It is already quite clear in the U.S. Code that most oral, wire, and electronic communications are off-limits to all but authorized users: it should be left to the spectrum managers and radio engineers to determine how such privacy may be accomplished.

Full text of HR 514

How existing laws will read if amended