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Old 07-22-2010, 5:11 PM
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Default Is it legal to stream a scanner over the internet?

[p]I am not a lawyer, and I am not able to give legal advice, everything included in the posting is my interpretation of the Statues, and my opinions are not reflected to any of those parties to whom I linked to or reference acknowledgement through us of linking for credit of their work.[/p]
[h1 align="center"]Introduction[/h1]
[P]This is a response to the incident in Oakland California where individuals accused of a crime, and charged where found to be in possession of a cellular device, that was able to listen to police communications of the Oakland Police. [/P]

[P]In the State of California under  636.5 of CA it is illegal for use of such devices that intercepts communications or are passed along so that someone else can use them. While it is fact that Electronics Communications Privacy Act does explicitly state that it shall not be unlawful to listen to any public communications to include fire and police. ECPA is not enough protection nor would it shield us from any liability or prosecution that came from us providing readily accessible scanner information to the public, if the California law be found to, or defined as it being illegal. Technology keeps advancing, and the mere fact that we can put a stream on the Internet and it is available to world is impressive. We must consider or at least entertain the idea, that if just like in Oakland, even though IPhone has been known to have ability to be used as a scanner from around 2007, an article was written by Police.com discussing technology;The Oakland police department was able to capitalize by drawing attention, and acting as if they did not know this was available. This reflected on sites like RadioReference.com, and other such sites in negative light. This article stirred up a lot of debate, brought negative attention to scanning, and streaming. I believe that California law as written now, streaming scanners are a potential liability, were the mere fact we provide the stream, opens us to potentially becomming party to case in which our stream is/was used in a crime that was committed.[/P]

[h1 align="center"]Chapter 1.5. Invasion of Privacy[/h1][br]
California Statutory Discussion

[P]Cal Penal Code 636.5 as written seems very broad in scope, therefore this law could be applied very broadly, and this could create a problem for streaming scanner communications over the Internet. There are several statues that make streaming a scanner unlawful on their face using the plain meaning of each statue. The statues that cause the greatest concern are listed under CHAPTER 1.5. INVASION OF PRIVACY [A HREF="http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=630-638" title="click here to view the full statutory code" TARGET="_blank"][+][/A]. California codified the Statue based upon Electronics Communications Privacy Act of 1986, which consolidated with The Communications Act of 1934 [A HREF="http://grove-ent.com/LL-1934.html" Title="review the The Communications Act of 1934 "TARGET="_blank"][+][/A]. To be able to understand the Statue, we must first set a standard on how we apply or interpret the Statue. The best method of review when looking at the statue is in the meaning of the words, or plain meaning. According the U.S. Supreme Court in [CITE]Caminetti v. United States, 242 U.S. 470 (1917), "It is elementary that the meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain, and if the law is within the constitutional authority of the lawmaking body which passed it, the sole function of the courts is to enforce it according to its terms." The Court further stated "if statutory language is plain and admits of no more than one meaning, the duty of interpretation does not arise".[A HREF="http://supreme.justia.com/us/242/470/case.html" TARGET="_blank"][+][/A][/I] [/CITE][/p][p]This writing only applies to the State of California, I am fully aware of the ECPA, and the federal laws that expressly permit through readily accessible device the interception of police and fire communications.[/p]
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Old 07-22-2010, 8:01 PM
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One has to wonder how many EFFING times this is going to be brought up...it is covered again and again and again here ad nauseum.
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Old 07-22-2010, 8:30 PM
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Regarding those that were caught listening to the scanner audio (via their smart phone), the law is clear. If you use the scanner (or scanner feeds) during the commission of a crime or to avoid getting caught, additional charges can be made against the criminals. This may even include an upgrade in the crime's severity.

Regarding the legality of streaming scanner audio over the internet, please see the existing threads and post related comments there.
http://forums.radioreference.com/liv...-archives.html
Scanners, Internet and the Law: An objective discussion with case law.
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Old 07-22-2010, 8:40 PM
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Quote:
Originally Posted by scancapecod View Post
One has to wonder how many EFFING times this is going to be brought up...it is covered again and again and again here ad nauseum.
Really. The ECPA does prohibit the cracking of encrypted or scrambled radio traffic. Whatever is broadcast in plain ENGLISH is fair game. Cyber space does not recognize the city limits, a county line or a state border. It will take an act of Congress to ban internet streams.

The US Govt. (FCC) also has a MONOOLY on the right to regulate the the public airwaves, as they claim with immigration laws in justifying their lawsuit against the state of Arizona.

Cities and counties have been slapped down in their attempts to ban antenna structures owned by federally licensed ham radio operators. New Jersey even tried to ban broad-banded radios capable of receiving the VHF/UHF public safety bands. I don't know of any hams or broadcasters who are required to be licensed by a state or local government...
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Old 07-22-2010, 9:00 PM
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Quote:
Originally Posted by cousinkix1953 View Post
Really. The ECPA does prohibit the cracking of encrypted or scrambled radio traffic. Whatever is broadcast in plain ENGLISH is fair game. Cyber space does not recognize the city limits, a county line or a state border. It will take an act of Congress to ban internet streams.
While it is illegal to decrypt encrypted broadcasts without permission, this really has nothing to do with streaming. If the broadcast is encrypted and the stream simply redistributes this encrypted stream (without decrypting it) this would be the same as streaming a non-encrypted transmission (the audio stream of the encrypted broadcast - heard as noise, not the actual decrypted audio) should pass the same legal standard as a unencrypted broadcast would. The act of decrypting that audio stream would be illegal, however.

Why must the broadcast be in English to be allowed to be "fair game"? Wouldn't a similar broadcast in Spanish, French, or any other language also be "fair game"? I think that the legal standard is if the broadcast is "readily accessible to the general public" (loosely translated as being broadcast 'in the clear' without being encrypted), and has nothing to do with the language the broadcast is in.
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Old 07-23-2010, 3:08 AM
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The federal Supremacy Clause precludes California from enacting a law that supercedes federal law. What federal law allows California cannot disallow. This is a similar debate over the Arizona immigration law. Arizona wrote their law to mirrow federal law and avoid the debate (we'll see what happens!) California did not write an anti-scanner law. Some municipalities used to have have or attempted to do so and have failed. PC 636 is intended for video peeping Tom's or audio survelliance and the like. Cities HAVE successfully banned amatuer radio towers in southern Californhia, like Grand Terrace.
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Old 07-23-2010, 5:29 AM
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I've been curious about this too, but not in a way where Radio reference would be liable. But rather the end time user.

When its illegal to possess a scanner due to criminal conviction, yet the convicted can still own a cellphone. I wonder if that is a loop hole that each state has to re-consider or what.

The Electronic privacy Act probably needs as much an overhaul as FCC part-95 did.
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Old 07-23-2010, 10:11 AM
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The problem here is that the question is not 'settled' yet.

The ECPA clearly allows receiving unencrypted signals. It does NOT state you may DISTRIBUTE those signals to others.

The primary law the ECPA modifies (Section 605) states you may not intercept OR distribute.

Will a court rule that 'allowed to intercept' also includes 'allowed to distribute'?

I believe some have... others might rule the other way.

Meanwhile, if you stream, and an agency demands you stop, you are at the mercy of the local prosecutor, who may decide that 'No, it does not allow distribute', and haul you into court. You might win, in court... eventually. After spending a fortune. Is it worth it to you to spend that fortune, or do you take the feed down when demanded?

Your call.
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Old 07-23-2010, 12:06 PM
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People, let's actually read these things before we jump to conclusions. This is why you have to attend law school and pass the Bar before practicing law. California Penal Code Section 636.5 is perfectly clear when you pay attention to the parts that I have capitalized. No "interpretation" is necessary at all:

"Any person not authorized by the sender, who intercepts any
public safety radio service communication, by use of a scanner or any
other means, FOR THE PURPOSE OF using that communication to assist
in the commission of a criminal offense or to avoid or escape arrest,
trial, conviction, or punishment or who divulges to any person HE OR
SHE KNOWS TO BE A SUSPECT in the commission of any criminal offense,
the existence, contents, substance, purport, effect or meaning of
that communication concerning the offense WITH THE INTENT that the
suspect may avoid or escape from arrest, trial, conviction, or
punishment is guilty of a misdemeanor.
Nothing in this section shall preclude prosecution of any person
under Section 31 or 32.
As used in this section, "public safety radio service
communication" means a communication authorized by the Federal
Communications Commission to be transmitted by a station in the
public safety radio service."
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Old 07-23-2010, 9:29 PM
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Quote:
Originally Posted by scancapecod View Post
One has to wonder how many EFFING times this is going to be brought up...it is covered again and again and again here ad nauseum.
And I agree.

Please go find an older thread on the topic to reply to if someone is interested in continuing.
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