At issue here is if it is legal to connect a scanner to the Internet so that others can listen to local communications. Typically, the public safety communications of police and fire departments are what most people are interested in listening to over the Internet. So it goes with most topics of discussion, there are usually two opposite points of view, each holding to be correct and this topic is no exception.
I decided to fork this thread from a previous thread to try and compare personal opinions (YEA and NAY) to relevant case law and see what matched up. Essentially, the NAY camp rallies around the legislation found in Title 47, Chapter 5, Subchapter VI, § 605 (a) as it's foundation that scanners connected to the Internet are illegally divulging a radio transmission.
Amongst other things, § 2511 of Chapter 119 authorizes which radio transmissions can be legally intercepted:
On the other hand, the NAY camp, as articulated by N_Jay's post, holds that "The rules regarding "interception" are independent from the rules regarding "divulging, publishing, or utilizing the contents of any radio communication". Both camps seem to have the correct opinion on the matter, but it is just that ... opinions and conclusions drawn from personal observations and prejudices.
So we are back to the original question of, to what extent does chapter 119, title 18 modify § 605? In order to authoritatively answer this question we need case law.
Ready?
In U.S. v. Rose, 669 F.2d 23, 26-27 (1st Cir. 1981), cert. denied, 459 U.S. 828 (1982), the First Circuit held that Chapter 119 applied to radio communications otherwise protected by 605(a), by virtue of 605(a)'s introductory clause. The court recognized that "the protective shield of 605 is significantly diminished in scope by incorporating the requirements of [Chapter 119]." The court noted, however, that it was significant that Congress simultaneously added 605(a)'s introductory clause when it passed Chapter 119 in 1968. The court cited legislative history which clearly states that "The regulation of the interception of wire or oral communications in the future is to be governed by the proposed new [Title III]." Id.
In Edwards v. State Farm Ins. Co., 833 F.2d 535 (5th Cir.1987), the Fifth Circuit held that while the phrase could be interpreted to preface only the first sentence of section 605,. . . "we think the better interpretation limits each of section 605's prohibitions to activities not authorized by the Wiretap Act." Id. at 540. The court went on to note that Under the former interpretation, activity permissible under the Wiretap Act could be prohibited under section 605 of the Communications Act. Since Congress added the introductory phrase to section 605 at the same time that it enacted the Wiretap Act, we believe Congress likely intended to make the same statutes consistent. The latter interpretation has this effect by ensuring that the interception and divulgence of a voice communication transmitted by radio waves is not prohibited by section 605 unless the communication also falls within the protections of the Wiretap Act. . . . [W]e acknowledge that neither the language of section 605 nor the relevant legislative history makes it entirely clear whether Congress intended this result . . .. Id. The Fifth Circuit reasoned that the 1986 amendments to the Wiretap Act add much support to that court's conclusion, as these amendments expressly govern voice communication transmitted by radio waves. The court rejected the argument contained in Bruce Fein's law review article that Chapter 119 only applies to the first sentence of 605(a). The court noted that "[e]ven this commentator . . . suggested as an alternative interpretation the one adopted by the First Circuit in Rose." Id. at 540 n.7.
Additionally, the Eighth Circuit followed the lead of the First and Fifth Circuits in Tyler v. Berodt, 877 F.2d 705 (8th Cir. 1989),cert. denied, 493 U.S. 1022 (1990), which held that the requirements of Chapter 119 apply to 605.
In U.S. v. Gass, judgment of acquittal, the court mused:
I decided to fork this thread from a previous thread to try and compare personal opinions (YEA and NAY) to relevant case law and see what matched up. Essentially, the NAY camp rallies around the legislation found in Title 47, Chapter 5, Subchapter VI, § 605 (a) as it's foundation that scanners connected to the Internet are illegally divulging a radio transmission.
While that may seem like a fairly easy prohibition to understand, what complicates matters in this discussion is that the "(a)" paragraph of § 605 starts off with:§ 605 (a) said:Except as authorized by chapter 119, title 18, no person receiving, assisting in receiving, transmitting, or assisting in transmitting, any interstate or foreign communication by wire or radio shall divulge or publish the existence, contents, substance, purport, effect, or meaning thereof, except through authorized channels of transmission or reception,
What does "chapter 119, title 18" authorize? To what extent does chapter 119, title 18 modify § 605?§ 605 (a) said:Except as authorized by chapter 119, title 18,
Amongst other things, § 2511 of Chapter 119 authorizes which radio transmissions can be legally intercepted:
This too seems like it should be easy to understand: "It shall not be unlawful .. to intercept any radio communication which is transmitted .. readily accessible to the general public". Applying lawful, authorized activities of § 2511 Chapter 119 back to § 605 paragraph (a)'s exception "Except as authorized by chapter 119, title 18", it would seem (to the YEA camp) that any activity deemed not unlawful in § 2511 Chapter 119 would allow someone to tell/divulge what is heard to anyone and by extension relay it to the Internet.§ 2511 (2) said:
- (g) It shall not be unlawful under this chapter or chapter 121 of this title for any person—
- (i) to intercept or access an electronic communication made through an electronic communication system that is configured so that such electronic communication is readily accessible to the general public;
(ii) to intercept any radio communication which is transmitted—
- (I) by any station for the use of the general public, or that relates to ships, aircraft, vehicles, or persons in distress;
(II) by any governmental, law enforcement, civil defense, private land mobile, or public safety communications system, including police and fire, readily accessible to the general public;
(III) by a station operating on an authorized frequency within the bands allocated to the amateur, citizens band, or general mobile radio services; or
(IV) by any marine or aeronautical communications system;
On the other hand, the NAY camp, as articulated by N_Jay's post, holds that "The rules regarding "interception" are independent from the rules regarding "divulging, publishing, or utilizing the contents of any radio communication". Both camps seem to have the correct opinion on the matter, but it is just that ... opinions and conclusions drawn from personal observations and prejudices.
So we are back to the original question of, to what extent does chapter 119, title 18 modify § 605? In order to authoritatively answer this question we need case law.
Ready?
In U.S. v. Rose, 669 F.2d 23, 26-27 (1st Cir. 1981), cert. denied, 459 U.S. 828 (1982), the First Circuit held that Chapter 119 applied to radio communications otherwise protected by 605(a), by virtue of 605(a)'s introductory clause. The court recognized that "the protective shield of 605 is significantly diminished in scope by incorporating the requirements of [Chapter 119]." The court noted, however, that it was significant that Congress simultaneously added 605(a)'s introductory clause when it passed Chapter 119 in 1968. The court cited legislative history which clearly states that "The regulation of the interception of wire or oral communications in the future is to be governed by the proposed new [Title III]." Id.
In Edwards v. State Farm Ins. Co., 833 F.2d 535 (5th Cir.1987), the Fifth Circuit held that while the phrase could be interpreted to preface only the first sentence of section 605,. . . "we think the better interpretation limits each of section 605's prohibitions to activities not authorized by the Wiretap Act." Id. at 540. The court went on to note that Under the former interpretation, activity permissible under the Wiretap Act could be prohibited under section 605 of the Communications Act. Since Congress added the introductory phrase to section 605 at the same time that it enacted the Wiretap Act, we believe Congress likely intended to make the same statutes consistent. The latter interpretation has this effect by ensuring that the interception and divulgence of a voice communication transmitted by radio waves is not prohibited by section 605 unless the communication also falls within the protections of the Wiretap Act. . . . [W]e acknowledge that neither the language of section 605 nor the relevant legislative history makes it entirely clear whether Congress intended this result . . .. Id. The Fifth Circuit reasoned that the 1986 amendments to the Wiretap Act add much support to that court's conclusion, as these amendments expressly govern voice communication transmitted by radio waves. The court rejected the argument contained in Bruce Fein's law review article that Chapter 119 only applies to the first sentence of 605(a). The court noted that "[e]ven this commentator . . . suggested as an alternative interpretation the one adopted by the First Circuit in Rose." Id. at 540 n.7.
Additionally, the Eighth Circuit followed the lead of the First and Fifth Circuits in Tyler v. Berodt, 877 F.2d 705 (8th Cir. 1989),cert. denied, 493 U.S. 1022 (1990), which held that the requirements of Chapter 119 apply to 605.
In U.S. v. Gass, judgment of acquittal, the court mused:
Not to be deterred, the government decided to submit a request for a retrial. In denying the government request, the court had more to say on the subject:If this Court were to give effect to the government's argument, then the governmental radio interception exception contained in Chapter 119 makes no sense; a person would be permitted under Chapter 119 to intercept police radio transmissions only to be subject to criminal prosecution under 605. Why would Congress impose a ban on the interception and divulgence of radio communications in one statute, while allowing for a specific exception in another, if it did not intend for the statutes to be read together?
The only way to avoid absurdity in such a case is to interpret the conflicting statutes in a manner which permits the statutes to complement one another, thereby giving effect to the specific exception. It would seem that the maxim "specific over general" is especially applicable here. As the Supreme Court noted, a "more specific statute will be given precedence over a more general one. "Busic v. U.S., 446 U.S. 398, 406 (1980).
Since Chapter 119 specifically addresses radio communications transmitted by the government, it must control 605(a)'s general prohibition with respect to such radio transmissions. As such, 605(a) is qualified by the exception contained in Chapter 119 for the interception of governmental radio transmissions. The government's fear that such an interpretation will seriously undermine the protections contained in 605(a) is largely unfounded. Chapter 119 does serve the purpose of providing protection to radio communications, but it also contains several exceptions and additional qualifications. Concededly, 605(a)'s protections are minimized by Chapter 119's applicability, but this result is mandated in order to harmonize two otherwise conflicting statutes.
This next quote box is actually part of the text of court's comments denying the government's request for a retrial, but it's content is so powerful that I wanted to present it in such a manner so that it stands out.The Court does not agree. Chapter 119 generally prohibits the interception of any oral or electronic communication, which, by definition, includes radio signals. 18 U.S.C. 2510 and 2511(1)(a).
Chapter 119 also generally prohibits the intentional disclosure or use of oral or electronic communications where the person knows or has reason to know that the communication was intercepted in violation of subsection 2511(1). 18 U.S.C. 2511(1)(c) and (d). Conversely, 2511 does not generally prohibit the divulgence of communications which are legally intercepted. Any "electronic communication" that is "readily accessible to the general public" may be intercepted. 18 U.S.C. 2511(2)(g)(i). Moreover, any governmental "radio communication" that is "readily accessible" to the general public may be intercepted, regardless of any expectation of privacy. 18 U.S.C. 2511(2)(g)(ii)(II).
Since it is not a violation under 2511 to intercept readily accessible governmental radio communications, 2511(1)(c) and (d) do not prohibit divulgence or use of such communications. If a governmental radio communication is "readily accessible to the general public," then where is the harm in intercepting it and divulging the contents of the communication? Chapter 119 recognizes this by not prohibiting the interception and divulgence of such "readily accessible" governmental "radio communications." Furthermore, whenever a "readily accessible" message is sent out over the airways, it is essentially "divulged" to the public. Presumably, anyone using a lawful device, in a lawful manner, can receive "readily accessible" radio communications.
Section2511(1)(e) is also noteworthy in that it prohibits the disclosure of certain communications which are otherwise legally intercepted. Significantly, 2511(1)(e) does not prohibit the disclosure of communications legally intercepted under the exceptions contained in 2511(2)(g). If Congress desired to prohibit the divulgence of radio communications legally intercepted pursuant to 2511(2)(g), it could have easily done so in 2511(1)(e).
Finally, the FCC has provided an opinion via email specifically addressing placing scanner audio on the Internet:Since the Court recognizes that "readily accessible" governmental "radio communications" do not fall within the protections of Chapter 119, as they are expressly excepted from that Chapter's general prohibitions, the interception and divulgence of such communications is not prohibited by virtue of 605.
Almost finished .. I need to start a new post because 12k charaters is the max allowed per post. (in case you've ever wondered)FCC Consumer Center Response email - Ref# 02777194 said:Section 705 of the Communications Act generally does not prohibit the publication on the Internet of fire department and police department radio broadcasts. The interception of these radio communications is legal under the criminal wiretap statute, 18 U.S.C. 2510 et seq., to the extent the communications are readily accessible to the general public, which police and fire department radio communications generally are.
Therefore, the rebroadcast of police and fire department radio communications that are obtained legally does not constitute a violation of section 705 of the Communications Act.