scanstockton
Member
[P]Cal. Penal Code 636.5 beginning of the statue is where concern begins;[EM]“Any person [who] has not been authorized by user, who intercepts any public safety communication, by use of a scanner or other means...”[/EM], the legislature choose to use the word "or" throughout much of the statue which means that you do not have to meet the whole definition of the statue, you can simply violate one section or part of it, and then you have broken the law. The reason the first part of this statue is cause for concern is because, upon its plain meaning, it means "anyone", while the context of the statue speaks to the illegal use of providing, or using a scanner in the furtherance of a crime, it does nothing to specify to who "Any" is, even though it is inferred, it still a plausible risk.[/P]
[P]The statue explicitly states that "Section 31 or 32", shall not preclude anyone from prosecution",for violation of 636.5.
[CITE] [EM]"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."[/EM][/CITE][/P]
[P]The statue itself, is where the law begins, if streaming scanners in California is illegal then this would be a huge liability to each of us that provide them. It matters that the beginning of the 636.5 it does not conjoin the specific act of using a scanner to an individual, the one who is actually committing the crime, who physically has control of the intercepted communication; the word "Any", cannot be definitive, by its very definition, the word its self is used when describing "any" number things. Furthermore, the statue reads "not authorized to intercept any safety communication", this part of the law is explicit, in that it implies or means that authorization is needed to even have the ability to intercept the transmission, to who this applies is "Any". The statue is defined in CHAPTER 1.5. INVASION OF PRIVACY - Sections 630-637.9, the tile of chapter should be incorporated in how we choose to interpret the meaning. [/P]
[P]The statue infers that to have a scanner permission must be gained, and this is supported by the others Statues that are listed under the same chapter. Section 632(a) states anyone who intentionally without the permission of the party to a confidential communication who records it whether in their presence or not, is in violation of this section. In the age of Paranoia, what is considered "confidential", some of the information broadcast over scanners are confidential. For instance if you have your scanner programmed to a police departments "Records" channel, which is another channel that is handled by the records division to do searches in AFIS, CLETS, RMS, warrants checks, the officer broadcast the persons name, spelling, date of birth, drivers license. A couple minutes later or less, any warrants or wants, or specific crimes that require registration such as sex crimes, will be broadcast back to the officer. Even though this is not an encrypted channel or scrambled, and is operated on a public frequency, does it still warrant confidentiality. The answer is a resounding yes, governance should begin with us, and we should not give another reason for more regulation.[/p]
[/p]Again it maybe incorrect for presumption that ECPA makes it lawful to listen and intercept police and fire communications, because under 632(b),the term person includes a business,partnership,corporation,LLC, and legal entity.[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] Under subsection (b) it clearly indicates that the legislature was not speaking of a private party, but defined a broader protection group of entities, to include the legal, and any government local or state, and federal [agencys] acting in their capacity, as a protected category. By defining this section to include the local, state, and federal government, seems to remove them from being public, by not using the word "public", would make any argument for protection under ECPA, moot because The Act does not describe any communications that are not public, instead it states that any transmission that are public, are legal.[/P]
[h1 align="center"]Federal Government/State Government[/h1]
[P]Federal Law does not supersede State law simply or affirmatively because its federal, state law takes precedent, each state is enjoys Sovereignty. In the passing of the ECPA in 1986, the State after it was passed needed to codified the act, so it became part of the ECPA. The approach of people who do not live in California and the statue does not conjoin you as a party in the statue itself, (State laws give way to stricter federal laws that address the same issue.) The federal government alone creates the law for a few specific subject areas, such as copyrights, patents, bankruptcy, federal taxes, and Social Security. States do have the power under the Constitution to make an Act or law passed by Congress that must become part of the States law, more stringent or cover a broader scope than what was intended. The only time a State cannot makes changes to the law, is when it conflicts with the law itself, violates the Constitution, which is the Supreme Law of the land. However if the State wanted to prosecute anyone who they thought violated the laws for streaming scanner traffic, they could act and there would be no claim to ECPA.[/P]
[P]It should be noted that the Illinois in 2003 acknowledge that police scanners were legal, and they took their reasoning from the Title 18, and stated the following:[/P]
[P][Communications] such as a police scanner, that is designed to "[r]ecord[ ] or listen[ ] *** to any emergency communication made in the normal course of operations by any federal, state or local law enforcement agency or institutions dealing in emergency services" (720 ILCS 5/14-3(d) (West 1998)) is a lawful activity in Illinois. Further, such activity is permissible under the federal statute, as well. Section 2511(2)(g)(ii)(II) states, "It shall not be unlawful under this chapter or chapter 121 of this title for any person *** to intercept any radio communication which is transmitted *** 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[.]" 18 U.S.C. §2511(2)(g)(ii)(II) (1994). Our federal courts have not interpreted federal wiretap legislation to include a ban on police scanners. While it is possible that police scanners may occasionally intercept cellular telephone communications, and other devices may exist that are specifically designed for the purpose of intercepting cellular telephone communications or that may have the capability of inadvertently intercepting cellular calls even though not designed for that use (e.g. a monitor for a baby's nursery), it cannot be said that police scanners are "primarily useful for the purpose of the surreptitious interception" (18 U.S.C. §2512(1)(b) (1994)) of cellular telephone communications."[A HREF="http://www.state.il.us/court/opinions/supremecourt/2003/june/opinions/html/93628.htm" title="Click here to read the full decision of the court." TARGET="_blank"][+][/url]
[P]Section 631(a) states "any person by means of any machine...makes any unauthorized connection...without the consent of all parties to that [connection] communication...is in violation of this section."[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][/P]
[h1 align="center"]Good Practices[/h1]
[p]Doing any of the following would be a good idea, and would lessen the chance maybe of you having liability:[br]1. Have a Terms Of Use or Service Agreement in place where you state clearly what is offered, what you guarantee, how your information or content is to be distributed, what if any liability do you accept, what specific acts indemnify you from liability, what your intended use is for your scanner feed, finally outline every part of State or Federal Staues under authority of both ECPA and the 636.5, either paraphrase or put verbatim via copy/paste in your agreement, along with a link to those laws. Outline what the Statues explcitly forbid, and what acts cause a breach of the laws.[/p][p] Anyone who has their own site and is operating through a third party should have a disclaimer somewhere that you use a third party to stream your scanner stream, and you have not control over that content or advertising that this third party uses, this to ensure there is transparency, you to ensure that the user knows they will be leaving your site to listen to your stream. In California it is law, under the Privacy Act that any website that stores visitors information, or sells, advertises, is for profit or non profit needs to have a Privacy Policy in place so that all users know what information you collect and how long their information is stored.[/p]
[p]Sources Of Reading[/p]
[A HREF="http://www.docstoc.com/docs/513246/Bradley-v-Google-Inc-et-al---12" TARGET="_blank"]Google Wins ECPA[/A][BR]
[A HREF="http://grove-ent.com/LL-1934.html" TARGET="_blank"]MonitoringTimes Scanner Law[/A][BR]
[P]The statue explicitly states that "Section 31 or 32", shall not preclude anyone from prosecution",for violation of 636.5.
[CITE] [EM]"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."[/EM][/CITE][/P]
[P]The statue itself, is where the law begins, if streaming scanners in California is illegal then this would be a huge liability to each of us that provide them. It matters that the beginning of the 636.5 it does not conjoin the specific act of using a scanner to an individual, the one who is actually committing the crime, who physically has control of the intercepted communication; the word "Any", cannot be definitive, by its very definition, the word its self is used when describing "any" number things. Furthermore, the statue reads "not authorized to intercept any safety communication", this part of the law is explicit, in that it implies or means that authorization is needed to even have the ability to intercept the transmission, to who this applies is "Any". The statue is defined in CHAPTER 1.5. INVASION OF PRIVACY - Sections 630-637.9, the tile of chapter should be incorporated in how we choose to interpret the meaning. [/P]
[P]The statue infers that to have a scanner permission must be gained, and this is supported by the others Statues that are listed under the same chapter. Section 632(a) states anyone who intentionally without the permission of the party to a confidential communication who records it whether in their presence or not, is in violation of this section. In the age of Paranoia, what is considered "confidential", some of the information broadcast over scanners are confidential. For instance if you have your scanner programmed to a police departments "Records" channel, which is another channel that is handled by the records division to do searches in AFIS, CLETS, RMS, warrants checks, the officer broadcast the persons name, spelling, date of birth, drivers license. A couple minutes later or less, any warrants or wants, or specific crimes that require registration such as sex crimes, will be broadcast back to the officer. Even though this is not an encrypted channel or scrambled, and is operated on a public frequency, does it still warrant confidentiality. The answer is a resounding yes, governance should begin with us, and we should not give another reason for more regulation.[/p]
[/p]Again it maybe incorrect for presumption that ECPA makes it lawful to listen and intercept police and fire communications, because under 632(b),the term person includes a business,partnership,corporation,LLC, and legal entity.[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] Under subsection (b) it clearly indicates that the legislature was not speaking of a private party, but defined a broader protection group of entities, to include the legal, and any government local or state, and federal [agencys] acting in their capacity, as a protected category. By defining this section to include the local, state, and federal government, seems to remove them from being public, by not using the word "public", would make any argument for protection under ECPA, moot because The Act does not describe any communications that are not public, instead it states that any transmission that are public, are legal.[/P]
[h1 align="center"]Federal Government/State Government[/h1]
[P]Federal Law does not supersede State law simply or affirmatively because its federal, state law takes precedent, each state is enjoys Sovereignty. In the passing of the ECPA in 1986, the State after it was passed needed to codified the act, so it became part of the ECPA. The approach of people who do not live in California and the statue does not conjoin you as a party in the statue itself, (State laws give way to stricter federal laws that address the same issue.) The federal government alone creates the law for a few specific subject areas, such as copyrights, patents, bankruptcy, federal taxes, and Social Security. States do have the power under the Constitution to make an Act or law passed by Congress that must become part of the States law, more stringent or cover a broader scope than what was intended. The only time a State cannot makes changes to the law, is when it conflicts with the law itself, violates the Constitution, which is the Supreme Law of the land. However if the State wanted to prosecute anyone who they thought violated the laws for streaming scanner traffic, they could act and there would be no claim to ECPA.[/P]
[P]It should be noted that the Illinois in 2003 acknowledge that police scanners were legal, and they took their reasoning from the Title 18, and stated the following:[/P]
[P][Communications] such as a police scanner, that is designed to "[r]ecord[ ] or listen[ ] *** to any emergency communication made in the normal course of operations by any federal, state or local law enforcement agency or institutions dealing in emergency services" (720 ILCS 5/14-3(d) (West 1998)) is a lawful activity in Illinois. Further, such activity is permissible under the federal statute, as well. Section 2511(2)(g)(ii)(II) states, "It shall not be unlawful under this chapter or chapter 121 of this title for any person *** to intercept any radio communication which is transmitted *** 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[.]" 18 U.S.C. §2511(2)(g)(ii)(II) (1994). Our federal courts have not interpreted federal wiretap legislation to include a ban on police scanners. While it is possible that police scanners may occasionally intercept cellular telephone communications, and other devices may exist that are specifically designed for the purpose of intercepting cellular telephone communications or that may have the capability of inadvertently intercepting cellular calls even though not designed for that use (e.g. a monitor for a baby's nursery), it cannot be said that police scanners are "primarily useful for the purpose of the surreptitious interception" (18 U.S.C. §2512(1)(b) (1994)) of cellular telephone communications."[A HREF="http://www.state.il.us/court/opinions/supremecourt/2003/june/opinions/html/93628.htm" title="Click here to read the full decision of the court." TARGET="_blank"][+][/url]
[P]Section 631(a) states "any person by means of any machine...makes any unauthorized connection...without the consent of all parties to that [connection] communication...is in violation of this section."[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][/P]
[h1 align="center"]Good Practices[/h1]
[p]Doing any of the following would be a good idea, and would lessen the chance maybe of you having liability:[br]1. Have a Terms Of Use or Service Agreement in place where you state clearly what is offered, what you guarantee, how your information or content is to be distributed, what if any liability do you accept, what specific acts indemnify you from liability, what your intended use is for your scanner feed, finally outline every part of State or Federal Staues under authority of both ECPA and the 636.5, either paraphrase or put verbatim via copy/paste in your agreement, along with a link to those laws. Outline what the Statues explcitly forbid, and what acts cause a breach of the laws.[/p][p] Anyone who has their own site and is operating through a third party should have a disclaimer somewhere that you use a third party to stream your scanner stream, and you have not control over that content or advertising that this third party uses, this to ensure there is transparency, you to ensure that the user knows they will be leaving your site to listen to your stream. In California it is law, under the Privacy Act that any website that stores visitors information, or sells, advertises, is for profit or non profit needs to have a Privacy Policy in place so that all users know what information you collect and how long their information is stored.[/p]
[p]Sources Of Reading[/p]
[A HREF="http://www.docstoc.com/docs/513246/Bradley-v-Google-Inc-et-al---12" TARGET="_blank"]Google Wins ECPA[/A][BR]
[A HREF="http://grove-ent.com/LL-1934.html" TARGET="_blank"]MonitoringTimes Scanner Law[/A][BR]
