Legality of RadioReference Live Audio Broadcasts and Archives

[zerg901]

"divulge or publish the existence, contents, substance, purport, effect, or meaning thereof, except through authorized channels of transmission or reception,...... "

1. Scanner feeds DO NOT divulge or publish the 'existence' of any message - scanner feeds DO divulge or publish the 'actual message'

2. Scanner feeds DO NOT divulge or publish the 'contents' of any message - scanner feeds DO divulge or publish the 'actual message'

3. Scanner feeds DO NOT divulge or publish the 'substance' of any message - scanner feeds DO divulge or publish the 'actual message'

4. I could go on .........

5. Regarding item 1 - if a scanner feed sent a message saying "attention, a message exists", then that would be a violation

6. Regarding item 2 - what are the 'contents' of a bottle of milk? If a scanner feed sent a message saying "a message contains 5 words, 20 vowels, and 15 consonants", that would be a violation.

7. You might think I am being silly. I think it is silly to assume that Congress gave the OK to sell scanners in the USA, but expects everyone to not tell anyone what they hear. That is like allowing the sale of beer, but telling people not to drink it. That would go over real well I am sure.

7A. Anyone remember "the meaning of is is"? This is where the US legal system is at. Yesterday, PC Magazine said that the US legal system is a total joke. (see the article about the BP fine)

8. If it is illegal to divulge any message, what is stop any DA in the country from saying that any word that comes out your mouth was heard on a scanner? You say "damn, fart, hell" and a DA claims that you heard it on a scanner. What is your defense? I dont have a scanner? DA says that you do have a scanner - an invisible one. You think a jury would buy that?

9. I think this is the legal answer that you seek Don S - https://sites.google.com/site/sonofrcma/home/legal-to-divulge

 

[DonS]

9. I think this is the legal answer that you seek Don S - https://sites.google.com/site/sonofrcma/home/legal-to-divulge

No, it's not.

That letter from K&L Gates is "defending against" divulging technical data about a trunked radio system. It does not defend against divulging the content of any specific voice transmission. From the first page of that letter:

As you note in your letter of July 15, liability under 47 USC § 605 attaches only to a person who has both intercepted and divulged the contents of an intercepted communication.​

In the letter, the attorney (?) explicitly agrees that intercepting and divulging the contents of an intercepted communication is prohibited under 47 USC 605.

As for the first few "points" of your post: capturing, encoding, and repeating via Internet voice streams the exact content of a radio transmission most certainly counts as "divulging" or "publishing" the [EDIT: existence, contents, substance, purport, effect, or meaning] of that radio transmission.

 

[DonS]

I'll point out that whoever wrote the K&L Gates letter referenced above is "wrong" (or, at least, was incomplete in their message).

One doesn't have to actually perform the interception. Just knowing that the communication was intercepted is enough to trigger liability under 47 USC 605. (Presuming there was also an act of divulging or publishing, of course).

 

[Stick0413]

My only question is if that it is illegal why haven't we heard of anything about it. At the very minimum the government coming out and plain out saying take them down or else. I mean I know that they know this site is out there. Also I think if it were plain out illegal I think that Lindsay would have been contacted directly to not to allow it on his site for the simple fact of it is a huge platform to allow them to be broadcast. Not that you me or anyone else in the world couldn't host and stream them but the fact of it being so easy and basically openly promoted within the site to.

I mean just to say how well known this site is getting is that I have a friend, who isn't really into scanners, ask me on facebook one day if I was hosting the scanner for Hopewell on here. Replied yes to him and he went on to say it was messing up which all I said was thanks for letting me know and fixed it within 30 seconds. I would have never thought in a million years that he would be listening to the feed on here. Only reason he knew it was me is because of my user name on here and he was able to see who I was since I don't hide my id on my feed.

This is just my opinion, if it is so illegal, then why haven't they came down on Lindsay and said stop letting your users do this since he would technically be aiding in a criminal activity. Also people have been streaming for a long time before RR hosted feeds and I have yet to hear of someone getting in trouble because of it. I have heard of a locality ordering someone in a letter to take their feed down, which they refused to do, and ultimately that agency went to encryption. If it was illegal I think they would have pursued charges against the person who was broadcasting the feed especially since they sent him a letter and he refused to listen to them.

 

[Stick0413]

Just to clarify a little, I am not taking a shot at anyone with the above post. I am just trying to use logic to say it must not be illegal since (1) broadcasting of feeds have been going on for so long and we have not heard of one case of someone getting in trouble over broadcasting one. (2) Also that this site is very well known by everyone, and the government is sure to know about it too, then I would think if it wasn't legal then they would order Lindsay to stop giving his users the ability to broadcast through his site since the site would be aiding in a crime. (3) People being ordered directly by a locality to take their feed down and upon refusal they do nothing as far as legal action.

I mean I know that our legal system almost never makes sense and that Monday they could technically come lock everyone up that broadcasts a feed (I think I will take my odds on hitting the lottery before that happens). In the end though, how long that people have been broadcasting feeds online, and we have not heard of the first person getting in legal trouble. If it was a huge legal deal I think at least one person would have got into trouble or at least ordered, with the other option being legal action, to take their feed down.

 

[ibagli]

I have heard of a locality ordering someone in a letter to take their feed down, which they refused to do, and ultimately that agency went to encryption. If it was illegal I think they would have pursued charges against the person who was broadcasting the feed especially since they sent him a letter and he refused to listen to them.

The locality might not know anything about the laws in question. They also aren't the ones that would charge the feed owner if it's illegal. This is a federal issue, so it would be up to the federal district attorney's office and federal law enforcement to handle it. Podunk PD wouldn't have any role in the case.

 

[blantonl]

RadioReference stands by it's position listed in the first post.

 

[zerg901]

Don S - did you read the bottom of page 2 of the K & L Gates letter?

It is funny that the law says you cannot divulge the substance, purport, etc of a message - but it does not say bluntly that you cannot divulge THE MESSAGE. How can you "publish" radio waves anyhow?

It is also interesting to see that messages about emergencies and airplanes are OK.

I am not a lawyer, and I will not be wading thru hundreds of pages of legal writings. But, if there are some lawyers out there that are 'into' scanners, it sure would be nice if they came up with some words of wisdom for the hobby.

Peter Sz

 

[DonS]

Don S - did you read the bottom of page 2 of the K & L Gates letter?

I did, and the author seems to contradict himself.

As I quoted above, the letter first says:

As you note in your letter of July 15, liability under 47 USC § 605 attaches only to a person who has both intercepted and divulged the contents of an intercepted communication.​

At the bottom of page 2, he says:

no liability attaches under § 605(a) for divulging the contents of a communication that was lawfully intercepted.​

After that sentence at the bottom of page 2, he only explicitly talks about the legality of "interception" - not divulging.

One of the cases (Gass) cited in the letter is cited in another case: John P. Cafarelli v. Ross Yancy 226 F.3d 492 (6th Cir. 2000). In that case the appellate court expressly dismissed the idea that 2511 means "if something was 'lawfully intercepted'", it can then be 'used or divulged' by the interceptor":

46
In this case, we disagree with the district court's interpretation of the Wiretap Act, because the court failed to consider § 2511 as a whole and misconstrued the provisions therein. For example, as argued by Plaintiff below, the district court erred in applying § 2511(1) to the facts of this case. The district court found subparts (c) and (d) of subsection (1) dispositive; however, the district court erred in so concluding because these subparts only apply to messages which were intercepted in violation of this subsection - i.e., subsection (1). Stated otherwise, the district court erroneously concluded that because Defendant did not wrongfully intercept the radio messages under § 2511(2)(g)(ii)(II), Defendant's use of the radio message was not a violation of § 2511(1)(c) and (d). The qualification in § 2511(1)(c) and (d), that the interception must be improper before the disclosure or use of the same may be found improper, only applies to interceptions made in violation of "this" subsection: subsection (1). The interception in question occurred under subsection (2), thereby making subsection (1)(c) and (d) inapplicable.

47
If we were to accept the district court's interpretation of §2511, the word "this," modifying the word "subsection" in the last line of § 2511(1) (c) and (d), would be rendered a meaningless nullity because the district court applies § 2511(1)(c) and (d) to subsection (2). Similarly, to accept the district court's interpretation of § 2511(2)(g)(ii)(II) would render other subparts of § 2511(2) meaningless. Specifically, although other subparts of subsection (2) authorize both the interception and use of a message, see, e.g., § 2511(2)(a) and (b), subpart (g) conspicuously only authorizes the interception of the type of radio messages in question. Which is to say, because Congress expressly excluded the word "use" or "disclose" from § 2511(2)(g)(ii)(II), while expressly including those words in other subparts of subsection (2), one cannot conclude that Congress allowed for the use of intercepted messages under § 2511(2)(g)(ii)(II) without finding Congress' express inclusion of the word "use" in other subparts of subsection (2) superfluous, in violation of basic principles of statutory construction.​

EDIT: Absent any contradictory decisions from the 5th Circuit (i.e. Texas) or the SCOTUS, or a subsequent differing opinion from any other US Circuit Court, the above case seems to be "the law" on this topic. In 2000, the 6th Circuit interpreted 18 USC 2511's "exceptions" as applying only to interception, not using or divulging. Maybe K&L Gates is not aware of the above-cited case (or maybe they are aware of some superceding case?), where their opinion (or, at least RadioReference's position) seems to be explicitly shot down.

 

[DonS]

It is funny that the law says you cannot divulge the substance, purport, etc of a message - but it does not say bluntly that you cannot divulge THE MESSAGE. How can you "publish" radio waves anyhow?

According to Webster's:

Main Entry: 1pur·port
Pronunciation: \ˈpər-ˌpȯrt\
Function: noun
Etymology: Middle English, from Anglo-French, content, tenor, from purporter to carry, mean, purport, from pur- thoroughly + porter to carry — more at purchase, port
Date: 15th century
: meaning conveyed, professed, or implied : import; also : substance, gist
​

If you hear ("intercept") a radio transmission on your scanner, then tell your next-door neighbor what it was about (e.g. "there's a structure fire at 123 Elm Street; Engine 3 is on its way and the volunteers have been called in"), you have now "disclosed the purport of the transmission".

Further, if you reproduce the audio from that intercepted transmission and any other person accesses your reproduction, you are now "disclosing" or "publishing" the purport of the intercepted transmission, not to mention the actual "substance" of that transmission.

We don't necessarily hear about prosecutions for "disclosing". However, as the above-cited case demonstrates, there are prosecutions for "using". Using and Disclosing are pretty much equivalent as far as being prohibited by statute. The above-cited 6th Circuit case makes that pretty clear.

I am especially worried about what I've found in the last couple of days of casual research. I'm intercepting communications, I'm disclosing their content/purport, and I'm using those intercepted communications for my own financial gain. This is why I shut down my Win500 "feeds" a day or two ago... I'm pretty sure that they were in violation of Federal law.

 

[DonS]

From a little further down in the same 6th Circuit case:

Because we cannot locate, nor has Defendant proffered, any other section of the Wiretap Act which would authorize the use of these type of radio messages, § 605(a)'s prohibition against using these intercepted messages for one's own benefit is applicablehere. See 47 U.S.C. § 605 ("Except as authorized by chapter 119, Title 18 . . . .").

49
This interpretation of the Wiretap Act as it relates to § 605 comports with the FCC's Fact Sheet. The Fact Sheet provides in relevant part as follows:

50

Of those statutes that may govern interception of radio communications, the FCC only has the authority to interpret Section 705 of the Communications Act, 47 U.S.C. Section 605, "Unauthorized Publication of Communications." Section 705 of the Communications Act generally does not prohibit the mere interception of radio communications, although mere interception of radio communications may violate other federal or state statutes. In other words, if you happen to overhear your neighbor's cordless [*22] telephone, you do not violate the Communications Act. Similarly, if you listen to radio transmissions on your scanner, such as emergency service reports, you are not in violation of Section 705. However, a violation of Section 705 would occur if you divulge or publish what you hear or use it for your own or someone else's benefit. An example of using an intercepted call for beneficial use in violation of Section 705, would be someone listening to accident reports on a police channel and then sending his or her tow truck to the reported accident scene in order to obtain business.(J.A. at 67, 68). ​

(Note that the above from the "FCC Fact Sheet" is in direct opposition to what is said by a previously-linked "letter from the FCC", where the FCC says that streaming intercepted public safety comms is not a violation of FCC rules.)

 

[DonS]

From the FCC, as of 5 minutes ago:

The FCC has the authority to interpret Section 705 of the Communications Act – “Unauthorized Publication of Communications.” This section generally does not prohibit the mere interception of radio communications, although merely intercepting radio communications may violate other federal or state laws. This means that if you inadvertently happen to overhear your neighbor’s cordless telephone conversation or listen to radio transmissions on your scanner, such as emergency service reports, you do not violate the Communications Act.

The Communications Act also allows the divulgence of certain types of radio transmissions. The law specifies that there are no restrictions on the divulgence or use of radio communications that have been transmitted for the use of the general public. Such radio communications include transmissions of a local radio or television broadcast station; announcements relating to ships, aircraft, vehicles, or persons in distress; or transmissions by amateur or citizens band radio operators.

Section 705 prohibits a person from using an intercepted radio communication for his or her own benefit. One court held that, under this provision, a taxicab company may sue its competitor for wrongfully intercepting and using for its benefit radio communications between the company’s dispatchers and drivers [ed: this is not quite correct; presuming they're referring to the 6th circuit case above, the court knew and acknowledged that the transmissions were lawfully intercepted - that was the whole point of the court's reversal and remanding]. A more recent Supreme Court decision, however, questions the ability of the government to regulate the disclosure of legally-obtained radio communications, and this area of the law remains unsettled.​

If, as the FCC says here, it's "unsettled law", maybe some 'streamer', RR, or RR's attorneys want to be the test case. I don't.

 

[Citywide173]

An example of using an intercepted call for beneficial use in violation of Section 705, would be someone listening to accident reports on a police channel and then sending his or her tow truck to the reported accident scene in order to obtain business.(J.A. at 67, 68). [/i][/indent]

Then EVERY media outlet in the country is guilty and needs to be shut down.

 

[DaveNF2G]

The trouble with this debate is that the law was written by lawyers, the courts that interpret the law are made up of lawyers, and most (all?) of the FCC is staffed with lawyers. Nobody participating in this thread has identified themself as a lawyer. Ergo, nobody participating in the thread appears to have the necessary mindset or training to reinterpret or explain the statutes involved or the cases that are relevant. Thus, many of the statements made in this thread are wrong. They are mistaken opinions, not legally informed facts.

With a graduate degree concentrating in the legal aspects of criminal justice, I have some training, but I am not a lawyer, either. What I can do is attempt to identify and follow legalistic logic. Many of the "interpretations" proposed in this thread fail to follow such logic.

 

[K4IHS]

I'm not an attorney and I don't understand much of the text written about this subject. But it seems to me if it were illegal... all of us with streams would have been closed down years ago!

 

[DonS]

One doesn't have to be a lawyer to read and comprehend the text of the 6th Circuit decision in posts #29 and #31 above. In that decision, the court said that 18 USC 2511(2)(g) does not satisfy the "Except as authorized by chapter 119, Title 18" in 47 USC 605(a) when it comes to "using" or "disclosing" intercepted transmissions.

The first post in this thread seems to reference 18 USC 2511(2)(g) as the "authorization" specified by 47 USC 605(a). Very simply and very clearly, the 6th Circuit says "no".

Perhaps there's another statute in Chapter 119, Title 18 (the 6th Circuit couldn't find it in 2000), or perhaps there's another case that overrides the above. Absent such, it seems obvious that, at least in the 6th Circuit, 18 USC 2511(2)(g) does not "permit streaming" - presuming such streaming is otherwise prohibited by 47 USC 605(a).

 

[Citywide173]

The larger fact here, and one that I'm sure a court would consider with regards to the feeds here is the fact that the only people that would complain are the ones being broadcast....mainly police and fire departments....and since the policies of the website are very clear about surveillance and covert operations channels NOT being allowed, there is very little convincing argument in their favor, and more of an argument that their actions in opposing the feeds are are form of government censorship.

This view was from my lawyer, albeit a copyright attorney, but still a lawyer.

 

[SCPD]

One of the problems with RR allowing streaming audio ... is that the laws worldwide are not the same.

Here in Canada .. it is illegal in the Radio Communications Act to divulge transmissions that you are not one of the destined parties. You also cannot receive transmissions without permission from the originator.

The funny thing .. the law states that you must get permission to receive transmissions where you are not the designated party. As a result .. you are supposed to get permission to receive transmissions that you are receiving on your scanner. This law .. is obviously very old and needs to be updated, but if the government wanted to come after streaming audio providers in Canada they could do so.

One such incident happened when a former RR user got his computer and radio equipment seized by the RCMP for streaming some RCMP transmissions.

Only time will tell ..... :wink:

 

[Citywide173]

You're absolutely right, but the original post refers to the legality of RR streaming the feeds, not the provider. Since the LLC is a US based corporation and the servers are physically located in the US, RR is not subject to laws of foreign countries.

 

[blantonl]

RadioReference still stands by it's position.

Please note that the K&L Gates letter and opinion has nothing to do with this issue - that related to the MRA issue with publishing LTR talkgroups and LCNs.

However, some further position information. In addition to beginning of 47 USC 605:

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,

the law also includes the following exemption:

This section shall not apply to the receiving, divulging, publishing, or utilizing the contents of any radio communication which is transmitted by any station for the use of the general public, which relates to ships, aircraft, vehicles, or persons in distress, or which is transmitted by an amateur radio station operator or by a citizens band radio operator.

My emphasis added.

47 USC 605 does not explicitly define the definition of "for the use of the general public," however the law referenced (Chapter 119, Title 18 § 2510) does explicitly define it as:

(16) "readily accessible to the general public" means, with respect to a radio communication, that such communication is not--

(A) scrambled or encrypted;

(B) transmitted using modulation techniques whose essential parameters have been withheld from the public with the intention of preserving the privacy of such communication;

(C) carried on a subcarrier or other signal subsidiary to a radio transmission;

(D) transmitted over a communication system provided by a common carrier, unless the communication is a tone only paging system communication; or

(E) transmitted on frequencies allocated under part 25, subpart D, E, or F of part 74, or part 94 of the Rules of the Federal Communications Commission, unless, in the case of a communication transmitted on a frequency allocated under part 74 that is not exclusively allocated to broadcast auxiliary services, the communication is a two-way voice communication by radio;

For purposes that involve us, Chapter 119, Title 18 § 2510 defines Part 90 FCC licenses (most public safety FCC licenses) as for the use of the general public. 47 USC 605 exempts those stations.

Furthermore, one could argue that public safety communications relate to "persons in distress" which are also exempted by 47 USC 605.