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                         A Non-Technical Review of the
                           Electronic Communications
                                 Privacy Act
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                            written by Alan Hoffman
                            =======================
Foreword:
The purpose of this paper is to discuss the powers granted under the
Electronic Communications Privacy Act herein referred to as the ECPA
with respect to  monitoring  of  telephonic  communications,  with a
specific focus on intercepting cellular and cordless transmissions.
I have written this paper as a means to hopefully disseminate the
actual relevant portions  of  the  ECPA with  respect to cellular
interception,   as  well as a clarification of what each relevant
article of the ECPA means in understandable terms.
My attempt is to dispell the persistant rumors which have been perpetuated
by and upon millions of people who use  computer networks to discuss: law,
freedom  and  radio hobbies.   The  rumor has been persisted that the ECPA
is some magical document which is a blanket prohbition upon all telephonic
communications  interception  except by  legal warranted taps performed by
law enforcement (which is in fact a misnomer itself to be described herein).
These rumors are persisted by those  who are  illogical  privacy fenatics
who cant seem to understand that their is  no privacy in a communications
medium where the conversation  is  transmitted  openly  for all to  hear.
The rumor has also been  persisted by those who have never  actually seen
the ECPA in writing  but merely relay  bad information  second-hand which
was in turn given by  the  privacy fenatics  who  manipulated the meaning
of the law into something which it is  not in reality.   This second-hand
information is what accounts for  95 percent of the rumors  regarding the
ECPA's prohibition on  cellular interception  and  thusly is the cause of
millions of inaccurate or semi-inaccurate computer messages posted yearly
which mislead people either intentionally or unintentionally.
The author is not a lawyer, as would be quite apparent by my commentaries.
Secondly, I do not guarentee that everything I say is 100 percent correct,
I also can make mistakes in my interpretation of the law. It is often said
that the ECPA is a document full of loopholes, vagueness, is ambiguous and
open to interpretation, and that is absolutely true.   Without the benefit
of any legal training, even a laymen can spot the multiple inconsistencies
in the  ECPA and can spot dozens of loopholes which can be used by used to
the advantage of  both lawyers and prosecutors for either viscious or well
intentioned means.
The ECPA as I will show in my article below is a document which is far from
being an ironclad prohibition against interception of cellular and cordless
telephonic  conversations,   but  in  fact is filled with exemptions to the
contrary. The ECPA document was designed (with somewhat of good intentions) 
to  balance  the rights of  EVERYONE involved,  not  just the rights of the
cellular or cordless phone user.   To  create a blanket prohibition against
cellular interception would not only hamper  law enforcement  efforts,  but
would restrict the rights of all citizens of this country.  One of the most
legitimate exemptions which I will cite,  is the ability of all citizens to
protect their personal property rights  through  the  ability to track down
interference which may be  causing havoc  with either  a  duly licensed FCC
transmission station or with consumer electronic equipment  (such as radios
televisions, and computers, etc.. etc..)  Every citizen has just as much of
a right to protect his or her  equipment  from being  damaged  and any data
which may be destroyed as a  result  of  interference  as  opposed  to  the
cellular phone user who doesnt want any citizen to monitor his transmissions.
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Electronic Communications Privacy Act
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2511 - 2 - (B) - (b) It shall not be unlawfull under this chapter
for an officer, employee, or agent of the Federal Communications Commision,
in the normal course of his employment and in discharge of his monitoring
responsibilities exercised by the Commision in the enforcement of
Chapter 5 of Title 47 of the U.S.Code, to intercept a wire or electrnic
communication, or oral communication transmitted by radio, or to disclose
or use the information thereby obtained.
Rough translation of the above means the FCC can do whatever the heck
it wants to as far as interception goes just the same as they have been
doing for many years so long as it is in the course of duty. Although the
ECPA makes reference to Chapter 5 Title 47 and would seem to limit
their ability to monitor, the clause in itself is sufficient to show
that this agency is allowed to monitor cellular (and cordless).
They need no warrant whatsoever to do so, and any evidence obtained
through intercepted communications can possibly be used in a court of law
as per USCS 2515 or can be used for further investigation through the clause
stating that they are allowed to  "disclose or use the information thereby
obtained".
That doesnt mean the FCC is going to wiretap peoples telephones without
warrant (even though they could do so if they could conjure up the
phony excuse) since the FCC isnt allowed to  "monitor" conversations
per se' they can only 'intercept' them and then use that as evidence.
What it does mean, is that if the FCC happens to just somehow miraculously
by luck overhear some criminal content on cellular cordless or some
other restricted frequency (as set forth by the ECPA) it is perfectly
legitimate to use it as potential evidence and they can and would pass
that transmission on to the appropriate agency who would act on it.
The FCC would normally do this to catch people who are tranmitting
illegally and if a person were transmitting illegally on a cellular
channel the FCC can thusly monitor that cell channel all they want
without warrant in the process of direction finding and tracking the
offending illegal transmitter.
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2511 - 2 - (B) - (c) It shall not be unlawfull under this chapter for
a person acting under color of law to intercept a wire, oral or
electronic communication, where such person is a party to the
communication or one of the parties has given prior consent to
such interception.
The above clause was added for obvious simple reason. That being so the
very people who use a cordless or cell phone dont go to jail for
simply using their cell or cordless phone.  However, the provision is
also sufficently clear as it should be, to allow any third party to
intercept the conversation (WITH A SCANNER (or any other device he
so chooses) to intercepot that cellular call or cordless phone call
with a scanner or other receiving device so long as the third party
has consent from only 1 party to the communication.
To be more direct and to the point...  That means that reception of
a cellular call is NOT illegal and I can do so with my own scanning
receiver (provided the scanner itself is legal)  so long as I have
permission from the party whos cellular or cordless call I want to
intercept.   So that blows to hell anyones theory that intercepting
cellular and cordless is blanketly illegal for everyone (without warrant).
[PROVIDED that in my interception, I have no 'other' criminal intent.]
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2511 - (2) - (g) - (iv   It shall not be unlawfull under this
article or chapter 121 of this title for ANY person-
  (iv) to intercept any wire or electronic transmission of which is
       causing harmfull interference to any lawfully operating station
       or consumer electronic equipment, to the extent necessary to
       identify the source of such interference; or  --- (v)
This blows yet another whole in the rediculous theory that monitoring
cellular or cordless calls is  "blanketly" illegal for everyone without
a warrant (ie: no one but law enforcement (LEO's) can do it).
It means simply, if I suspect ANY frequency whatsoever (including cellular
or cordless is interfering with my "consumer appliances" I can track
and monitor that cordless or cellular channel and the conversation on
such channel only to such extent that once I find its origin, etc..
then I must stop the monitoring.  Likewise, if I was a licensed
station (HAM Operator, FM/AM Commercial or anyone else posessing an
FCC license to transmit) then I can do the same to prevent interference
with my station.  The FCC can of course do the same exact thing, only
with even greater monitoring powers. Which was stated in ECPA 25-2-B-b
as well as dealt with in Chapter 5 Title 47 of the U.S Code.
And for those that are skeptical at heart and insist that the word
"intercept" does not mean that people can "listen" to the interfering
transmission, that is another falsity, as the ECPA defines clearly under
Section 2510 (Definitions) wheras the word  "INTERCEPT" is defined as:
USCS 2510
(4) "intercept" mens the aural or other acquisition of the contents of any
    wire, electronic, or oral communication through the use of any
    electronic, mechanical, or other device.
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