Friday, May 27, 2011

Cell Phone Scanner Apps May Violate Laws Of All 50 States: Police, Prosecutors Making Cases

Even before most of us were born there has been something of a nervous reaction to someone in possession of a radio. There is just something about even your everyday AM/FM radio that causes people to question the ownership of such a device. Since technology has developed over the decades, places like Radio Shack have sold wide range radio receivers that receive frequencies from 30Khz to 1300Mhz.

Today, we have places such as AES, HRO, Scanner Master, Universal Radio, etc. where radio equipment and software can easily be bought for anyone's use. 

Now, even though the United States Federal Communications Privacy Act makes it completely legal to purchase, own, and use a radio receiver that receives AM, FM, ELF (extremely low frequency). HF (high frequency), LF (low frequency), VHF, UHF, EHF and SHF frequencies that are NOT encrypted; the police and prosecutors in all 50 states are crying foul. FCC Opinion & Order PR91-36 exempts Licensed Amateur Radio Operators from local, state level, and federal level restrictions, however, police and prosecutors usually do not know about this piece of law. 

The problem with the U.S. Communications Privacy Act is that it is not really clear as to whether or not it overrides or even enjoins the individual states from restricting the purchase, possession, or use of radio receivers of any sort.

In this day and age of advanced technology the definition of what constitutes a prohibited radio receiver under some state's laws has come under question and scrutiny. In the first link below, we find that police and prosecutors are now taking a hard nosed approach towards cell phones with installed software applications that link such phone to internet connected, streaming radio receivers that stream public safety radio traffic to the end user. 

Police, Prosecutors Weigh In On Legality Of Cellular Phone Scanner Apps

This link below at Radio Reference takes us to an incident in which a robbery offender was arrested in Indiana and charged with possession of a radio receiver because he had a cell phone app installed and it was discovered that the offender may have used it in the commission of his crime. The disussion focuses on whether or not the cell phone with the app installed meets Indiana's definition of a prohibited radio receiver not for use in a person's home and the technical definition of a radio receiver in context of what Indiana's law states. You'll see that there are differing opinions.

State Of Indiana Looks To Charge Robbery Offender With Illegal Possession Of Police Radio Reception Device

The scary part of these police and prosecutors taking the stance they take is that they are intent on using "Obstruction Of Justice" charges if and when the state law of any state is silent on radio receivers. What's even more scarier is that if they lose their case on the technical definition of what a radio receiver is, they want to use the obstruction charge in its place if and when they get someone who has either a cell phone with an app installed or in actual possession of a radio receiver.

A question now exists about if a person can be charged with obstruction simply for possession of a cell phone with a streaming public safety radio receiver application installed or in actual possession of a radio receiver even IF they did not use such in furtherance of a crime in any given state. Another question now exists in the eyes of police and prosecutors about using this law to circumnavigate PR91-36.

Shortwave America will be speaking with police and prosecutors in as many states as possible to ascertain each state's position on the possession and use of radio receivers, and whether or not they think law abiding persons who simply want to have use of such to keep themselves and their families safe should be arrested and if they really want the courts to get involved. The ARRL will also be sought for their opinion.

The issue here for law abiding citizens and licensed radio amateurs is one in which they should indeed have such a right to listen in to a system that is not encrypted for their own safety, it DOES help the safety minded and police or other emergency responders in that people will be warned by such radio traffic to stay away from these scenes and the affected actually helps responders when people know to stay clear instead of innocently wandering in to or driving into an affected emergency response area.

One area of civil liberties that needs to be examined is this attitude (even if it is a farce for political purposes and political public image) that everyone is a criminal until proven otherwise, and that every is guilty until proven innocent simply because of the mentality that anyone can do anything at anytime at any place.....the old "if a tree falls in the forest and no one is there, did it really make a sound?" approach.

What police, prosecutors, and the courts don't realize is that if they operate this way, they create distrust between themselves and the communities they serve and inherently violate the rights of the masses based on unfounded paranoia. This is a fact, not an opinion. While there is no constitutional right to listen to a radio system, it does become an issue of the free exchange of information between the government and its people since everything our public safety responders and our courts do including their radio communications are a matter of pubic record.

You'll notice in every state's FOIA, any person with a legitimate interest can apply for these recordings. One problem with that becomes one of if we the people want to trust that tapes of radio comms have not been altered, sanitized, or otherwise tampered with by the government agency being petitioned.

For now, it would be advisable to only use radio equipment in your home, only use mobile phone scanner apps in your home, and if you have a laptop not take it in public if you have ANY type of radio software installed. Those who are radio amateurs may want to make sure they do not even have Echolink or other amateur radio software installed on any mobile phones or laptop computers until we have a SCOTUS ruling. The potential to be charged with obstruction of justice or other crimes for your radio applications or actual radio equipment is simply too high.

The whole attitude of the radio community has always been and still remains in this day that we use our radio knowledge, our radio equipment, and radio software LEGALLY and that we always give consideration to the social and legal environment because discretion is the better part of valor.


Anonymous said...

FWIW, The charge relating to the use of a police radio in the Indiana case was dropped by Prosecutors..

Shortwave_America said...

True, however, it is disturbing enough that Indiana prosecutors even attempted to use that charge for a cell phone app. and given the first link which generalizes the attitudes of police and prosecutors towards the radio community...we are in their crosshairs.

John Poet said...

We should have the absolute right to receive with a radio receiver ANY RF SIGNAL that is already passing through our bodies!

If law enforcement or others want privacy, they can use scrambling technology.

John Poet
Free Radio Cafe forums

Shortwave_America said...

Poet, we agree with you wholeheartedly.