Geoff@CSL.SRI.COM (the tty of Geoffrey S. Goodfellow) (09/20/86)
[The New York Times, September 13, 1986] BALTIMORE - The Senate should avoid repeating the mistake made by the House when it unanimously passed the Electronic Communications Privacy Act. Purportedly a benign updating of the 1968 Federal wiretap law designed to guarantee privacy in the electronic age, the bill actually promotes the cellular telephone industry at the expense of the public good. True enough, obsolete language in the existing wiretap law fails to address digital, video, and other new forms of communications. The proposed law would fix that. But it would also declare certain communications legally private regardless of the electronic medium employed to transport them. The mere act of receiving radio signals, except for certain enumerated services like commercial broadcasts, would become a federal crime. To disregard the medium is to ignore the essence of the privacy issue. Some media, such as wire, are inherently private. That is, they are hard to get at except by physical intrusion into a residence or up a telephone pole. Others media, notably radio signals, are inherently accessible to the public. Commercial radio and television broadcasts, cellular car telephone transmissions and other "two-way" radio communications enter our homes and pass through our bodies. Cellular phone calls, in fact, can be received by most TV sets in America on UHF channels 80 through 83. If radio is public by the laws of physics, how can a law of Congress say that cellular communications and other forms of radio are private? The unhappy answer is that the proposed law appears to be a product of technological ignorance or wishful thinking. A similar edict applied to print media would declare newspapers, or portions of them, to be as private as first class mail. The result is plainly absurd and contrary to decades of reasonable legislative and judicial precedent. In contrast, present Federal statute prescribes a sensible policy for oral communications, protecting only those "uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation." To illustrate, a quiet chat in one's parlor would likely be protected. Substitute for the parlor a crowded restaurant or the stage of a packed auditorium, the expectation of privacy is no longer justified. The law would not grant it. Congress should apply this same logic to electronic communications. The broadcasting of an unencrypted radio telephone call, or anything else, is an inherently public act, whether so intended or not. Thus it violates the "justifiable expectation" doctrine, and warrants no Federal privacy protection. Protection or no, people will not be stopped from receiving radio signals. Even Representative Robert W. Kastenmeier, Democrat of Wisconsin, who championed the bill in the House, confesses that its radio provisions are essentially unenforceable. They will have no deterrent effect, and they will not increase the privacy of cellular phone calls or other broadcasts. Worse, the act would lull the public into a false presumption of privacy. On further examination, it appears that the legislation is really more a sham than an honest, if puerile, attempt by Congress to deal with new technology. Its sponsors say they aim to protect all electronic communications equally. Yet the bill sets out at least four categories of phone calls, with varying penalties for interception. Cellular radio calls are guarded by threat of prison, but there is no interdiction whatsoever against eavesdropping on "cordless" telephones of the sort carried around the apartment backyard. So Congress is about to give the cellular telephone industry ammunition for advertising and bamboozling, promising privacy that does not actually exist. Cellular service companies thereby hope to avoid losing revenue from customers who might use the service less if they understood its vulnerability. If Congress were serious about privacy in the communications age, it would scrap the Electronic Communications Privacy Act and begin anew. Legislators and the public must first grasp the true properties of new technologies. Are those properties inadequate or unsavory? If so, relief will only come from research and more technology not wishful legislation. ============ Robert Jesse is a technology consultant. [known to us all as rnj@brl]