Electronic Communications Privacy Act of 1986: Intercepting Pages By: Paul Daubitz Tel: (978) 462-5000 Email: Mr. Daubitz Website: www.telxpert.com

Background:

In a Federal Criminal Case, a decorated New York City policeman was accused of intercepting Police Department pages. One issue was the interpretation of The Electronic Communications Privacy Act of 1986, specifically in relation to 18 U.S.C. Sections 2510, 2511 and 2512 (the "Act"). Was the policeman's interception "exempt" under the Act?

Analysis:

The Act specifically exempts interception of radio communications, which are "readily accessible to the public." See 18 USC Section 2510 (16). The Act was written without the benefit of the high-tech tools, which became readily available in the marketplace as time moved forward and especially in the past few years. The kind of equipment referenced in the case's search warrant affidavit can be purchased easily or built from readily available plans. Between 1986 when the Legislation was enacted by Congress and the 1996-1998 time period, there was a virtual explosion with all kinds of technology, but particularly, in relation to this case, there was a proliferation of paging and cellular devices.

An indication of this explosion can be garnered from FCC reports, FCC 95-317 and FCC 99-136, Annual Report and Analysis of Competitive Market Conditions with Respect to Commercial Mobile Services. In FCC 95-317, it is reported that, in 1994, there were 27.3 million paging subscribers, a thirty-eight percent increase over the previous year. Also, there are between 500 and 600 paging companies operating in the United States. In FCC-99-136, it is reported that there are, on the average, 29 paging licensees in each of the 25 largest cities, not including resellers, and an average of 12 paging licensees in each of the 25 smallest MSA's (Metropolitan Statistical Areas).

The deployment of paging technology has advanced significantly since 1986 when the Electronic Communications Act was originally written. While there were 27.3 million paging subscribers in 1994, just four years later, by 1998, there were 53.3 million paging units by one analysts estimate, ten percent over the previous year and double the number just four years before. Technological breakthroughs in other sectors had similar advances; here I cite computer chips, cellular and PCS phones, personal computers and fiber optics where advances are now exceeding the speed at which chips are being developed.

Products like "Message Tracker" are readily available from a variety of sources, including the Internet. A search using one of the popular search engines quickly turns up products like Message Tracker. In addition, brief searches turned up the following: an article in the March 1997 Popular Electronics Magazine which describes how to build an Alpha Numeric Pager Decoder. There is nothing in Popular Electronics Internet article about the illegality of manufacturing or using such a device.(Exhibit II). One Internet site sells several products for "hacking" pagers and includes an Alpha Numeric Pager Decoder for $135.00. Another source includes a chat room where pager decoders are discussed and two other sites sell pager decoder equipment.

It is widely known that communications which rely on any type of wireless technology are not considered secure, particularly in the absence of encryption devices. Information provided the author indicates that the Department, not only did not encrypt its pager communications, but rather used a commercial provider of paging services, PAGENET. This likely placed the Department page transmissions among all of PAGENET'S customers, which numbered in the hundreds of thousands. Further, unless specifically limited geographically to the PAGENET'S territory, for example, Department pages would have been transmitted beyond the City's limits, possibly nationwide.

Conclusion:

Due to the vast increase in the availability of technologies, particularly devices such as paging decoders, that the sections of the Electronic Communications Privacy Act of 1986, which exempts technologies which are "readily available", would encompass these alphanumeric pager decoders which were in use in the 1996-1998 timeframe and beyond."

The Defendant was acquitted.