Re: Hasn't the LA Times and Humphrey Cheung ever heard of the Electronics Communications Privacy Act?

[Matthew Murphy <mattmurphy () kc rr com>]

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On Apr 28, 2007, at 2:31 PM, Richard M. Smith wrote:

> Matt,
>
> What about (16)(F) then:
>
>    (16) "readily accessible to the general public" means, with
>    respect  to  a  radio communication, that such  communication  is
>    not-- (F) an electronic communication

The law reads:

...the communication is a two-way voice communication  by
radio;  *or*

          (F) an electronic communication;

The notation is confusing, but I read it as:

((not (A) and not (B) and not (C) and not (D) and not (E)) or not (F))

There are several potential interpretations here, and only one seems  
reasonable:

1. ECPA states that any communication which is *not* any of the six  
classes defined in (16) is "readily accessible to the public".
Under this interpretation, telephone calls, long held to be protected  
communication, would be made subject to warrantless interception by  
the general public post-ECPA, as they are not encrypted or scrambled.

2. ECPA states that any communication which is *not* *all* of the six  
classes defined in (16) is "readily accessible to the public."
This interpretation would be in error, because it would functionally  
ask the presiding judge to disregard the word 'or' before (16)(F).   
What's more, (16), interpreted in this manner, would exclude *all  
electronic communications* from interception, which would make the  
use of radio scanners by the public to pick up police/fire/medical  
traffic illegal, thus banning the media from following reports of  
e.g., traffic accidents.

3. ECPA states that any of the communication types listed in (16)(A)- 
(16)(E) are subject to interception *if* they are electronic in  
nature (hence the 'or').
This would make more sense.  If you interpret (16)(F) as blocking  
surveillance of electronic communications, the preceding sections  
don't make much sense.  If the law were interpreted differently, my  
oral and written communications would have to be encrypted,  
transmitted using non-public modulation techniques (yodeling?   
hieroglyphic substitution?), carried on a subcarrier (here pidgey,  
pidgey, pidgey...), carried by a common carrier (mail might meet  
this), or transmitted over a frequency allocated by the FCC for  
broadcast purposes (tin cans on street corners excluded, sorry).
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