LAW: Wireless interception

[System Operator <anagld!decode!system@uunet.UU.NET>]

Fellow Cypherpunks,

Here's a couple excerpts from this month's _Search and Seizure Bulletin_,
relating to interception of telephone calls.  The first reiterates
that ECPA covers interception of cellular telephone calls, whether
intentional or not, even by the authorities.  The second repeats that
there is no expectation of privacy with cordless telephones.
Interesting reasoning here: "the reasonableness of a cordless telephone
user's expectation of privacy depends on the specific technology
involved."

By that reasoning, does the use of the new 900 MHz digital telephones
(i.e. the VTech Tropez, etc.) infer a greater expectation of privacy,
even though they are still cordless telephones?

Anyway, here they are:

=======================================================================

Interception of Call to Seized Cellular Telephone-- Language Barrier
(Hawaii)

United States v. Kim, 803 F.Supp. 352 (1992)

Drug Enforcement Administration (DEA) agents questioned
two men who had bought one-way plane tickets with
cash. One of the men was Kim, a man agents had caught
with more than eight grams of methamphetamine a month
earlier. During the first encounter Kim had cooperated with
the police and signed a statement containing a "boiler plate"
paragraph. The paragraph stated Kim had read and initialed
the statement and agreed all corrections had been made and
the statement was true and correct.

During the second incident, Kim gave officers permission to a search him.
Police found a cellular telephone and
a large amount of cash. At this point, Kim was transferred
to federal custody. Kim again gave a statement and a written
summary, containing the same boiler plate paragraph, and
was released.

The DEA seized the cellular telephone under a statute
which allowed forfeiture of equipment used to carry out drug
deals. Two days after the telephone had been seized, an agent
activated it to learn the number. Within the space of a few
hours, two calls came in. The agent learned from the second
caller a "deliveryman'' was arriving that day and needed
to know which hotel to go to.

The agents knew Kim was staying at the Outrigger Phoenix
Hotel. Agents went to the hotel room, knocked on the door,
identified themselves, and threatened to "bust it down."
Kim was ill and sleeping inside. Menchavez was staying
with him. She tried to wake Kim when the police knocked,
but was barely able to rouse him. She opened the door and,
confronted by four agents with guns drawn, stepped back
to allow them in.

The agents lifted the naked Kim out of bed, slapped him,
slammed him against the wall, and shouted at him. A search
of the immediate area revealed $85,000 in cash. After the
cash was discovered, Kim was given a consent to search form,
which he signed. A further search uncovered 348 grams of
methamphetamine. Kim was arrested and signed a third state-
ment the following day.

Kim asked the court to suppress his written statements,
evidence seized during his initial encounter with the DEA
and from his car, and all evidence seized as a result of the
intercepted cellular telephone call.

DECISION: The three statements and all evidence obtained
as a result of the telephone call interception were suppressed.
Drugs seized during first encounter were admissible.
         
The court said cellular telephone calls are protected under
the Electronic Communications Privacy Act of 1986, just as
standard telephone calls are, and cannot be intercepted with-
out a warrant. Accordingly, the DEA agent's interception of
the call to Kim -- although unplanned-- was illegal and
all evidence seized as a result of the interception remained
inadmissible.

Even if the interception had been legal, the evidence would
have been suppressed because 1) Menchavez did not give
the agents permission to enter the hotel room--she stepped
back from the door because agents had threaten to push it
down and had weapons drawn; and 2) Kim, being sick, naked,
and abused, did not voluntarily consent to a search of the
hotel room. Because the entry and search were illegal, Kim's
statement made the following day was inadmissible against
him.

Kim's first two written statements were suppressed. Given
Kim's first language was Korean and evidence showed he
had a limited understanding of the boiler plate paragraph,
it could not be proved the statements were accurate.
The methamphetamine taken from Kim during the DEA's
first encounter with Kim was admissible. Kim consented to
the search of his pockets.

United States v. Gallo, 659 F.2d 110 (1981).
         
=============================================================

Expectation of Privacy
         
Cordless Telephone Conversations Monitored Without Warrant
(Texas)

United States v. Smith, 978 F.2d 171 (1992)

Varing believed his next door neighbor, Smith, had burglarized
his house. Varing used a scanner to monitor Smith's
cordless telephone conversations. When Varing overheard
Smith discussing drug deals, Varing contacted police. The
police asked Varing to tape the conversations, provided cas-
sette tapes, and were present during some of the monitoring.
No warrant was obtained.

As a result of the monitoring, Smith was arrested and
charged with narcotics offenses. Smith argued the warrantless
monitoring and recording of his telephone conversations vio-
lated his Fourth Amendment rights and the Omnibus Crime
and Control and Safe Streets Act of 1968 (Wire Statute). He
was convicted and appealed.

DECISION: Affirmed.

Smith failed to produce evidence he reasonably expected
his cordless telephone conversations would remain private.
A violation of the Fourth Amendment occurs when government
activity significantly intrudes on a person's reasonable
expectation of privacy. Depending on the particular
technology involved, it may or may not be reasonable for
a cordless telephone user to expect his or her conversation
will remain private. Early cordless telephones transmitted to
commercial radio frequencies and conversations could be
overheard inadvertently; some new cordless telephones cannot
be monitored without very sophisticated equipment. Accordingly,
the reasonableness of a cordless telephone user's expectation
of privacy depends on the specific technology involved.
Smith failed to offer any evidence that his belief his conversations
would remain private was reasonable.

The Wire Statute explicitly excludes cordless telephones
from its scope.

=====================================================================

_Search and Seizure Bulletin_ is published monthly by Quinlan Publishing
Company, 23 Drydock Avenue, Boston, MA, 02210-2387.  ISSN 0037-0193.

I am operating under the assumption that relating these excerpts
is covered under the fair use doctrine.  Also, I have no connection
with Quinlan Publishing Company other than as a satisfied customer.


Dan


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