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From TAP Jan-Feb 1984 Issue #90
The hobbyists newsletter for the Communications Revolution
Article: Your Rights as a Phone Phreak
By Fred Steinbeck
Uploaded and reformated to 80 columns by Elric of Imrryr
Death to 40 column rodent file manglers!
"Oh, I'm not worried. They can't tap my line without a court
order." Ever catch yourself saying that? If so, I'll wager you
don't know too much about the laws that can prove to be the
downfall of many a phone phreak. But you are wagering your
freedom and money that you do know. Odds are you don't. At
least, I didn't, and I had a very painful experience finding out.
Let's take a look at Federal law first. Section 605 of
Title 47 of the United States Code (i.e., Federal law)
forbids interception of communications, or divulgence of
intercepted communications, except by persons outlined in
Chapter 119, Title 18 (a portion of the Omnibus Crime Control
and Safe Streets act of 1968). Section 2511 (2) (a) (i)
of this section says:
"It shall not be unlawful under this chapter for an
operator of a switchboard, or an officer, employee, or agent of
any communication common carrier, whose facilities are used in
the transmission of a wire communication, to intercept, disclose,
or use that communication in the normal course of his employment
while engaged in any activity which is a necessary incident to the
rendition of his service or to the protection of the rights or
property of the carrier of such communication...."
The authorization stated in that subsection permits agents
of communication common carriers (i.e. Telcos) not only to intercept
wire communications where necessary "to the protection of the
rights or property of the carrier", but it also authorizes such
an agent to "disclose or use that communication." Fun, huh?
That's not all.
In the case United States v. Sugden, a case which was
upheld by the Supreme Court, the following ruling was made:
"For and unreasonable search and seizure to result from the
interception of defendant's communication, he must have
exhibited a reasonable expectation of privacy. Where, as here,
one uses a communication facility illegally, no such expectation
is exhibited."
This means that when you make a free call, you have waived your
right to privacy. In other words, without pay, your rights
evaporate.
The only limitation upon monitoring and disclosure is
that it must not be excessive. For example, in Bubis v.
United States, the phone company monitored all of the defendant's
phone calls for a period of 4 months. The defendant's gambling
activities were revealed by this monitoring, and furnished to
the U.S. Attorney's office. This resulted in the defendant being
prosecuted by the District Attorney for violation of the
federal laws against using interstate telephone facilities for
gambling. The court acknowledged the right of the phone company
to protect its ass(ets) and properties against the illegal acts
of a trespasser, but ordered the evidence supressed because :
(1) The extent of the monitoring was unnecessary
(2) The defendant's prosecution for violation of the gambling
laws had "no relationship to protecting the telephone company's
property."
This was before the Omnibus act. As it happens, though,
the Omnibus act was intended to reflect exsisting law, and
therefore, change nothing (pretty good huh?). In United States
v. Shah the court said (refering to the situation of inadmissible
evidence in U.S v. Bubis), "Thus it would appear that if the tape
recordings of the defendant's conversations had been limited by the
phone company to establish that the calls were in violation of
the subscription agreement (i.e. were illegal) and to the
identification of the person using the phone, and FOR THOSE
PURPOSES ONLY, then the tapes would have been admissible
against the defendant." The court went on to say that this was
indeed the case in United States v. Shah, as the phone company
only monitored for 7 days, and the tapes were of 1 minute call
duration at the beginning of any illegal call.
So what can the do? Well, several things. First, they
can put a dialed number recorder (DNR) on your line if they
suspect toll fraud. The most common can do the following: print
touch-tone (c) digits sent, print MF digits sent, record presence
of 2600hz on line, and activate a tape recorder for a specific
amout of time (generally 1-2 min) when some specific event occures,
such as 2600hz being blasted into the line.
DNR's seem to be fairly standard procedure. That is,
almost all the Telcos use them when they suspect fraud. As
long as they do not record the entire conversation, or
conversations that are legal, there is nothing illegal about DNR's.
DNR's are also used to detect fraud using specialized common carriers
(e.g.,Sprint, Metro etc.),by watching you dial the local dialup number,
followed by your (illegal) access code and destination number.
They do not need a court order to place a DNR on your line.
If they can record voice on your line, they can record data
just as easily. So if you call bulletin board systems and have a
DNR on your line, beaware that any logins you have made have
probably been watched by the phone company, and they probably
know any passwords you have used.
The purpose behing all this DNR bullshit is to establish
your identity. I suppose a possible defense against this is
simply not to talk for 3 minutes after the connection is
established. Might be kind of hard to do in practice,
however.
Contrary to popular belief, TPC does not make "midnight
visits" to your house to arrest you. Why should they? A
judicious application of their motto, "Reach out and put the
touch on someone", means that they simply call from their
office. If they call, try to draw them out as much as possible
in a phone conversation. That is, they will keep muttering
about how they "have evidenc". Find out what kind of evidence.
Do not expect them to be forthcoming with everything. They will
almost certainly have more than what they tell you.
Their standard position is to prosecute all offenders,
although this varies depending on the severity of the
situation, as well as the age of the offender. They tend to
always prosecute adults, while they are receptive to pre-trial
offers made by juveniles. They may want to talk with you in person,
ostensibly to give you a chance to explain why the 300 calls to
the local Sprint node came from your line. Accept this offer.
Often they are more generous with their evidence in person than
they are over the telephone.
If you do meet with them in person, BRING A LAWYER.
Lawyers are expensive, but they are well worth the price.
They know the law, while you don't. The investigators TPC employs
are seasoned people, and usually make few mistakes, legal or
technical. However, a good lawyer can spot any legal fuckups
they might have made, and you shoud be able to find any technical
ones.
In talking with them, be civil (i.e., say hello, talk
about the weather etc.) but say nothing pertinent to your case.
They will often tell a large part of their evidence without any
prodding, and at the end, will ask you some questions. YOU ARE
NOT OBLIGATED TO ANSWER ANY OF THESE QUESTIONS.
At the very first signs of trouble, stop making free calls,
and move anything illegal you have to a friend's house. They may
not get a search warrant, but better safe than sorry.
TPC can make life miserable for you, and they don't often
prosecute unless they're sure of winning, which is pretty much
always. Therefore, you must make it either not worth their while
to prosecute, or worth their while not to prosecute. The best
bet is to try to get them to settle before going to court by
offering reimbursement and being nice to them (act sorry). If
you appear genuinely sorry, they may not prosecute.
Failing that, be a low-down bastard and make as much
trouble for them in court as possible. Just remember:
technology is on your side, and thats better than God.
We T