In the past year, substantial progress has been made toward making cellular digital encryption voice privacy a reality for consumers. This brings me to the news at hand. If I hadn't seen it actually happen, I never would have believed it. The proposed Wireless Privacy Enhancement Act is back to haunt us again, this time as H.R. 514. When no Senate version of the former HR-2369 materialized by the adjournment of the last session of Congress, it was obvious to me that the issue was dead. In fact, I had started to write an epilogue to my January 1998 Pop'Comm feature article on communications privacy, prognosticating little likelihood of the bill being resurrected in the new Congress. Good thing I held my tongue! (Or pen.) How wrong I was.

Considering that nearly every digital cellular and PCS handset in current use is, and has been for some time, ready for voice encryption, the new bill is entirely unnecessary. Few consumers are aware of this fact. The only thing standing in the way of full functionality is software upgrades to cellular network infrastructure, many of which are now complete. As soon as cellular and PCS providers decide to market this new "value-added" service, millions of existing subscribers with their existing handsets will instantly have voice privacy encryption as a selectable feature. And, you would be surprised to learn what encryption features your old "analog" phone is capable of as well. Most authentication-capable analog cellular phones have existing capabilities for signaling message encryption (SME). This feature provides for digitally encrypted transmission of calling party automatic number identification to the user’s phone as well as encrypted DTMF transmitted from the user’s handset. Encrypted touch-tones are useful for using a credit card to make purchases over the phone, or to access an alternate long distance carrier with a calling card.

I can’t imagine why any party in the wireless telephone business would want to see a bill like H.R. 514 enacted. It’s just poor business practice. At best, from an industry perspective, this bill would have no effect whatsoever. Monitors would continue to monitor. And cellular subscribers would continue to be deluded into a false sense of security about their comms. At worst, from the same perspective, such a law would stymie customer response to presumably costlier, optional encryption features. Further, the law would function as a disincentive for analog users to migrate to the more profitable digital technology. As the regional cellular and PCS networks are being uploaded with new voice encryption software, the industry is poised to jump into the market at any time. Wireless carriers will be test marketing voice and messaging privacy in major markets by the time you read this article!

So why this new privacy bill in the House? And why was it railroaded through Committee at lightning speed? Given this years’ imminent rollout of enhanced voice privacy services, the possible motivating factors behind H.R. 514 and last year’s identical HR-2369, become a bit clearer. Scanner users and monitoring hobbyists may not be the object of the bill, at least not directly, after all. As we have seen, the bill is not likely to offer any meaningful benefit to the wireless telecommunications industry either. With the end of President Clinton’s murky impeachment trial, Congress may have been looking for a few quick, politically correct, smile-button acts that look good in press releases, appear at a glance to offend few, and are a sure bet to pass through Congressional chambers swiftly, or at a minimum, die quietly with little notice. To this end, H.R. 514 is a winner. On the face of it, who would object to protecting one’s privacy? It is little wonder HR-2369 slid through the House last spring.

So why does the House Telecommunications subcommittee keep hammering on the cellular privacy issue given the state of the art today? A clue may be found in the proposed bill’s language. H.R. 514 is very tricky. One cannot read it as a stand-alone document and have any serious idea what it is saying. This is due to the "cut-and-paste" method in which it is written. The bill references various portions of three sections of the United States Code (47 USC §§302,605; 18 USC Ch.119 [ECPA]) and one part of the Code of Federal Regulations (47 CFR 15). The proposed changes are described in terms of substituting a new word or phrase for an existing one; an "or" for an "and" and such. To get the full context of the bill, it must be read alongside the sections of existing law that it is purposed to change. Just look at the language of H.R. 514 and imagine how easy it would be for a busy Congressman to vote for passage based solely on the abstract verbiage and the non-binding Committee report.

But it gets more convoluted than that. Possibly the most disturbing change to be made by this Congressional action is a most fundamental change to the longstanding Section 705 of the Communications Act (47 USC §605). This was, and is the premiere radio communications privacy law. Since 1934 this statute allowed for virtually unrestricted reception of wireless transmissions under nearly any circumstances. The prohibition here was on divulging or publishing what was heard. To run afoul of the law, one had to both intercept and divulge what was monitored.

Now imagine what would happen if an unscrupulous person monitored the cellular phone conversations of a rival political party (sound familiar?) then gave the information to a newspaper that subsequently published the squalid details. The rival political party is hopping mad. The eavesdroppers in this example would likely be prosecuted since they not only listened in; they couldn’t keep a secret either. However, under existing Section 705, it appears the newspaper may be off the hook. Newspapers are not in the business of keeping secrets, yet it seems as long as they were not the person doing the monitoring, no problem! (Nonetheless, don’t try this yourself.) What self-respecting politician would stand for letting the press get away with publishing such illicitly obtained material, with apparent impunity. The political waters are getting a bit less muddy now. Think. Who is the scapegoat here, and who is this new bill intended to protect?

H.R. 514 is a true double-edged sword. Proposed changes to Section 705 are literally the half of it. The bill goes on to attack digital modulation modes, threatening to ban manufacture of scanners capable of digital cellular, PCS, and protected Specialized Mobile Radio (SMR) service reception. The stratagem here concerns what constitutes "protected" and "SMR." Protected may refer to SMR operators who offer Commercial Mobile Radio Services (CMRS), that is, cellular-like services connecting to the public switched telephone network. Or it may be in the context of licensed Intellectual Property Rights (IPR) such as SMR networks using proprietary digital modulation schemes. Frankly, what defines "protected" in this passage of H.R. 514 is anyone’s guess at this point.

What is clearer is the definition of SMR services. SMR properly refers to commercial trunked radio systems, often in the 800 MHz band. A common misconception is that trunked 800 MHz public safety systems are also SMR systems. Not so. FCC regulations define SMR as a "A radio system in which licensees provide land mobile communications services (other than radiolocation services) in the 800 MHz and 900 MHz bands on a commercial basis to entities eligible to be licensed under this part, Federal Government entities, and individuals." (47 CFR §90.7). There is of course, another catch here. Public safety trunked radio systems are obviously not commercial. Therefore, logically, no prohibition against monitoring trunked public safety comms, digital or otherwise, is posed by H.R. 514. Or is there? What happens when public safety entities, or Federal agencies as given by example in the SMR definition above, use commercial facilities rather than operate their own radio dispatch systems? This ill-conceived bill harbors a major dichotomy since it specifically allows monitoring of public safety comms (ref. 18 USC [Ch.119] §2511(2)(g)(ii)(II)), yet effectively bans monitoring most commercial digital services.

Then there is the matter of shared frequency usage by both SMR and trunked public safety systems. Here, the originators of H.R. 514 exercised a modicum of discretion by placing this curious aspect into the hands of the FCC, where folks understand radio transmission. Scanner users may well have better response from the "reinvented" customer-friendly FCC, than from the dusty halls of Capitol Hill. The question remains though, if scanners for commercial digital SMR technology are banned, will that also by default ban scanners for digital public safety radio systems, since both are digital trunked systems? No. At least not ultimately. The nation’s leading CMRS SMR operator utilizes a vendor-proprietary technology for digital modulation and switching. Although the handful of digital public safety systems in existence at the present time use a variety of emerging technologies, the new APCO-25 standard will soon define digital public safety radio in North America. Any universal standard such as APCO-25 or Europe’s TETRA digital public safety radio standard are by default open architecture, IPR rights, licensing, etc. notwithstanding. Hence, the problem of protecting SMR privacy on shared public safety frequencies should be simple. Even if any two such systems used identical vocoding and modulation techniques, the network switching and sync timing would have to be exactly the same to enable speech decoding, call following, and unit identification.

From any perspective from within the telecommunications industry, H.R. 514 is unnecessary and burdensome to carriers and equipment manufacturers alike.