[Discuss-gnuradio] New State laws may impact gnu-radio efforts...

[Dave Emery]

        I hate to interrrupt good technical discussion with more bad
news about legal issues, but unfortunately many of us face a new
initiative by the copyright cartel in our state legislatures (in Mass
the Great and General Court) designed to drasticly change the rules
regarding access to radio signals.   And unlike federal laws which just
outlaws interception of certain signals, this initiative includes
provisions criminalizing development of software and hardware and
allowing confiscation of tools and software as well as criminal and
civil penalties for  merely providing assistance to others in developing
software and hardware deemed to be illegal.   And these laws ban
publication of directions and documentation for such software.

        This legislation also bans anonymous communication and may 
also ban some kinds of NAT firewalls and local area networks.

        As I read it, if one takes a broad interpretation this law
forbids reception of ANY radio signals without the explict permission of
the sender.    Obviously this impacts many heretofore legal uses of
gnu-radio technology, and if a court finds that gnu-radio is an
illegal device, developers could face serious legal problems.

        Versions of this language have been introduced in a number
of different states, and passed in at least two and probably several
others.

        What follows is the text of the Mass version...




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    DRAFT SUBSTITUTE FOR MASSACHUSETTS HOUSE BILL 2743

Section 1.  Chapter one hundred and sixty-six of the General Laws as appearing 
in the
2000 Official Edition, is hereby amended by adding the language below:

Chapter 166:  Section 42A.  TelecCommunication service; fraud; penalty,
civil remedies.

Section 42A.  Whoever, with intent to defraud, obtains, or attempts to
obtain, or aids or abets another in obtaining, any telecommunications
services valued less than five thousand dollars by any false
representation, false statement, or stratagem, by unauthorized charging
to the account of another, by installing or tampering with any
facilities or equipment or by any other means, shall be punished by a
fine of not more than three thousand dollars or by imprisonment for not
more than two and one-half years in a house of correction, or both.

Whoever, with intent to defraud, obtains, or attempts to obtain, or aids
or abets another in obtaining, any telecommunications services of a
value equal to or greater than five thousand dollars by any false
representation, false statement, or stratagem, by unauthorized charging
to the account of another, by installing or tampering with any
facilities or equipment or by any other means, shall be punished by a
fine of not more than ten thousand dollars or by imprisonment for not
more than ten years in a state prison, or both.

As used in this section, the words "telecommunication service" shall
have the same meaning as defined in Chapter 166, section 42B(a)(2),
include the transmission of intelligence by a community antenna
television system licensed pursuant to the provisions of chapter one
hundred and sixty six A.

Any aggrieved party may bring a civil action for violations of this
section under the provisions of Chapter 166, section 42B(e).

SECTION 2.  Chapter one hundred and sixty-six is further amended by
deleting section forty-two B in its entirety and replacing it with the
following:

166.42B Unlawful Communication and Access Devices

(a) Definitions.--As used in this section, the following words and
phrases shall have the following meanings:

(1) "Communication device."  

       (i)     Any type of electronic mechanism, transmission lines or
connections and appurtenances thereto, instrument, device, machine,
equipment, technology or software which is capable of intercepting,
transmitting, re-transmitting, acquiring, decrypting or receiving any
communication service; and 

       (ii)      Any component thereof, including any electronic serial
number, mobile identification number, personal identification number,
computer circuit, splitter connectors, switches, transmission hardware,
security module, smart card, software, computer chip, electronic
mechanism or any component, accessory or part of any communication
device which is capable of facilitating the interception, transmission,
re-transmission, decryption, acquisition or reception of any
communication service.  

(2) "Communication service. " Any service lawfully provided for a charge
or compensation to facilitate the lawful origination, transmission,
emission or reception of signs, signals, data, writings, images and
sounds or intelligence of any nature by telephone, including cellular or
other wireless telephones, wire, wireless, radio, electromagnetic,
photoelectronic or photo- optical systems, networks or facilities; and
any service lawfully provided by any radio, telephone, fiber optic,
photo-optical, electromagnetic, photoelectric, cable television,
satellite, microwave, data transmission, wireless or Internet-based
distribution system, network or facility, including, but not limited to,
any and all electronic, data, video, audio, Internet access, telephonic,
microwave and radio communications, transmissions, signals and services,
and any such communications, transmissions, signals and services
lawfully provided directly or indirectly by or through any of the
aforementioned systems, networks or facilities. 

(3) "Communication service provider." (i) Any person or entity providing
a communication service, whether directly or indirectly as a reseller,
including, but not limited to, a cellular, paging or other wireless
communications company or other person or entity which, for a fee,
supplies the facility, cell site, mobile telephone switching office or
other equipment or communication service; (ii) any person or entity
owning or operating any fiber optic, photo- optical, electromagnetic,
photoelectronic, cable television, satellite, Internet-based, telephone,
wireless, microwave, data transmission or radio distribution system,
network or facility; and (iii) any person or entity providing any
communication service directly or indirectly by or through any such
distribution systems, networks or facilities. 

(4) "Manufacture, assembly or development of a communication device." To
make, produce, develop or assemble a communication device, or to
knowingly assist others in those activities.

(5) "Manufacture, assembly or development of an unlawful access device."
To make, develop, produce or assemble an unlawful access device or
modify, alter, program or reprogram any instrument, device, machine,
equipment, technology or software so that it is capable of defeating or
circumventing any technology, device or software used by the provider,
owner or licensee of a communication service, or of any data, audio or
video programs or transmissions, to protect any such communication,
data, audio or video services, programs or transmissions from
unauthorized receipt, interception, acquisition, access, decryption,
disclosure, communication, transmission or re-transmission, or to
knowingly assist others in those activities.

(6) "Unlawful access device." Any type of instrument, device, machine,
equipment, technology or software which is primarily designed,
developed, assembled, manufactured, sold, distributed, possessed, used
or offered, promoted or advertised, for the purpose of defeating or
circumventing any technology, device or software, or any component or
part thereof, used by the provider, owner or licensee of any
communication service or of any data, audio or video programs or
transmissions, to protect any such communication, data, audio or video
services, programs or transmissions from unauthorized receipt,
acquisition, interception, access, decryption, disclosure,
communication, transmission or re-transmission.

(b) Offense defined.--Any person commits an offense if he knowingly:

(1) possesses, uses, manufactures, develops, assembles, distributes,
transfers, imports into this state, licenses, leases, sells or offers,
promotes or advertises for sale, use or distribution any communication
device:

(i) for the commission of a theft of a communication service or to
receive, intercept, disrupt, transmit, re-transmits, decrypt, acquire or
facilitate the receipt, interception, disruption, transmission,
re-transmission, decryption or acquisition of any communication service
without the express consent or express authorization of the
communication service provider; or

(ii) to conceal or to assist another to conceal from any communication
service provider, or from any lawful authority, the existence or place
of origin or destination of any communication; or

(2) modifies, alters, programs or reprograms a communication device for
the purposes described in subparagraphs (b)(1)(i) and (ii) above; or

(3) possesses, uses, manufactures, develops, assembles, distributes,
imports into this state, licenses, transfers, leases, sells, offers,
promotes or advertises for sale, use or distribution any unlawful access
device; or

(4) possesses, uses, prepares, distributes, sells, gives, transfers or
offers, promotes or advertises for sale, use or distribution any:

(i) plans or instructions for making, or assembling or developing any
communication or unlawful access device, under circumstances evidencing
an intent to use or employ such communication or unlawful access device,
or to allow the same to be used or employed, for a purpose prohibited by
this section, or knowing or having reason to believe that the same is
intended to be so used, or that the aforesaid plans or instructions are
intended to be used for manufacturing or assembling such communication
or unlawful access device for a purpose prohibited by this section; or

(ii) material, including hardware, cables, tools, data, computer
software or other information or equipment, knowing that the purchaser
or a third person intends to use the material in the manufacture,
assembly or development of a communication device for a purpose
prohibited by this section, or for use in the manufacture, assembly or
development of an unlawful access device; and

(5)  Assist others in committing any of the acts prohibited by this
section.

(c) Criminal Penalties.

(1) Except for violations of this section as provided for in paragraph
(2) or (3), an offense under this section shall be punished by a fine of
not more than three thousand dollars or by imprisonment in a jail or
house of correction for not more than two and one half years or both. 

(2) An offense under this section shall be punished by a fine of not
more than ten thousand dollars and imprisonment in the state prison for
not more than ten years, if:

(i) the defendant has been convicted previously under this section or
convicted of any similar crime in this or any Federal or other state
jurisdiction; or

(ii) the violation of this section involves at least 5, but not more
than 50, communication or unlawful access devices.

(3) An offense under this section shall be punished by a fine of not
more than thirty thousand dollars and imprisonment in the state prison
for not more than fifteen years, if: 

(i) the defendant has been convicted previously on two or more occasions
for offenses under this section or for any similar crime in this or any
Federal or other state jurisdiction; or

(ii) the violation of this section involves more than 50 communication
or unlawful access devices. 

(4) For purposes of grading an offense based upon a prior conviction
under this section or for any similar crime pursuant to paragraphs
(2)(i) and (3)(i), a prior conviction shall consist of convictions upon
separate indictments or criminal complaints for offenses under this
section or any similar crime in this or any Federal or other state
jurisdiction. 

(5) As provided for in paragraphs (2)(i) and (3)(i), in grading an
offense under this section based upon a prior conviction, the term "any
similar crime" shall include, but not be limited to, offenses involving
theft of service or fraud, including violations of the Cable
Communications Policy Act of 1984 (Public Law 98-549, 98 Stat. 2779).

(6) Separate offenses. For purposes of all criminal penalties or fines
established for violations of this section, the prohibited activity
established herein as it applies to each communication or unlawful
access device shall be deemed a separate offense.  Each day a person is
in violation of this section also constitutes a separate offense.

(7) Fines. For purposes of imposing fines upon conviction of a defendant
for an offense under this section, all fines shall be imposed as
authorized by law for each day a person is in violation of this section
and for each communication or unlawful access device involved in the
violation.

(8) Restitution. The court shall, in addition to any other sentence
authorized by law, sentence a person convicted of violating this section
to make restitution as authorized by law.

(9) Forfeiture of communication or unlawful access devices. Upon
conviction of a defendant under this section, the court may, in addition
to any other sentence authorized by law, direct that the defendant
forfeit any communication or unlawful access devices in the defendant's
possession or control which were involved in the violation for which the
defendant was convicted. 

(d) Venue. An offense or violation under subsection (b) may be deemed to
have been committed at either place where the defendant manufactures,
develops or assembles an communication or unlawful access device or
assists others in doing so, or the places where the communication or
unlawful access device is sold or delivered to a purchaser or recipient.
It shall be no defense to a violation of subsection (b) that some of the
acts constituting the violation occurred outside of this Commonwealth. 

(e) Civil actions. 

(1) Any person aggrieved by a violation of this section may bring a
civil action in any court of competent jurisdiction. "Any person
aggrieved" shall include any communication service provider.

(2) The court may:

(i) award declaratory relief and other equitable remedies, including
preliminary and final injunctions to prevent or restrain violations of
this section, without requiring proof that the plaintiff has suffered,
or will suffer, actual damages, irreparable harm or lacks an adequate
remedy at law;

(ii) at any time while an action is pending, order the impounding, on
such terms as it deems reasonable, of any communication or unlawful
access device that is in the custody or control of the violator and that
the court has reasonable cause to believe was involved in the alleged
violation of this section; 

(iii) award damages as described in subsection (3) below; 

(iv) in its discretion, award reasonable attorney fees and costs,
including, but not limited to, costs for investigation, testing and
expert witness fees, to an aggrieved party who prevails; and

(v) as part of a final judgment or decree finding a violation of this
section, order the remedial modification or destruction of any
communication or unlawful access device, or any other devices or
equipment involved in the violation, that is in the custody or control
of the violator, or has been impounded under subparagraph (ii) above. 

(3) Types of damages recoverable. Damages awarded by a court under this
section shall be computed as either of the following: 

 (i) Upon his election of such damages at any time before final judgment
is entered, the complaining party may recover the actual damages
suffered by him as a result of the violation of this section and any
profits of the violator that are attributable to the violation and are
not taken into account in computing the actual damages. Actual damages
include the retail value of any communication services illegally
available to those persons to whom the violator directly or indirectly
provided or distributed any communication or unlawful access devices. In
proving actual damages, the complaining party shall be required to prove
only that the violator manufactured, distributed or sold any
communication or unlawful access devices, but shall not be required to
prove that those devices were actually used in violation of this
section. In determining the violator's profits, the complaining party
shall be required to prove only the violator's gross revenue, and the
violator shall be required to prove his deductible expenses and the
elements of profit attributable to factors other than the violation; or

(ii) Upon election by the complaining party at any time before final
judgment is entered, that party may recover in lieu of actual damages an
award of statutory damages of between $1,500 to $10,000 for each
communication or unlawful access device involved in the action, with the
amount of statutory damages to be determined by the court as the court
considers just. 

(4) In any case where the court finds that any of the violations of this
section were committed willfully and for purposes of commercial
advantage or private financial gain, the court in its discretion may
increase the total award of any damages amended under subparagraphs (i)
and (ii) above, by an amount of not more than $50,000 for each
communication or unlawful access device involved in the action and for
each day the defendant was in violation of this section.
        


        


-- 
        Dave Emery N1PRE,  address@hidden  DIE Consulting, Weston, Mass 02493
PGP fingerprint 1024D/8074C7AB 094B E58B 4F74 00C2 D8A6 B987 FB7D F8BA 8074 C7AB