In article ws.com, "Phil
Kane" writes:

On 29 Jan 2005 15:31:01 GMT, N2EY wrote:

OK, how about this one - actually had this discussion with a lawyer
back in the old analog-cordless-phone days(!):

Drug dealer operates out of a house unsuspected by neighbors because the
operation is so well concealed. But the dealer makes a mistake and gets
one of those first-generation no-security cordless phones

And the rest of the question ??

Hit the send key too fast. Sorry.

Taking a WAG, in "the old days" it was not unlawful to intercept and
use as evidence the conversations from the base unit of a cordless
phone - no warrant was necessary. The (Federal) ECPA was amended a
number of years ago to require a warrant for the above, same as for
cellphone conversations.

He claimed that listening in on the conversation was the same as wiretapping,
and since there was no warrant for a wiretap, the evidence was all illegally
obtained and none of it could be used.

I said that the radio signals were not legally protected in any way, because
the Communications Act does not authorize the use of the radio spectrum for
illegal purposes. I also said that wiretapping involves connection to the
common carrier's equipment, and the customer-phone company contract specified
privacy of communications, while the radiating cordless phone is customer-owned
and no such privacy is contracted or even implied.

Also, I made the following analogy:

Suppose it is a quiet night in comfortable weather. Everyone in the
neighborhood has their windows wide open. Suppose Neighbor A, on his own
property, overhears Neighbor B, on *her* own property, discussing a drug deal
or other illegal act. Neighbor B doesn't realize how loud she is talking and
how well she can be heard across property lines. Is that evidence admissible?
Or is Neighbor A supposed to plug his ears and shout "lalala I can't hear you"?


My layman's guess is that, today, such an overheard conversation could only be
used to get a warrant.

73 de Jim, N2EY

On 29 Jan 2005 22:20:26 GMT, N2EY wrote:

Taking a WAG, in "the old days" it was not unlawful to intercept and
use as evidence the conversations from the base unit of a cordless
phone - no warrant was necessary. The (Federal) ECPA was amended a
number of years ago to require a warrant for the above, same as for
cellphone conversations.

He claimed that listening in on the conversation was the same as wiretapping,
and since there was no warrant for a wiretap, the evidence was all illegally
obtained and none of it could be used.

That's what the law is today. Before the ECPA was amended, there
was a loophole that didn't cover transmissions from a cordless base
unit, only the handset. There was an actual court case in Nebraska
where a neighbor picked up a drug deal from a cordless phone base
unit, and the court held in that case that there was no violation
and the evidence was admissible.

Then the ECPA was amended to close that loophole.

I said that the radio signals were not legally protected in any way, because
the Communications Act does not authorize the use of the radio spectrum for
illegal purposes.

Not so - the purpose of the ECPA was to limit the power of the
government to use warrentless intercepted telephone or radio
conversations as mandated by the SCOTUS _Cohen_ case that
established the concept of "expectation of privacy" in
communications.

I also said that wiretapping involves connection to the
common carrier's equipment, and the customer-phone company contract specified
privacy of communications, while the radiating cordless phone is customer-owned
and no such privacy is contracted or even implied.

No again. Ther term "wiretapping" is applied to any communication
- aural, wire, or radio. IIRC that term is "street slang" and does
not appear in the ECPA.

Also, I made the following analogy:

Suppose it is a quiet night in comfortable weather. Everyone in the
neighborhood has their windows wide open. Suppose Neighbor A, on his own
property, overhears Neighbor B, on *her* own property, discussing a drug deal
or other illegal act. Neighbor B doesn't realize how loud she is talking and
how well she can be heard across property lines. Is that evidence admissible?

Sure is, to the limit of admissible hearsay.

My layman's guess is that, today, such an overheard conversation
could only be used to get a warrant.

That's because otherwise-inadmissible hearsay is admissible to
establish probable cause but cannot be used at trial.

--
73 de K2ASP - Phil Kane