
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