The hobbyists newsletter for the Communications Revolution

Article: Your Rights as a Phone Phreak
By Fred Steinbeck

"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 car-
rier, whose facilities are used in the transmission of a wire communication, to
intercept, disclose, or use that communication in the normal course of his em-
ployment while engaged in any activity which is a necessary incident to the
rendition of his service or to the protection of the ri
hts or property of the
carrier of such communication...."

        The authorization stated in that subsection permits agents of communi-
cation 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 priv-
acy.  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 monit-
ored all of the defendant's phone calls for a period of 4 months.  The defend-
ant's gambling activities were revealed by this monitoring, and furnished to
the U>S> Attorney's office.  This resulted in the defendant bein prosecuted by
the District Attorney for violation of the federal laws against using inter-
state 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 re-
lationship to protecting the telephone company's property."

        This was before the Omnibus act.  As it happens, though, the Omnibus
act was intended to prflect 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 dial-
ed number recorder (DNR) on your line if they suspect toll fraud.  The most
common can do the followiing: 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 en-
tire conversation, or conversations that are legal, there is nothing illegal
about DNR's.  DNR's are also used to detect fraud using specialized common car-
riers (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, be
aware 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 ekep muttering about how they "have ev-
idenc".  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 gen-
erous with their evidence in person than they are over the telephone.

        If you do meet with them in person, BRING A LAWYER.  Lawyers are expen-
sive, 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 mis-
takes, 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 war-
rant, 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 that's
better than God.