Use of police scanners threatened

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FOI Alert Volume 2, Issue 16 (1996-97)
9/16/1997

The Wireless Privacy Enhancement Act of 1997 (HR 2369) could take away one of the necessary tools of the newsroom: the police scanner.

If passed in its current version, the bill would make it illegal for journalists to monitor police and fire scanners -- about as necessary in a newsroom as is the pen and notebook.

"It's particularly severe legislation," said Bruce Brown, one of SPJ's attorneys at Baker & Hostetler. "It's the mere act of intercepting the communication that's illegal not the republication of the material."

The legislation introduced in July comes from U.S. Rep. Billy Tauzin, R-La., who is chairman of the House Telecommunications Subcommittee.

Tauzin was most offended by a Florida couple's taping of Newt Gingrich's cellular telephone call. John and Alice Martin, of Gainesville, Fla., taped the call and turned it over to a ranking Democrat on the House ethics committee.

The New York Times printed a transcript of the conversation.

Republicans became incensed on the taping and public release of the conversation.

The Martins, who admit to being staunch Democrats, said at a news conference early this year that their fascination with national politics and monitoring a police scanner converged Dec. 21 while on a Christmas shopping trip.

They overheard a phone conversation that morning and began taping it with a recorder kept in their car. That conference call included Gingrich, Rep. Dick Armey of Texas, Rep. John Boehner of Ohio, and several other Republican leaders.

Boehner was using his cell phone while vacationing in Florida.

Intercepting and recording cellular telephone calls is already a violation of state and federal laws.

But Tauzin's legislation will have a broad reach -- he quotes figures suggesting that more than 43 million Americans subscribe to cellular or other commercial mobile radio services. He believes as many as 10 million Americans may be listening to those conversations with modified scanners.

Those who have home scanners were the first to protest.

Scanners are affected along with amateur and shortwave radios equipped with general coverage receivers, business and police band radios, even some car radios, according to an August article posted on the Kentucky Scanner Enthusiasts Page.

The article says HR 2369 and HR 1964 also directs the Federal Communications Commission, which reviews all electronic devices sold in the U.S., to refuse certification of radios capable of receiving Commercial Radio Service frequencies.

Excessive fines are proposed: up to $500,000 and five years in jail.

"Virtually, everyone who owns a receiver is affected. Members of the press, businesses, hobbyists, and the public at large will be completely banned from listening."

Another article in Pressing Issues, published in Salt Lake City, Utah, says the radio spectrum is a public resource.

"Appropriate measures should exist in law to protect the privacy of radio communications, but HR 2369 is so broad in its scope that it not only has the potential to choke off what it purports to protect, but arguably curtails the ability of communities to protect themselves from those who would use the airwaves to facilitate illegal activity."

For more information on the scanner legislation, check:

http://www.ggw.org/nf2g

Monitoring Times magazine

If you are concerned about this legislation, please call or write:

U.S. Rep. Billy Tauzin
2183 Rayburn House Office Building
Washington, D.C. 20515
O: 202-225-4031
F: 202-225-0563

Food Lion damages dramatically reduced

The whopping jury award for damages in the Food Lion case was reduced from $5.5 million to $315,000 by U.S District Court Judge Carlton Tilley in late August. The judge reduced the award to $50,000 from Capital Cities, $250,000 from American Broadcasting Co., and $7,500 each from former Prime Time Live executive producer Richard Kaplan and undercover unit producer Ira Rosen. The hidden-camera expose accused the grocery chain of selling raw-gnawed cheese and rotting meat. ABC representatives lied in order to videotape the evidence. Capital Cities-ABC has 14 days to accept the reduction or the judge will order a retrial. SPJ's First Amendment law firm, Baker & Hostetler, filed the amicus brief in the appeal.

Here are some key points of the decision as summarized by Bruce W. Sanford, SPJ's First Amendment counsel:

Judge Tilley put heavy emphasis on the ratio of punitive damages to actual damages. He found that the 2857 to 1 ratio of punitive damages to actual damages against Capital Cities, and the 1071 to 1 ratio of the damage award against ABC Inc., were "certainly suspect" and "disproportionate."
The judge rejected the First Amendment arguments advanced by the defendants and the amici. "The press is not free to violate laws of general applicability in order to reach its ultimate goals," he wrote. He skirted the argument that the plaintiff was required to prove actual malice. Under state law, the judge reasoned, the jury had to find that the defendants acted with "consciousness of wrongdoing," a standard tantamount to actual malice.
The judge denied Food Lion's request for attorney's fees, finding that "this case involved some unique questions of law ... (and) the defendants had valid reason to refuse to settle this matter and litigate it to conclusion."
"Although Judge Tilley rejected the First Amendment arguments, his decision to reduce the punitive damage awards by nearly $5.2 million and his denial of Food Lion's request for attorney's fees should help to deter would-be plaintiffs looking to profit by attacking news gathering efforts," Sanford writes in his assessment of the Aug. 29 opinion.