Date:       Mon, 27 Apr 92 17:30:17 EST
Errors-To:  Comp-privacy Error Handler <comp-privacy-request@PICA.ARMY.MIL>
From:       Computer Privacy Digest Moderator  <comp-privacy@PICA.ARMY.MIL>
To:         Comp-privacy@PICA.ARMY.MIL
Subject:    Computer Privacy Digest V1#002

Computer Privacy Digest Mon, 27 Apr 92              Volume 1 : Issue: 002

Today's Topics:				Moderator: Dennis G. Rears

                        Barasch v. Pa  Decision
                         All the Myriad Ways...
                          Re: Cordless phones
   The Computer Privacy Digest is a a forum for discussion on the effect of
   technology on privacy.  The digest is moderated and gatewayed into
   the USENET newsgroup comp.society.privacy (Moderated).  Submissions
   should be sent to comp-privacy@pica.army.mil and administrative
   requests to comp-privacy-request@pica.army.mil. 
    Back issues are available via anonymous ftp on ftp.pica.army.mil
  [129.139.160.200].
----------------------------------------------------------------------

From: Dave Banisar <banisar@washofc.cpsr.org>
Date: Thu, 23 Apr 1992 13:25:42 EDT
Subject: Barasch v. Pa  Decision 

>From CPSR                     Barasch v. Pa  Decision


David M. BARASCH, Consumer Advocate, et al., Appellees,
                              v. 
THE BELL TELEPHONE COMPANY OF PENNSYLVANIA, Appellant.
David M. BARASCH, CONSUMER ADVOCATE, et al., Appellees. 
PENNSYLVANIA PUBLIC UTILITY COMMISSION, Appellant.

               Nos. 201 E.D.1990, 202 E.D.1990.
              Supreme Court of Pennsylvania.
                     March 18, 1992.
                  OPINION OF THE COURT

PAPADAKOS

   In this appeal we are called upon to address the legality of
"Caller ID" service which Appellant, The Bell Telephone Company of
Pennsylvania (Bell), proposes to offer to its customers.  For the
reasons set forth below, we agree with the Commonwealth Court that
"Caller ID" violates our Wiretapping and Electronic Surveillance
Control Act, 18 P.S. ss 5701-5781, and hence cannot now be offered
in Pennsylvania.  The facts on which this appeal is based are as
follows.
   On January 18, 1989, Bell filed a revision to Tariff Pa. PUC No.
1, proposing that Various new services be added to its tariff,
including the offering of the optional service known as Caller ID.
Caller-ID allows a telephone subscriber to identify and record the
telephone number from which a call is being made, including private
and unlisted numbers, through the use of a device supplied to
customers which displays that number and then stores it for future
retrieval. {FN1}
   With Caller ID service, every time a call is made from a private
telephone, the caller's telephone number will be obtained by the
Caller ID subscriber and by anyone to whom that subscriber chooses
to give or sell that number.  This is true regardless of whether the
caller wishes to divulge the number to the call recipient.
Complaints against the Caller ID portion of the proposed tariff were
filed by a number of parties, including the Office of Consumer
Advocate (OCA);  the Office of the Attorney General;  Barry
Steinhardt and the American Civil Liberties Union of Pennsylvania
(ACLU);  Karen Kulp, President of the Pennsylvania Coalition Against
Rape;  and Mary Jane Isenberg, President of the Pennsylvania
Coalition Against Domestic Violence (PCADV).
   By order entered March 31, 1989, the Pennsylvania Public Utility
Commission (PUC) suspended the Caller ID portion of the tariff for
investigation purposes and the matter was assigned to an
Administrative Law Judge (ALJ) for hearings and a recommended
decision.  The remaining services offered by Bell in this proceeding
were approved by the PUC without further investigation. (FN2)
   On September 22, 1989, after extensive hearings and briefings by
the parties, the ALJ issued his recommended decision on Caller ID.
In that decision, the ALJ agreed with the positions taken by OCA,
PCADV and the Attorney General and found that Caller ID service was
not in the public interest unless it was provided along with a free
"per-call" blocking option, with which callers could block the
transmission of their telephone numbers if they chose to do so.
   The recommended decision concluded that unblockable Caller ID
constitutes a "trap and trace device" as that term is defined in the
Pennsylvania Wiretap Act, supra.  The ALJ determined that providing
the service as proposed by Bell would be a violation of law, and
thus per se unjust and unreasonable under the Public Utility Code.
Moreover, the ALJ determined that, whether or not Caller ID service
was deemed violative of the Wiretap Act, it was not in the public
interest to offer Caller ID without a blocking option.  The ALJ
found that numerous groups and individuals who require privacy in
making calls in certain instances would be threatened by unblockable
Caller ID.  The ALJ also found that the implementation of a blocking
option would not diminish the value of Caller ID in responding to
annoying calls, particularly when the benefits of the service were
considered along with other Bell services such as Call Trace. {FN3}
   After the filing of exceptions and reply exceptions by various
parties, the PUC, at its public meeting on November 9, 1989, voted
to reject the Administrative Law Judge's recommended decision and to
allow Bell to provide Caller ID almost without restriction or
protection for callers.  The three to one decision determined that
Caller ID blocking could only be provided to non- profit domestic
abuse shelters and their staffs, law enforcement agencies, and
individuals "certified" by law enforcement officials as requiring
Caller ID blocking to "mitigate the risk of personal injury."
Caller ID blocking would not be made generally available to any
other individuals.
   On November 28, 1989, Petitions for Review of the Commission's
order were filed by the OCA and the PCADV.  On December 8, 1989, the
OCA and the PCADV filed a Joint Application for Partial Stay with
the Commonwealth Court.  The application requested that Bell be
directed to provide a free per-call blocking mechanism if it chose
to offer Caller ID to the general public or, alternatively, that
Bell be permitted to offer Caller ID service only to emergency
service providers, i.e., police, fire and county emergency dispatch
centers, during the pendency of the appeal.  Petitions for Review
and Applications for Stay were also filed by the ACLU and by Carol
Walton and the Consumer Education and Protective Association (CEPA).
By opinion and order entered December 29, 1989, after argument,
Judge Crumlish of the Commonwealth Court granted the Application for
Partial Stay and directed that Caller ID could only be offered to
emergency service providers pending the resolution of the appeal.
The opinion and order of Judge Crumlish is reported at 130
Pa.Cmwlth.  Ct. 418, 568 A.2d 726 (1989).
   After briefing and en banc argument on the merits, the full
Commonwealth Court held that Bell's proposed Caller ID service
violates the trap and trace provisions of the Pennsylvania Wiretap
Act. The Commonwealth Court decision is reported at --- Pa.Cmwlth.
Ct. ----, 576 A.2d 79 (1990).  A majority of the court, in an
opinion by Judge Smith, also found that the PUC's approval of Caller
ID violated the privacy rights of Pennsylvania citizens guaranteed
by the Pennsylvania Constitution.  The court also ruled that the
limited blocking procedure approved by the Commission was wholly
devoid of minimum due process protections and that the PUC decision
on that point was not supported by substantial evidence.  The
Commonwealth Court majority also declared that Caller ID service
would be unlawful and unconstitutional even if it were offered along
with the per-call blocking option recommended by the ALJ.
   In an opinion which concurred in part and dissented in part,
Judge Pellegrini, joined by Judge McGinley, fully endorsed the
holding that Caller ID violated the trap and trace provisions of the
Pennsylvania Wiretap Act. However, Judge Pellegrini stated that the
court should not have reached the constitutional questions raised in
the Petition for Review. Because the Commonwealth Court order
reversed the commission order in its entirety, three of the
successful Petitioners below--OCA, PCADV and ACLU-- filed an
Application for Limited Reargument which sought clarification of the
order as to one point.  Specifically, the applicants asked the court
to clarify their order to the affect that it did not preclude the
use of Caller ID by emergency service providers.  Such emergency
service providers are exempt from the relevant prohibitions of the
Wiretap Act. On July 18, 1990, the court entered an order denying
the Application for Reargument, but, in doing so, declared that the
court's majority opinion "neither impliedly nor expressly
invalidates any provision of the Pennsylvania Wiretapping and
Electronic Surveillance Control Act, 18 Pa.C.S. ss 5701-5781,
allowing the use of recording and trap-and-trace devices by police
and other designated emergency systems.
   The PUC and Bell filed Petitions for Allowance of Appeal with
this Court on August 14, 1990.  By orders dated December 19, 1990
and December 24, 1990, we granted both petitions and briefs were
subsequently filed by the PUC, Bell and several amici curiae.  The
appeals were consolidated by order of this Court dated February 8,
1991. {FN4}
   We agree with Judge Pellegrini in that Caller ID violates the
Wiretap Act, and that it is unnecessary, therefore, to reach the
constitutional issues addressed by the Commonwealth Court majority.
   Simply put, Caller ID, as proposed by Bell and approved by the
PUC, violates the "trap and trace" prohibitions contained in the
Pennsylvania Wiretap Act. A trap and trace device is defined at 18
P.S. s 5702 as follows: Trap and trace devise. A device which
captures the incoming electronic or other impulses which identify
the originating number of an instrument or device from which a wire
or electronic communication was transmitted.
   The relevant section of the Wiretap Act that governs the use of
trap and trace devices is 18 P.S. s 5771, which provides:  General
prohibition of pen register {FN5} and trap and trace device use;
exception (a) General rule.--Except as provided in this section, no
person may install or use a pen register or a trap and trace device
without first obtaining a court order under section 5773 (relating
to issuance of an order for a pen register or a trap and trace
device). (b) Exception.--The prohibition of subsection (a) does not
apply with respect to the use of a pen register or a trap and trace
device by a provider of electronic or wire communication service:
(1) relating to the operation, maintenance and testing of a wire or
electronic communication service or to the protection of the rights
or property of the provider, or to the protection of users of the
service from abuse of service or unlawful use of service;  or (2) to
record the fact that a wire or electronic communication was
initiated or completed in order to protect the provider, another
provider furnishing service toward the completion of the wire
communication or a user of the service from fraudulent, unlawful or
abusive use of service, or with the consent of the user of the
service. (c) Penalty.--Whoever, intentionally and knowingly violates
subsection (2) is guilty of a misdemeanor of the third degree.
   By definition and by agreement of the parties, the Caller ID
terminal which is purchased by the subscriber and attached to the
subscriber's telephone line "captures the incoming electronic or
other impulses which identify the originating number" of the
telephone from which the call was transmitted.  That is the very
function of the Caller ID device.  It captures, displays, and stores
for future retrieval the telephone number of the calling party.
Caller ID therefore falls within the general prohibition of Section
5771(a) of trap and trace devices and cannot be used by anyone
without first obtaining a court order.  The only remaining issue is
whether it falls within one of the exceptions to this general
prohibition in Section 5771(b). The PUC, Bell and the Office of the
Attorney General (in his amicus brief) all argue that Caller ID is
permitted under the exception which permits the use of a trap and
trace device "by a provider of electronic or wire communication
service ... with the consent of the user of the service."  The most
obvious flaw in this argument, of course, if that the Caller ID
subscriber is not an electronic or communicating service provider.
The exception, therefore, can only apply to Bell, not to the
subscriber.
   Bell argues vehemently that it is the only entity that performs a
trap and trace under the statute, not the subscriber.  Bell contends
that Caller ID involves only a single trap and trace by the
telephone company.  It is Bell's network computers that "capture"
the caller's number by computer software that identifies and stores
the number in memory upon placement of a call.       The call
recipient merely receives the resulting information which is
transmitted by Bell from its network computer.  The display unit is
entirely passive, like a television or radio or mailbox.  It does
not send any signal to or otherwise act on or manipulate the
telephone network to ferret out the caller's number from the mass of
electronic signals in the network.  That function of "capturing" the
caller's number is performed by the telephone company, without whose
deciphering of the electronic signals in the network the called
party would have no ability to identify the number.  Appellees
respond to this argument by contending there are two traps which
take place when Caller ID service is used.  The first is by the
telephone company and it occurs when the calling number is placed in
the memory of the called party's central office. This trap may be
exempted from the provisions of Section 5771(b) under certain
circumstances.  But there is a second trap--when the calling number
is deposited and stored in the customer's Caller ID device.  That
trap is not the use of "a trap and trace device by a provider of
electronic or wire communication service" and thus is not exempted.
Whatever the merits of this argument, and the Commonwealth Court
agreed with Appellees and concluded that neither the "Caller ID
device nor the data captured by the device is controlled or
maintained by Bell but rather by the customer subscriber, clearly
violating the trap and trace device prohibition....  " 576 A.2d at
85;  nevertheless, further examination of the governing statutory
language is necessary.
   Even if the Caller ID service were solely a function of the
telephone company--which it almost certainly is not--we agree with
the Commonwealth Court that the service still violates the wiretap
law, because it is being used for unlimited purposes without the
"consent" of each of the users of the telephone service.  As noted
by the Commonwealth Court majority: Followed to its logical
conclusion, Bell would contend and have this court believe that a
Caller ID subscriber is the user of the service and consents to use
of a trap and trace device by subscribing to Caller ID.      This
argument must fail when one considers that "user" includes "any
person or entity" who uses the telephone network and that a contrary
and reasonable interpretation of that term could also be construed
as the calling party rather than the Caller ID subscriber. 576 A.2d
at 85.  Judge Pellegrini joined in this aspect of the decision and
further demonstrated the consistency of this interpretation with the
Pennsylvania wiretap Act's requirement that all parties to a
warrantless wiretap must consent to its use.  18 P.S. s 5704
provides: It shall not be unlawful under this chapter for: ... (4) A
person to intercept a wire, electronic or oral communication, where
all parties to the communication have given prior consent to such
interception. As stated by Judge Pellegrini: [W]hen the 1988
amendments were adopted by the General Assembly, they were grafted
onto a legislative scheme very different and one that is much more
protective of individual rights than federal law.  Even though the
language of the federal law and 1988 amendments to the Wiretap Act
are nearly the same, by not changing the "all party consent rule,"
it is clear that the General Assembly meant that any part of the
communication, including phone number identification, should have
the consent of all parties prior to it being trapped and traced. 576
A.2d at 93.
   We agree.  None of the parties relying upon the exception in
Section 5771(b) provides a satisfactory explanation of why the
"user" as it appears in Section 5771(b)(2) must refer only to the
Caller ID customer, rather than the calling party, or both the
called and calling parties.  No one disputes that the definition of
"user" in the Wiretap Act includes "any person or entity" who uses
the telephone network.  18 P.S. s 5702.  It is also obvious that
when a Caller ID device is employed, two "users" of the telephone
network are involved--the called party and the calling party.  It is
the caller whose number is being trapped and traced and whose
privacy is being jeopardized, and whose "consent" would therefore be
particularly relevant.  Moreover, under the rules of statutory
construction, the singular generally includes the plural. 1 P.S. s
1902. In short, as recognized by the Commonwealth Court, the
"consent" provision of the trap and trace section must be read in
light of the overall requirement of the Act that consent to any form
of interception must be obtained from all parties.  18 P.S. s
5704(4).  The two-party consent rule has long been established in
Pennsylvania as a means of protecting privacy rights and principles
of statutory construction require that the provisions of the Wiretap
Act be interpreted in a manner which is consistent with those
concerns.
   Where the consent of less than all parties is required under the
Wiretap Act, the General Assembly specifically so stated, as in
Section 5704(2)(ii) which permits a law enforcement officer, under
very limited circumstances, to intercept a communication where "one
of the parties to the communication has given prior consent to such
interception."  (Emphasis added.)  If the General Assembly had
concluded that the consent to a trap and trace by "one of the users"
of the service was sufficient, then they could have so stated.  But
they did not.  In short, Caller ID violates the Pennsylvania Wiretap
Act and therefore the Commonwealth Court decision must be affirmed.
   We need not reach the constitutional issues decided by the
Commonwealth court majority in this case because we have long held
that our courts should not decide constitutional issues in cases
which can properly be decided on non- constitutional grounds.
Ballou v. State Ethics Commission, 496 Pa. 127, 436 A.2d 186 (1981).
Nor do we decide what results should be reached if Bell provided
with its Caller ID service a free "per call" blocking option for
callers.  That issue is not before us. Accordingly, the decision of
the Commonwealth Court is affirmed.


FN1. Caller ID would not permit customers to identify the telephone
number of calls being made from a pay telephone, by credit card, or
through operator assistance.

FN2. Among the other Bell services approved in this proceeding and
currently available to customers is a service known as Call Trace.
With this service, a person who receives an abusive or objectionable
phone call can dial a three-digit code and thereby have the call
traced by the telephone company.  The company can then take
appropriate action as to that caller.  Unlike Caller ID, Call Trace
does not reveal the caller's number directly to the called party.
Other Bell services approved in this case include:  Call-Return
which allows a customer, by dialing a three-digit code,
automatically to return the last call received, without knowing the
phone number of the caller; and Call-Block which allows a customer
to block the receipt of calls permanently from up to six different
phone numbers, including the phone that made the last call which was
received, whether or not the customer knows the number of the last
caller.

FN3. It should be noted that the operation of Call Trace would not
be affected by the blocking mechanism recommended by the ALJ. The
same is true for Call-Return and Call-Block services discussed in
footnote 2, supra.

FN4. Pursuant to Rule 502(c) of the Pennsylvania Rules of Appellate
Procedure, and by order of this Court dated February 8, 1991, the
name of Irwin A. Popowsky, Consumer Advocate, was substituted for
that of David M. Barasch as an Appellee in this matter.

FN5. A "pen register" is defined as:  A device which records or
decodes electronic or other impulses which identify the numbers
dialed or otherwise transmitted, with respect to wire
communications, on the telephone line to which the device is
attached.  The term does not include a device used by a provider or
customer of a wire or electronic communication service for billing,
or recording as an incident to billing, for communication service
provided by the provider, or any device used by a provider, or
customer of a wire communication service for cost accounting or
other like purposes in the ordinary course of business.  18 P.S. s
5702.


MR. JUSTICE MCDERMOTT files a Concurring Opinion. CONCURRING OPINION

MR. JUSTICE MCDERMOTT

I agree that the statute is clear upon its face and applies to "any
person or entity." {FN1} Therefore the constitutional questions need
not be addressed at this time.

FN1. 18 Pa.C.S. s 5702.



------------------------------

Path: watyew!rmgreen
From: rmgreen@watyew.uwaterloo.ca (Ronald M. Green)
Subject: All the Myriad Ways...
Date: Sat, 25 Apr 1992 01:00:34 GMT


   Hello!  Well, where to start?
   As a Canadian who has long been enamoured of surveillance and information
technology - the result, I suspect, of a fascination with the field of the
private investigator (and my place in it) - I think that the only regret I
have about this group is that is didn't exist even earlier.  A late start, but
what the hey...
   I'll leap back in after I see what major threads people want to develop,
but a few obvious suggestions (touched on in the "Keywords" line) include:

     Scanners (radio monitors for "private" (laugh) frequencies)
     Phone Phreaking (by-passing of telephone protocols and fees)
     Micro-Mikes (the world of bugging and tapping)
     Net-Watching (tracking folks through their Net activities)

   Of course, there is much more to the field, but like I said, I'll let
other folks develop the initial threads.
   I think I'm going to enjoy this...and now, if you'll excuse me, I think 
I'm going to indulge in some recreational scanning for a while...

   Be seeing you!

                                                      - Ronald M. Green -


------------------------------

From: Craig "Powderkeg" DeForest <zowie@daedalus.stanford.edu>
Subject: Re: Cordless phones
Date: 27 Apr 92 03:08:35 GMT
Followups-To: comp.society.privacy


   >In article <Apr.23.16.38.01.1992.22195@pilot.njin.net> mla@pilot.njin.net (Marc L. Appelbaum) writes:
   >>I've been reading all these msgs about cellular phone calls. I just
   >>don't see why anyone would want to monitor cellular phone calls.  Yes,
   > [stuff about tabloids & privacy]
   But it's none of your business!  

Damn it!  Those photons are hitting *me*!  They're *MINE*.  I'll do whatever
the hell I want with *my* photons, regardless of the law.  

I firmly believe in privacy -- I won't go looking into people's houses, or
tapping their phones, or whatever.

But, if you want privacy, you *don't* shout so that everyone within ten
miles can hear it.  If you want privacy, you don't broadcast your conversation.

If people don't want me to hear their conversation, they ought not to 
be shooting photons at me!

followups elsewhere; this ain't folklore anymore.
--
Craig DeForest:  zowie@banneker.stanford.edu  *or*  craig@reed.bitnet
 ----------------------------------------------------------------------------
"So, if you guys make a living looking at the SUN, why do you spend so much
        time at the SYNCHROTRON, working UNDERGROUND at NIGHT?"

------------------------------


End of Computer Privacy Digest V1 #002
******************************