Monitoring and the
Law
Jorge Rodriguez
jorgerodriguez@monitoringtimes.com
New York
Monitoring Laws
In
these times of heightened awareness about terrorism it seems appropriate to
begin our specific coverage of monitoring laws in America with New York.
Certainly the events of September 11th have increased the amount of public
safety radio traffic there and, with that, an accompanying interest to monitor
those transmissions.
New York’s regulation of police scanners is
found primarily in section 397 of the New York State Vehicle and Traffic Laws.
In two hundred and four words it prohibits the equipping of a motor vehicle with
a radio that can receive radio signals used by the police. It also prohibits you
from using a motor vehicle that is so equipped. Interfering with police radio
transmissions is also prohibited.
Since it was enacted, several cases have
interpreted what the New York lawmakers intended. In 1978, in a case titled
People v. McGee, the law was found to be constitutional and not preempting
federal law by Congress. The preemption issue does not seem to have been
revisited by other cases since then nor since the passage of PR 91-36 (FCC
93-410) as it relates to licensed amateur radio operators, a group often
excluded from such radio laws.
For the past ten years, PR 91-36 has held that
“… state and local laws that preclude
the possession in vehicles or elsewhere of amateur radio service transceivers by
amateur operators merely on the basis that the transceivers are capable of the
reception of public safety, special emergency, or other radio service
frequencies, the reception of which is not prohibited by federal law, are
inconsistent with the federal objectives of facilitating and promoting the
amateur radio service and, more fundamentally, with the federal interest in
amateur operator's being able to transmit and receive on authorized amateur
service frequencies. We therefore hold that such state and local laws are
preempted by federal law.”
The McGee case also explains that the
government interest in such a law is in preventing criminals from monitoring
police broadcasts in their automobiles, before, during and after the commission
of a crime. Such a law is therefore a reasonable restriction on liberty.
However, the restriction applies even if the radio is not turned on, which could
mean that merely having such a radio anywhere in a vehicle violates the law.
Four years before McGee, in the case of
People v. Verdino, section 397 was applied to prohibit a radio that was
unplugged and thus not working. The court decided it was still "capable" of
receiving signals and was illegal.
Secondary, Criminal and Regional Law
Besides primary sources of law, such as
statutory law made by lawmakers and case law made by judges, there are many
secondary sources of law. One such secondary source is the published opinion of
a state’s attorney general. Attorney General Opinions are issued in response to
requests by state agency officials and local government attorneys to help answer
unsettled questions of law. In 1975 and 1976, New York’s then Attorney General
Dennis C. Vacco issued two important opinions related to police scanners.
The first of these, Op.Atty.Gen 311 (1975),
concluded that permits for police scanners could be issued by a designated
person in counties with a county police department which are established by a
county charter. The other Opinion of Attorney General Vacco’s office,
Op.Atty.Gen 255 (1976) addressed confiscated police scanners from those who
violated the New York law. The Opinion stated that since the radio was not
contraband (something inherently illegal) it must be returned to the individual
even if that person is convicted of breaking the law.
In addition to section 397’s prohibitions, New
York’s criminal law has a statute that also covers the illegal use of police
scanners. Section 40 of Article 140 of the consolidated laws of New York
prohibits possession of a police scanner while committing a criminal offense.
The City of Rochester, New York, has its own
city ordinance banning the use of police and fire scanners, too. Rochester
defines such radios broadly as "a radio receiver set of such size as to be
easily and conveniently carried by hand or in a vehicle from one (1) location to
another, regardless of the type of power supply, and which can be quickly used
while being carried by a person either on foot or in a vehicle." Rochester makes
no exception for licensed amateur radio operators. After broadly defining what
they consider to be portable scanners, they do exclude peace officers,
authorized technicians of the Police and Fire Departments, or persons holding a
permit from the Rochester Chief of Police.
In summary, in New York you can’t have a police
scanner in a vehicle even if the radio is not connected or turned on. Possession
of police scanner while committing a crime is also illegal. And within the city
limits of Rochester, using a portable, hand held or easily hand carried radio to
receive police and fire frequencies is prohibited.
Do you have personal knowledge of these laws in
New York or in other states? Have questions of interpretation? Other monitors
would like to know: write me c/o Monitoring Times or via email at the
above address.
Disclaimer: Material in this column is for news and
informational value and nothing here should be construed as legal advice.
Persons wishing specific legal advice should consult a licensed attorney in
their jurisdiction.
Sidebar
ECTION 397 NEW YORK STATE VEHICLE AND TRAFFIC LAWS
EQUIPPING MOTOR VEHICLES WITH RADIO RECEIVING SETS CAPABLE OF RECEIVING SIGNALS
ON THE FREQUENCIES ALLOCATED FOR POLICE USE.
A person, not a police officer or peace officer, acting pursuant to his special
duties, who equips a motor vehicle with a radio receiving set capable of
receiving signals on the frequencies allocated for police use or knowingly uses
a motor vehicle so equipped or who in any way knowingly interferes with the
transmission of radio messages by the police without having first secured a
permit to do so from the person authorized to issue such a permit by the local
governing body or board of the city, town or village in which such person
resides, or where such person resides outside of a city, or village in a county
having a county police department by the board of supervisors of such county, is
guilty of a misdemeanor, punishable by a fine not exceeding one thousand
dollars, or imprisonment not exceeding six months, or both. Nothing [contained]
in this section … shall be construed to apply to any person who holds a valid
amateur radio operator's license issued by the federal communications commission
and who operates a duly licensed portable mobile transmitter and in connection
therewith a receiver or receiving set on frequencies exclusively allocated by
the federal communications commission to duly licensed radio amateurs.
CHAPTER 40 OF THE CONSOLIDATED LAWS OF NEW YORK
PENAL LAW
Article 140. Burglary and related offenses
§140.40. Unlawful
possession of radio devices.
As used in this section, the term "radio device" means any
device capable of receiving a wireless voice transmission on any frequency
allocated for police use, or any device capable of transmitting and receiving a
wireless voice transmission.
A person is guilty of unlawful possession of a radio device when
he possesses a radio device with the intent to use that device in the commission
of robbery, burglary, larceny, gambling or a violation of any provision of
article two hundred twenty of the penal law.
Unlawful possession of a radio device is a class B misdemeanor.
CODE OF THE CITY OF ROCHESTER, NEW YORK, v66 Updated 10-1-2002
PART II GENERAL ORDINANCES
Chapter 44, CONDUCT -- MISCELLANEOUS
§ 44-2. Radio
receiving sets.
A. No person shall use a portable receiver for the purpose of receiving signals
on police or fire frequencies.
B. No person shall equip any motor vehicle with a radio receiving set capable of
receiving signals on the frequencies allocated for police or fire use or
knowingly use a motor vehicle so equipped or knowingly in any way interfere with
the reception or transmission of radio messages by the Police or Fire
Department. [Amended 1-27-1970, Ord. 70-36]
C. The Chief of Police is hereby authorized to issue, regulate or revoke permits
for the use of such receiving sets to persons or corporations engaged in
official business. [Amended 1-27-1970, Ord. 70-36; 5-28-1974, Ord. 74-180]
D. The provisions of this section shall not apply to peace officers, authorized
technicians of the Police and Fire Departments or persons holding a permit from
the Chief of Police. [Amended 1-27-1970, Ord. 70-36; 5-2
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