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Date: May 7, 1997
To: Global Telecommunications, Media and Electronics, Inc.
From: Chris Gaspar Country: Burma (renamed Myanmar in 1989)
Re: Privacy Rights of Cellular Phone Users: When a Conversation Becomes a Broadcast
Background Information on Myanmar
Background Information on Myanmar's Economy
Computer Science Development Law
Business Proposal: Cellular Phone Network
The Origin of Privacy Rights in the United States
Legal Action Against Private Eavesdroppers
Protection of Cellular Telephone Transmission from Intrusion by the Government
Federal Laws Protecting Cellular Telephone Transmission from Intrustion by Private Parties
Weaknesses in the Current Federal Laws
Proposals to Strengthen Protection of Cellular Phone Users
Predictions as to How Cellular Privacy Rights will be Further Protected in the United States
Predictions for Cellular Privacy Rights Protection in Myanmar
This memorandum reflects legal and other research conducted throughout the Spring 1997 semester at the University of Iowa College of Law in connection with the Cyberspace Law Seminar taught by Nicholas Johnson. The assignment for each student in the seminar was threefold.
The proposal is that GTME establish a substantial cellular telephone network in Myanmar. Using United States law,2 this memo reviews the privacy rights of cellular phone users vis-a-vis both the government and private actors. The legal issue to be addressed at length arises from the fact that conversations on cellular phones can easily be intercepted.
Note: Some basic economic, political, and geographic background facts about Myanmar are useful to understand the cellular telephone network proposal. The description and statistics that follow are intended to acquaint the reader with Myanmar; a distant and largely unfamiliar nation. The information below is merely a summary of interesting facts about Myanmar and is not intended to be an exhaustive list of all available information.
Myanmar is a relatively small southeast Asian country located on the Bay of Bengal between Bangladesh and Thailand. Mountains surround the western, northern, and eastern borders of the country while the southern boundary abuts the Bay. Dense forests and rough terrain, including the world's largest stand of hardwood trees, cover much of the country's 261,228 square mile geographic area (an area only slightly smaller than Texas). The capital city is Rangoon (sometimes translated as Yangon). Rangoon is located on the Bay. The climate is tropical with a rainy, hot, and humid summer. During the winter (December to April), Myanmar is less cloudy with scant rainfall, mild temperatures, and lower humidity.
Myanmar's population is about 46 million and is growing by almost 2% annnually. The population density is 176 people per square mile, and most Myanmars live in rural areas. The infant mortality rate in 1996 was 81 per 1000 live births. The average life expectancy at birth for the total population is 60 years. Males have a life expectancy of 58 years; females 62.4 The total fertility rate is 3.64 children born per woman.
Myanmar is divided into seven states (or "pyine-mya," the singular is "pyine"). By ethnic groupings, the population is 68% Burman, 9% Shan, 7% Karen, and a mixture of other groups including the Rakhine, Chinese, Mon, and Indian.5 Burmese is the primary language, however, some minority ethnic groups have their own languages. Almost 90% of Myanmar's population is Buddhist. Eighty-three percent of Myanmar's people are literate.
The country's government is currently run by what the United States Department of State calls a "harsh" military regime.6 On September 18, 1988 the military successfully mounted a coup and suspended the country's Constitution (enacted January 3, 1974). The name which the military junta gives itself is the State Law and Order Restoration Council ("SLORC"). Since April 23, 1992, Than Shwe has been the Chief of State. Myanmar's judiciary, the Council of People's Justices, was abolished shortly after the coup. The People's Assembly ("Pyithu Hluttaw"), a legislative body, still exists but has not been convened since 1990. Free multiparty elections were last held in 1990. At that time Sein Win was elected prime minister of the National Coalition Government of the Union of Burma ("NCGUB"). However, the military refused to hand over power to the newly-elected NCGUB party despite its decisive victory at the polls. Following the military's seizure of power in Burma, the elected prime minister and other legitimately elected members of the NCGUB fled to a remote area and joined with insurgents to form a parallel government. The military regime refuses to recognize that NCGUB members have been elected to Parliament and continues to harass the NCGUB party, opposition leaders, and NCGUB supporters. At least two other political factions exist in addition to the NCGUB.
The stated purpose of the military coup was to install and maintain a "market economy" in Myanmar.
Prior to the coup, the Burmese government had accepted socialism as the economic ideology. According to the SLORC, the new market economy would encourage private sector expansion and foreign investment in Myanmar. However, the new philosophy has not produced much improvement in Myanmar's economy. Due to the Burmese government's harsh treatment of its citizens and visitors,8 many countries have imposed strict trade sanctions against the country. The United States has adopted a strict policy regarding trade with Burma and recently banned new United States investments in Burma.9
The main industries in Myanmar are mining, textiles, footwear, wood products, and petroleum refining. The labor force is about 16 million. The monetary unit is the kyat. In June 1996, the rate of exchange was 5.92 kyat for US $1. The gross domestic product in 1994 was US $ 41 billion. The per capita gross domestic product in Myanmar is less than US $1000. This figure, the lowest of any Southeast Asian country, is less than half of China's per capita gross domestic product10 and is less than 5% of Japan's per capita gross domestic product.11 Myanmar has not yet enjoyed the industrial and economic development of some of its Southeast Asian neighbors.
The country's economy consists of about 70% private activity, mainly in agriculture, light industry, and transport. Other industries include textiles and footwear, wood and wood products, petroleum refining, mining (primarily copper, tin, tungsten, and iron), construction materials, pharmaceuticals, and fertilizer. Agriculture still accounts for 40% of the country's gross domestic product and employs 60% of the country's workforce. Only 14% of the workforce is employed in industry. The government employs just over 6% of the workers. The remaining 30% of Myanmar's economy involves state-controlled entities including energy, heavy industry, and foreign trade. Government policy since 1989 has aimed at revitalizing the economy after almost a half-century of tight central planning.
One of the SLORC's primary objectives is purportedly to inject new life in to Myanmar's economy by establishing a free market system.12 To this end, new laws in the area of investment and other economic activities have been promulgated. In recent years, foreign investment has been encouraged and private activity has markedly increased. Unfortunately, inflation has been running at 25-30% annually.
Lack of monetary and fiscal stability is considered Myanmar's major economic problem. Myanmar's exports, estimated in 1993 to be US $674 million, are primarily commodities such as beans, teak, rice, and hardwoods. Imports in 1993 were US $1.2 billion and consisted mainly of machinery, transport equipment, chemicals, and food products. The country's main trade partners are Singapore, China, Thailand, India, Japan and Malaysia. Myanmar imports most of its goods from, and exports most of its good to, Singapore and China. Thirty percent of Myanmar's imports come from Singapore; 27% come from China. Nineteen percent of Myanmar's exports go to China; 14% to Singapore. Myanmar is a signatory to GATT, INTELSAT (non-signatory user), INTERPOL, and various other international treaties.13
The country's electricity capacity is 1,100,000 kilowatts. It has a production capacity of 2.8 billion kilowatt-hours and a per capita consumption of 65 kilowatt-hours per year. By comparison, Japan's production capacity in 1993 was 840 billion kilowatt-hours; North Korea 50 billion; Indonesia 44 billion. Myanmar uses only 2.6 billion kilowatt hours of electricity per year.
The people of Myanmar do not enjoy widespread access to broadcast media and communications equipment. One of every 46 Myanmars owns a television while only 1 of every 556 people owns a telephone. Radio broadcast coverage is limited to the most populous areas. There are only two AM radio, one FM radio, and one television broadcast stations in the entire country.
On November 30, 1988, the SLORC enacted the Union of Myanmar Foreign Investment Law ("UMFIL"). Through the UMFIL, Myanmar's government has control over which foreign entities can do business in its country.
Outsiders are allowed to do business in Myanmar only after the government grants the foreign firm "foreign investor" status. In order to be afforded "foreign investor" status under Myanmar's Foreign Investment Law, a foreigner must submit a proposal to the Myanmar government. The proposal must contain a plan to invest at least US $100,000 in an existing Myanmar company, or a joint venture with a Myanmar citizen where at least 35% of the enterprise consists of foreign capital such as foreign currency, property, licenses, trademarks, patent rights or technical know-how.15
The UMFIL outlines specific tax exemptions available to approved foreign investors. For an enterprise producing goods or services, Myanmar offers a minimum of three years of exemption from income taxes. The government also reserves the right to extend the three year exemption period on a case-by-case basis. Many of the tax benefits offered foreign investors are calculated to encourage commercial activity that will promote economic and industrial development in Myanmar. For example, Myanmar offers relief from taxes on profits if the profits are maintained in a reserve fund and re-invested in Myanmar within one year after the reserve is created. Similar relief is available if the profits are generated from exporting products manufactured by the enterprise. Furthermore, Myanmar grants relief from customs duty and other internal taxes on imported raw materials during the first three years of commercial production.
Petroleum and tourism are the two largest areas of foreign investment permitted by the Burmese government. Approximately US $1.4 billion is invested in oil and gas industries. Nearly US $650 million of investment is approved for hotels and other various tourism industries.
Some examples of global corporations currently or formerly doing business in Myanmar include: American Express, Apple Computers, ARCO, Computech, DHL Courier, Diner's Club, Halliburton Company, International Business Machines, Motorola, Philips Electronics, Pepsico, Texaco Exploration, United Postal Service, Unocal, and VISA.16
Purportedly in efforts to improve the standard of living for its citizens, Myanmar's government radically altered its economic and trade policy in 1992. For the first time in recent history, participation of both the public and private sectors in the trade and economic development of Myanmar was encouraged.17 Although the economy of Myanmar has traditionally been dominated by the government, the private sector now accounts for over 50% of the country's import and export trade. In addition to the foreign investment rules, the government also recently released rules governing import and export trade involving Myanmar.
On September 20, 1996 the SLORC enacted the Myanmar Computer Science Development Law ("MCSDL"). The primary objective of the MCDSL is to transform Myanmar into a modern and developed State by using and developing the computer as a resource. The vision of Myanmar's future as reflected in the MCSDL includes computer networks communicating through satellite and other communications systems, exchange of information technology with other areas of the world, entrepreneurs engaged in the business of producing and selling computer hardware and software in Myanmar, export of locally produced computer hardware and software, and even computer enthusiasts merely using or learning how to use personal computers.
The MCSDL's mechanism for achieving its stated objectives involves creating one government council, one quasi-private federation, and a variety of private associations to promote computer use, development, and application to life in Myanmar.
Therefore, the government effectively retains all power to control the direction of computer technology, education, production, and application in Myanmar. Despite the government's recognition of the need to develop computer science in Myanmar, the MCSDL imposes harsh criminal penalties for relatively minor violations involving a computer. For example, "[w]hoever imports or keeps in possession or utilizes any type of computer ... without the prior sanction of the Ministry of Communications, Posts and Telegraphs shall, on conviction be punished with imprisonment for a term which may extend from a minimum of 7 years to a maximum of 15 years and may also be liable to a fine."20 Furthermore, "[w]hoever sets up a computer network or connects a link inside the computer network, without the prior sanction of the Ministry of Communications, Posts and Telegraphs shall, on conviction be punished [as provided in section 31]."21
Myanmar cannot effectively use computer technology until it builds a widespread communication network. Myanmar has made a commitment to becoming a developed nation by learning about computer technology, creating opportunities for its youth to study computer science, and using current and emerging computer technology to improve the country's industry. The MCSDL contains the procedures the country will use to reach its objectives. However, Myanmar cannot enter the Information Age with its present communications infrastructure.
During World War II, the British installed a land-line telephone network throughout Myanmar. Much of this network was destroyed in the War, and it is unclear what if any effort has been made to rebuild and expand the old system.
Recall, less than 2% of the population owns a television and there is only one telephone for every 556 people. It is safe to assume that personal computers with Internet access are few and far between in Myanmar. Investment in Myanmar must initially focus on bringing the country's communications capabilities into line with those of developed countries. Computers can be used to access a wealth of information. However, today's computers must interface with some form of communications platform (typically a telephone network) before any useful information can be accessed. Therefore, easy and affordable communications capability must be provided to the average citizen of Myanmar before the country can realistically pursue the goals contained in the MCSDL.
Cellular phone technology is the solution. There are distinct advantages to installing a cellular phone network in Myanmar rather than a traditional landline network.22 As mentioned earlier, the terrain in Myanmar is mountainous and heavily wooded. Traditional landline phones are scarce. This scarcity might be in part because it is very difficult and costly to install a landline phone network in rugged terrain. On the other hand, a cellular network can be established by simply erecting a group of transmitters and towers to transmit and receive cellular conversations, each centrally located within a coverage area.23 A cellular communications network does not require the telephone poles, lines, or same kind of switching stations needed to establish a landline network. Installation of the cellular phone network could begin in major metropolitan areas and eventually spread to more remote parts of Myanmar.24
Cellular phone operation25 is considerably different from landline telephone operations.26 A cellular phone conversation involves an FM (frequency modulation) radio signal as opposed to a direct landline electrical connection. The message is sent via radio wave transmission from the cellular phone to a switching office centrally located in the coverage area (called a "cell"). The switching office then retransmits the conversation to the receiving phone via either a landline connection or another radio signal (if the receiver is another cellular phone).
The initial outlay and time required for construction of a cellular network will be substantial. By way of comparison, US $25 million is being invested to build a cellular phone network to service Latvia.27 The four-year project ultimately will serve 20,000 cellular phone subscribers -- 0.7% of Latvia's 2.8 million people. At this rate, it would cost US $286 million to support 2.3 million subscribers (the equivalent of 0.5% of Myanmar's population).
It is important to note that United States companies do not play a dominant, or even substantial, role in Myanmar's economy. While this is a positive in terms of lack competition from United States firms, it is also a potential problem. If GTME invests money in Myanmar, the corporation might be vulnerable in the event the military government imposes unduly restrictive regulations on the cellular network, or cellular users, after the network is constructed. Current trade sanctions imposed by the United States and its allies have not created any meaningful change in Myanmar's treatment of its people.28 Therefore, GTME will be operating in a nation effectively beyond the influence of United States political pressure.
The installation of a cellular phone network in Myanmar, or at any location globally, raises a broad range of legal and public policy questions in addition to the contract and tort issues associated with any business operation.29 For example, can the government limit the number of cellular service providers or subscribers? How will antitrust policy affect such action? Can cellular service providers employ encryption technology without providing the government with the "key"? Under what circumstances can the government intercept and use information transmitted by a cellular system? Are private citizens banned from listening to and divulging the contents of intercepted cellular transmissions? What penalties should be imposed on someone who clones a cellular phone identifier to steal cellular phone usage? Who will provide the cellular phone service, the government or private enterprise? If private enterprise, should only one provider be allowed or should the market be competitive? The answers to these and other important questions will dictate how effective a cellular phone system will be in Myanmar.
The people of the United States place a very high value on the right to be left alone, to be free from intrusion by the government, and to be sheltered from invasion by others.30 However, the right to be free from intrusion is not absolute. Sometimes the rights of two individuals will clash.
At the time the U.S. Constitution was drafted, none of today's high-tech electronic equipment existed. There were no video cameras, miniature audio microphones, voice or heat-activated video and audio tape recorders, wireless thermal surveillance cameras,31 computers, electronic databases, Internet service providers, microwave radio transmitters and receivers, radio wave scanners, or cellular telephones. All of these innovations can be used to invade otherwise private communications or information. Furthermore, all of these devices are currently in use worldwide, and most are available to the general public at affordable prices.
Today there are over 100 million wireless phones in use in the United States, including 45 million cellular phones.32 "Wireless" phones include both cellular and cordless phones. (A cellular phone can transmit over a distance of about 5-25 miles -- as necessary to reach the nearest "cell." A cordless phone seldom transmits more than about 500 feet -- enough to reach the base for the handset.)
The signals from either are, in effect, radio transmissions which can be heard on any radio receiver in the area which is tuned to the right frequency. These frequencies are neither generally known nor receivable by the ordinary AM or FM radio receiver. They can be discovered, however, either from specialized publications or from the use of a special-purpose radio receiver called a "scanner." (The name comes from the receiver's ability to "scan" pre-selected frequencies, or every frequency, across a designated band -- listening for, and stopping on, any in use.)
Scanners can be purchased at electronics stores for something in the range of US $100-300. Scanner use in the United States, although widespread, can have positive effects on society. There are between 10-20 million scanner owners in America.33 Scanners are frequently used to listen to the police department, fire department, pizza delivery trucks, and taxis. They are put to beneficial use by volunteer firefighters, police officers, wrecker operators, emergency roadside assistance personnel, journalists, photographers, motorists, and hobbyists.34 However, a "scanner" also can be used to listen to cellular and wireless communications as most cellular phones transmit a signal very similar to a radio or television broadcast signal.35
Fear of evesdropping on wireless phone conversations ultimately can chill public discourse, restrict commerce, and thwart the purposes of the First Amendment protection of free speech.36 Because cellular and cordless phone signals are usually not encrypted or scrambled, there is a very real risk that a government employee or private citizen may be evesdropping on a transmission anytime a wireless phone is in use.
Scanner owners argue they have the right to receive the content of that which is freely broadcast over the airwaves. But scanner owners' "right to receive" is at odds with cellular phone users' right to privacy in their phone calls.
In addition to personal and business conversations, data is increasingly being transferred via wireless phone systems. Information such as bank account balances, credit histories, loan applications, insurance coverages and limitations, airline reservations, stock price quotes, stock market transaction requests, confidential legal advice, confidential medical records are already being sent across the airwaves.37 Most if not all of these types of information are either confidential by law or deserving of at least some protection from evesdropping.
Use of a landline phone on one end of the conversation may be deceiving for that user. It is no guarantee today that the conversation will be not "broadcast" at some point. Today's landline phone networks are increasingly using microwave radio transmissions to transport phone conversations across large distances -- whether land-based microwave relay stations, or communication satellites and ground stations. (The equipment necessary to intercept, and make sense of, such microwave transmissions is very sophisticated and expensive. It is normally only available to governments.) For example, a conversation between Chicago, Illinois, and Seattle, Washington, during which both callers are using landline phones, might actually be broadcast even though neither caller is using a wireless phone.
Scanner owners do not suggest that privacy rights are unimportant.38 However, they argue not only that privacy cannot be expected when information is randomly broadcast across the airwaves,39 but that repression of the ability to access broadcast information inpringes on their freedom.40 Furthermore, scanner owners suggest that the current regulation of scanner manufacturing is already sufficient to protect the privacy interests of cellular customers.41
Scanners capable of intercepting radio signals in the frequency range used by cellular phones are currently illegal in the United States.42 In 1993, the Federal Communications Commission issued a regulation consisting of two requirements. First, the regulation forbids the manufacture or importing of scanners capable of receiving radio signals in the frequency range used by cellular phones. Most of today's cellular phones transmit radio signals between 800 and 900 megahertz. (For comparison, the AM radio band runs from 0.5 to 1.7 megahertz; FM is 88 to 108 megahertz.) Most scanners manufactured prior to 1993 can receive this frequency range. The regulation's second requirement proscribes the manufacture or importing into the United States of scanners that can easily be modified by the user to receive the frequencies used for cellular phone tranmissions. (The modification would usually require a modest amount of electronics capability, and the willingness to remove the cover. But beyond that, little more than the addition, or removal, of a single electronics component.)
People in the United States have a constitutionally protected right to privacy. However, this oft-cited "right" is nowhere to be found (even as a generalization) in either the original Constitution or its amendments.
In spite of the lack of an express textual mandate, the United States Supreme Court has determined that certain fundamental rights not specifically enumerated in the Constitution are worthy of protection. An individual's "right to privacy" is one example. It is not clear exactly which parts of the Constitution and its amendments grant the right to privacy. The Fourth Amendment grants protection from unreasonable searches and seizures.43 The Ninth Amendment provides that the people retain all rights not explicitly granted to the government.44 The Bill of Rights, the first ten amendments to the United States Constitution, grant a "penumbra" of rights which might be combined to produce a right to privacy. The Supreme Court has used each of these three ideas to tie the judicially-created right to privacy to the text of the United States Constitution.45
It is also unclear what protections the vague "right to privacy" provides individuals when it is applied to a specific factual scenario. Much of the legal doctrine of privacy rights in the United States was developed in cases involving intrusion on the family.
One of the most important Supreme Court decisions regarding privacy rights is Griswold v. Connecticut.46 Mr. Griswold, the director of a family planning clinic in Connecticut, distributed information and advice about contraception to married couples. At that time, Connecticut had a state law prohibiting actual use, or facilitating the use, of contraceptives. The Supreme Court reversed Griswold's conviction, holding that Griswold possessed a "right of privacy" to advise married couples about contraception. Other cases following Griswold refined the contours of the right to privacy in the context of contraception.47
The Fourth Amendment's ban on unreasonable searches and seizures has provided one body of cases defining the contours of an individual's right to privacy. The Fourth Amendment guarantees "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures."48 However, this protection only extends to governmental intrusion on individual privacy. It does not protect against intrusion by private citizens.
Katz v. United States49 is an important Supreme Court decision involving privacy rights, the Fourth Amendment, and what constitutes a reasonable expectation of privacy when using the telephone. Defendant Katz was convicted of placing illegal bets using a landline telephone, a violation of federal law. Part of the evidence presented at trial against Katz included tape recordings of conversations he made from a public telephone booth. The Federal Bureau of Investigation (FBI) obtained the evidence by attaching an electronic microphone and recorder to the outside of the telephone booth. The preliminary issue in the case was whether the FBI's actions constituted an illegal search and seizure within the meaning of the Fourth Amendment. The government first argued that Fourth Amendment protections did not even apply under the circumstances because the surveillance equipment did not penetrate the phone booth -- "trespass" having formerly been a relevant element of a Fourth Amendment violation. The Court rejected that argument and noted that the Fourth Amendment protects individuals from governmental "recording of oral statements overheard without any 'technical trespass under ...' local property law."50 After determining that Fourth Amendment protections applied, the Court held that the FBI's search was unconstitutional. The electronic surveillance violated Katz's reasonable expectation of privacy. Therefore, the judgment against Katz was reversed.
Justice Harlan's concurrence in Katz articulated a two-part test for determining whether an individual's right of privacy has been violated by a government search.51 In order to show the requisite "expectation of privacy" and obtain Fourth Amendment protection, an individual would have to establish that he or she had both a subjectively, and an objectively, reasonable expectation of privacy. Subjective reasonableness focuses on the precautions taken by the individual to keep the communication private. Objective reasonableness focuses on whether or not society, as opposed to the individual, assumes an expectation of privacy under the particular circumtances was reasonable.
In Berger v. New York,52 the Supreme Court outlined the standards to which federal and state governments must adhere when using a wiretap. The government is not constitutionally permitted to wiretap a phone unless it complies with four requirements.53
These requirements became the basis for the laws governing federal wiretapping contained in Title III of the Omnibus Crime Control and Safe Streets Act.54
Another major body of cases defining the right of privacy took place in the context of abortion laws. In Roe v. Wade,55 the Supreme Court invalidated a state statute prohibiting abortions except under circumstances where it was necessary to save the mother's life. Planned Parenthood v. Casey56 defines the right to privacy in abortion cases today.
Although courts have defined the scope of this right in a few narrow classes of cases, some aspects of life that ordinarily would be considered "private" have received no protection from the courts. For example, the right to have consensual sex between two adult males in the privacy of one's home was held not protected by the "right to privacy."57
An individual can challenge the constitutionality of a law if she feels it unduly impinges on the right to privacy. If the law curtails a fundamental right, such as the right to privacy, it must pass two tough requirements. First, the objective, or ultimate end, of the law must be compelling. For example, administrative ease or convenience is not a compelling state interest. Second, the specific means used in the statute to achieve the compelling governmental interest must be absolutely necessary. The law is invalid if any less restrictive means to accomplish the governmental interest exists. If a court determines that the law does not meet these two criteria, it is held invalid and does not apply.
Apart from constitutional law issues, courts and scholars recognize four types of tortious invasions of privacy.58 First, unauthorized appropriate of another's name or likeness for commercial or trade purposes.59 Second, casting a person in a false light before the public eye.60 Third, non-defamatory publication of embarrassing private facts.61 Finally, intruding upon a person's solitude -- for example, by using an electronic listening device.62
Wiretap laws, and the judicial decisions interpreting them have a great deal of influence in invasion of privacy cases brought by private citizens against other private citizens.
In Edwards v. State Farm Ins. Co.,63 Marion Edwards brought invasion of privacy claims (state law causes of action grounded in Louisiana's constitution and civil code) against a scanner owner. The scanner owner had listened to Edward's cellular phone conversation, suspected criminal activity was being discussed, recorded the conversation, then subsequently turned the tape recording over to a United States attorney. The court held that Edwards could not recover damages for invasion of privacy because Edwards had no justifiable expectation of privacy when using the mobile cellular phone.
Interception of cordless telephone conversations has received similar treatment. In Tyler v. Berodt,64 the Berodts used their own cordless phone to intercept a cordless phone conversation originating from Tyler's house over four blocks away. (In addition to scanners, cordless phone conversations are also open to the risk that a neighbor's cordless phone operates on the same frequency, creating a kind of "cordless party line.") Based on what the Berodts intercepted, Tyler was arrested and the intercepted phone conversations, which had been tape recorded by the Berodts, were introduced as evidence at his trial. The Eighth Circuit Court of Appeals denied Tyler's invasion of privacy claim against the Berodts because, said the court, Tyler had no justifiable expection of privacy while using the cordless phone.
Generally speaking, the government is prohibited from using electronic surveillance to wiretap or otherwise eavesdrop on an individual's telephone conversation unless there has been a showing of probable cause and a warrant has issued.65 Title III of the 1968 Omnibus Crime Control and Safe Streets Act (Omnibus Act), as amended by the Electronic Communication Privacy Act of 1986, prohibits non-consensual interception of "wire," "oral," and "electronic" communication without prior judicial approval.66 The Omnibus Act was intended to be a "comprehensive scheme for the regulation of wiretapping and electronic surveillance."67 It provides that an individual whose communication has been unlawfully intercepted has a civil cause of action for damages.68
Most states also have statutes governing wiretaps. In a state court, state laws govern the tape recording of private conversations as long as the state law is stricter than federal law.69 Therefore, the Omnibus Act and its amendments only preempt state law when a state either has no statute addressing wiretaps, or the state law does not provide the protections mandated by federal law.70 California's protection of cordless telephone privacy is an example of progressive legislation protecting privacy rights. The California Cordless and Cellular Radio Telephone Privacy Act explicitly prohibits warrentless interception of cordless telephone conversations.71 The California Legislature determined that "parties to a cordless telephone communication have a reasonable expection of privacy in conversations with or to a person using a cordless telephone."72
Specifics of Federal Wiretapping Law Title III of the Omnibus Act broadly defines what constitutes "wire," "oral," and "electronic" communication. Wire communication consists of "any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception."73 Electronic communication includes "any transfer of signs, signals writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system that affects interstate or foreign commerce."74 However, electronic communication does not include wire or oral communication, communication made via tone-only paging devices, communication from tracking devices or electronic funds transfer information stored by a financial institution.75 Title III defines oral communication as "any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation, but such term does not include any electronic communication."76
Courts across the nation are currently refining these statutory definitions in terms of today's technology and communication devices. Wholly land-line telephone conversations are protected against unwarrented governmental evesdropping because they are considered "wire communications" within the meaning of the Omnibus Act and its amendments.77 However, until recently, people communicating on a cordless telephone had no "expectation of privacy."
Prior to the Communications Assistance for Law Enforcement Act of 1994 (CALEA),78 cordless telephone conversations were not protected from unwarranted surveillance and wiretapping.79 For example, in United States v. Mathis, the Eleventh Circuit Court of Appeals held that a criminal defendant had no expectation of privacy when he used a cordless or cellular telephone.80 The defendant challenged the trial court's refusal to suppress tape recordings of the defendant's cordless phone conversations. The court concluded that the defendant did not have a reasonable expectation of privacy because "at the time Mathis's conversations were intercepted, federal statutory law recognized no reasonable expectation of privacy on a cordless telephone."81 Courts reasoned that cordless phone conversations are merely radio broadcasts open to all who wish to hear.82
Courts have held that Title III protects pager broadcasts from unwarranted interception. However, some courts find tone-only pager communication to fall within the Title III's definition of "oral" communication,83 and other courts consider tone-only pagers "electronic" communications.84
To date, the United States' federal law and policy favors protection of cellular phone users' privacy over the rights of scanner users.
Federal law governing cellular phone privacy, as well as many other types of communications, is contained in the Omnibus Act, as amended in 1986 by the ECPA.85 In addition, most states have at least some statutory protection of privacy rights.86 One way to protect the privacy rights of cellular phone users is to ban scanners which, either in their current configuration, or once modified, are capable of intercepting cellular transmissions. The ECPA marked the federal government's first ban of scanner use. The Omnibus Act criminalizes interception of wire, oral, or electronic communications if the intercepted information is disclosed.87 However, the ECPA imposes no duty on cellular phone service providers to encrypt or otherwise prevent transmissions from being readily interceptable.88
In 1992, Congress increased protection of cellular users' privacy rights by amending the Communications Act of 1934.89 The amendments banned the manufacture, importation, and FCC authorization of certain scanners capable of intercepting cellular frequency transmissions.90 Shortly thereafter, Congress passed the Telephone Disclosure and Dispute Resolution Act (TDDRA)91 which imposed criminal penalties of up to five years in prison and fines up to $250,000 for the manufacture or sale of forbidden scanners.92
Congress has given at least one federal government agency some responsibility for protecting the privacy rights of cellular phone users. The United States Federal Communications Commission ("FCC") has broad authority and responsibility to ensure the integrity, security, and reliability of the nation's communications infrastructure.93 While this authority includes systems other than wireless communication systems, the FCC is occasionally required to promulgate regulations specifically targeted at protecting the privacy of cellular transmissions.94
Intuitively, the notion of "privacy" should extend to protection from unknowingly being listened to, regardless of whether the information is subsequently divulged or used in some way. But the amendments to the Communications Act do not prohibit mere interception of radio transmissions. Divulgence is a necessary part of the crime. Therefore, scanner owners can legally listen as long as what they hear is kept to themselves -- a standard which, given the age-old human propensity for gossip, is at a minimum difficult to enforce.
Federal laws have in some cases not kept pace with evolving technology. For example, the TDDRA only addresses scanners capable of intercepting analog radio transmissions. It does not discuss devices capable of intercepting personal communications service (PCS) -- a next-generation "cell phone" -- or several other types of digital over-the-air tranmission devices.95 Although equipment capable of intercepting digital transmissions is relatively expense and scarse today, it is certain to become more accessible in the near future.
Privacy rights should encompass more than mere protection of oral speech. Security of electronic data, such as medical and bank records,96 must be considered a component of privacy protection. As of 1994, electronic data transfers were explicitly protected by a provision in the CALEA. However, the provision was repealed in 1996 as part of the Anti-Terrorism Act.97 Today it is unclear whether wireless data transfers are protected to the same extent as wireless voice conversations.98
The House Subcommittee on Telecommunication, Trade, and Consumer Protection held a hearing February 5, 1997, to discuss cellular telephone privacy. Privacy rights advocates suggested that Congress should tighten its current restrictions on scanners99 and enact new laws offering cellular users better protection from evesdroppers. Others believe new technology, rather than new laws, is a better way to protect cellular users.100 They advocate digitizing cellular transmissions.101 This places the impetus to change on cellular service providers rather than on the government. Current encryption technology cannot completely guarantee privacy, but use of digital signals coupled with encryption certainly makes evesdropping more difficult and expensive than with a cheap analog scanner. However, at least one federal appeals court has held that cellular service providers are under no duty to encrypt, scramble, or protect from interception any cellular telephone transmissions.102
There will likely be two responses to the current debate over cellular privacy protection.
First, Congress may impose greater restrictions on scanner use, perhaps even a prohibition on the sale or use of digital scanners. Most of the information scanner owners say is important and useful to them is not being transmitted digitally. Therefore, Congress can provide at least a minimal amount of extra protection for cellular phone users while not denying scanner owners access to analog radio transmissions.
Second, competition in the marketplace may shift the impetus to protect cellular privacy from lawmakers to cellular service providers. Most cellular phones in use today employ analog, as opposed to digital, signal transmission. Analog cellular phone conversations can be intercepted with much less expensive equipment than is required to evesdrop on a digitally transmitted conversation. Although digital technology exists for cellular phones, it is not yet in widespread use. People seeking greater protection from interception and evesdropping by private scanners will request this protection from cellular providers. In turn, cellular providers will develop technology that will meet the demands of its customers.
As mentioned earlier, Myanmar enacted a constitution in 1974. However, it has been suspended since 1989 and does not appear on the Internet or in either the Westlaw or Lexis "electronic law libraries." Whatever its details may provide, it seems likely that the people of Myanmar do not enjoy the same types of protection from governmental intrusion offered in the United States by the Fourth Amendment. Furthermore, the "harsh" military regime currently governing Myanmar has shown no signs of granting this type of protection for its citizens or guests any time soon.
If a cellular telephone network using analog radio wave transmission is built in Myanmar, both the government and affluent private individuals could intercept telephone conversations made over the network. Unfortunately, the ease of interception could help perpetuate the government's ability to monitor, control, and suppress the NCGUB and other opposition groups. Citizens of and visitors in Myanmar who need or wish for complete privacy in their wireless telephone conversations will not be able to take full advantage of cellular phone service -- whether analog or digital -- until the government earns their confidence that rights of privacy are protected.
1 In fairness to all seminar students, Professor Johnson specified that legal research and analysis for this discussion should use primarily United States law. This artificial construction equalizes the research requirement for those students researching countries for which legal materials are unavailable. Thus, this "proposal" necessarily assumes that United States law would apply in Myanmar because of the relative unavailability in the United States of Myanmar law.
2 See supra note 1.
3 See The World Almanac and Book of Facts, 801 (Robert Famighetti ed., 1997); T. Shin, The Link Between Legal and Economic Aspects in the Union of Myanmar Foreign Investment Law, 2 Myanmar Perspectives, No. 6, (last modified Aug. 2, 1996) <http://www.myanmar.com/gov/perspec/05/yangon.html>; C. Hinton, Burma (last modified Jan. 8, 1995) <http://www.ph.kcl.ac.uk/local/cia/1994/41.html>; Myanmar Home Page (last modified May 2, 1997) <http://www.myanmar.com/e-index.html>; Latimer Clark Corporation, Atlapedia Online (visited May 2, 1997) <http://www.atlapedia.com/online/countries/myanmar.htm>; UNICEF, Information Country Profile: Myanmar (visited May 2, 1997) <http://www.unicef.org/country/myanmar.htm>.
4 The exact figures compiled for 1997 are: population 45,975,625; growth rate 1.86%; total life expectancy 59.98 years; male life expectancy 57.94 years; female life expectancy 62.15 years. See The World Almanac and Book of Facts, at 801.
5 The precise ethnic groupings are: 68% Burman, 9% Shan, 7% Karen, 4% Rakhine, 3% Chinese, 2% Mon, 2% Indian, 5% other. Id.
6 See United States Department of State, Burma, Human Rights Practices 1993 (last modified Jan. 31, 1994) (describing in detail the political climate and human rights violations in Myanmar) <gopher://emailhost.ait.ac.th:70/00/AsiaInfo/CountryInfo/Myanmar% 20%28Burma%29/Human%20Rights%20in%20Myanmar>.
7 See UNOCAL, Myanmar: Human, Economic and Community Development (visited May 2, 1997) (containing a socio-economic study of Myanmar) <http://www.unocal.com/ogops/develop.htm>.
8 See supra note 6 and accompanying text.
9 See Free Burma Coalition, Policy Toward Burma (visited May 2, 1997) (containing a list of United States sanctions against Burma) <http://danenet.wicip.org/fbc/hse-sanc.html>.
10 The World Almanac and Book of Facts, at 753.
11 Id. at 787.
12 See T. Shin, The Substantial, Solid and Sound Legal Bases of Myanmar's Business and Economic Law (last modified June 5, 1996) <http://www.myanmar.com/gov/perspec/02/law4-96.html>.
13 See N.K. Shimbun, Foreign Investment in Myanmar Reaches About US $ 2.6 Billion (last modified June 15, 1995) <http://www.smn.co.jp/business/0037bu06e.html>.
14 See T. Shin, The Link Between Legal and Economic Aspects in the Union of Myanmar Foreign Investment Law, 2 Myanmar Perspectives, No. 6 (last modified July 17, 1996) <http://www.myanmar.com/gov/perspec/05/inve6-96.html>; T. Shin, The Transparency of the Economic Legal Framework of Myanmar (last modified June 5, 1996) <http://www.myanmar.com/gov/perspec/03/eco3-96.html>.
15 See The Government of the Union of Myanmar - Ministry of Trade - Directorate of Trade, Myanmar Export/Import Rules and Regulations For Private Business Enterprises (last modified June 16, 1996) <http://www.myanmar.com/gov/Export_Import_Rules.txt>.
16 Pepsico pulled out of Myanmar January 27, 1997. Motorola and Phillips Electronics left November 23, 1996.
17 See Myanmar From 1988 to 1996 - and Beyond (last modified Aug. 10, 1996) <http://www.myanmar.com/gov/trade/beyond.html>; Myanmar's Expanding Economy and Essential Fiscal and Financial Reforms (last modified Sept. 25, 1996) <http://www.myanmar.com/gov/perspec/07/refo8-96.html>.
18 See The Computer Science Development Law, The State Law and Order Restoration Council Law No. 10/96, The 8th Waxing of Tawthalin, 1358 M.E. (last modified Dec. 8, 1996) <http://www.myanmar.com/gov/laws/computerlaw.html>.
19 See id. § 24.
20 See id. § 31.
21 See id. § 32.
22 See G.B. Manishin, Telecom Industry History (visited May 2, 1997) (listing in chronological order the major events in the telecommunications industry's history) <http://www.technologylaw.com/techlaw/telephony.html>.
23 There is some suggestion that a small cellular telephone network already exists in Myanmar. However, this network has been in place since late 1992 and only has an estimated 2,500 subscribers. The cellular service provider is called Myanmar Posts and Telecoms AMPS. See infra note 24.
24 See Carelle Services, Ltd., Cellular Mobile (visited May 1, 1997) (providing a list of cellular networks worldwide) <http://www.teletechnics.com/cellular.html>; RadioPhone, World Cellular Guide (visited May 2, 1997) (listing worldwide cellular networks by country) <http://l0pht.com/radiophone/world/country.html>.
25 See CellularOne, Demystifying Cellular (visited May 2, 1997) (describing how a cellular telephone network operates) <http://www.CellularOne.com/demyst.html>. See also GTE, Untitled (visited May 2, 1997) (containing a comprehensive listing of cellular service providers in alphabetical order) <http://www.datalife.gtem.com/CompanyList.html>.
26 See also, State v. McVeigh, 620 A.2d 133, 135-38 (1993) (describing how a cordless telephone works and how scanners are used to intercept conversations over cordless phones).
27 See J. Hirshberg, METROMEDIA VENTURE WINS GSM LICENSE IN LATVIA (last modified May 29, 1996) <http://www.phillips.com/wow/mpn.htm>.
28 See supra note 6 and accompanying text.
29 See C. Gaspar, Range of Legal/Policy Questions Posed by Information Age/Economy Technologies (last modified April 18, 1997) (listing a broad range of legal and public policy issues raised by Information Age technology) <https://www.nicholasjohnson.org/cgaspar1.html>.
30 See generally Griswold v. Connecticut, 381 U.S. 479 (1965).
31 R.M. Graff, United States v. Robinson: Has Robinson Killed The Katz?: The Eleventh Circuit Concludes that Warrantless Thermal Surveillance of a Home Does Not Constitute a Search Under the Fourth Amendment, 51 U. Miami L. Rev. 511 (1997).
32 Oversight Hearing on "Cellular Privacy: Is Anyone Listening? You Betcha!" Before the Subcomm. on Telecommunications, Trade and Consumer Protection, 105th Cong., 2nd Sess., 1997 WL 49413 (F.D.C.H. Feb. 5, 1997) (hereinafter "Cellular Telephone Privacy Hearing") (opening statement by the Honorable W.J. "Billy" Tauzin, Chairman, Subcommittee on Telecommunications, Trade, and Consumer Protection Oversight Hearing on Cellular Privacy)
33 Bob Grove, Cellular Phones and the Right to Privacy: A Commentary, 1997 WL 44980 (F.D.C.H. Feb. 5, 1997). He argues that scanners "contribute to public safety and communication." Cellular Telephone Privacy Hearing, 1997 WL 49418 (F.D.C.H. Feb. 5, 1997) (testimony of Gary Shapero, President, Consumer Electronics Manufacturers Association).
34 Shapero, supra note 33.
35 Cellular Telephone Privacy Hearing, 1997 WL 44964 (F.D.C.H. Feb. 5, 1997) (statement by Jay Kitchen, President, Personal Communications Industry Association).
36 Id. ("If Americans feel they cannot speak freely over their wireless phones, for fear of a third party listening in, their confidence that we enjoy a free society is undermined.").
37 See Cellular Telephone Privacy Hearing, 1997 WL 46883 (F.D.C.H. Feb. 5, 1997) (statement of Jerry Berman, Executive Director, Center for Democracy and Technology) ("In one series of transaction in 1994, an international group of criminals penetrated Citicorp's computerized electronic transfer system and moved about $12 million from legitimate customer accounts into their own accounts in banks around the world.").
38 Grove, supra note 33.
39 There is evidence that "relatively few cellular customers would pay a 20 percent premium to receive a 100% secure call." Shapero, supra note 33.
40 Grove, supra note 33.
41 Shapero, supra note 33.
42 See Cellular Telephone Privacy Hearing, 1997 WL 49428 (F.D.C.H. Feb. 5, 1997) (statement of Robert S. Litt, Deputy Assistant Attorney General).
43 U.S. Const. amend. IV ("The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated").
44 U.S. Const. Amend. IX ("The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.")
45 See infra note
46. 46 381 U.S. 479 (1965).
47 See Carey v. Population Services Int'l, 431 U.S. 678 (1977) (limiting the state's ability to prohibit distribution of contraceptives); Eisenstadt v. Baird, 405 U.S. 438 (1972) (holding that the right to decide whether or not to use contraceptives belongs to the individual such that the state cannot prohibit either single or married people from using contraception).
48 U.S. Const. amend. IV.
49 389 U.S. 347 (1967).
50 Id. at 353 (quoting Silverman v. United States, 365 U.S. 505, 511 (1960).
51 See M. Skatoff-Gee, Changing Technologies and the Expectation of Privacy: A Modern Dilemma, 28 Loy. U. Chi. L.J. 189, 194 (1996).
52 388 U.S. 41, 58-60 (1967).
53 M. Skatoff-Gee, Changing Technologies and the Expectation of Privacy: A Modern Dilemma, 28 Loy. U. Chi. L.J. 189, 220 n.63 (1996).
54 18 U.S.C.A. § 2510 et. seq. (1996)
55 410 U.S. 113 (1973).
56 505 U.S. 833 (1992).
57 In Bowers v. Hardwick, 478 U.S. 186 (1986), Michael Hardwick was charged with violating Georgia's sodomy law for having sex with an adult man in his own bedroom. The majority of the Supreme Court, five of nine justices, determined that the "right of privacy" does not extend to homosexuals engaged in sodomy even though the activity was consentual and took place in a private residence.
58 W. Prosser, Privacy, 48 Cal. L. Rev. 383 (1960).
59 Restatement (Second) of Torts § 652C (1977).
60 J.C. Kelso, False Light Privacy: A Requiem, 32 Santa Clara L.Rev. 783 (1992).
61 Restatement (Second) of Torts § 652D (1977).
62 Restatement (Second) of Torts § 652B (1977).
63 833 F.2d 535 (5th Cir. 1987).
64 877 F.2d 705 (8th Cir. 1989).
65 Id., 18 U.S.C.A. § 2510-11, 2520.
66 18 U.S.C.A. § 2518.
67 Gelbard v. United States, 408 U.S. 41, 45 (1972).
68 Briggs v. American Air Filter Co., Inc., 630 F.2d 414 (5th Cir. 1980).
69 Roberts v. Americable Int'l Inc., 883 F. Supp. 499 (E.D. Cal. 1995).
70 Id.
71 Cal. Penal Code § 632.5(a) (West 1997) ("Every person who, maliciously and without the consent of all parties to the communication, intercepts, receives, or assists in intercepting or receiving a communication transmitted between cellular radio telephones or between any cellular radio telephone and a landline telephone shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500), by imprisonment in the county jail not exceeding one year or in the state prison, or by both that fine and imprisonment."). The Act defines a "cellular radio telephone" as "a wireless telephone authorized by the Federal Communications Commission to operate in the frequency bandwidth reserved for cellular radio telephones." Cal. Penal Code § 632(c).
72 See People v. Chavez, 44 Cal.App.4th 1144, 1153, 52 Cal.Rptr.2d 347, 353 (Cal.App. 1996). For other decisions interpreting state wiretap laws see Salmon v. State, 426 S.E.2d 160 (Ga.App. 1992); People v. Wilson, 554 N.E.2d 545 (Ill.App. 1990).
73 18 U.S.C. § 2510(1).
74 18 U.S.C. § 2510(12).
75 Id.
76 18 U.S.C. § 2510(2).
77 Briggs v. American Air Filter Co., Inc., 630 F.2d 414 (5th Cir. 1980).
78 47 U.S.C.A. § 1001 et. seq.
79 See S. Freiwald, Uncertain Privacy: Communication Attributes After the Digital Telephony Act, 69 S. Cal. L. Rev. 949 (1996).
80 United States v. Mathis, 96 F.3d 1577 (11th Cir. 1996)
81 Id. at 1583 (citing Askin v. McNulty, 47 F.3d 100, 103 (4th Cir. 1995), (before Congressional amendments in 1994, cordless telephone communications were "neither a wire nor electronic communication" under Title III of the Omnibus Crime Control and Safe Streets Act of 1968)).
82 See McKarmey v. Roach, 55 F.3d 1236 (6th Cir. 1995) (holding that no expectation of privacy existed because one end of the conversation was on a cordless phone even though the other end was a land-line phone); United States v. Smith, 978 F.2d 171 (5th Cir. 1992); United States v. Carr, 805 F. Supp. 1266 (E.D.N.C. 1992); State v. Duran, 901 P.2d 1197 (Ariz. App. 1995) (holding evidence derived from intercepted cordless phone conversations is admissible).
83 People v. Meding, 189 Cal.App.3d 39, 234 Cal.Rptr. 256 (Cal. App. 1987).
84 Bohach v. City of Reno, 932 F. Supp. 1232 (D. Nev. 1996).
85 See 18 U.S.C. § 2510-11.
86 See R.E. Smith, Compilation of State and Federal Privacy Laws (1992) (providing a comprehensive guide to state privacy laws provided by the Electronic Privacy Information Center) <http://www.epic.org/privacy/consumer/states.html>.
87 Shapero, supra note 33.
88 Shubert v. Metrophone, Inc., 898 F.2d 401 (3rd Cir. 1990).
89 See 47 U.S.C. § 605 (prohibiting interception and divulgence of a radio transmission).
90 Cellular Telephone Privacy Hearing, 1997 WL 49420 (F.D.C.H. Feb. 5, 1997) (testimony of Thomas E. Wheeler, Cellular Telecommunications Industry Association).
91 47 C.F.R. §§ 15.37(f), 15.121 are rules implementing the TDDRA. The FCC adopted these rules in April 1993.
92 Shapero, supra note 33.
93 See 47 U.S.C. § 151; Berman, supra note 37.
94 See e.g., 47 C.F.R. § 15.37(f) and 15.121 (regulating scanners capable of intercepting cellular phone transmissions).
95 Cellular Telephone Privacy Hearing, 1997 WL 44966 (F.D.C.H. Feb. 5, 1997) (statement of William E. Kennard, General Counsel, Federal Communications Commission).
96 Berman, supra note 37 ("Wireless modems, wireless faxes, and wireless local area networks are linking computers and transferring data that could include proprietary information, medical records, and financial data. Wireless links are becoming more and more important as access points to the global information network.").
97 See Pub. L. 104-132, section 731. The Justice Department successfully argued that (1) the provision was overbroad because it protected ham radio and citizens' band broadcasts which are not worthy of protection, and (2) wireless electronic data transmission was already protected. See Berman, supra note 37.
98 See Berman, supra note 37.
99 Id.
100 See e.g., Grove, supra note 33.
101 See id. An estimated two million digital cellular phones will be sold in 1997. Shapero, supra note 33. However, this accounts for only 22% of all cellular phones to be sold in 1997. Id.
102 Shubert v. Metrophone, Inc., 898 F.2d 401 (3rd Cir. 1990).
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