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The following paper is for Professor Nicholas Johnson's Cyberspace Law seminar. The seminar began with students identifying legal issues related to information technology. Second, each student studied a different global corporation in the information technology business. Through this exercise students gained an understanding of how these global corporations operate. Third, each student researched the information technology needs of a Southeast Asian country. Fourth, each student wrote and presented a business proposal to an imaginary global corporation. The proposal involved the global corporation investing in an information technology, or service, in the country selected. Finally, each student analyzed a legal issue related to the proposed information technology business.
There are many components of the information technology and services industries. But all, in some way, assist in the transfer of information. For example, Internet service providers enable subscribers to transmit information across the Internet. Telecommunications companies enable subscribers to transmit voice or data through either the companies' lines or the companies' cellular services via radio waves. Computers allow their owners to create information for transferral, or to download information from another computer.
The information technology and service selected for this paper is the cellular telephone. The legal issue is: To what extent may cellular service providers monitor subscribers' calls? How is the resolution of this issue affected if the monitoring is done with the purpose of protecting the company, and its subscribers, from cellular piracy?
This paper begins with a business proposal to the hypothetical global corporation Global Telecom, Media and Electronics Inc. (Global Telecom).[1] First, the proposal evaluates the needs of a particular country (Thailand) as a necessary preliminary to the selection of the most appropriate information technology. Second, having selected the information technology sector (cellular telephones), the range of potential legal issues related to the proposed business is considered.[2] Third, a legal issue (privacy) is selected and analyzed under United States law.[3] Fourth, the conclusion predicts the potential legal success of the business proposal in Thailand and questions whether any government should allow a cellular service provider to monitor its subscribers' calls even if it is "legal."[4] Finally, as a demonstration of the significance of information technology, this paper includes Internet Web site citations to help the reader in locating further information on material mentioned in this paper. And, as the reader is aware, this paper has been posted on the Internet.
The following descriptions and statistics should help Global Telecom understand the potential market for information technology business in Thailand.[6] The 1997 population is approximately 60 million. ThailandÆs area is almost 200,000 square miles, which is about 15% larger than California.[7] Thailand's Gross Domestic Product was U.S. $335 billion in 1994.[8] The Thai unit of currency is the baht. The exchange rate was 25.39 baht to the dollar in June 1996 and had reached 20.01 baht to one by February 1997.[9]
Because statistics alone communicate little, Thailand's numbers will be compared with those from South Korea and Indonesia. Comparisons to South Korea[10] explain how Thailand stands in relation to an economically developed Southeast Asian country. Comparisons to Indonesia[11] show that Thailand is more developed than some Southeast Asian countries. For example, Thai per capita income was $5,970 in 1994.[12] This was about half of the 1994 per capita income for South Korea ($11,270), but almost double that of Indonesia ($3,090). Thailand's electricity usage totaled 57 billion kwh in 1993. South Korea's electricity usage was nearly two-and-a-half times as much that year (137 billion kwh); Indonesia's usage was a little less than Thailand's (44 billion kwh). One out of seventeen Thai citizens has a television; one out of twenty-seven has a phone. In South Korea the numbers are one out of four with a television, and one out of three with a phone. In Indonesia, by contrast, one out of seventeen citizens has a television, and only one out of 109 has a phone. The Thai literacy rate is ninety-four percent; in South Korea it is ninety-eight percent; in Indonesia eighty-four. The Thai infant mortality rate is thirty-three deaths per one thousand live births. In South Korea and Indonesia the number of deaths per thousand are eight and sixty-three, respectively.
Global Telecom should prepare to deal with different ethnic groups in Thailand. The ethnic groups in Thailand represent Southeast Asian cultures, whose values and beliefs are different from those of the West. If Global Telecom's business proposal is to be successful in Thailand, Global Telecom must be willing to accomodate the particular beliefs of the Thai people.
Furthermore, Global Telecom must recognize that it will not be dealing with one Thai people. Global Telecom's business will encounter three distinct ethnic groups, each of which has its own cultural values.[13] The ethnic Thai represent ninety percent of the population. The Chinese make up eight percent, and the Malay amount to one percent. Although the ethnic Thai play a major role in government-related services like the parliament and military, the Chinese play the dominant role in business. Therefore, Global Telecom must gain an understanding of different cultural values depending on whether it decides to do business with the Thai government or the Chinese-dominated business community.
If Global Telecom wishes to pursue an information technology business in Thailand, it must be able to function with a diversity of languages. Although Thai is the official language of Thailand, Lao, Chinese, and Malay are also spoken.[14] Students learn English as a second language in school. The many languages of Thailand could present two problems for Global Telecom. First, Global Telecom will need to train and direct Thai employees. Second, the proposed business will require that Global Telecom understand the contents of Thai cellular phone calls. Global Telecom can solve these problems by hiring bi-lingual employees that can understand one of ThailandÆs languages and translate that information into English for Global Telecom.
Global Telecom should not limit its business investment in Thailand to urban areas, because Thailand is mostly rural outside the capital city, Bangkok.[15] In 1990 seventy-seven percent of the Thai population lived in rural areas. Though the urban population is increasing at a greater rate, current projections are that a majority of the Thai people will continue to live in the rural areas through the year 2020.
However, if Global Telecom decides to limit itself to urban markets, then Global Telecom should focus its resources on Bangkok.[16] The increase in urban population has mostly occurred in Bangkok, which had a population of 6.4 million in 1994. One projection is that Bangkok will increase to 10.6 million residents by the year 2015, representing fifty-six percent of the urban population. The rapid expansion in Bangkok has caused many forms of congestion, such as population, industrial, and business offices. The government plans to reduce the congestion in Bangkok by using tax privileges and other incentives to encourage business relocation to regional centers outside Bangkok. Global Telecom should consider taking advantage of these government incentives by locating its business in a regional center.
Over the last decade, the Thai government has created a business environment favorable to foreign investment.[17] For example, the Thai government provides tax privileges and lower minimum wage rates as incentives for foreign business investment in Thailand. Another reason for strong foreign investment in Thailand is the government's free-market-oriented policy reforms, like its breakup of a telecommunications duopoly.[18]
Although the prospects for foreign businesses appear promising, Global Telecom must be aware that Thailand has a number of problems.[19] First, there is a shortage of skilled and technical labor. This presents a labor problem for companies that want to set up high-tech-related production plants in Thailand. Second, the rising wage level in Thailand makes hiring Thai employees an expensive prospect compared to lesser developed countries in Asia. Fortunately for businesses in Thailand, the weak labor unions do not present a threat to management's control over wages. Third, the infrastructure of Thailand is inadequate. For example, the roads and ports cannot support the present quantity of use. Many rural communities have limited access to telephone lines.
Thailand is taking steps to improve its infrastructure.[20] For example, Thailand carried out an electrification program in the 1980's which left only a few villages without electricity. Thailand plans to improve the current infrastructure with the addition of three million telephones, the expansion of the number of industrial parks, and the improvement of roadways. These infrastructure improvements, combined with the government's foreign investment incentives and free-market-oriented reforms, make Thailand an appropriate country in which Global Telecom can invest.
Several foreign information technology corporations are already taking advantage of Thailand's promising business environment. Texas Instruments recently obtained a contract to build a 1.2 billion-dollar semiconductor plant.[21] Nynex entered a contractual agreement with a politically influential Thai chicken feed combine.[22] The agreement will help solve some of Thailand's infrastructure problems, with Nynex installing two million phone lines in Bangkok. IBM won permission from the Thai government to set up two hard disk drive plants at a cost of $581.2 million.[23][24][24] AT&T is introducing a security phone through its Thai subsidiary Alphatec.[25] Microsoft is planning to release a Thai-language version of Windows 95.[26]
Due to the recent break up of the Thai telecommunications duopoly, Global Telecom should consider entering into a telecommunications-related business in Thailand.[27] Before last year, the Thai government allowed a duopoly to run the telecommunications market. The duopoly consisted of Total Access Communication (TAC) and Advanced Info Service (AIS). Last year the government ended the duopoly. It reinterpreted the Telephone and Telegraph Act of 1934 to mean that the government could not grant monopolistic contracts in the telecommunications services industry.
The cellular phone equipment and service provider market has benefitted by new companies entering the market.[28] For example, the Thai Wireless Communications Network plans to set up its own nationwide cellular phone network in Thailand by 1999. This domestic competition is disturbing to TAC and AIS, who are not used to a competitive free-market environment. They are forced to look for foreign assistance to compete in the free-market. One foreign cellular equipment provider that has benefitted is Motorola, which received a $120 million contract from TAC to improve its cellular network.[29]
Global Telecom should take advantage of the foreign assistance needs of TAC and AIS to help them with one of their problems: cellular phone piracy. An Asian Wall Street Journal article describes the problem:
Ms. Benjamaporn was used to paying about 1,000 baht (US$39) a month to use her [cellular] phone. A few months ago, she received a bill for 105,000 baht. On it was a list of overseas calls that looked like a United Nations roll call: Pakistan, Zimbabwe, p laces sheÆd never been, people she didnÆt know . . . But she wasn't alone. The Thai Farmers Research Center estimates that 4,600 cases of cellular cloning fraud were reported last year . . . The perpetrators were lurking in shopping malls and on congested roads, armed with electronic devices that snatch the telephone numbers and identification codes of mobile phones from thin air.[30]
The cellular pirates encode other cellular phones with a subscriber's identification code. These newly encoded phones allow cellular pirates to make calls on the subscriber's account. The Thai cellular service providers admit that they have not developed a solution to the piracy.[31] Therefore, Global Telecom should take advantage of Thailand's problem and provide a solution to the pirates.
Global Telecom should propose a partnership with either or both TAC and AIC. Global Telecom's role in the partnership would be to monitor subscribers' cellular phone calls for cellular piracy. Evidence of piracy would then be turned over to the Thai authorities.
If Global Telecom's partnership proposal is accepted, Global Telecom will need to develop pre-monitoring procedures to protect the privacy of subscribers. A suggested list of pre-monitoring procedures includes:
1. An examination of subscribers' outgoing call records for unusual call patterns, like the numerous long-distance calls made on Ms. Benjamaporn's account. Global Telecom would compare these calls to past phone records to determine whether cellular piracy might be involved. In addition, any cellular subscribers with relatively high phone bills, when compared with past bills, would be considered potential victims.
2. If Global Telecom believes cellular piracy is involved, Global Telecom would contact the subscriber immediately.
3. If a subscriber confirms his or her victim status, or cannot be contacted, Global Telecom would immediately instigate emergency procedures by recording information from all future calls made on the subscriber's account.
The purpose of the emergency procedures would be to gather as much information about the cellular pirates as possible to help the law enforcement community apprehend the cellular pirates and retrieve the money owed for illegal use of the account. The emergency procedures would begin with Global Telecom recording all conversations made on the subscriber's account. Global Telecom would evaluate the recorded information to obtain the identification of the caller and any information that might lead to the caller's present or future location. Once Global Telecom decided it had gathered enough evidence, it would turn the information over to the Thai authorities for their use in apprehending and prosecuting the suspect.
There are several legal issues that Global Telecom might encounter as a result of this proposal. First, Global Telecom might have to deal with a conflict of laws issue. Since cellular communication travels by radio waves, national boundaries cannot prevent the travel of the communications into other jurisdictions. Global Telecom might encounter legal problems wherever its radio waves travel, so it must be prepared for potential disputes over which jurisdiction's laws apply.
Second, the cellular business might be subject to tort liability. An example of potential tort liability is head cancer caused by cellular phones.
Third, since the radio frequencies for cellular conversations are limited, a cellular service provider might encounter the problem of obtaining a license to broadcast calls over a certain frequency. If a cellular service provider obtains a license to broadcast, the business might encounter administrative issues related to license revocation.
Fourth, the proposed business might encounter a privacy issue. For example, should a cellular service provider be required to encrypt its calls to protect the privacy of its subscribers' conversations? If the cellular service providers encrypt the calls, may the government require them to provide law enforcement with the ability to unscramble the calls?
The legal issue selected for analysis is whether Global Telecom may record information from cellular calls and divulge the information to the government. This issue was selected because it requires the balancing of two important rights. The issue balances the privacy rights of callers in their conversations against the telecommunications companies' right to payment for their services. Although the author was unable to locate a source with a sufficient amount of Thai law to analyze the issue, the Thai Constitution does protect the privacy of Thai citizens' conversations.[32] Therefore, it appears that Global Telecom's monitoring of cellular conversations could create a privacy issue in Thailand.
To provide an example of the legal analysis involved with the issue, the terms of this seminar permit the application of the laws of the United States.[33] The United States laws governing the issue are two statutory prohibitions of wiretapping: Title 47 United States Code Section 605[34] and Title 18 United States Code Section 2511.[35]
Title 47 U.S.C. Section 605 is a general prohibition against divulging the contents of transmitted information by any party who transmits that information.[36] Global TelecomÆs partnership with a Thai cellular service provider would make it subject to this provision, because it would participate in the business of information transmission. Furthermore, the statute would prohibit Global Telecom from divulging the contents of the recorded calls to the police.
However, the statute is only a general prohibition and Title 18 U.S.C. Section 2511 contains an exception to the statute.[37] Title 18 U.S.C. Section 2511 specifically prohibits the interception and disclosure of wire and electronic communications with several exceptions.[38] The relevant exception is subparagraph (2)(a)(i), which provides:
It shall not be unlawful under this chapter for an operator of a switchboard, or an officer, employee, or agent of a provider of wire or electronic communication service, whose facilities are used in the transmission of a wire or electronic communication service, to intercept, disclose, or use that communication in the normal course of his employment while engaged in any activity which is a necessary incident to the rendition of his service or to the protection of the rights or property of the provider of that service, except that a provider of wire communication service to the public shall not utilize service observing or random monitoring except for mechanical or service quality control checks.[39]
There is some uncertainty about whether cellular communication falls under the definition of wire[40] or electronic[41] communication. Neither definition specifically includes cellular communication and there is no case law regarding the proper definition for cellular communication. Therefore, one must look to the legislative intent.
Unfortunately, the Senate and House are split on the issue. One Senate report expressed a Senate sub-comitteeÆs intent that cellular communications should fall under the definition of "wire communications."[42] One House report expressed a House sub-comittee's intent that cellular communications should fall under the electronic communications definition.[43] Although there is no clear answer to the definition problem, evidently Congress intended cellular communications to fall under one of the two definitions. Since Title 18 U.S.C. subsection 2511(2)(a)(i) covers both electronic and wire communication providers, it should also cover Global TelecomÆs partnership with a cellular communication provider.
Although Title 18 U.S.C. subsection 2511(2)(a)(i) has never been applied to cellular phone piracy, there are several cases that demonstrate how the law applies to telephone companies that monitor the calls of subscribers attempting to defraud the companies.[44] For example, in U.S. v. Shah[45] a telephone company's monitoring of a subscriber's phone conversations disclosed the subscriber's use of a blue box[46] to avoid long distance billing. The court held this evidence was not gathered in violation of Title 18 U.S.C. subsection 2511(2)(a)(i).
The facts of Shah are that a security agent of the telephone company suspected the defendant was using a blue box, which bypassed the company's billing system.[47] The agent based his suspicion on computer printouts used to detect uncharged calls. The agent followed up his suspicion by initiating a computerized survey of the defendant's phone. The survey could detect when the defendant was using a blue box for calls. Once the agent determined that someone was using a blue box while making calls along the defendant's phone line, the agent began to record the first minute of all calls made using the blue box. These recordings enabled the agent to obtain the identity of the defendant.
The court explained the issue was whether, in light of the prohibitions contained in the Omnibus Crime Control and Safe Streets Act of 1968[48] relating to the disclosure of communications, the telephone company possessed the right to record and divulge the conversations of a subscriber suspected of fraud.[49] The court explained that although Title 18 U.S.C. section 2511 prohibited the interception of communications, subsection (2)(a)(i) created an exception for employees or agents of a telephone company.[50] The exception entitles a telephone company to intercept and disclose communications in the normal course of business when the company is engaging in an activity "which is a necessary incident to the rendition of service or to the protection of the rights or property" of the telephone company.[51] The court found that the statute was unclear as to whether Bell could record the conversations of the defendant for the sole purpose of providing the police with evidence for prosecuting the defendant.
To decide whether the purpose behind the company's actions was permissible, the court examined the legislative history of subsection (2)(a)(i), to ascertain the congressional intent for the subsection.[52] The court explained Congress intended for subsection (2)(a)(i) to allow a phone company to protect its rights and property through the interception and disclosure of subscribers' phone conversations.[53]
Furthermore, Congress intended the subsection to reflect existing law (pre-1968) which U.S. v. Beckley represents.[54] The Beckley decision stands for the proposition that a telephone company may take reasonable measures to protect itself from those attempting to bypass the company's billing procedures.[55] The Beckley court held that a phone company's monitoring of calls could be a "reasonable means of protection."[56]
However, the Shah court explained that monitoring phone calls could not be a reasonable form of protection unless the phone company first had a reasonable suspicion that the subscriber was engaging in a fraudulent activity.[57] In the Shah fact pattern, the phone company based its suspicion of the defendant on the company's billing records and a machine that could detect the use of a blue box.[58] The Shah court held that the company's reliance on the billing records and blue box detection machine was reasonable grounds for monitoring the defendant's phone conversations.[59]
Although the Shah court decided that the company had reasonable grounds to monitor the defendant's phone conversations, the court was still uncertain about whether Bell's recording of the conversations for the sole purpose of obtaining evidence for prosecuting the defendant was a "reasonable means of protection," as required by Beckley.[60]
The Shah court next examined the analysis in United States v. Bubis,[61] in which a court did find that a telephone company used its recording of a defendant's phone conversations for an impermissible purpose. In Bubis, the telephone company monitored and recorded all calls made and received by the defendant over a three month period, because the defendant was suspected of bypassing the billing procedures.[62] The recordings confirmed the company's suspicions and led to the discovery that the defendant was also engaged in illegal gambling.[63] The Bubis court held that the recordings were improperly admitted into evidence, because disclosure of what was said in the telephone conversations, as distinguished from the fact that long-distance calls were fraudulently made, had no relationship to the protection of the telephone company's rights.[64]
The Shah court interpreted the Bubis holding to mean that if the recordings had been limited to identifying the defendant for the purpose of prosecuting the defendant with fraudulent use of the company's services, then the phone company's actions would be a "reasonable means" of protecting its rights.[65] Applying the Bubis holding to the facts of its case, the Shah court held that the phone company's monitoring of the phone calls was a "reasonable means"[66] of protecting the company from the fraudulent use of its services. The Shah court reasoned that since the recordings of conversations only lasted one minute, the sole purpose of the recordings could only be to establish the identity of the defendant for prosecuting his fraudulent use of its services.
In conclusion, the court upheld the conviction based on two grounds.[67] First, the court found the company had established reasonable suspicion through its billing records and blue box detection machine before it monitored the defendant's conversations. Second, the company's recordings satisfied the "reasonable means" standard, because its one-minute time limitation served the sole purpose of identifying the defendant for prosecution of telephone fraud.
Title 47 U.S.C. section 605 generally prohibits a telephone company from divulging phone communications. To circumvent this general prohibition, Global Telcom must show that its cellular monitoring service will protect the "rights or property of the provider of the service" as required by Title 18 U.S.C. subsection 2511(2)(a)(i).[68] Global Telecom could argue that by monitoring the cellular calls of Thai telecommunications companies it is protecting the rights of those companies. The companies are entitled to protect their cellular services and recover the cost of phone calls illegally made by cellular pirates. The problem for Global Telecom is that the courts applying Title 18 U.S.C. subsection 2511(2)(a)(i) have generally limited telephone companies to the right of collecting from subscribers that have fraudulently circumvented the billing system.[69] One could argue that monitoring the calls of cellular pirates for prosecution purposes is not a reasonable means of protecting Thai cellular service providers' right to payment for their services.
For example, it might be argued that the police are the only institution that should have the authority -- and do have the means -- to investigate cellular pirates. The process of identifying and locating cellular pirates is much more difficult then identifying blue box users, whose location is already known. Blue box users require a fixed telephone line. Cellular pirates can commit their fraud from any location. The police, unlike telephone companies, are experienced at locating criminals. Therefore, it is arguable that the police are the only reasonable means of investigating cellular pirates.
Another argument against allowing cellular service providers to monitor the calls of cellular pirates is that there are at least two less intrusive alternatives. First, the cellular service providers could require subscribers to pay for illegal calls made on their accounts. The rationale would be that subscribers assume the risk of cellular pirates stealing their identification numbers. Second, cellular providers could encrypt cellular calls in ways that would protect the subscribers' identification codes from cellular pirates.
In response, Global Telecom could argue that neither alternative is an effective means of protecting the Thai cellular service providers' right to payment. The first alternative is problematic. It is unlikely that a court would require subscribers to pay when neither the subscribers nor the service providers are at fault for the fraud committed by cellular pirates. In fact, it is more likely that the courts will require the Thai cellular service providers to absorb the lost payments. A Thai cellular service provider can spread the loss to its subscribers through higher service fees. The second alternative is only a short-term solution. Encryption technology is only effective as long as the cellular pirates cannot break the encryption codes -- something that is likely to happen sooner or later.
If Global Telecom wins the argument that the neither of the alternatives would be effective, it could argue that monitoring cellular pirates is a reasonable means of protecting the rights of the Thai cellular service providers. One argument for Global Telecom is that nothing in the wording of Title 18 U.S.C. subsection 2511(2)(a)(i) limits the application of the statute to situations in which subscribers defraud the telephone company. The statute entitles telephone companies to protect their rights,[70] one of which is to collect for the use of their services.
Furthermore, if a court does not permit Global Telecom to pursue the cellular pirates under Title 18 U.S.C. subsection 2511(2)(a)(i), then Thailand must rely on the efforts of the authorities to apprehend the criminals. Unfortunately, the Thai police admit they are having little success apprehending cellular pirates.[71] As a result, Thai Telecommunications providers currently have no alternative to absorbing the cost of the illegal calls.
However, if Global Telecom could rely on Title 18 U.S.C. subsection 2511(2)(a)(i), it could prove to be more effective than the police in apprehending cellular pirates. Global Telecom only needs a reasonable suspicion[72] of fraudulent activity (a lower standard of proof than the "probable cause" required for police) before it monitors the calls made on subscribers' accounts. In addition, Global Telecom would not have to present its reasonable suspicion to a judge and wait for the issuance of a search warrant. Global Telecom could immediately gather valuable information from the calls made by cellular pirates. This information could prove invaluable to apprehending the pirates, because the police might not be able to obtain the evidence on their own when they have to wait for a search warrant. Both the wording of Title 18 U.S.C. subsection 2511(2)(a)(i) and the investigative advantages of the cellular service providers over the police are strong arguments in favor of Global Telecom's cellular call monitoring service.
If a court found that Global Telecom's cellular monitoring was a reasonable means of protecting the rights of Thai cellular service providers, then Global Telecom's procedures for suspecting cellular piracy would have to meet the "reasonable suspicion"[73] standard before it could initiate monitoring of the phone conversations.[74] The court in Shah held that the telephone company had met the "reasonable suspicion" test when it examined billing records and applied a machine to the defendant's phone line that could detect the use of a blue box.[75] Global Telecom's procedures are similar. Global Telecom's examination of billing records, focusing on unusually high billing rates or unusual call destinations, mirrors the security agent's examination of billing in Shah. Although Global Telecom cannot use a machine to determine with certainty that an illegal activity is in process, Global Telecom's procedure (contacting its subscribers to verify its suspicion) should enable it to decide with certainty whether the subscribers are cellular piracy victims.
One potential problem with Global Telecom's pre-monitoring procedures is Global Telecom's assumption that a subscriber is a victim if the subscriber cannot be contacted. A court might find this assumption unreasonable. Although Global Telecom would like to be certain that it is not monitoring the cellular calls of a non-victim, there is the possibility that the cellular pirates will stop using the subscriber's account before the subscriber can be contacted. If the cellular pirates stop using the account, then there is no way for Global Telecom to obtain evidence against the pirates.
Even though Global Telecom would appear to be placing the need to obtain incriminating evidence above the privacy interests of subscribers, subscribers have nothing to fear. The holding in Bubis prohibits phone companies from divulging communications information that is unrelated to the phone companies' goal of protecting its rights.[76] Thus, it is arguable that even Global Telecom's procedure (assuming unavailable subscribers are victims) is reasonable in establishing a suspicion of fraudulent activity.
Opponents of Global Telecom's pre-monitoring procedures might raise the argument that Global Telecom should explain in its subscriber contract the circumstances that would give rise to Global Telecom initiating its emergency monitoring procedures. For example, the contract could provide that if a subscriber's phone bill activity increased by one thousand percent from one day to the next Global Telecom would attempt to call the subscriber. If Global Telecom could not contact the subscriber it would monitor the calls made on the subscriber's account. The opponents' rationale would be that such information in the contract would adequately protect the privacy of the subscribers. Subscribers would know that certain phone activity on their part would cause Global Telecom to monitor their calls. The problem with this argument is that the cellular pirates would learn about these contract provisions and adjust their use of the subscribers' accounts to avoid triggering the monitoring.
If a court finds that Global Telecom's pre-monitoring procedures satisfy the reasonable suspicion standard, Global Telecom would still have to establish that its monitoring procedures satisfy the reasonable means test.[77] The court in Shah held that the phone company's one-minute monitoring of the defendant's phone calls satisfied the reasonable means test.[78] The court reasoned that the only evidence Bell could get from the monitoring was the identity of the caller, which was appropriate for the purpose of protecting the company's billing rights and assisting in the prosecution of the defendants.[79]
One could argue that Global Telecom's unlimited monitoring of calls is an unreasonable means of protecting the rights of the Thai cellular service providers. The argument would be that Global Telecom should follow the practice of the company in Shah and limit the recordings to one minute. This could prevent Global Telecom from obtaining evidence unrelated to protecting the rights of the Thai cellular service providers. The problem with this argument is that the needed evidence to prosecute cellular pirates is different from that in blue box cases.
In blue box cases the telephone company already knows the location of the fraudulent caller and only needs to establish his or her identity. Limiting the recording of conversations to the first minute is reasonable, because the caller is likely to divulge his or her identity in the first minute -- and, therefore, the known location of that phone as well. In cellular piracy cases the telephone company knows neither the identity nor the location of the pirate. If the company is limited to the first minute, it can likely establish the identity of the caller. However, it is very possible that the company will be unable to locate the caller in the first minute. Therefore, the only reasonable means for protecting the companies' rights, and the best chance for locating the pirate, is to make it possible, when necessary, to examine the entire contents of the call in the attempt to learn the future or present location of the pirate.
This paper has explained that Global Telecom could probably carry out its conversation monitoring service. Whether Thailand would allow such a service depends on how much the Thai government values the privacy rights of its people. The legal analysis section at least shows that, under United States law, there are strong arguments in favor of Global Telecom's service.
The real question is whether the United States or any other country should allow this type of proposed service to exist. Although a cellular service provider's right to payment is arguably an important policy objective, one should seriously question any government's decision to place financial interests above the privacy rights of its citizens.
[1] . See infra Part I (describing Thailand and the business proposal).
[2] . See infra Part II (describing the range of legal issues).
[3] . See infra Part III (describing and analyzing the legal issue under United States law). Under the terms of this seminar, this paper applies the laws of the United States, because the author was unable to locate a source with a sufficient quantity of relevant laws to carry out a thorough legal analysis of the issue under Thai law.
[4] . See infra Part IV (presenting the conclusion).
[5] . General news information on Thailand is available at the following web sites. Asia Times - Southeast Asia Index <http://www.asiatimes.com/se.asia/index.html>. Thailand Nation Group <http://www.nationgroup.com>. NECTEC, a resource organization web server operated under the Thai National Science & Technology Development Agency, provides many Thai-related web sites. <http://www.nectec.or.th/whats-new.html>.
[6] . World Almanac 824-5 (1997).
[7] . Id at 627.
[8] . Id. at 824-25.
[9] . Foreign currency exchange rates are available at the following website. <http://www/cls.aw/tax/rates.shtml>.
[10] . World Almanac 790 (1997) (providing all of the following statistics on South Korea).
[11] . Id. at 774 (providing all of the follwing statistics on Indonesia).
[12] . Id. at 824-5.
[13] . Id.
[14] . Thailand: Resilient Growth, Mkt. Asia Pac., July 1, 1995 available in 1995 WL 2369549.
[15] . Id.
[16] . Id.
[17] . Id.
[18] . See infra Part I.D. (describing the break up of the Thai telecommunications duopoly).
[19] . Thailand: Resilient Growth, Mkt. Asia Pac., July 1, 1995 available in 1995 WL 2369549.
[20] . Id.
[21] . Paul M. Sherer, Texas Instruments Enters Thai Venture to Build Plant, The Asian Wall Street Journal, December 13, 1995, at 1.
[22] . Kimberley A. Strassel, Joint Deals Lead to Strange Bedfellows, The Asian Wall Street Journal, October 9, 1995, at 8.
[23] . IBM to Set Up 2 Plants In Thailand to Make Disk Drives and Parts, The Asian Wall Street Journal, November 28, 1996, at 4.
[25] . Nopporn Wong-Anan, Telecom Firm Markets Security to Thais Bugged by Phone Tapping, The Asian Wall Street Journal, August 19, 1996, at 1.
[26] . S. Karene Witcher et al., In Parts of Asia, 95 Has Yet to Arrive, The Asian Wall Street Journal August 25, 1995, at 7.
[27] . Thailand seems on Verge of Stepping up Subscriber Growth Rate, Wireless Business & Finance, January 29, 1997, available at 1997 WL 7348739.
[28] . Id.
[29] . Motorola Unit Wins Thai Contract, The Asian Wall Street Journal, January 23, 1997, at 17.
[30] . Wayne Arnold et al., Asian Technology: Bangkok Phone Users Do Battle With a Wave of Cellular Pirates, The Asian Wall Street Journal, January 28, 1997, at 12.
[31] . Id. We can t say we have 100% prevention, says Somyot Voraprechapanich, director of cellular-service provider Total Access Communications. Id.
[32] . Chapter III, 45 of the Thai Constitution states:
Every person shall enjoy the liberty of communication by lawful means. The censorship, detention, or disclosure of communications between persons including any other act disclosing a statement in the communication between persons, shall not be made except by virtue of the law specifically enacted for the purpose of maintaining public order or good morals or security of the state. Thailand Const. Ch. III, 45 (1997) <http://www.nectec.or.th:80/pub/info/thai-law>.
[33] . A useful website for obtaining US law related information is called Findlaw. <http://www.findlaw.com>.
[34] . 47 U.S.C. §605 (1994). The section is titled: Unauthorized publication or use of communications. Id. <http://law.house.gov/uscode.cgi/fastweb.exe?getdoc+uscview+t45t48+1465+81+ wAAA+47%26U.S.C.>
[35] . 18 U.S.C. §2511 (1994). The section is titled: Interception and disclosure of wire, oral, or electronic communications prohibited. Id. <http://law.house.gov/uscode.cgi/fastweb.exe?getdoc+uscview+t17t20+974+25+w AAA+18%26U.S.C%>.
[36] . 47 U.S.C. §605 (1994). The statute states, Except as authorized by chapter 119, Title 18, no person, receiving, assisting in receiving, transmitting, or assisting in transmitting, any interstate or foreign communication by wire or radio shall divulge or publish the existence, contents, substance, purport, effect, or meaning thereof. Id.
[37] . 18 U.S.C. §2511(2) (1994).
[38] . Id.
[39] . 18 U.S.C. §2511(2)(a)(i) (1994).
[40] . 18 U.S.C. §2510(1) (1994).
[41] . 18 U.S.C. §2510(12) (1994).
[42] . 1986 U.S.C.C.A.N. at 3565.
[43] . 1986 U.S.C.C.A.N. at 32.
[44] . Bubis v. United States, 384 F.2d 643 (9th Cir. 1967); United v. Beckley, 259 F.Supp. 567 (D.C. Ga. 1965); United States v. Shah 371 F.Supp. 1170 (D.C. Pa. 1974).
[45] . 371 F. Supp. 1170 (D.C. Pa. 1974).
[46] . The purpose of a blue box is to provide the user with free long-distance service by illegaly circumventing the triggering mechanism for long-distance billing.
[47] . See U.S. v. Shah, 371 F.Supp. at 1171 (providing the facts of the case).
[48] . The Omnibus Crime Control Act and Safe Streets Act of 1968 is the common name for Title 18 U.S.C. §2511.
[49] . See U.S. v. Shah, 371 F.Supp. at 1171 (1994).
[50] . Id.
[51] . Id. at 1172.
[52] . Id. The Shah court found the intent behind subsection (2)(a)(i) recorded at page 2182 of 2 U.S. Code Congressional and Administrative News (1968). Id.
[53] . U.S. v. Shah, 371 F. Supp. 1170, 1171 (D.C. Pa. 1994).
[54] . Id.
[55] . United States v. Beckley, 259 F.Supp. 567, 571-2 (D.C.N.D. Ga. 1965).
[56] . Id. at 571.
[57] . U.S. v. Shah, 371 F.Supp. at 1175.
[58] . Id. at 1171.
[59] . Id. at 1175.
[60] . Id. at 1173.
[61] . 384 F.2d 643 (9th Cir. 1967).
[62] . Id. at 645.
[63] . Id.
[64] . Id. at 648.
[65] . U.S. v. Shah, 371 F. Supp. 1170, 1174 (D.C. Pa. 1174).
[66] . See U.S. v. Beckley, 259 F.Supp. 567, 571 (D.C.N.D. Ga. 1965) (providing the reasonable means standard).
[67] . U.S. v. Shah, 371 F.Supp. at 1175.
[68] . 18 U.S.C. §2511(2)(a)(i) (1994).
[69] . See generally Bubis v. United States, 284 F.2d 643 (9th Cir. 1967); United States v. Beckley, 259 F. Supp. 567 (D.C. Ga. 1965); U.S. v. Shah 371 F. Supp. 1170 (D.C. Pa. 1974).
[70] . 18 U.S.C. 2511(2)(a)(i) (1994).
[71] . Wayne Arnold et al., Asian Technology: Bangkok Phone Users Do Battle With a Wave of Cellular Pirates, The Asian Wall Street Journal, January 28, 1997, at 12.
[72] . See U.S. v. Shah, 371 F. Supp. 1170, 1175 (D.C. Pa. 1974) (requiring reasonable suspicion on the behalf of the telephone company).
[73] . Id.
[74]
[75] . Id.
[76] . Bubis v. United States, 384 F.2d 643, 648 (9th Cir. 1967).
[77] . See U.S. v. Shah, 371 F. Supp at 1175 (requiring a telephone company to establish that its monitoring of a defendant s phone conversations is a reasonable means of protecting the company s rights).
[78] . Id.
[79] . Id.
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