By Kathleen A. Kirby, Partner and Ari S. Meltzer, Associate; Wiley Rein LLP
Last week, scanner traffic from the Boston Police Department, broadcast over the web and through apps, was publicly available to anyone. Listeners, gripped as the manhunt for the alleged Marathon bombers continued, relayed information they heard to Twitter or Reddit; members of the media through their news outlets. As they looked for Suspect #2, Boston police and the FBI asked the media and the public to stop broadcasting the scanner traffic lest the safety of officers be compromised by revealing details of the search.
Scanner traffic, of course, is a direct source of information as it happens. But it is always unconfirmed. Anyone tuning into a live scanner feed, or reading a transcription of a feed on social media, should not assume that everything they are hearing is accurate. Obviously, use or broadcast of scanner traffic raises ethical questions such as how to carefully balance the public’s right to know against the potential for disclosing tactical movements designed to keep the public safe.
For broadcast journalists, there always has been the additional legal question of whether the rebroadcast of police, fire, or other emergency radio communications violates the Communications Act or the rules and regulations of the Federal Communications Commission (FCC). When read in conjunction with the Wiretap Act, the Communications Act permits the interception of police or fire communications generally available to the public using a scanner. The statute has long been read to prohibit the divulgence or publication of these intercepted communications (although we are aware of no instance where a broadcaster has been prosecuted for divulging a police or fire communication). In the wake of the Supreme Court’s 2001 decision in Bartnicki v. Vopper, however, in which the Court sanctioned the publication of information about an issue of public importance that was lawfully obtained, the FCC itself has recognized that the law in this area is unclear and that Section 705’s prohibition on divulgence may well be unconstitutional.
Section 705 of the Communications Act provides that:
47 C.F.R. § 73.1207(c)(1).
In 1963, the FCC issued a Public Notice declaring that the prohibition in Section 705 “is applicable to the practice of monitoring police and fire radio transmissions for the purpose of obtaining information as to events worthy of on-the-spot news coverage.” Monitoring or Police and Fire Radio Transmissions by Broadcast Stations, Public Notice, 1 RR2d 291 (1963) (“1963 Public Notice”). The Commission reasoned that “the activity of some few broadcast stations in monitoring and divulging to the general public the content of police and fire radio transmissions has resulted in interference with the work of police and fire departments contrary to the requirements of public safety” and warned broadcasters “that unauthorized use or divulgence of public safety messages is a violation of Section 05 of the Communications Act and may subject the licensees and others involved to criminal prosecution.” Id. As an alternative, the FCC recommended that broadcasters “contact officials of the public safety agencies whose radio transmissions are desired to be monitored in order to obtain the necessary authorization and to ascertain the conditions under which use and divulgence are appropriate.” Id.
Five years after the FCC issued this Public Notice, Congress amended Section 705 to, inter alia, add the prefatory clause: “Except as authorized by chapter 119, Title 18.” Section 2511(g)(ii) of the Wiretap Act provides that it shall not be unlawful “under this chapter or chapter 121 of this title for any person . . . to intercept any radio communication which is transmitted . . . by any governmental, law enforcement, civil defense . . . including police and fire, readily accessible to the general public.” 18 U.S.C. § 2511(g)(ii) (emphasis added). As the emphasized language demonstrates, Section 2511(g)(ii) only addresses the interception of a radio communication, not the publication or disclosure of that communication. Read together, then, the Wiretap Act permits a station to intercept a police or fire communication that is readily accessible (i.e., not encrypted), but the Communications Act still prohibits the disclosure or publication of the information contained therein without prior approval.
Statements by the FCC subsequent to the amendment of Section 705 to add reference to the Wiretap Act indicate that the agency continued to believe that the Communications Act, as amended, prohibited broadcast of scanner traffic. A 1998 Notice of Proposed Rulemaking concerning the reception of cellular signals on scanners highlights the distinction between the Wiretap Act and the Communications Act, stating that “people who listen to police channels . . . but do not publish or divulge what they hear or use the information for their own benefit or the benefit of another, are not in violation of Section 705.” Amendment of Parts 2 and 15 of the Commission’s Rules to Further Ensure that Scanning Receivers Do Not Receive Cellular Signals, Notice of Proposed Rulemaking, 13 FCC Rcd. 12937 ¶ 19 (EB 1998). The Commission stated even more directly in a June 1999 Fact Sheet that:
Section 705 of the Communications Act generally does not prohibit the mere interception of radio communications . . . if you listen to radio transmissions on your scanner, such as emergency service reports, you are not in violation of Section 705. However, a violation of Section 705 would occur if you divulge or publish what you hear or use it for your own or someone else’s benefit.
Interception and Divulgence of Radio Communications, Fact Sheet (June 1999), available at http://www.qsl.net/k/kf4uel/fccwarn.htm.
The Supreme Court’s 2001 decision in Bartnicki v. Vopper, however, casts significant doubt on the constitutionality of Section 705’s prohibition on divulgence or publication. The FCC itself has recognized as much. In a 2011 version of its fact sheet on the interception and divulgence of radio communications, the Commission removed its earlier statement that divulging a police or fire communication is illegal, replacing it with a statement that the Bartnicki opinion “questions the ability of the government to regulate the disclosure of legally-obtained radio communications, and this area of the law remains unsettled.” See Interception and Divulgence of Radio Communications, Guide (May 2011), available at http://www.fcc.gov/cgb/consumerfacts/interception.pdf.
In Bartnicki, a radio commentator broadcast on his program a recording of a cellular phone conversation between the chief negotiator for a teachers union and the union president in which the participants discussed blowing up the front porches of school board members during a heated negotiation. 532 U.S. 514 (2001). The radio commentator did not make the recording himself, and the identity of the person who recorded the conversation was unknown. In holding that the broadcast of the conversation was protected by the First Amendment, the Supreme Court relied both on the fact that the commentator did not participate in the illegal interception and that the content of the conversation was of strong public concern. Id. at 535 (“a stranger's illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern”).
Applying this analysis to the present question, a broadcaster would be able to establish that, because the Wiretap Act permits the interception of readily available police and fire communications, these communications were lawfully obtained by the station. Unlike in Bartnicki, however, where scanners pick up police and fire communications, no party obtains the information unlawfully. The analysis might well end there. Assuming, however, that the second prong of Bartnicki’s First Amendment analysis applies, the broader question of whether particular police and fire radio communications are “matters of public concern” could come into play. On one hand, the dissemination of public safety information is often of paramount public interest. As the FCC’s 1963 Public Notice concerning rebroadcast of police and fire communications recognized, however, “the divulgence of public safety communications may sometimes be contrary to law.” 1963 Public Notice (observing that disclosure could lead to interference with the work of police and firemen or contribute to the escape of fugitives). Under this rationale, then, a court could find that the interest in public safety weighs against permitting broadcasters to divulge information from police and fire communications. Accordingly, while we believe that Bartnicki suggests that any attempt to enforce Section 705’s could readily be challenged on constitutional grounds, we cannot say that it has been established with certainty that a broadcaster is immune from liability for divulgence or publication under Section 705. We do think, however, that Bartnicki sufficiently calls into question the ability of the government to regulate the disclosure of legally-obtained radio communications such that it is highly unlikely that the FCC would prosecute a television station for broadcast of scanner traffic.
The rise of Internet streaming of police and fire radio, as the reported tens of thousands who listened live across the country last week both to communications concerning the Marathon bombing and the fertilizer plant explosion in Texas attests, undercuts the notion that police and fire communications should remain “private” for public safety or other reasons. Many police and fire departments provide an official Internet stream of their radio communications. Communications from other departments are available live online through unofficial feeds and commercial services. It is unlikely, therefore, that Section 705’s prohibition on divulgence could survive even a less rigorous standard of First Amendment scrutiny, as the widespread availability of these communications, often sanctioned by the public safety departments themselves, undermines any rational basis for prohibiting dissemination of such information by broadcasters who lawfully monitor scanner traffic.
There is no law requiring public agencies to keep feeds publicly available, so many cities have opted to encrypt some or all of their transmissions. Where you can listen, however, it is best to check with your in-house of outside counsel before you broadcast scanner traffic.