I am not a lawyer

• a
  
  
  
  • 1
    As defined in section (c)(8) and (c)(8)(B), nearly every device with a microchip fits the definition of "unlawful" communication device, because nearly every chipped device is capable of unlawfully intercepting communications, which is all that is necessary. Example devices include:
    
    
    
    • Any computer
    
    
    • Any television
    
    
    • Any device connected to any television, including your stereo, speakers (if they have a microchip in them), VCR
    
    
    • Any next-generation A/V device, like TiVo
    
    
    • Any personal media device with a microchip, like your MP3 players (e.g., iPod)
    
    
    
    Further, this law is a subtractive law rather than an additive law, in that it makes everything illegal, and then allows service providers to selectively make individual items or actions legal. This is in direct violation what is generally established as "good" law, in that it is likely to unnecessarily criminalize many actions.
    
    
    
    • A
      Theft of communications service is already illegal; that portion of this provision is redundant and unnecessary. Other than the "theft" portion, this section requires that your SP approve all operations you perform on the services you legally receive. Operations your SP must approve include:
      
      
      
      • Decrypting a signal and storing it on another medium in order to view it elsewhere
      
      
      • Storing a signal and viewing it at some other time (i.e., retransmitting it
      
      
      • Storing a signal and viewing it later (i.e., recording)
      
      
      • Using a Wireless station to rebroadcast your Internet service to a mobile device
      
      
      • Using an ethernet switch to rebroadcast your Internet service to a computer
      
      
      
      Because this section also includes disruption of a service as qualification for a crime, if one knowingly uses a legal device which happens to interfere with another legal device, you are breaking the law. See section (1)(c)(3)(A) for an example of this occurring. This section leaves open what will happen if two service providers provide, for example, wireless services which interfere with each other. According to this law as written, both of these companies will be in violation, with a new violation for each day of interference.
      
    
    
    • B
      This significantly abridges the right to privacy. Courts have upheld the use of encryption as an aspect of the right to privacy, and this provision disallows the use of encryption, if that encryption happens to conceal any of this information. Also, any client/server/client protocols, like Instant Messaging, conceal the final destination of the communications, and thus would be illegal.
      
    
    
    
    
  • 2
    Because of how broadly defined an "unlawful communications device" is, this makes it further illegal to make any modifications to any of these "unlawful" devices. Again, because a device meets the definition of "unlawful communications device" if it is capable of being used illegally, this means that it is illegal to modify in any way any of these devices, such as those mentioned in the response to (1)(a). Example operations which this section covers:
    
    
    
    • Installing software on your computer to enable it to receive a Wireless Internet signal not approved by your SP
    
    
    • Installing hardware in your computer to enable it to play a television signal which was decrypted to allow it to be viewed on a computer, if your SP did not authorize such decryption and viewing
    
    
    • Having a repairman fix your television, if that television is used to view a signal that you stored without your SP's permission
    
    
    
    
  
  
  • 3
    I expect that this is already illegal, as it largely covers devices developed explicitly to steal services.
    
  
  
  • 4
    
    
    
    • A
      This significantly abridges the right to free speech, and makes simple possession of information a crime. In addition, because of the broad definition of "unlawful communications device", this section makes illegal the possession of much normal information, including:
      
      
      
      • Plans to assemble a computer, if such assembly would mean connecting an unapproved computer to your service
      
      
      • Research material studying unlawful access devices
      
      
      • Instructions on setting up a wireless network without explicit prior approval from the SP to have a wireless network
      
      
      • Instructions on how to connect an unapproved device, like a TiVo, to a television or A/V system
      
      
      
      
    
    
    • B
      This section has the same limitations as section (A) above, but applies to hardware (and data, which is essentially redundant).
      
    
    
    
    
  
  
  • 5
    This is a redundant section, in that section (1)(a)(4)(A) already makes it illegal to possess and/or distribute the items prohibited in this section; because publishing is another form of distribution, this section is completely unnecessary.
    
  
  
  • 6
    It is highly unlikely that this is currently legal.
    
  
  
  
  
  


• b
  This section allows any device related to any violation to be seized and destroyed. Because any violation turns every device involved into an "unlawful" device, this means that any violation would result in your entire computing network or entire A/V system being impounded and destroyed, possibly including any computers at a different site which could contain illegal information.
  


• c
  This section consists of definitions.
  
  
  
  • 1
    This section currently defines essentially any device capable of any kind of communication as a "communications device". It is likely that in 10 years, the vast majority of devices in the normal American home will meet this criteria, including washing machines and refrigerators.
    
  
  
  • 2
    This section defines a communications service.
    
  
  
  • 3
    This section defines a service provider in three ways. These definitions cause all providers anywhere in a service delivery to be included as a service provider. This means that providers which themselves recieve a service from another provider must, of course, obey this law, but they must also monitor all of their customers to verify that their customers obey the law. If a service provider knowingly provides a service to a customer who breaks this law, it is likely (but unclear) that that service provider will also be considered to be breaking the law. This means that all service providers must constantly monitor all of their customers to verify that they are in compliance with this law.
    
    
    
    • A
      This section defines a service provider, but explicitly excludes providers who do not charge a fee. The result of this exclusion is that if there is a conflict in service between a provider who charges and a provider who does not charge, the provider who does not charge will necessarily lose, because they do not meet the criteria of "service provider", and thus will be guilty of illegaly interfering with a communications service. This is currently happening in Portland, Oregon: http://lists.bawug.org/pipermail/wireless/2002-August/008350.html
      
    
    
    • B
      This section defines a service provider as anyone owning or operating the facilities required by a service. This has two significant results:
      
      
      
      • There is a significant amount of unlicensed wireless spectrum; this section defines those who use that spectrum to broadcast signals as a "service provider" (with no requirement that it be for a fee); if two neighbors use a wireless network or telephone signals, then they each qualify as a "service provider", and if those signals happen to interfere with each other than via section (A) above, both neighbors are guilty of violations for each day that interference exists.
      
      
      • In any situation where you are provided a communications service by one company over a network owned by another company (such as is currently done in the wholesale DSL industry), both parties involved are service providers to you, and thus both of those parties must approve every device you connect to your service.
      
      
      
      
    
    
    • C
      This section seems redundant, and is apparently there as a catch-all section.
      
    
    
    
    
  
  
  • 4
    This section attempts to define "manufacture of an unlawful access device", and in its definition, it includes building or modifying a device such that it is capable of defeating encryption used by an SP. However, because section (1)(a)(4)(A) makes it illegal to possess enough information about encryption used by an SP to be able to defeat, it is nearly impossible to know if a device one is creating will be capable of defeating that encryption. For instance, if the SP uses an encryption mechanism that is trivial to break (such as rot13), then any computer is capable of defeating that mechanism. This section results in a Catch-22, making it illegal to know if you are making an illegal device.
    
  
  
  • 5
    This section attempts to define "manufacture of an unlawful communications device", but does so in such a way that it makes it illegal to manufacture a communications device, because (1)(c)(8) and (1)(c)(8)(B) define an "unlawful communications device" so broadly that that all communications devices meet That definition. Because, for example, a television is capable of acquiring a service without that service provider's authorization, this section makes it illegal to manufacture televisions in Tennessee.
    
  
  
  • 6
    This section defines "publish".
    
  
  
  • 7
    This section attempts to define "unlawful access device". This definition includes any software or hardware primarily designed for defeating any protection mechanisms service providers might have used. This definition thus criminalizes research into the effectiveness of existing encryption methods, including when that research is performed by the service provider which developed the protection mechanism.
    
  
  
  • 8
    This section defines "unlawfull communications device", but defines it so broadly that it includes any device "capable" of doing something unauthorized by the SP. See the response to section (1)(a)(1) for example devices.
    
    
    
    • A
      This section specifically includes many devices which are already illegal because they enable the theft of service. In addition, it specifically includes any devices capable of concealing the origin of a communication, which includes any wireless device capable of transmitting more than a few feet. Modern cellular phones fit this definition, as do most wireless phones and wireless networking technologies.
      
    
    
    • B
      This section provides further detail on what an "unlawful communications device" is. This definition is so broad that it actually includes any communications device at all, and also any electrical device capable of generating a powerful enough electrical field to disrupt a service, which means at the least any electrical device which runs off standard AC current as delivered in American homes.
      
    
    
    
    
  
  
  
  


• d
  This section exempts law enforcement agencies and service providers working with those agencies.
  


• e
  Punishments are described in this section.
  
  
  
  • 1
    States that any violation of this law may also be a violation of existing law. This broadly applies existing law to a much larger range of actions, and provides for the likelihood that most violations of this law will be violations of other laws.
    
  
  
  • 2
    This section states that violation of this law involving 5 devices counts as a Class D felony. Because of the broad definition of unlawful devices in this law, any violation is nearly guaranteed to count as a Class D felony. For instance, if you use a computer to violate this law, then your computer, mouse, keyboard, monitor, and access device constitute 5 devices, thus providing for a felony. If, instead, you commit the violation with your television service, then your television, amplifier, access device, and two speakers constitute 5 devices, thus providing for a Class D felony.
    
  
  
  • 3
    This section states that any willful violation will be at least a class E felony. However, since section (1)(a) already requires a "knowing" violation, this is equivalent to a "willful" violation, thus making all violations of this law at least a Class E felony.
    
  
  
  • 4
    This section redundantly states that all other violations are a Class B misdemeanoer; it has already been demonstrated that all violations are a felony.
    
  
  
  • 5
    This section states that each separate device on each separate day counts as a separate offense for the purposes of imposing criminal penalties. This is incredibly in that it multiplies every offense significantly; with this section, it is nearly impossible for a person to be guilty of only a single violation.
    
  
  
  • 6
    This section is similar to section (5) above except that it applies to fines.
    
  
  
  • 7
    This section states that violators must make restitution for the offense, without defining how to calculate that restitution.
    
  
  
  • 8
    Section (1)(e)(8) states that an offense will be considered committed anywhere, including outside the state of TN. In other words, this law allows any service provider to make a civil suit in TN against people who do any kind of business in TN. This section will significantly discourage business investment in Tennessee.
    
  
  
  
  


• f
  This section essentially states that the ability to violate this law constitutes violation of this law. This is akin to saying that the ability to murder someone constitutes actual murder.
  
  
  
  • 1
    Specifies that any unauthorized connection of any kind to a service constitutes intentional violation, which essentially means that nearly any violation at all is an intentional violation, since this law is entirely about unauthorized connections.
    
  
  
  • 2
    Specifies that possession or control of a device connected in such a manner as to permit violation of this law constitutes violation of the law. Because of the nature of the networking technology used by nearly all DSL and Cable Internet Service Providers, this section makes it illegal to connect a computer to either of those services, because all computers capable of connected to those services are also capable of receiving the services of other customers in an authorized manner.
    
  
  
  • 3
    Even though section (1) above defines any violation as an intentional violation, this section further states that possession of 5 "unlawful" devices for purposes prohibited by this law also constitutes intention violation.
    
  
  
  
  


• g
  Defines who may bring civil actions against violators.
  
  
  
  • 1
    States that any service providor aggrieved by a violation may bring a civil action.
    
  
  
  • 2
    Defines what the court may do.
    
    
    
    • A
      States that the plaintiff needs no proof of suffering or damages in order for an injunction to be granted, which means that civil suits under this law do not have to satisfy the same requirements for injunction that civil suits do under every other existing law. Specific exemptions are provided.
      
    
    
    • B
      Allows for the impounding of all involved equipment at any time during the suit. With section (A) above, the plaintiff does not need to provide proof of damage, and with this section, potentially exonerating material can be impounded.
      
    
    
    • C
      States that damages can be awarded.
      
    
    
    • D
      States that on violation, all material may be destroyed.
      
    
    
    
    
  
  
  • 3
    States that violators must repay all attorneys fees, and any other costs associated with the suit. In other words, successful suits cost the plaintiff nothing, but the defendent has to pay lawyers costs either way.
    
  
  
  • 4
    Provides computation for damages.
    
    
    
    • A
      Allows damages to be required before final judgement, and defines damages as including retail cost of the service and also including any monies made by the defendent, requiring that the defendent provide proof that not all monies were gained illegally. This is essentially guilty until proven innocent, in that it is assumed that all money a violator earns is money earned illegally, unless the violator can prove otherwise.
      
    
    
    • B
      States that the plaintiff may recover between $1500 and $10000 for each violation instead of actual damages. In other words, if there were no damages resulting from a violation, then this section provides significant damages instead. Combined with section (1)(e)(6), this allows a service provider to bring a civil suit against someone for committing a violation which caused no damages, and receive $1500-$10,000 for each day the violation occured and each infraction.
      
    
    
    
    
  
  
  • 5
    States that willful violation increases the maximum penalty for each day and each infraction to $50,000.
    
  
  
  
  

quote:

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Originally posted by SKozicki

However, I'm finding it difficult to include certain scenarios when the 'intent to defraud' language is bolted on. We said on Saturday that 'intent to defraud' in itself was too vague to simply be bolted on in order to make much difference, but we also know that the lobby will point out that most of our examples are not true when 'intent to defraud' is bolted on. So in essence, we need to fab our examples with 'intent to defraud' as a given. This changes some of the analysis significantly. Any ideas on alternative arguments?

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quote:

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Originally posted by loosifer

And remember that given any device anywhere in any of this analysis, if the SP either offers that device or offers a rebranded or whatever version of a device, if you use your own device instead of the SP's, that's intent to defraud.

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