The New York Times, January 19, 1997, WIR, p. 5. At the New Frontier of Eavesdropping By John Markoff If only Representative John A. Boehner of Ohio had prevailed upon his wife to buy a digital cellular phone instead of a conventional analog model. Then, while cruising past the waffle shop in Lake City, Fla., John and Alice Martin would have merely heard static on their Radio Shack scanner instead of House Speaker Newt Gingrich. The Florida janitor and his wife, whose recording of the Speaker's conversation with Mr. Boehner and some other Republican colleagues set off a fight in the House ethics committee last week, inadvertently drew national attention to the ease with which it is possible to eavesdrop in the information age. They also wrote a new chapter in the high-tech spy-vs.-spy war that is as old as American communications technology itself. As Americans outfit themselves with a dazzling array of electronic communications gadgets -- cell phones, portable phones, baby monitors, pagers, personal digital assistants, interactive cable systems, laptop computers -- their expectations of privacy are being redefined. Pre-Computer Protections This is happening because the rapid emergence of consumer-oriented computer and communications technologies is exerting powerful pressure on protections legislated in the pre-computer era. On the one hand, computers, fiber optic and wireless communications networks raise the specter of the most invasive Orwellian possibilities. But at the same time. data scrambling, or cryptography, technologies hold out the promise of absolute privacy and anonymity -- a threat so fearsome to Government and law enforcement officials that until late last year the technology was listed with munitions protected from export. "Everyone wants to come up with the ultimate privacy weapon, but for every weapon there's a counter-weapon for snooping," said Alan F. Westin, a political science professor at Columbia University. By themselves, technological changes have always presented a challenge to individual privacy rights. "The entire concept is only 100 years old," said Carey Heckman, a professor of law at Stanford University. "Privacy is still not completely defined." The invention of the telegraph in the 1840's was soon followed by linemen who would climb the poles to tap the wires. That led to states passing anti-telegraph tapping laws, but businessmen still carried code books to protect their communications. In the 1880's and 1890's, anti-telephone wiretapping laws quickly followed as the brand new voice communication technology reached the mass market. Still, telephone eavesdroppers often went undetected. As early as the advent of shortwave radio at the beginning of this century, laws were enacted to protect the confidentiality of ship-to-shore communications, but ham radio became a fad as people would sit in their dens and listen to the traffic. It was only as recently as 1967 that the Supreme Court, in Katz v. United States, determined that the F.B.I.'s use of electronic devices to listen to and record telephone conversations without a warrant constituted a violation of the Fourth Amendment's unreasonable search and seizure provisions. That ruling defined many modern notions about privacy and freedom from high-tech surveillance. But while the 1986 Electronic Communications Privacy Act extended earlier laws to include privacy protection for cellular telephone users, it also reduced the penalty for intercepting such communications from a felony to a $500 fine. Moreover, the law specifically exempted from protection eavesdropping on electronic transmissions between home portable telephones and base stations. The Martins, it seems, were simply taking part in an increasingly popular American sport: eavesdropping on their neighbors by using radio scanning devices. The Martins, who said they happened upon the Republicans' call when the vacationing Mr. Boehner drove into their cellular neighborhood, say they taped the conversation, using a small recorder they carried in their car, to pass on to their grandchildren. While intercepting calls is clearly illegal, there is no shortage of easily available and simple modifications to over-the-counter radio scanners to permit tapping into supposedly off-limits cellular frequencies. Indeed, there's no need to even go to the trouble of modifying the scanner, standard cellular phones come equipped with the built-in capability to scan the same radio frequencies. It's only necessary to find the World Wide Web page where some radio-scanning enthusiast has posted the secret-key sequence to transform a standard cell phone into a scanner. Several models on the market today contain this feature, supposedly hidden in the innards of the palm-sized electronic devices for technicians performing diagnostics and repairs. E-Mail Alert Moreover, the advent of computer technologies and the Internet have given broad new power to high-tech snoops. A thriving computer underground makes use of secret programs called packet filters to conduct surveillance on the millions of electronic mail messages sent every day. Unlike cellular telephone snooping, which can only pick up a conversation within a range of a mile or so packet filters permit data thieves to target all communications from a single address invisibly making copies of targeted messages to be read later. Digital cellular phones provide limited protection from casual eavesdroppers -- they require the power of a computer, and not merely a tampering with the frequencies. to interpret a signal -- but real privacy protection is likely to be elusive in the wireless digital era as well. Many phone companies are now rushing to introduce new digital services that provide better sound quality. But when security standards were set for the new systems five years ago, technical experts from the Government discouraged the phone companies from building in coding systems that would be difficult to break. Moreover, the phone companies themselves decided that real privacy was not a major issue. "Time to market turned out to be more important than real security," said John Gilmore, a board member of the Electronic Frontier Foundation, an organization dedicated to protecting privacy rights. Indeed, in recent weeks the supposedly secret formula for scrambling digital wireless phone calls was posted to an Internet mailing list. That virtually insures that hackers will soon create a way to modify scanners like the one the Martins used, making digital calls just as vulnerable as analog calls are today. "There's a period in which privacy prevails over surveillance," said Mr. Westin, "but it's never for very long." [End]