EMERGENCY ‐ AMATEUR RADIO NEEDS YOUR HELP NOW!

[Rob Seastrom]

I wonder if the author (K6BP) actually read the request for rulemaking
or if this is just a knee-jerk response.

All the request seems to be asking for is an explicit call-out in
97.113 to allow encrypted communication for things that need to be
encrypted due to other laws (e.g. HIPAA) or data that seems
discretionarily sensitive, during a bona fide emergency or training
for the same.

During a bona fide emergency, I would not hesitate to move encrypted
traffic and offer the affirmative defense of 97.403 if anyone called
me on it.  Of course, the value of such communications is
substantially diminished if there's not training and/or coordination
on protocols, procedures, etc.

I am not a lawyer nor have I read the full text of HIPAA, but it seems
to me that there is a huge gaping hole in that law if there is not a
cutout for exigent circumstances.  Tom's comments about the MCM
suggest a better way of dealing with this (fixing the law) than
allowing encrypted communications under certain circumstances.

I suppose one could characterize my feelings about this as "neutral".
There is no doubt a better way to fix this problem, but I think the
proposed modification to Part 97 is minimally harmful and certainly
not deserving of the histrionics op cit.

Perhaps I'll massage these comments gently and submit.

-r

Tom Azlin W7SUA <tom at w7sua.org> writes:

> thanks Maitland.
>
> Good comments. I would also add that for the MCM specifically we got
> in writing from the USN legal folks that HIPAA did not in fact apply
> to hams supporting the medics at the MCM. The USN Surgeon General
> asked that of the senior USN lawyer who developed the opinion for the
> Surgeon General. They did offer to get a STA just for the MCM but we
> declined given the complexity of implementing it and the legal
> assessment.
>
> Other odd thing is that the pactor modem compression and method does
> not seem to allow copying the traffic when two modems are in direct
> communication. I have always wondered about that.
>
> 73, tom w7sua
>
> On 6/26/2013 6:55 AM, A. Maitland Bottoms wrote:
>> K6BP writes:
>>
>> Please forward this message to other hams. The most current version of
>> this message is at http://hams.com/encryption/ Please use that
>> version.
>>
>> FCC is currently processing a request for rule-making, RM-11699, that
>> would allow the use of Amateur frequencies in the U.S. for private,
>> digitally-encrypted messages.
>>
>> Encryption is a potential disaster for us because it defeats the
>> self-policing nature of ham radio. If hams can't decode messages, we
>> can't identify if the communication is appropriate for ham radio or
>> not. A potentially worse problem is that encryption destroys the
>> harmless nature of Amateur radio. For governments around the world to
>> continue to allow Amateur Radio, it must be percieved as
>> harmless. There's no reason for anyone to believe that encrypted
>> communications are harmless. Foreign governments, and maybe even our
>> own, will start to see hams as more of a threat. This is likely to
>> have a chilling effect upon DXpeditions, which are already often
>> viewed suspiciously by the host nations, and perhaps will even lead
>> some countries to take Amateur Radio off of the air or limit our
>> privileges in some way.
>>
>> The last day for you to submit a comment opposing this is JULY 7, so
>> it's important for you to act now! Please make a short comment in
>> opposition to the proposal at this link, or use this link to upload
>> longer documents.
>>
>> We have no way of telling if the content of encrypted messages are
>> appropriate for ham radio. While their senders will identify them as
>> emergency communications drills, they could be used for crime,
>> operating a business, downloading pornography, etc. WiFi-like cards
>> are already available for Amateur frequencies, and while hams can
>> build legitimate networks with them, none of their vendors check for a
>> license before selling them to anyone. Legalizing encryption on the
>> air will make abuse of Amateur frequencies provable only after
>> difficult and potentially illegal code-breaking.
>>
>> A small group has almost succeeded in sneaking this change past the
>> entire ham community. As I write this, they are almost unopposed, with
>> only one comment against their proposal submitted to FCC. We have less
>> than two weeks to turn that around!
>>
>> Unfortunately, ARRL isn't helping. On March 9, the ARRL board of
>> directors moved to explore whether they should ask for rule-changes
>> authorizing encryption, see their meeting minutes at paragraph
>> 4.1.3. Before ARRL was scheduled to consider a report on the issue, an
>> individual ham filed a request for rule-making with FCC. ARRL
>> obviously tracks FCC rule-making and the notices of it in the Federal
>> Register, and yet waited until two weeks before the end of the
>> commenting period to announce on their web site that this was going
>> on.
>>
>> What could be a plausible excuse for using encryption on the Amateur
>> bands? It's HIPAA, a 1996 law that requires that doctors, hospitals
>> and other medical services providers keep patient data secret. And
>> thus, hospitals have become reluctant to use ham communications in
>> emergencies. We effectively broadcast all of the information we
>> communicate, and they're afraid that we'll get them sued by doing so.
>>
>> Emergency communications are a critical component of the mission of
>> Amateur Radio, and are one of only four purposes that FCC uses to
>> justify the existence of the Amateur Service. It may be that
>> encryption does become critical to support Amateur emergency
>> services. But that time has not yet come. If we are to allow
>> encryption on the air, that should come only after the entire ham
>> community has discussed it throughly and explored all of the
>> options. And yet, nobody's brought this issue before you, before
>> attempting to change the rules behind your back.
>>
>> The folks who support the encryption proposal are, as far as I can
>> tell, well-meaning. Many of them are involved in emergency
>> communications. But their methods are inappropriate. If they want this
>> change, they must discuss the issue throughly at ham conferences and
>> in our publications. They must allow hams to become educated about the
>> alternatives before we decide as a community if a rule change is
>> necessary.
>>
>> What are the alternatives? One is changing HIPAA to remove liability
>> from the doctors and hospitals for disclosure of information in an
>> amateur emergency transmission. Changing laws is not impossible for
>> Amateurs. Through lobbying congress, we have recently been able to
>> cause changes in ITAR 121, a Department of Defense restriction that
>> made it difficult for us to collaborate with other nations in building
>> microsats. That's changing now as a result of lobbying by ham
>> organizations. If hams can get that done, we can reform HIPAA as well.
>>
>> Another alternative is to leave the rules as they are today. Many
>> emergency organizations have been able to operate without encryption
>> despite any reservations by the served organizations regarding HIPAA,
>> which has existed since 1996. And many services other than Amateur
>> Radio, including MARS, Land Mobile, and Part 15 can provide encryption
>> without a rule-change, and might be more appropriate venues for this
>> traffic.
>>
>> If we end up deciding to have encryption on the Amateur bands, we must
>> do so only after developing a system of controls that prevent its
>> abuse. There is no anti-abuse method sugested in the current request
>> for rule making, but I propose this one: Encryption would only be
>> allowed in tests and drills that would be authorized and publicly
>> announced by accredited ARES or RACES organizations, and or actual
>> emergency communications for a served agency that is subject to
>> patient privacy regulations such as HIPAA. Logging of encrypted
>> transmissions, including the encryption key, would be
>> mandatory. Stations would be required to disclose their keys to
>> amateur volunteers who would check recorded transmissions for
>> rule-violation, but those volunteers would be required to keep any
>> HIPAA-protected patient data within the transmission private. Stations
>> that repeatedly failed to cooperate in allowing their messages to be
>> decrypted and checked by third parties would be subject to penalties.
>>
>> But we haven't decided any of this yet. And we shouldn't without your
>> participation. Thus, please comment now in opposition of the proposal.
>>
>> Again, the last day for you to submit a comment opposing this is JULY
>> 7, so it's important for you to act now! Please make a short comment
>> in opposition to the proposal at this link, or use this link to upload
>> longer documents.
>>
>> About the Author: Bruce Perens K6BP is one of the founders of the Open
>> Source movement in software. He is also the founder of No-Code
>> International, the organization that successfully lobbied for the
>> global elimination of code testing. More recently, Perens has been a
>> pioneer of digital communications over Ham Radio. He started and
>> evangelized the Codec2 (http://codec2.org/) project, which has
>> developed a fully open and patent-free digital voice codec for Radio
>> Amateurs. That codec is now in use in FreeDV (http://freedv.org/),
>> which provides clear digital voice communications on HF in half the
>> bandwidth of SSB. You can reach Bruce Perens K6BP at +1 510-4PERENS
>> (US Pacific time), or email to bruce at perens dot com.
>>
>> Please forward this message to other hams. The most current version is
>> at http://hams.com/encryption/ Please use that version.
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