ESN Cloning is illegal!!

[jp135]

The Commission considers any knowing use of cellular telephone with an altered ESN to be a violation of the Communications Act (Section 301) and alteration of the ESN in a cellular telephone to be assisting in such violation.

Well, that's a pretty strong argument. I'm not an attorney but I would guess what the commission considers would hold up well in court. It sounds like you can change the ESN, but then you can't use the phone! tic

I'd have to do a little research to prepare an adequate rebuttal, but I've run out of time.

I mostly wanted to take part in presenting the argument in its entirety.

Thanks for the info.

[whitey10tc]

I know you have condensed the FCC advisory in an effort to be concise but I am attaching the full Advisory in case anyone wants to read it.

Well actually what I quoted was pulled direct from the FCC website * [Only registered and activated users can see links. ] *

This does not fall under legislation crafted for the VID number in a car so let’s not confuse the issue.

I used the VIN from a car as an example for each being uniquely assigned.

In my opinion, an ESN repair is just what is says. The ESN somehow was corrupted so you flash it back to its proper state. I don’t believe you can repair it by putting it on a different phone.

Anytime you use the word cloning, I am in agreement that it is illegal.

At least you agree there.

I don’t believe swapping ESN’s is cloning in any way. It may be classified as unauthorized tampering, but where does it say you must obtain authorization to flash a phone? If I buy a used non-Verizon phone, does Verizon suddenly have the right to dictate what I do to the phone? I don’t believe that is spelled out anywhere.

Flashing is perfectly legal, but does not involve cloning or "Swapping" ESN's. *Note* It takes alot for Verizon to accept foreign ESN's but they do.

I don’t believe swapping ESN’s is cloning in any way. It may be classified as unauthorized tampering, but where does it say you must obtain authorization to flash a phone? If I buy a used non-Verizon phone, does Verizon suddenly have the right to dictate what I do to the phone? I don’t believe that is spelled out anywhere.

Somewhere in one of these forums, it was suggested to swap the ESN's using the software and then swap the stickers inside the phones. It's not a VIN number.

Swapping would constitute changing the ESN that is in the carriers network not the phone. Providers swap ESN's in their system not the phone it self.

The Commission considers any knowing use of cellular telephone with an altered ESN to be a violation of the Communications Act (Section 301) and alteration of the ESN in a cellular telephone to be assisting in such violation.

Well, that's a pretty strong argument. I'm not an attorney but I would guess what the commission considers would hold up well in court. It sounds like you can change the ESN, but then you can't use the phone! tic

I'd have to do a little research to prepare an adequate rebuttal, but I've run out of time.

I mostly wanted to provide take part in presenting the argument in its entirety.

Thanks for the info.

It has been a great discussion, Also welcome to Gurus.
On a Mod Note
No member has ever been banned for questions or opinions on this subject. What will get you banned is posting how to or requesting how to clone a ESN from one device to another. Legitimate repair is acceptable.

[jp135]

whitey10tc you’ve given me a lot of homework to do.

The information you highlighted in bold type in your post above is a statement by the FCC which contains references to the Communications Act of 1934, as well as the Wireless Telephone Protection Act of 1998. There were many challenges to the FCC statement after it was made. In this case, the challenges have resulted in numerous modifications to the law soon after its enactment. Challenges were made by many organizations, including the CTIA (Cellular Telecommunications Industry Association).

In doing a Google search of the FCC statement, I found forums similar to this have quoting the same FCC statement. The statement is derived from a rule which was originally enacted in January of 1995 under Title 47 of the Code of Federal Regulations (C.F.R.) § 22.919. It was challenged many times and in April of 1998, overlapping legislation called the “Wireless Telephone Protection Act” was put in place. In the year 2000, there was a Biennial Regulatory Review “to Modify or Eliminate Outdated Rules Affecting the Cellular Radiotelephone Service and other Commercial Mobile Radio Services” which resulted in a Notice of Proposed Rule Making (NPRM) released May 17, 2001 (see: [Only registered and activated users can see links. ] ). The result was the elimination of 22.919 (see: [Only registered and activated users can see links. ] ). If you are interested in reading the rule when it was in effect as 22.919, you can find it here: [Only registered and activated users can see links. ] .

My guess is that the rule was eliminated for two reasons. First, it contained impractical challenges to cell phone manufacturers such as: The ESN must not be alterable, and, Cellular mobile equipment must be designed such that any attempt to remove, tamper with, or change the ESN chip, its logic system, or firmware originally programmed by the manufacturer will render the mobile transmitter inoperative. Second, Title 18 U.S.C. Section 1029 (the Wireless Telephone Protection Act) was crafted with more desirable language with the intention of replacing 22.919.

Discussions of 22.919 in the forum posts which I read brought out the fact that carriers who routinely change the ESN of phones in their inventory would be in violation of the rule as stated. If an ESN is stolen by someone using a scanner, the authorized account user would be forced to replace the phone unless the provider was allowed to change the ESN and ship it back to the authorized user.

From what I understand, the Wireless Telephone Protection Act of 1998 (source:[Only registered and activated users can see links. ]) was introduced as Public Law 105-172 which amended Title 18 U.S.C. Section 1029 (Credit Card Fraud Act). Here is a source for Section 1029 after the Act has been applied to it: [Only registered and activated users can see links. ] . So, 22.919 is no longer in effect and the rules for ESN changes now fall under Section 1029, of the Credit Card Fraud Act.

Anyone interested in this subject should read and understand Section 1029. The most important verbiage I got from it is that Section 1029 consistently refers to a violator as someone who “knowingly and with intent to defraud” gains “unauthorized access” to services using “counterfeit access devices.”

I have a closet full of cell phones which I have purchased over the years. I can take any of those cell phones out of the closet, charge it up and tell my provider the ESN which I would like to associate with my phone number. I can legally access my service with any of those devices. I would argue that swapping the ESN’s does not provide me with access that is any different than it was with the original ESN, as long as duplicate ESN’s are not being used at the same time (defined as cloning). I would also argue that swapping ESN’s should not constitute the “intent to defraud” because I am paying for the service and not obtaining anything extra.

Somewhere in the discussion of the NPRM it mentioned that the reason for the changes was not to provide additional control by a small group of providers, but rather to increase competition among those providers.

I should also say that many of these arguments have been made by a defense attorney during the appeal process while the defendant waited behind bars. Many are at least ten years old, but if you poke a dog too many times, you’ll probably get bitten.

Do I believe strongly enough in this advice to start a cell phone business where you send me two phones and I’ll swap the ESN’s for you? Obviously not, and if you’re thinking about it, talk to an attorney. If it’s a good business model, I would be happy to accept ten percent.

Feel free to discuss or disagree. It’s more important to know the truth than it is to feel important while ignoring the truth. I’ll never claim to be entirely sure of anything.

Thanks for the welcome to the forum; it is nice to be a part of a group of individuals who have such a ferocious desire to learn.

[whitey10tc]

I will take sometime tomorrow and read through your references, but I do want to point out a few things.
You reference

Discussions of 22.919 in the forum posts which I read brought out the fact that carriers who routinely change the ESN of phones in their inventory would be in violation of the rule as stated. If an ESN is stolen by someone using a scanner, the authorized account user would be forced to replace the phone unless the provider was allowed to change the ESN and ship it back to the authorized user.

in most cases there are insurance claims to cover this, but if the carrier does "change" the ESN it would be a repair and the consumer will most likely receive documentation stating such.

swap the ESN

Swapping and cloning are two different things here. You swap an ESN on an account not the phones. You clone an ESN on the phones.

But defiantly stated earlier in this thread it is ultimately up to the courts and lawyers to interpret the laws.
Also if I can find the waiver form I'll post it for all then you can see what is truly required to change the ESN from one device to another.

[jp135]

Thank you whitey, the FCC document which talks about knowingly using a cellular phone with an altered ESN has a November 15, 2007 date on it as indicated by the search engine information, but the document does not seem to be dated. That’s one inconsistency and I don’t see where use of a cell phone with an altered ESN is currently addressed in any current laws. I’m thinking of calling the FCC tomorrow to see where that information comes from.

Other than the web document which refers to the statement, “The Commission considers any knowing use of cellular telephone with an altered ESN to be a violation of the Communications Act,” the only legislation I see which refers to using a phone with an altered ESN is “Changing Electronic Serial Numbers on Cellular Phones is a Violation of the Commission's Rules (Oct. 2, 1991) (FCC Public Notice 20011).” That’s 20 years old and if you read through the NPRM, it talks about why they had to remove the restriction to change and use a phone with altered ESN’s. It had to do with Smart Card technology.

Stated in the NPRM is the Commissions belief that parties believe that “smart cards now provide better protection from fraudulent tampering than do hardened ESN components,” and “As a general policy, we prefer to allow market forces to determine technical standards wherever possible, and thus we do not adopt rules mandating detailed hardware design requirements for telecommunications equipment, except where doing so is necessary to achieve a specific public interest goal.” They also talk about advancements in fraud control technology which have eliminated the need to use hardened ESN’s.

We may be using the same term to mean different things when it comes to the word “swapping.” I’m sure you are aware that I am using it with reference to changing the ESN in the phone as opposed to switching it on the network. The more I read about it, the more I can’t see a thing wrong with it. I am convinced that smart cards will eventually do away with CDMA, but that’s a different discussion. It might be more complicated to switch the ESN from one cell phone to another when using CDMA versus smart cards, but in my opinion it amounts to the same thing and I think the government does not want to legislate one over the other.

You are certainly not alone in your belief that we are not supposed to change ESN’s and I’m still waiting for you to spring that Ace in the hole which says beyond any doubt, it is illegal. I’ll let you know what the FCC says.

Here is someone else that I just came across with the same line of reasoning which I have been arguing: [Only registered and activated users can see links. ] . Perhaps it is a different perspective.

[jp135]

On Monday, June 28, 2010 I called the licensing branch of the FAA and they took all of the information which I had questions about, particularly regarding the statement from the FCC website which states, "The Commission considers any knowing use of cellular telephone with an altered ESN to be a violation of the Communications Act (Section 301) and alteration of the ESN in a cellular telephone to be assisting in such violation." (see: [Only registered and activated users can see links. ])

The FCC is escalating it to the proper department an will call me asap.

I will relay any information passed on to me.