ESN Cloning is illegal!!

**jp135** · 06-27-2010, 02:32 PM

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** · 06-28-2010, 10:47 AM

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.

**jp135** · 07-01-2010, 02:39 PM

The FCC just returned my call and I spoke with a law clerk in the mobility division of the FCC. Here is what was discussed:

I gave them the web address and verbiage for the following statement: "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. ]). They did some research to see if it still applies.

The answer he came back with is that the website is out of date and that statement no longer applies. They are submitting an order to take the page down from their website. This was out of date as of 9/24/2002 in conjunction with the NPRM that I previously referred to.

The clerk advised me that the NPRM took them out of the business of rulemaking with regard to ESN’s because the new federal statute provided sufficient protection. Newly developed fraud protection methods and smart card technology made the rules unnecessary.

The only law that applies now is Title 18 U.S.C. Section 1029: (see: [Only registered and activated users can see links. ]). If you are going to change an ESN, read it in its entirety and be familiar with it.

With regard to 1029.a.1 in order to be in violation of the statute, you have to satisfy all of the following;
1) Use a counterfeit access device
2) Do it knowingly
3) Do it with the intent to defraud
Satisfying just one of the three is not sufficient to constitute a violation.

The statute defines a counterfeit access device as, “any access device that is counterfeit, fictitious, altered, or forged, or an identifiable component of an access device or a counterfeit access device.” It is my belief that simply changing the ESN does not make the device counterfeit. It’s easy to say that changing the ESN alters the phone but even making a phone call changes the memory contents of the phone and therefore alters it. Even so, you still have to do it with the intent to defraud.

If I received a phone in the mail and it did not work with the current ESN, I believe it is within my rights to use the ESN from another phone I have to see if I can get it to work. Many call this an ESN “repair.” That seems to be a perfectly valid word to describe what has taken place. Do I have to zero out the ESN of the phone I borrowed it from or swap the inside label from the two phones? I don’t believe so. As long as you are not using two phones with the same ESN at the same time, you certainly have not defrauded anyone. Even if you did turn them on at the same time, from what I have read, newly developed fraud identification devices can identify the devices as having the same ESN within 20 seconds. From what I understand, some systems will degrade the signal of the second device that has logged on and render it virtually inoperative.

Also, don’t forget about the agreement on the side of a prepaid phone which prohibits altering the hardware or software in the phone, where upon opening the package, you are agreeing to the terms. Many prepaid phones are not sold in the package.

If I decided to change an ESN, I would scratch out the old number and stick a label over that area with the new ESN. In this way, the model number on the label always agrees with the model of the phone.

With regard to 1029.a.7, “knowingly and with intent to defraud uses, produces, traffics in, has control or custody of, or possesses a telecommunications instrument that has been modified or altered to obtain unauthorized use of telecommunications services,” only use the phone on an account you are authorized to use.

With regard to 1029.a.9, “knowingly uses, produces, traffics in, has control or custody of, or possesses hardware or software, knowing it has been configured to insert or modify telecommunication identifying information associated with or contained in a telecommunications instrument so that such instrument may be used to obtain telecommunications service without authorization,” don’t use the software to configure your phone to gain access to someone else’s account unless you are authorized to do it.

I don’t see where possession of CDMA Workshop is a violation of 1029.a.9 unless you configure it to obtain service you are not authorized to receive. I would compare this to using a copy machine to reproduce material subject to copyright law. You are not authorized to copy documents without permission of the owner.

All that said, I am still in agreement that cloning is illegal as long as you define cloning using the definition in previous documentation which says, “The “cloning” of a cellular telephone occurs when the account number of a victim telephone user is stolen and reprogrammed into another cellular telephone.”

**whitey10tc** · 07-01-2010, 04:39 PM

Originally Posted by jp135

The answer he came back with is that the website is out of date and that statement no longer applies. They are submitting an order to take the page down from their website. This was out of date as of 9/24/2002 in conjunction with the NPRM that I previously referred to.

I was referred here [Only registered and activated users can see links. ] so I have contacted them on the subject as well.

The only law that applies now is Title 18 U.S.C. Section 1029: (see: [Only registered and activated users can see links. ]). If you are going to change an ESN, read it in its entirety and be familiar with it.

Link does not work.

With regard to 1029.a.1 in order to be in violation of the statute, you have to satisfy all of the following;
1) Use a counterfeit access device
2) Do it knowingly
3) Do it with the intent to defraud

Satisfying just one of the three is not sufficient to constitute a violation.
The statute defines a counterfeit access device as, “any access device that is counterfeit, fictitious, altered, or forged, or an identifiable component of an access device or a counterfeit access device.” It is my belief that simply changing the ESN does not make the device counterfeit. It’s easy to say that changing the ESN alters the phone but even making a phone call changes the memory contents of the phone and therefore alters it. Even so, you still have to do it with the intent to defraud.

Title 18 section 1029 (e) clearly defines an Electronic serial number being an access device. There for making a phone call does not alter that.

Originally Posted by title 18 U.S.C Section 1029 (e)

(e) As used in this section— (1) the term “access device” means any card, plate, code, account number, electronic serial number, mobile identification number, personal identification number, or other telecommunications service, equipment, or instrument identifier, or other means of account access that can be used, alone or in conjunction with another access device, to obtain money, goods, services, or any other thing of value, or that can be used to initiate a transfer of funds (other than a transfer originated solely by paper instrument);

If I received a phone in the mail and it did not work with the current ESN, I believe it is within my rights to use the ESN from another phone I have to see if I can get it to work. Many call this an ESN “repair.” That seems to be a perfectly valid word to describe what has taken place. Do I have to zero out the ESN of the phone I borrowed it from or swap the inside label from the two phones? I don’t believe so. As long as you are not using two phones with the same ESN at the same time, you certainly have not defrauded anyone. Even if you did turn them on at the same time, from what I have read, newly developed fraud identification devices can identify the devices as having the same ESN within 20 seconds. From what I understand, some systems will degrade the signal of the second device that has logged on and render it virtually inoperative.

Essentially repair is just that, a repair. Lets say you have 2 Motorola V3c's one had a bad board and a good ESN on the Sprint network and the other has a good board but a bad ESN, is it legal to repair the good ESN on the good board. Most would say yes.
Is it legal to take am HTC Imagio from Verizon and "repair the ESN" with a Sprint Samsung ESN to work on Sprint, most will say no because according to [Only registered and activated users can see links. ] the ESN is assigned by the manufacturer and also recorded and submitted to the TIA.

Also, don’t forget about the agreement on the side of a prepaid phone which prohibits altering the hardware or software in the phone, where upon opening the package, you are agreeing to the terms. Many prepaid phones are not sold in the package.

Prepaid phones are generally sold with no contract and some may view it as fraud or attempted fraud by depriving the provider either the renewal contract or retail price of a different device.

If I decided to change an ESN, I would scratch out the old number and stick a label over that area with the new ESN. In this way, the model number on the label always agrees with the model of the phone.

With regard to 1029.a.7, “knowingly and with intent to defraud uses, produces, traffics in, has control or custody of, or possesses a telecommunications instrument that has been modified or altered to obtain unauthorized use of telecommunications services,” only use the phone on an account you are authorized to use.

"Altered to obtain unauthorized use." This I believe would fall in above with using a Verizon HTC device with a Sprint Samsung ESN on the Sprint network. Sprint authorized the Samsung device for use on their network, not the Verizon HTC device.

With regard to 1029.a.9, “knowingly uses, produces, traffics in, has control or custody of, or possesses hardware or software, knowing it has been configured to insert or modify telecommunication identifying information associated with or contained in a telecommunications instrument so that such instrument may be used to obtain telecommunications service without authorization,” don’t use the software to configure your phone to gain access to someone else’s account unless you are authorized to do it.

I don’t see where possession of CDMA Workshop is a violation of 1029.a.9 unless you configure it to obtain service you are not authorized to receive. I would compare this to using a copy machine to reproduce material subject to copyright law. You are not authorized to copy documents without permission of the owner.

I don't believe that CDMA WS would fall into this category, as it's primary purpose is a phone service tool.

All that said, I am still in agreement that cloning is illegal as long as you define cloning using the definition in previous documentation which says, “The “cloning” of a cellular telephone occurs when the account number of a victim telephone user is stolen and reprogrammed into another cellular telephone.”

You have a point here, but in general discussions "cloning" an ESN generally refers to changing one ESN to another from a different device.

**jp135** · 07-01-2010, 11:16 PM

Whitey,

I could make an argument on either side. It was my intention to provide one side of it. As I said, every person interested in this area should read Section 1029 (I think the link is working now). Some of the points you made I didn’t quite understand. I’m certainly not trying to step on anyone’s toes. You have been at this a lot longer than I have. I was only trying to clarify the fact that the link to the FCC’s website provided inaccurate information so it cannot be used to support an argument. Yes, Section 1029 clearly applies to ESN’s and that’s why I supplied the link. I think “repair” can, and has, been defined in many different ways. That word is not used in Section 1029 so I don’t think it matters how it is defined.

I appreciate all the input you have provided in order to allow others to make their own decision with regard to changing an ESN.

The Federal Government has been clear with regard to the ESN legislature business. They have put in writing their desire to allow market forces to work this out. I have done the research and I don’t think there is anything wrong with changing an ESN in the manner I have suggested in my post.

I came across the TIA website and read the information they have put out. Others reading this might not know that the TIA (Telecommunications Industry Association) is a trade association which represents global industries. They are not a law making organization. Most people know that sometimes justice in this country is only as good as the money you have backing you. I wouldn’t want to defend myself against a global association in a civil suit, but that does not keep me from doing things that are within my legal rights as a citizen.

In this case, it is my feeling that the oppression we may feel is coming from multinational corporations and not the federal government. It is not in the best interest of this multinational corporation to go after small fish who understand the nature of the conflict between CDMA and GSM.

As I said earlier, it is not my intention to keep poking the big dog. Anyone desiring to start a business which advertises the fact that they will change ESN’s for their clients should consult an attorney. There might be big money in it, but then again you may be facing big money suits. That would be a decision for a business man, not for a small fish like me.

**whitey10tc** · 07-02-2010, 12:19 AM

jp135,
You have brought new information to the forum and have very valid points, it is much appreciated.
Through my research on the matter and through the years, I have learned some laws. Federal, civil, criminal, state, and local but more contradict each other than agree.
For instance here locally, Salt Lake county, Utah it is a 3rd degree felony to change any type of serial number with out prior written consent from the manufacturer or a government official. This applies but is not limited to, vehicles, electronics, software, etc. There are exceptions to the local/state law.

Ultimately the reason why discussions of "cloning" on most all forums associated with cell phones is taboo. Is because if someone explains how exactly to do it legally, there are those criminals that will bend it and use what is posted, illegally or fraudulently and implicate the forum/members in the criminal actions.

But I do agree that before anyone even thinks of starting a business of this nature must first consult an attorney specialized in the telecommunications industry.