ESN Cloning is illegal!!

[jp135]

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The answer he came back with is that the website is out of date and that statement no longer applies.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 This was out of date as of 9/24/2002 in conjunction with the NPRM that I previously referred to.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.”