[TxHam] FCC warrantless searches

[David J]

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FCC’s Warrantless Household Searches Alarm Experts

    * By Ryan Singel Email Author
    * May 21, 2009  | 
    * 12:00 am  | 
    

You may not know it, but if you have a wireless router, a cordless
phone, remote car-door opener, baby monitor or cellphone in your house,
the FCC claims the right to enter your home without a warrant at any
time of the day or night in order to inspect it.

That’s the upshot of the rules the agency has followed for years to
monitor licensed television and radio stations, and to crack down on
pirate radio broadcasters. And the commission maintains the same policy
applies to any licensed or unlicensed radio-frequency device.

“Anything using RF energy — we have the right to inspect it to make
sure it is not causing interference,” says FCC spokesman David Fiske.
That includes devices like Wi-Fi routers that use unlicensed spectrum,
Fiske says.

The FCC claims it derives its warrantless search power from the
Communications Act of 1934, though the constitutionality of the claim
has gone untested in the courts. That’s largely because the FCC had
little to do with average citizens for most of the last 75 years, when
home transmitters were largely reserved to ham-radio operators and
CB-radio aficionados. But in 2009, nearly every household in the United
States has multiple devices that use radio waves and fall under the
FCC’s purview, making the commission’s claimed authority ripe for a
court challenge.

“It is a major stretch beyond case law to assert that authority with
respect to a private home, which is at the heart of the Fourth
Amendment’s protection against unreasonable search and seizure,” says
Electronic Frontier Foundation lawyer Lee Tien. “When it is a private
home and when you are talking about an over-powered Wi-Fi antenna — the
idea they could just go in is honestly quite bizarre.”

George Washington University professor Orin Kerr, a constitutional law
expert, also questions the legalilty of the policy.

“The Supreme Court has said that the government can’t make warrantless
entries into homes for administrative inspections,” Kerr said via
e-mail, refering to a 1967 Supreme Court ruling that housing inspectors
needed warrants to force their way into private residences. The FCC’s
online FAQ doesn’t explain how the agency gets around that ruling, Kerr
adds.

The rules came to attention this month when an FCC agent investigating
a pirate radio station in Boulder, Colorado, left a copy of a 2005 FCC
inspection policy on the door of a residence hosting the unlicensed
100-watt transmitter. “Whether you operate an amateur station or any
other radio device, your authorization from the Commission comes with
the obligation to allow inspection,” the statement says.

The notice spooked those running “Boulder Free Radio,” who thought it
was just tough talk intended to scare them into shutting down,
according to one of the station’s leaders, who spoke to Wired.com on
condition of anonymity. “This is an intimidation thing,” he said. “Most
people aren’t that dedicated to the cause. I’m not going to let them
into my house.”

But refusing the FCC admittance can carry a harsh financial penalty. In
a 2007 case, a Corpus Christi, Texas, man got a visit from the FCC’s
direction-finders after rebroadcasting an AM radio station through a CB
radio in his home. An FCC agent tracked the signal to his house and
asked to see the equipment; Donald Winton refused to let him in, but
did turn off the radio. Winton was later fined $7,000 for refusing
entry to the officer. The fine was reduced to $225 after he proved he
had little income.

Administrative search powers are not rare, at least as directed against
businesses — fire-safety, food and workplace-safety regulators
generally don’t need warrants to enter a business. And despite the
broad power, the FCC agents aren’t cops, says Fiske. “The only right
they have is to inspect the equipment,” Fiske says. “If they want to
seize, they have to work with the U.S. Attorney’s office.”

But if inspectors should notice evidence of unrelated criminal behavior
— say, a marijuana plant or stolen property — a Supreme Court decision
suggests the search can be used against the resident. In the 1987 case
New York v. Burger, two police officers performed a warrantless,
administrative search of one Joseph Burger’s automobile junkyard. When
he couldn’t produce the proper paperwork, the officers searched the
grounds and found stolen vehicles, which they used to prosecute him.
The Supreme Court held the search to be legal.

In the meantime, pirate radio stations are adapting to the FCC’s
warrantless search power by dividing up a station’s operations. For
instance, Boulder Free Radio consists of an online radio station
operated by DJs from a remote studio. Miles away, a small computer
streams the online station and feeds it to the transmitter. Once the
FCC comes and leaves a notice on the door, the transmitter is moved to
another location before the agent returns.