*So much for the "illegal search and seizure" law eh ?*
**
**
----- Original Message ----- *From:* Linda Robb <[email protected]>
*To:* [email protected]
*Sent:* Friday, May 22, 2009 6:18 AM
*Subject:* [TheFinePrint] FCCs Warrantless Household Searches Alarm Experts
FCCs Warrantless Household Searches Alarm Experts
http://www.wired.com/threatlevel/2009/05/fcc-raid/
[image:
fcc_badge]<http://www.wired.com/images_blogs/threatlevel/2009/05/fcc_badge.jpg>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.
Thats 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-If 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. Thats 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 FCCs purview, making the
commissions 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 Amendments
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-If 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 cant make warrantless
entries into homes for administrative inspections, Kerr said via e-mail,
referring to a 1967 Supreme Court
ruling<http://supreme.justia.com/us/387/523/case.html>that housing
inspectors needed warrants to force their way into private
residences. The FCCs online FAQ doesnt 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 <http://www.fcc.gov/eb/otherinfo/inspect.html> 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<http://www.boulderfreeradio.com/>,
who thought it was just tough talk intended to scare them into shutting
down, according to one of the stations leaders, who spoke to Wired.com on
condition of anonymity. This is an intimidation thing, he said. Most
people arent that dedicated to the cause. Im 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 FCCs
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<http://fjallfoss.fcc.gov/edocs_public/attachmatch/DA-07-3927A1.txt>.
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
dont need warrants to enter a business. And despite the broad power, the
FCC agents arent 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. Attorneys 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 Burgers automobile junkyard. When he couldnt 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 FCCs warrantless
search power by dividing up a stations operations. For instance, Boulder
Free Radio <http://www.boulderfreeradio.com/> 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.
*This post was updated Thursday morning to include comment from Professor
Kerr, and to remove an inaccurate example of unrelated criminal behavior.*
[Non-text portions of this message have been removed]
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