FCC’s Warrantless Household Searches Alarm Experts

FCC’s Warrantless Household Searches Alarm Experts
By Ryan Singel 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.

Tags: alarm, experts, fcc, privacy, surveillance

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Replies to This Discussion

Permalink Reply by chris pedersen on May 25, 2009 at 4:20pm: New York v. Burger , in my opinion, would be a criminal grand theft case. Police officers who enter any dwelling or property of any kind without a warrant can arrest those in the dwelling or on the property for contraband under "the plain sight" doctrine. This occurs mostly with illegal drugs.
However, FCC agents better beware in States like Texas , Missouri, or any other , were some form of "castle law " exists prior to kicking someones door open in the middle of the night. I bet their families would look at it as being stupid on their part, to get themselves killed or maimed over something that doesn't harm anyone. It's just a broadcast over the airwaves " and he/she got themselves killed, mamined. disabled over something so stuipid" paraphrasing a family member. It might turn out they could become a victim [dead] because of their extreme stupitity in their attempts to "inspect" [ as their pretext ] what they feel is a violation of FCC Administrative Law in their eyes. [ trumped-up or not ] .
Administrative Law was designed to violate our "due process rights" to keep these issues out of the courts plain and simple. Judical Review of final Administrative Law cases must be filed with the court within 60 days, with all parties served. Many times the lower Courts "defer" their judgements and/or rulings, relying on "agency expertice" , meaning the court doesn't want to be bothered. Then you have to appeal. The beat goes on and on and on, as do the attorneys fees and costs. That's why most people give up, walk away and the government wins. The Courts also defer to the "failure of Congress" so their hands or tied, or they enter into "judical activism" which is not what consevatives want. Legislating from the bench.
Hopefully the court would rule it's Un-Constitutional. This FCC rule would absolutly be a "test case" what is also known "as a case of first impression".
Why is it THEY don't have to establish "probable cause" prior to entry. That is the key . They would have to do so "if they want to seize, they have to work with the U.S. Attorney". By that time the equipment would be gone and relocated. How dumb is that. The perfect example is "Boulder Free Radio". Kuttos ! Keep up the good work of the cat and mouse game Boulder Free Radio, I love it. The government deserves it , in their arbitary but intentional scheme to silence OUR First Amendendment Right Of FREE Speech. Thank God for people like you, and all those who will go to the lengths you do. I wonder if they would attempt it with a disident member of Congress if they broadcasted their disent over the air by Ham-Radio?; ▶ Reply to This

Permalink Reply by Mel Frost on May 25, 2009 at 7:20pm: Howdy... here is KD7DCR, a ham radio operator...

Interesting thought.. That a "Member of Congress" would use Ham Radio to "Broadcast" his message...does anyone remember Sen. Berry Goldwater??? He was a ham longer than he was a Senator!

First...watch the terms being used, as they are also covered within the FCC's rules: Broadcast means to just "hold the button down and talk until you have finished your speach or thought or whatever "portion" is used to signify an end point". On the Ham radio bands or frec's this type of transmission is expressly forbiden! Granted, we have a "party line system" where many/all can listen, but simple mannors say only two people can hold a conversation; or, as we call it a "contact" or "qso"... In real life, many such "conversations" are held between many parties by way of an organized or otherwise arranged "round-table" method of passing the response privalege to a specific station/operator on the same frec... ALSO, we are held to a "10-minute" rule, where everyone is expected to identify their station by call sign every 10min...this can be done by code dits and da's over the voice transmission...or by voice alone. ALSO, we are held to a "content standard" by these rules...we are not allowed to "sell" something or try to get elected to some office or other such "self-serving" or "self-enriching/earning" activities.

Also, our homes and stations are subject to exactly the same type of search issues...again based on a "cause of interference" basis...usually for "out of authorized frec's operation or wide-signal splattering or foul language usage...etc.

My question would be...what about PRIVATE PROPERTY LAWS before they even get to a door or window??? As in, if it's posted and fenced...what are they doing at the door in the first place??? This is the same issue going around right now about these Census workers and their GPS readings!!!; ▶ Reply to This

Permalink Reply by ralph e on May 26, 2009 at 8:50am: Don't they even think about new comp. coming out with wi-fi??? mine is equiped with wi-fi factory installed and I have a wireless connection. Guess they would try and enter my residence at some point, just waiting for them LOL.; ▶ Reply to This

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