Friday, May 22, 2009

FCC Wants Right to Search Your Home Without a Warrant

As someone with an extensive educational (and occupational) background in the field of communications, the headline "FCC says it can search any home without a warrant" was a real head turner this morning (and not in a good way).

Can't we all agree that the 4th Amendment has taken enough of a beating over the past 8 years??? Can we not also agree that warrantless government searches of our homes is a grotesque subversion of the Constitution (I would also argue our privacy)?

Apparently, if you're asking the Federal Communications Commission (FCC) either of these questions the answer they will give you is "no". It appears we - as in anyone in this country with a wireless router, cordless phone, remote car-door opener, or even baby monitor or cellphone in the home -were unaware that the FCC claims the right to enter our home "without a warrant at any time of the day or night in order to inspect it."

Gee, and here I thought it was expensive and time consuming to get professional tech support to come to my home! Little did I know I had an entire government agency just waiting and willing to break into my place without notification and check out my tech do what though I'm not completely clear.

This "right" to enter our homes at any time without a warrant, as reported by Wired, is an ""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."

Who would have known that "pirate radio broadcasters" were such a grave threat that the 4th Amendment must be sacrificed to stop them? So if you're smart, and afraid, you better not be even SUSPECTED of abusing radio frequency energy...or else you may just get an un-announced visit from the FCC.

Let me get right to some of what my privacy advocate friends have to say on this seemingly recent interpretation of the 1934 Communications Act. Electronic Frontier Foundation lawyer Lee Tien said:

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. 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.”

As Raw Story reported today, Rogue Radio Research - a company that promotes unlicensed broadcasters - says on its website that agents of the FCC don’t have the right to search homes, stating:

“If FCC agents knock on my door and say they want to talk with me, do I have to answer their questions? No. You have a right to say that you want a lawyer present when and if you speak with them, and that if they will give you their names, you will be back in touch with them. Unless you have been licensed to broadcast, the FCC has no right to ‘inspect’ your home.

If they say they have a right to enter my house without a warrant to see if I have broadcasting equipment, do I have to let them in? No. Under Section 303(n) of Title 47 U.S.C., the FCC has a right to inspect any transmitting devices that must be licensed under the Act. Nonetheless, they must have permission to enter your home, or some other basis for entering beyond their mere supervisorial powers. With proper notice, they do have a right to inspect your communications devices. If they have given you notice of a pending investigation, contact a lawyer immediately.”

Let me get to two more articles detailing this rather disturbing turn of events.

First, writes:

That 1934 Act, however, did not envision a telecommunications environment where it is common for ordinary homeowners to use a variety of RF-generating devices – wireless routers, cell phones, wireless phones, even garage-door openers and baby monitors.

While the FCC continues to maintain it has the right to regulate in-home transmissions associated with RF-radiating devices, experts in Constitutional law express grave doubts that warrantless FCC searches – for example a rogue device causing interference with a local wi-fi operator – would be legal under the Constitution.

"The Supreme Court has said that the government can't make warrantless entries into homes for administrative inspections," Orin Kerr, a George Washington University expert on Constitutional law, tells Wired. In 1967, the Supreme Court ruled for instance that housing inspectors could not forcibly enter residences without a warrant, for example.

The current debate over the 75-year-old communications law stems from an FCC run-in with a Boulder, Colo., radio station that operates without a license: Boulder Free Radio. The FCC has tried repeatedly to shut down the so-called "pirate station."

Wired Magazine adds a few more crucial pieces to this puzzle:

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 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.

Look, I'm not a paranoid person, and I don't think the FCC is going to come knocking on my door anytime soon. The issue here again is whether a government agency of any kind should be given the power to subvert core Constitutional principles? To me, aside from the variety of abuses such warrantless searches could invite, more importantly is the way such searches, and the "right" the FCC is claiming to carry them out, sets yet another bad precedent - and further erodes the stature and significance of the 4th Amendment (and the protection it provides the public).

I'll be keeping a look out for a Court challenge to the FCC's claim...and report back here.

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