Tags: fcc | searches | privacy

Experts Sound Alarms Over FCC Searches

Thursday, 21 May 2009 04:37 PM

By David A. Patten

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Privacy experts are slamming FCC officials who claim they have broad powers to enter U.S. homes and to conduct searches without a warrant, if they suspect a personal electronic device is interrupting other signals.

"Anything using RF [radio frequency] energy, we have the right to inspect it to make sure it is not causing interference," FCC spokesman David Fiske tells Wired.com.

That FCC policy dates back to the Communications Act of 1934, which grants the Commission broad powers to regulate the airwaves, assign frequencies in the public interest, and ensure broadcasters' transmissions do not interfere with other stations' signals.

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."

Boulder Free Radio owners have reportedly built a mobile transmitter. Whenever the FCC serves notice it must be shut down, its owners simply relocate.

Pirate signals can interfere with police, fire department, and other important transmissions. Once the FCC verifies a station is operating illegally, it will typically seek a court order shutting the station down, and fines can range up to $11,000 per day. But it is difficult to prove the law has been violated without actually inspecting the equipment.

Earlier this month, the FCC shut down a rogue station in Patterson, N.J. whose salsa-music programming was interfering with New York City radio station WFUV 90.7 FM.

NorthJersey.com reports that after repeated warnings, the FCC asked a federal District Court to authorize federal agents to enter the station's offices and seize equipment.

"The equipment used in this type of operation is highly portable," Jafer Aftab, an assistant U.S. attorney, wrote to the court to justify the seizure request. "Any delay could result in the removal of the equipment to another location or concealment…"

The FCC did not respond immediately Thursday to a Newsmax request for more information on its perceived authority to enter private residences without a warrant.

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