Does the FCC Get A SWAT Team?

May 27, 2009

Comments

You may not know it, but if you have a wireless router, a cordless phone, remote car-door opener, baby monitor or cell phone 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.

Neat, huh? There you are putting your baby to sleep, then BAAAM!! BANG!! You can’t see, your baby is screaming, and you here “GET THE FUCK ON THE FLOOR OR I KILL YOU!” The FCC is coming to inspect your baby monitor. And if you have a dog, they will shoot it and leave its bloody carcass for you to clean up.

Okay, maybe a bit far fetched, but considering that small community police departments with 1 murder every decade are getting SWAT teams, armored personnel carriers, machine guns, and the like…maybe not all that too far fetched.

“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.

Fortunately the basis for this claim is untested in the courts. Further, here is Orin Kerr on the matter,

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.

And here is one wrinkle, if there is something that is illegal like say a marijuana plant, stolen property, etc. then that can be used against the resident even though the evidence is obtained via a warrantless search. If this is upheld I wouldn’t be at all surprised if local police departments don’t start trying to use this to get around obtaining warrants. In which case the FCC wont need a SWAT team, they’ll just use the local one.

Photo by Flickr user Brain Toad Photography, used under the Creative Commons License.

11 responses to “Does the FCC Get A SWAT Team?”

JKB

May 27, 2009 at 1:06 pm

While troubling, I believe you’ll find that if SWAT comes along they’ll have to stay outside or have a warrant. Of course, this doesn’t preclude the inspector from reporting contraband they see in the home and that being used as a basis for a warrant. This is similar to the encouragement of paramedics in observing and reporting suspect activity when they are in a home on a medical assistance call. The inspector is limited to inspecting the regulated item or area so don’t keep your grass with your WiFi router.

A ploy would be for police to accompany an inspector, remain outside, then the inspector provoke the homeowner to physically try to stop them from entering, upon which the police enter to stop the assault and for the safety of the inspector while performing their duties, then you’re at the mercy of a “immediate accessible/officer safety” area search, which has a broad judicial interpretation.
Zelsdorf Ragshaft III

May 27, 2009 at 1:29 pm

Post a sign outside the residence and send a notification to the local police all wireless devices are stored outside the home. This will be tough for people with baby monitors however I would have no problem storeing my cell and wireless phones outside.
Tlaloc

May 27, 2009 at 1:55 pm

I am very pro-warrant. If you want to kick in someone’s door and point a gun in their face (or their kid’s face) it really isn’t too much to ask that a judge say “yeah, alright.”

I understand some allowances may have to be made for roving wiretaps or even in extreme cases for an after the fact wiretap warrant. But before the boot meets the door jam you damn well better have a judge sign off on the idea.
Steve Verdon

May 27, 2009 at 2:36 pm

While troubling, I believe you’ll find that if SWAT comes along they’ll have to stay outside or have a warrant.

While possibly technically true, I think Radley Balko has examples of where SWAT teams have been used when checking liqour licenses, so maybe not.

I understand some allowances may have to be made for roving wiretaps or even in extreme cases for an after the fact wiretap warrant. But before the boot meets the door jam you damn well better have a judge sign off on the idea.

I’m with ya Tlaloc…but I’d like the judges to be more than mere rubber stamps that many have become.

For one thing I’d like an independently maintained database of confidential informants information that lead to warrants that lead to wrong door raids, successful raids, etc. Taking the police officer’s word for what constitutes a “reliable” informant is something that needs to go considering cases like Kathryn Johnson where they made up the informant.
Steve Plunk

May 27, 2009 at 5:46 pm

Slippery slope. How many times do we hear it mentioned yet we allow government to proceed with it’s desire to erode freedoms.

For years businesses have been subjected to such warrantless (regulatory) searches. Now we see they have become so enamored with such power they try to extend it to private homes. Even when demanding warrants business people find judges who sign off without any probable cause being provided.

So the next time you see a regulatory agency talk about it’s need to have full access to businesses keep in mind they may soon need access to your own living room.
Grewgills

May 27, 2009 at 7:01 pm

The FCC faq can be read here.
Has this authority been abused for residential searches that are not directly associated with running a broadcast radio station out of the home?
Tlaloc

May 27, 2009 at 9:46 pm

For years businesses have been subjected to such warrantless (regulatory) searches.

That doesn’t bother me at all. Businesses are not people and have no reason to have fourth amendment rights.

So the next time you see a regulatory agency talk about it’s need to have full access to businesses keep in mind they may soon need access to your own living room.

They are right in one case and wrong in the other. That’s a pretty clear line to draw from where I stand.
anjin-san

May 27, 2009 at 11:48 pm

Slippery slope. How many times do we hear it mentioned yet we allow government to proceed with it’s desire to erode freedoms.

Damn straight. When you look at the militarization of police forces and things like cities all over the country using homeland security grants to put in cameras, its a pretty troubling situation. The cameras San Francisco has put in to fight crime have been an expensive failure that intrudes on the privacy of citizens.

As for Mr. Fiske, perhaps we should all contact our congressional representatives and see if they can’t send him to the Alutian Islands to check out the RF situation there.
Boyd

May 28, 2009 at 9:27 am

Why did this even come up? Has the FCC ever barged into a home to inspect a baby monitor or other unlicensed (Part 15, in FCC parlance) device?

My understanding, as a licensed Amateur Radio station and operator, is that inspection is usually a last-ditch step when problems don’t get fixed. Further, inspection has often been done at the door, or at the local(-ish) FCC office.

While the FCC may be bold enough to claim it can enter your home against your will to “inspect” a radio device, I don’t think they’re bold enough to actually do it.
Steve Verdon

May 28, 2009 at 11:31 am

Why did this even come up? Has the FCC ever barged into a home to inspect a baby monitor or other unlicensed (Part 15, in FCC parlance) device?

Boyd,

I’m leery of giving the government power as a general rule. The way I figure is eventually they’ll use it, and in this case people will be worse off.

While the FCC may be bold enough to claim it can enter your home against your will to “inspect” a radio device, I don’t think they’re bold enough to actually do it.

Yet. As I’ve noted they’ve used liquor licensing as justification for sending in SWAT. Fortunately, the courts slapped them down for that one, but still it is little comfort for those who’ve had to under go such invasions by armed para-military units.
Boyd

May 28, 2009 at 11:47 am

Don’t get me wrong, I’m with you on the overall overuse of militarized police units, 4th Amendment violations and all of that stuff. I just don’t understand what precipitated this concern right now instead of last week or five years ago or whatever.