Add Wi-Fi, Lose Your Fourth Amendment Rights

WASHINGTON, D.C. – The Fourth Amendment to the Constitution is pretty clear, even though it's taken quite a beating during the past eight years: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

But one of the ways you can lose that right – or part of it, anyway – is through the Communications Act of 1934, the Act that established the Federal Communications Commission and gave it power over "common carriers."

Title 47 of the United States Code, at Sec. 208(a) says, in pertinent part, "Any person, any body politic, or municipal organization, or State commission, complaining of anything done or omitted to be done by any common carrier subject to this chapter, in contravention of the provisions thereof, may apply to said Commission by petition which shall briefly state the facts, whereupon a statement of the complaint thus made shall be forwarded by the Commission to such common carrier, who shall be called upon to satisfy the complaint or to answer the same in writing within a reasonable time to be specified by the Commission. ... If such carrier or carriers shall not satisfy the complaint within the time specified or there shall appear to be any reasonable ground for investigating said complaint, it shall be the duty of the Commission to investigate the matters complained of in such manner and by such means as it shall deem proper." [Emphasis added]

But things have changed a bit since 1934. Now, there are lots of gadgets Americans use every day – TV remotes, cell phones, cordless phones, citizen's band (CB) radios, wireless routers, baby monitors and more – that put out a communication signal over the airwaves ... and Sec. 208(a) gives the FCC the power to investigate complaints about those signals, even to the point of searching the location of the signal without the need for a warrant.

Pirate radio station Boulder Free Radio in Boulder, Colorado, found out about this anomaly the hard way: An FCC agent tacked a copy of the agency's inspection policy to the door of the residence where the station was housed, which notice stated, "Whether you operate an amateur station or any other radio device, your authorization from the Commission comes with the obligation to allow inspection."

But while noting that "a very thin constitutional line was crossed" with the FCC leaving an inspection notice on the radio station's door – the implication being that the FCC would have had time to get a warrant if it wanted to enter the premises – "In this instance an individual was broadcasting a radio station with the intent of generating a public audience," analyzed Detroit-based attorney Corey Silverstein. "This individual may have a more difficult time arguing that his privacy rights were violated than someone using a portable phone or a wireless router."

At least one Supreme Court ruling has declared that "the government can't make warrantless entries into homes for administrative inspections," noted Prof. Orin Kerr, a constitutional law expert at George Washington University, and Silverstein agrees.

"The entire purpose of the Fourth Amendment is to protect a person's expectation of privacy with regard to his home," Silverstein stated, "and the FCC's utilization of a law that was never intended to be applicable to residences couldn't be more infringing upon the rights of individuals."

"The most alarming part of the FCC's usage of this legislation is the slippery slope," Silverstein continued. "This time it was a radio station; next time it's a wireless telephone frequency; after that, it's someone using a satellite Internet connection. Since the inception of the Constitution, and later its Amendments, there has always been and there always will be a war between government and private citizens.  The government will always try to trample over privacy rights and individuals will use the Fourth Amendment as a shield."

As things now stand, anyone refusing admittance to an FCC inspector can be fined, and in one case in Corpus Christi, Tex., a man rebroadcasting an AM radio station over his CB radio was socked for $7,000 for refusing entry to an FCC inspector. (Since the man was indigent, the fine was later reduced to $225.)

Another possibility is that once the FCC inspector is admitted to the area to be searched, he/she may see evidence of another crime – perhaps child porn on a computer, or a growing marijuana plant – and such observation may form the basis for a later prosecution, not unlike crimes observed during a 2257 inspection.

"As far as I know, no arrest has been made of a private citizen as a result of the FCC discovering evidence of criminal activity while utilizing this particular legislation," Silverstein noted. "Unfortunately, a time will probably come when evidence gathered though one of these FCC tactics will become part of a criminal case against a private citizen and challenges will be raised. The most likely result will be the evidence being held inadmissible and the FCC's usage of the Act being declared unconstitutional. This will lead to the continuation of the endless circle whereby some other Government agency will find another tool to sneak past the Fourth Amendment."