Unlicensed advocates disagree
Have a Wi-Fi router? If you do — and it uses an unlicensed frequency — you could be subject to a warrantless search of your home.
Federal Communications Commission guidelines stipulate that the agency can enter property when it suspects radio frequency energy is being abused. The provision, which was originally intended to aid the monitoring of unlicensed radio and tv stations, now has a broader range of application as more consumers join the wi-fi ranks.
“Anything using RF energy — we have the right to inspect it to make sure it is not causing interference,” FCC spokesman David Fiske told Wired for an article Thursday. The FCC spokesman said the scope included Wi-Fi routers.
“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,” Wired’s Ryan Singer wrote. “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.”
The Electronic Frontier foundation, an online privacy group, called the FCC’s interpretation a “major stretch.”
“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,” Electronic Frontier Foundation lawyer Lee Tien was quoted as saying. “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.”
“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,” Singer writes.
“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 said.
Boulder Free Radio simply moved the transmitter to a new location. They say they’ll continue to do so in the future.
KBFR Boulder Free Radio offers a glimpse into the troubles encountered by pirate radio stations. It aired from 2000 to 2005 using an unlicensed broadband radio frequency. During that time, the station’s founders mounted a transmitter in a tree while connecting it to the station in a van and parked it in various locations in an effort to frustrate FCC inspectors.
Ultimately, the station shut down. It was reincarnated, however, in 2006 and again in 2008.
Not everyone agrees with the FCC’s interpretation of the 1934 law. 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.
“If FCC agents knock on my door and say they want to talk with me, do I have to answer their questions?” the site asks rhetorically on its “Pamphlets and Practical Guides” page.
“No,” they say. “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?” they continue.
“No,” the site replies. “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.”
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