Rad Geek People's Daily

(Via Anarchogeek 2006-12-03.)

The FBI appears to have begun using a novel form of electronic surveillance in criminal investigations: remotely activating a mobile phone’s microphone and using it to eavesdrop on nearby conversations.

The technique is called a roving bug, and was approved by top U.S. Department of Justice officials for use against members of a New York organized crime family who were wary of conventional surveillance techniques such as tailing a suspect or wiretapping him.

Nextel cell phones owned by two alleged mobsters, John Ardito and his attorney Peter Peluso, were used by the FBI to listen in on nearby conversations. The FBI views Ardito as one of the most powerful men in the Genovese family, a major part of the national Mafia.

The surveillance technique came to light in an opinion published this week by U.S. District Judge Lewis Kaplan. He ruled that the roving bug was legal because federal wiretapping law is broad enough to permit eavesdropping even of conversations that take place near a suspect’s cell phone.

Kaplan’s opinion said that the eavesdropping technique functioned whether the phone was powered on or off. Some handsets can’t be fully powered down without removing the battery; for instance, some Nokia models will wake up when turned off if an alarm is set.

… A BBC article from 2004 reported that intelligence agencies routinely employ the remote-activiation method. A mobile sitting on the desk of a politician or businessman can act as a powerful, undetectable bug, the article said, enabling them to be activated at a later date to pick up sounds even when the receiver is down.

For its part, Nextel said through spokesman Travis Sowders: We’re not aware of this investigation, and we weren’t asked to participate.

Other mobile providers were reluctant to talk about this kind of surveillance. Verizon Wireless said only that it works closely with law enforcement and public safety officials. When presented with legally authorized orders, we assist law enforcement in every way possible.

A Motorola representative said that your best source in this case would be the FBI itself. Cingular, T-Mobile, and the CTIA trade association did not immediately respond to requests for comment.

… Surreptitious activation of built-in microphones by the FBI has been done before. A 2003 lawsuit revealed that the FBI was able to surreptitiously turn on the built-in microphones in automotive systems like General Motors’ OnStar to snoop on passengers’ conversations.

When FBI agents remotely activated the system and were listening in, passengers in the vehicle could not tell that their conversations were being monitored.

— Declan McCullagh and Anne Broache, c|Net News (2006-12-01): FBI taps cell phone mic as eavesdropping tool

As uninteresting as I may be to the FBI or other government spooks, I can’t say that I’m particularly reassured by this little private-public partnership, or by its innovative steps towards a more robust Stasi-statism.

If you want to say something without sharing it with government agents, the best thing to do is to leave your cell phone in the car, or to remove the battery until you finish talking.

Note also the following:

This week, Judge Kaplan in the southern district of New York concluded that the roving bugs were legally permitted to capture hundreds of hours of conversations because the FBI had obtained a court order and alternatives probably wouldn’t work.

The FBI’s applications made a sufficient case for electronic surveillance, Kaplan wrote. They indicated that alternative methods of investigation either had failed or were unlikely to produce results, in part because the subjects deliberately avoided government surveillance.

Bill Stollhans, president of the Private Investigators Association of Virginia, said such a technique would be legally reserved for police armed with court orders, not private investigators.

There is no law that would allow me as a private investigator to use that type of technique, he said. That is exclusively for law enforcement. It is not allowable or not legal in the private sector. No client of mine can ask me to overhear telephone or strictly oral conversations.

— Declan McCullagh and Anne Broache, c|Net News (2006-12-01): FBI taps cell phone mic as eavesdropping tool

And that’s precisely what’s wrong with it. You and I have no right at all to treat our neighbors like this, and neither does any agent that we might voluntarily hire. Judges tolerate this kind of snooping only from government agencies such as the FBI, and then only because the prerogatives of the National Security state are taken to confer special privileges to its anointed agents and to rob ordinary folks like you and me of the privacy and immunities we would ordinarily expect. But putting on a government badge actually does nothing at all to confer the virtue, the knowledge, or the right to be trusted with that kind of invasive power. If private citizens, who at least are spending their own money and are in principle accountable for their actions, cannot be trusted with the power to snoop on their neighbors like this, then a secretive armed faction, which has a long history of criminal misconduct, and which is in effect accountable to none save God alone, certainly cannot be trusted with it, either.

Further reading:

• GT 2006-05-22: Spy vs. Spy
• GT 2005-11-05: Dramatic Irony, Part II
• GT 2006-01-11: The A Fortiori War Powers Quiz, Take One
• GT 2006-01-05: An Open Question for Constitutionalist Liberals