WASHINGTON-While lawmakers and civil libertarians aggressively scrutinize privacy implications of the Bush administration’s domestic surveillance initiative and other anti-terrorist programs in the post-9/11 world, the FBI is using wiretap law to eavesdrop on conversations by remotely firing up microphones on idle cell phones of unwitting criminal suspects.
The government’s application of “roving bugs” came to light in a recent court ruling in connection with a three-year investigation of an organized crime family. Ten of the 34 defendants facing criminal charges wanted the U.S. District Court for the Southern District of New York to suppress conversations intercepted by law enforcement through “roving bugs” in mobile phones.
“Roving bugs” pick up room audio as opposed to traditional wiretaps in which wireless phone conversations and other electronic communications are monitored-subject to court order-by the FBI. Both forms of electronic surveillance are covered by a 1986 law authorizing roving wiretaps, which gives law enforcement flexibility to eavesdrop continuously on suspects who often change locations and use different phones to avoid detection.
Constant movement of suspects was the situation in this case, frustrating the FBI to the point that it applied for and received from a federal judge eavesdropping authority under the roving wiretap statute. With a twist. Government investigators were able to listen to conversations of organized crime suspects even when their cell phones were turned off-at least as far as the suspects were concerned.
U.S. District Judge Lewis A. Kaplan rejected defendants’ arguments that “roving bugs” violated their constitutional rights, noting the 2nd U.S. Circuit Court of Appeals in 1993 upheld the roving wiretap statute in an identical legal challenge.
“While a mobile device makes interception easier and less costly to accomplish than a stationary one, this does not mean that it implicates new or different privacy concerns,” wrote Kaplan in a Nov. 27 ruling. “It simply dispenses with the need for repeated installations and surreptitious entries into buildings. It does not invade zones of privacy that the government could not reach by more conventional means.”
In his memorandum opinion, Kaplan’s terminology suggests the FBI physically installed roving bugs in suspects’ cell phones. But that is not the case, according to counter-spy technology expert James Atkinson of Granite Island Group in Glouster, Mass.
Atkinson said the FBI-with court approval and mobile-phone carrier assistance required by law-can exploit mobile phones over the air in such a way that microphones in handsets are activated and nearby conversations picked up by federal investigators. Atkinson said a “roving bug” can be implanted over the air in most any digital cell phone, adding Motorola Inc.-manufactured iDEN and Razr handsets and Samsung Electronics Co. Ltd. handsets are among the easiest to hack for “roving bug” wiretap purposes by the FBI.
While the existence of the “roving bug” in cell phones came to light only in recent weeks, Atkinson said the FBI has utilized the eavesdropping capability for years. Indeed, it’s certainly no secret to the U.S. government.
A Commerce Department Web site warns federal employees: “A cellular telephone can be turned into a microphone and transmitter for the purpose of listening to conversations in the vicinity of the phone. This is done by transmitting to the cell phone a maintenance command on the control channel. This command places the cellular telephone in the ‘diagnostic mode.’ When this is done, conversations in the immediate area of the telephone can be monitored over the voice channel. . The user doesn’t know the telephone is in the diagnostic mode and transmitting all nearby sounds until he or she tries to place a call. Then, before the cellular telephone can be used to place calls, the unit has to be cycled off and then back on again.”
The FBI declined to confirm or deny use of “roving bugs” in criminal investigations.
“Any electronic surveillance we do conduct-regardless of technology-is subject to judicial review and ongoing scrutiny,” said Neil Donovan, a spokesman in the FBI’s New York Field Office.
There’s only one way for a criminal suspect to dodge electronic surveillance by a “roving bug.”
“Most cell phones, when you turn them off, they do not die. You have to take the battery off,” said Atkinson.
The revelation of “roving bugs” has broad privacy implications for the more than 200 million U.S. cellular subscribers whose location can already be pinpointed, according to leading privacy advocate.
“This shows how technology continues to put new pressure on the legal framework,” said James Dempsey, policy director of the Center for Democracy and Technology.
Dempsey said FBI use of “roving bugs” and other surveillance of wireless, wireline and Internet communications-with many eavesdropping capabilities inherently built into the various platforms-makes a mockery of law enforcement complaints that it lacks the tools to eavesdrop in the Digital Age.
“In various respects, the cell phone is a tracking device and it’s a bug, which most people don’t realize,” said Dempsey.