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You May be Surprised Who Knocks on Your Door in Obama's World

June 1, 2009

Ever since President Obama called for a new domestic army many people waited for the next shoe to drop after his election as president, but who would have expected the jackbooted knocker on your door to come from the Federal Communication Commission - "I'm from the FCC and I'm here to confiscate your computer."

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. For many years the agency has followed this rule to monitor licensed television and radio stations, and to crack down on pirate radio broadcasters, but now the FCC says the same policy applies to any licensed or unlicensed radio-frequency device.

Speaking for the FCC, spokesman David Fiske said "Anything using RF energy - we have the right to inspect it to make sure it is not causing interference." That includes devices like Wi-Fi routers that use unlicensed spectrum, Fiske says.

The FCC claims it derives its warrant-less search power from the Communications Act of 1934, though the constitutionality of the claim has gone untested in the courts because the FCC had little to do with average citizens. For most of the last 75 years, 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.

I believe it's a major stretch to assert what the FCC claims is its authority with respect to a private home; this is at the core of the Fourth Amendment's protection against unreasonable search and seizure. The idea that a cell phone or a Wi-Fi connection suddenly makes the federal government able to invade your home for a warrantless search is more than bizarre.

George Washington University professor Orin Kerr, a constitutional law expert, also questions the legality of the policy.

According to Kerr, "The Supreme Court has said that the government can't make warrantless entries into homes for administrative inspections," referring to a 1967 Supreme Court ruling that housing inspectors needed warrants to force their way into private residences. The FCC has not explained how the agency gets around that ruling,

The FCC rules came to public 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 having an unlicensed 100-watt transmitter. "Whether you operate an amateur station or any other radio device, your authorization from the Commission comes with the obligation to allow inspection," the FCC statement says.

A corollary of the newly claimed and enforced FCC policy is that if inspectors should notice evidence of unrelated criminal behavior - say, a marijuana plant or stolen property - another Supreme Court decision suggests the search results can be used against the resident. In the 1987 case New York v. Burger, two police officers performed a warrant-less, administrative search of Joseph Burger's automobile junkyard. When he couldn't produce the proper paperwork, the officers searched the grounds and found stolen vehicles, which they used to prosecute him. The Supreme Court held the search to be legal.

Refusing the FCC admittance can carry a harsh financial penalty. In a 2007 case, a Corpus Christi, Texas, man got a visit from the FCC's direction-finders after re-broadcasting an AM radio station through a CB radio in his home. An FCC agent tracked the signal to his house and asked to see the equipment; Donald Winton refused to let him in, but did turn off the radio. Winton was later fined $7,000 for refusing entry to the officer. (The fine was reduced to $225 after he proved he had little income.)

The new government claimed authority takes on even more dire prospects when you consider that it is reported Obama is considering a "preventive detention plan." President Obama told human rights advocates at the White House recently that he was mulling the need for a "preventive detention" system that would establish a legal basis for the United States to incarcerate terrorism suspects who are deemed a threat to national security but cannot be tried, according to two participants in the private session.

The discussion, in a 90-minute meeting in the Cabinet Room that included Attorney General Eric H. Holder Jr. and other top administration officials, came before a speech Obama gave on a number of national security matters.

The two participants, outsiders who spoke on the condition of anonymity because the session was intended to be off the record, said they left the meeting "dismayed." If it were me I would have said "downright terrified."

The participants also said Obama told them he was thinking about "the long game" - how to establish a legal system that would endure for future presidents. He raised the issue of preventive detention himself. It is reported Senior White House officials did not respond to requests for comment on the outsiders' accounts.

"He was almost ruminating over the need for statutory change to the laws so that we can deal with individuals who we can't charge and detain," one participant said.

The other participant said Mr. Obama did not seem to be thinking about preventive detention for terrorism suspects now held but rather for those captured in the future. "The issue is," the participant said, "What are the options left open to a future president?" To that I say "balderdash;" with Obama's record of expanding government power and intruding on civil rights, it is more likely Obama wants to couple his new Socialist/Marxist society with Nazi-like powers.

In the World War II era people had to play their radios in the dark; have we come to the time when we will have to secret our computers and cell phones?

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Copyright ©2009 Vincent Gioia