Thats the upshot of the rules the agency has followed for years to monitor licensed television and radio stations, and to crack down on pirate radio broadcasters. And the commission maintains the same policy applies to any licensed or unlicensed radio-frequency device.
Anything using RF energy we have the right to inspect it to make sure it is not causing interference, says FCC spokesman David Fiske. That includes devices like Wi-Fi routers that use unlicensed spectrum, Fiske says.
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. Thats 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 FCCs purview, making the commissions claimed authority ripe for a court challenge.
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 Amendments protection against unreasonable search and seizure, says Electronic Frontier Foundation lawyer Lee Tien. 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.
George Washington University professor Orin Kerr, a constitutional law expert, also questions the legalilty of the policy.
The Supreme Court has said that the government cant make warrantless entries into homes for administrative inspections, Kerr said via e-mail, refering to a 1967 Supreme Court ruling that housing inspectors needed warrants to force their way into private residences. The FCCs online FAQ doesnt explain how the agency gets around that ruling, Kerr adds.
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