We all know now how Spitzer got his butt in a jam, but I was listening to a DA saying that even he knew the laws, he did not know all the technology advances that have been made. I was thinking of all the electronic surveillance that was going on in this case.
So, yesterday I remembered an article that was sent to me last fall…I think. I will only include the part named “roving bug”…it makes you think.
The Roving Bug
In November of 2006, Louis Kaplan, a US District Judge in the Southern District of New York, issued an opinion regarding the legality of electronic surveillance measures that had been used during the three-year investigation of 34 defendants of the Genovese organized crime family. The opinion was unique in that it, for the first time, publicity shed light on a little known surveillance capability that is inherent in cell phone technology, and that few outside of security circles, knew about. From Judge Kaplan's opinion:
2. The Roving Intercepts
a. Ardito's Cellular Telephone
Based on physical surveillance and the conversations previously
intercepted, the FBI learned that Ardito's crew no longer conducted
meetings exclusively at the four restaurants, but met also in 12
additional restaurants, automobiles, Ardito's home, an auto store, an
insurance office, a jewelry store, a doctor's office, a boat, and
public streets.
The government applied for a "roving bug," that is, the interception
of Ardito's conversations at locations that were "not practical" to
specify, as authorized by 18 U.S.C. § 2518(11)(a). Judge Jones
granted the application, authorizing continued interception at the
four restaurants and the installation of a listening device in
Ardito's cellular telephone. The device functioned whether the phone
was powered on or off, intercepting conversations within its range
wherever it happened to be.
It is the final sentence in this portion of Judge Kaplan's opinion that opened up to the public the fact that cell phones can be used as listening devices, whether they are on or off, and more importantly, even when they are not being used to make or receive a call.
When this opinion and the surveillance capability it exposed became public, privacy advocates, technology experts, and some in the media began to delve more deeply into the subject. What they learned and have since exposed is startling.
It turns out that the phrase "installation of a listening device" used in Judge Kaplan's decision, does not refer to the physical placement of a listening or transmitting device into a suspect's telephone. Rather it refers to computer code, software, that can be remotely sent to a cell phone, and that once activated, will turn the microphone of that cell phone on and basically turn that cell phone into a high quality bugging device that will transmit everything that it's microphone picks up without the knowledge of the person carrying the phone. The FBI (or agency conducting the surveillance) never needs to physically touch or come into the possession of the phone. Nor is there any indication to the user that the phone is actively transmitting what it picks up“—it does not come on or otherwise indicate that it is operating.
How It works
Modern cell phones have the capability of receiving email, traffic updates, news reports and more. They also have the capability to download software programs that can affect how they operate, add features and services, and enhance the their usability and convenience. On the downside however it is this ability to download software that is now starting give rise to the first generation of cell phone computer viruses that are popping up around the world.
Cell phones are basically miniature computers that are controlled by software programs. These programs control the operation of the cell phone and how it interacts with the cellular network. In order for the network to maintain its integrity there is built into cell phones the ability to do remote diagnostics and maintenance tasks on the programming of the cell phone. These tasks operate in the "control channel" of the cell phone, which operates in the background and is not accessible to the user.
A specific maintenance command can be sent from the cellular carrier network to the cell phone to place the phone into "diagnostic mode." That diagnostic mode activates the cell phone's microphone but does not give any indication on the cell phone screen display or audio tone output that the microphone is active and the cell phone transmitting. It is this diagnostic mode that law enforcement agencies use to turn a cell phone into a "roving bug."
An interesting side note to this capability is that it also exists in automotive systems such as General Motor's OnStar. That ability was disclosed in a 2003 lawsuit heard before the 9th circuit Court of Appeals in California. From that lawsuit, (No. 02-15635 D.C. No. CV-01-01495-LDG Opinion):
One feature of the system allows the company to open a cellular connection to a vehicle and listen to oral communications within the car. This feature is part of a stolen vehicle recovery mode that provides assistance to car owners and law enforcement authorities in locating and retrieving stolen cars. The same technology that permits the interception of the conversations of thieves absconding with the car also permits eavesdropping on conversations within the vehicle.
The Federal Bureau of Investigation, realizing that the system can be used as a roving "bug" and following the procedures mandated for "bugging" private individuals suspected of criminal activity, sought and obtained a series of court orders requiring the company to assist in intercepting conversations taking place in a car equipped with the system. The company challenges the court's authority to order the use of the company's equipment, facilities, system, and employees. The question for decision is whether the statute governing private parties' obligations to assist the federal government in intercepting communications permits such an order.
As noted earlier, the ability of cellular phones to be turned into bugs has long been known in security and government circles. The Department of Commerce - NOAA website itself (http://www.wrc.noaa.gov/wrso/security_guide/cellular.htm) gives the following warning to it's employees:
Vulnerability to Being Used as a Microphone
A cellular telephone can be turned into a microphone and transmitter for the purpose of listening to conversations in the vicinity of the phone....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....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. This threat is the reason why cellular telephones are often prohibited in areas where classified or sensitive discussions are held.
