FBI activates cell phones' microphones for surveillance when no call is being made? [priv]

[Declan McCullagh <declan () well com>]

I've placed some relevant documents here:
http://www.politechbot.com/docs/fbi.ardito.roving.bug.opinion.120106.txt
http://www.politechbot.com/docs/fbi.ardito.affidavit.p1.120106.pdf
http://www.politechbot.com/docs/fbi.ardito.affidavit.p2.120106.pdf

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http://news.com.com/2100-1029_3-6140191.html

FBI taps cell phone mic as eavesdropping tool
December 1, 2006, 2:20 PM PST

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.

While the Genovese crime family prosecution appears to be the first time 
a remote-eavesdropping mechanism has been used in a criminal case, the 
technique has been discussed in security circles for years.

The U.S. Commerce Department's security office warns that "a cellular 
telephone can be turned into a microphone and transmitter for the 
purpose of listening to conversations in the vicinity of the phone." An 
article in the Financial Times last year said mobile providers can 
"remotely install a piece of software on to any handset, without the 
owner's knowledge, which will activate the microphone even when its 
owner is not making a call."

[...remainder snipped...]
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