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FBI taps cell phone mic as eavesdropping tool

by Declan McCullagh Thursday, Dec. 07, 2006 at 2:24 PM

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.

(Turns out that a side effect of this is that it drains the battery,

since the phone is always transmitting.)



Story last modified Fri Dec 01 18:46:27 PST 2006



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

thepurpose 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."

Nextel and Samsung handsets and the Motorola Razr are especially

vulnerable to software downloads that activate their microphones, said

James Atkinson, a counter-surveillance consultant who has worked

closely with government agencies. "They can be remotely accessed and

made to transmit room audio all the time," he said. "You can do that

without having physical access to the phone."

Because modern handsets are miniature computers, downloaded software

could modify the usual interface that always displays when a call is in

progress. The spyware could then place a call to the FBI and activate

the microphone--all without the owner knowing it happened. (The FBI

declined to comment on Friday.)

"If a phone has in fact been modified to act as a bug, the only way to

counteract that is to either have a bugsweeper follow you around 24-7,

which is not practical, or to peel the battery off the phone,"

Atkinson said. Security-conscious corporate executives routinely

remove the batteries from their cell phones, he added.

FBI's physical bugs discovered

The FBI's Joint Organized Crime Task Force, which includes members of

the New York police department, had little luck with conventional

surveillance of the Genovese family. They did have a confidential

source who reported the suspects met at restaurants including Brunello

Trattoria in New Rochelle, N.Y., which the FBI then bugged.

But in July 2003, Ardito and his crew discovered bugs in three

restaurants, and the FBI quietly removed the rest. Conversations

recounted in FBI affidavits show the men were also highly suspicious of

being tailed by police and avoided conversations on cell phones

whenever possible.

That led the FBI to resort to "roving bugs," first of Ardito's Nextel

handset and then of Peluso's. U.S. District Judge Barbara Jones

approved them in a series of orders in 2003 and 2004, and said she

expected to "be advised of the locations" of the suspects when their

conversations were recorded.

Details of how the Nextel bugs worked are sketchy. Court documents,

including an affidavit (p1) and (p2) prepared by Assistant U.S.

Attorney Jonathan Kolodner in September 2003, refer to them as a

"listening device placed in the cellular telephone." That phrase could

refer to software or hardware.

One private investigator interviewed by CNET News.com, Skipp Porteous

of Sherlock Investigations in New York, said he believed the FBI

planted a physical bug somewhere in the Nextel handset and did not

remotely activate the microphone.

"They had to have physical possession of the phone to do it," Porteous

said. "There are several ways that they could have gotten physical

possession. Then they monitored the bug from fairly near by."

But other experts thought microphone activation is the more likely

scenario, mostly because the battery in a tiny bug would not have

lasted a year and because court documents say the bug works anywhere

"within the United States"--in other words, outside the range of a

nearby FBI agent armed with a radio receiver.

In addition, a paranoid Mafioso likely would be suspicious of any ploy

to get him to hand over a cell phone so a bug could be planted. And

Kolodner's affidavit seeking a court order lists Ardito's phone number,

his 15-digit International Mobile Subscriber Identifier, and lists

Nextel Communications as the service provider, all of which would be

unnecessary if a physical bug were being planted.

A BBC article from 2004 reported that intelligence agencies routinely

employ the remote-activation method. "A mobile sitting on the desk of a

politician or businessman can act as a powerful, undetectable bug," the

article said, "enabling them to be activated at a later date to pick up

sounds even when the receiver is down."

For its part, Nextel said through spokesman Travis Sowders: "We're not

aware of this investigation, and we weren't asked to participate."

Other mobile providers were reluctant to talk about this kind of

surveillance. Verizon Wireless said only that it "works closely with

law enforcement and public safety officials. When presented with

legally authorized orders, we assist law enforcement in every way

possible."

A Motorola representative said that "your best source in this case

would be the FBI itself." Cingular, T-Mobile, and the CTIA trade

association did not immediately respond to requests for comment.

Mobsters: The surveillance vanguard

This isn't the first time the federal government has pushed at the

limits of electronic surveillance when investigating reputed mobsters.

In one case involving Nicodemo S. Scarfo, the alleged mastermind of a

loan shark operation in New Jersey, the FBI found itself thwarted when

Scarfo used Pretty Good Privacy software (PGP) to encode confidential

business data.

So with a judge's approval, FBI agents repeatedly snuck into Scarfo's

business to plant a keystroke logger and monitor its output.

Like Ardito's lawyers, Scarfo's defense attorneys argued that the

then-novel technique was not legal and that the information gleaned

through it could not be used. Also like Ardito, Scarfo's lawyers lost

when a judge ruled in January 2002 that the evidence was admissible.

This week, Judge Kaplan in the southern district of New York concluded

that the "roving bugs" were legally permitted to capture hundreds of

hours of conversations because the FBI had obtained a court order and

alternatives probably wouldn't work.

The FBI's "applications made a sufficient case for electronic

surveillance," Kaplan wrote. "They indicated that alternative methods

of investigation either had failed or were unlikely to produce results,

in part because the subjects deliberately avoided government

surveillance."

Bill Stollhans, president of the Private Investigators Association of

Virginia, said such a technique would be legally reserved for police

armed with court orders, not private investigators.

There is "no law that would allow me as a private investigator to use

that type of technique," he said. "That is exclusively for law

enforcement. It is not allowable or not legal in the private sector.

No client of mine can ask me to overhear telephone or strictly oral

conversations."

Surreptitious activation of built-in microphones by the FBI has been

done before. A 2003 lawsuit revealed that the FBI was able to

surreptitiously turn on the built-in microphones in automotive systems

like General Motors' OnStar to snoop on passengers' conversations.

When FBI agents remotely activated the system and were listening in,

passengers in the vehicle could not tell that their conversations were

being monitored.

Malicious hackers have followed suit. A report last year said Spanish

authorities had detained a man who wrote a Trojan horse that secretly

activated a computer's video camera and forwarded him the recordings.

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