[Infowarrior] - FBI taps cell phone mic as eavesdropping tool

[Richard Forno]

  FBI taps cell phone mic as eavesdropping tool

By Declan McCullagh and Anne Broache
Staff Writers, CNET News
Last modified: December 1, 2006 6:35 PM PST

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

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."

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-activiation 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 write a Trojan horse that secretly  
activated a computer's video camera and forwarded him the recordings.