The "roving bug" technique was approved by U.S. Department of Justice officials for use on members of an organized crime family in New York that was getting increasingly suspicious of tails, wiretaps or other traditional surveillance techniques.
The cell phones of alleged mobster John Ardiot -- considered by the FBI to be one of the most powerful men in the national Mafia's Genovese family -- and his attorney Peter Peluso, also an alleged mobster, were activated by this technique in order for authorities to monitor nearby conversations. U.S. District Judge Lewis Kaplan ruled that the technique was legal in an opinion this week, stating that federal wiretapping law was broad enough to cover the monitoring of conversations occurring near a suspect's cell phone. Nextel spokesperson Travis Sowders said the company was not aware of the investigation and was not asked to participate.
The new method works whether the phone is on or off, because many phone models cannot be truly powered down without removing the battery. Some models, for example, will turn on from a powered-down state when an alarm is set.
A 2005 Financial Times article noted that cell phone providers can install a piece of software on any phone from a remote location, allowing microphone activation, without the owner's knowledge. In addition to activating a mic, the software can also stop a display from indicating a call in progress, taking away another method by which a cell phone user could tell his phone had been compromised. According to counter-surveillance consultant James Atkinson, models from Nextel, Samsung and the popular Motorola Razr are particularly vulnerable to these remote software downloads.
"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, adding that some security-conscious corporate executives make a habit of removing their cell phone's battery when the unit is not in use.
This is not the first time the FBI has commandeered built-in microphones as listening devices. In a 2003 lawsuit, it was discovered that the FBI was able to activate the microphones of automotive systems such as OnStar and listen to passenger conversations without the speakers knowing. The 9th Circuit Court of Appeals ruled that the practice was not legal, but only because the technique prevents the system from being used in an emergency.