A federal judge in Pennsylvania ruled that a person who uses a neighbor’s unsecured wireless internet connection, commonly known as “Wi-Fi” to engage in allegedly illegal activity has no reasonable expectation of privacy. The defendant in United States v. Stanley argued that police violated his Fourth Amendment rights by using software to identify him as a “moocher” on the neighbor’s network, without first obtaining a warrant. The court held that police investigators’ use of the software was not a “search” under the Fourth Amendment, and denied the defendant’s motion to suppress.
The case arose from an investigation by the Pennsylvania State Police into child pornography distribution via peer-to-peer networks online. The head of the computer crime unit reportedly discovered a machine sharing seventy-seven files on a popular peer-to-peer network. He determined that at least twenty-two of those files contained child pornography. He obtained unique identifiers associated with the computer, and identified the internet protocol (IP) address where the computer was accessing the internet. The publicly-visible IP address will only identify the router connecting a computer to the internet.
Police traced the IP address, through the internet service provider, Comcast, to a private home in Allegheny County, Pennsylvania. This was enough to obtain a search warrant for the residence, where police found nothing. They learned that the Comcast subscriber used an unsecured wireless router in his home to connect to the internet. This meant that anyone close enough to the router could use his Wi-Fi network to access the internet. Police placed a device in his network to identify who was accessing the wireless router, and then used a program called “Moocherhunter” to locate the person’s machine. This led them to an apartment across the street, where Stanley allegedly lived.
Execution of a search warrant reportedly turned up enough evidence to charge Stanley with one count of child pornography possession. Stanley sought to suppress the evidence obtained through Moocherhunter, arguing that it violated his right under the Fourth Amendment to be free from unreasonable searches and seizures. The court considered the question of whether use of the program constituted a “search,” and held that it did not.
Stanley argued that the Supreme Court’s holding in Kyllo v. United States, 533 U.S. 27 (2001), was controlling. In that case, the Supreme Court ruled that the use of a thermal-imaging device to check a house for heat signatures consistent with indoor marijuana cultivation violated the Fourth Amendment. The court disagreed with Stanley, noting that the evidence obtained in Kyllo would have been invisible but for the police’s use of technology. In contrast, the court said, Stanley’s use of an unsecured Wi-Fi network put his information out into the public.
The court noted that federal caselaw has found that people do not have a reasonable expectation of privacy in regard to IP addresses, largely because an IP address is conveyed to third parties whenever a user goes online. The court cited the Supreme Court’s decision in Smith v. Maryland, 442 U.S. 735 (1979), where the court held that review of a “pen register” that records outgoing telephone numbers is not a “search,” and that a person has no expectation of privacy “in information he voluntarily turns over to third parties.” Id. at 743-44.
Michael J. Brown, a board-certified criminal defense attorney, fights for the rights of Texas defendants, making certain that law enforcement and the courts abide by all the rules and procedures of the criminal justice system. To learn more about how we can assist you in your legal matter, contact us online or at (432) 687-5157.
Memorandum Opinion and Order (PDF file), Case No. 2:11-cr-00272, United States v. Stanley, U.S. District Court, Western District of Pennsylvania, November 14, 2012
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