By Peter Hall
The Morning Call
ALLEGHENY COUNTY, Pa. — People who hijack their neighbors' WiFi to commit crimes on the Internet shouldn't expect their misdeeds to stay hidden, a federal court has ruled, upholding an Allegheny County man's conviction for trading child pornography.
State police in 2010 used a device called the "MoocherHunter" to trace a wireless Internet signal being used to transmit child porn after an initial raid on a Pittsburgh home turned up nothing.
Tracing the signal through a neighbor's unsecured wireless router led an investigator to the apartment of Richard Stanley, who is now serving a four-year, three-month federal prison sentence.
Stanley, 35, argued that because police didn't get a warrant before tracing the WiFi signal back to his apartment, the evidence they seized — including 144 images and videos depicting the sexual abuse of children — should not have been admitted in his trial.
In its decision Wednesday, a three-judge panel of the 3rd U.S. Circuit Court of Appeals found that police didn't need a warrant because Stanley deliberately projected his criminal conduct outside of his home via the wireless Internet connection.
"In effect, Stanley opened his window and extended an invisible, virtual arm across the street to his neighbor's router so that he could exploit his Internet connection," Judge D. Brooks Smith wrote for the panel. "In doing so, Stanley deliberately ventured beyond the privacy protections of his home."
The Fourth Amendment protects people's homes from searches unless police can show probable cause they contain evidence of a crime. Because Stanley had made an unauthorized connection to his neighbor's WiFi router, he was a virtual trespasser, the court said.
"As such, he can claim no 'legitimate' expectation of privacy in the signal he used to effectuate this trespass," Smith wrote.
The ruling is among the latest in a constellation of appeals court decisions defining the boundaries of Fourth Amendment protection when applied to modern wireless and computer technology.
"This case and many others raise the question of whether new technology being used by law enforcement violates the expectation of privacy by showing where they are or where they've been and what they've entered into their computers or smartphones," said David Rudovsky, a University of Pennsylvania law professor who specializes in issues involving search and seizure.
Hanni Fakhoury, a staff attorney with the Electronic Frontiers Foundation, which works to protect freedoms in the digital age, said the technology used in Stanley's case is widely used by law enforcement. Fakhoury said he would prefer to see courts review and apply discretion to its use to avoid abuses.
"The government could absolutely use this technology in other ways," Fakhoury said. "They could sit outside a Starbucks and figure out who's doing what."
In its opinion, the 3rd Circuit panel acknowledged the case raises concerns about privacy and rejected the trial court's basis for finding the MoocherHunter did not violate Stanley's rights.
The trial court relied on a 1979 Supreme Court decision that said police didn't need a warrant to obtain a list of numbers that a telephone subscriber had dialed. The subscriber, the court said, voluntarily provided that information to the telephone company.
Stanley's case was similar, the trial court reasoned, because he voluntarily connected to his neighbor's wireless network, providing information about his identity in the process.
In his opinion for the 3rd Circuit, however, Smith wrote that anyone who uses the Internet must necessarily provide information to third parties as the user's computers and devices connect to others.
A decision that an Internet user gives up his or her right to privacy by connecting with another computer could, "without adequate qualification, unintentionally provide the government with unfettered access to this mass of private information without requiring its agents to obtain a warrant."
The 3rd Circuit also rejected an argument by Stanley's attorneys that police had to get a warrant under a 2001 U.S. Supreme Court decision involving the use of infrared screening equipment to find homes where marijuana was being farmed indoors. The excess heat from high-powered growing lamps could be used to locate such operations, police found.
The Supreme Court found that the defendant justifiably relied on the privacy protections of the home to conceal his activities and that the police use of screening equipment violated his Fourth Amendment rights.
"Stanley made no effort to confine his conduct to the interior of his home," Smith wrote. "In fact, his conduct — sharing child pornography with other Internet users via a stranger's Internet connection — was deliberately projected outside of his home."
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