Do you have an unsecured WIFI connection?

Good article from Austin Chronicle with interesting Fourth Amendment issues regarding internet browsing and probable cause. Snippet: "The government assumption should make anyone who uses the Internet nervous -- especially those who might use an unsecured connection, those who provide wireless Internet access for customers (for example, bookstores, coffeehouses, restaurants, or even the city of Austin’s Parks and Recreation Department), and small-business owners whose employees use computers connected via a router to an Internet modem."

In this case, law enforcement officials were able to trace a pornographic instant message to an IP address registered to the defendant at a specific street address. The defendant argued that because he used an unsecured wireless connection, the transmission could have been made by a number of third parties. As it turns out, the defendant probably did not send the instant message; it was probably sent by his house-mate. But police did find child pornography stored on computer disks in the defendant's possession. The Fifth Circuit held that the government's search warrant was not invalid merely because the pornography justifying the warrant was sent over an open and unsecured wireless internet connection. The court went on to say that the unsecured nature of the wireless connection does not affect the underlying basis for probable cause because probable cause only requires a "substantial basis" for believing that a search warrant will be useful. The court further stated that although it was possible that the transmissions originated outside the residence, the likelihood that the pornography in question emanated from the IP address owner himself was strong enough to justify probable cause.

My Take: While the police investigation was less than stellar, the warrant was supported by probable cause and the search did not violate the Fourth Amendment. Of course, it would have been nice for the police to gain a second search warrant for the roommate’s property based on new information learned – there was ample probable cause for such a warrant because the evidence pointed to him as being the true target of the initial investigation. Unfortunately, because the police (AG and FBI cyber crimes) did not do this, the investigation and arrest has the appearance that law enforcement may have been seeking headlines like these and this with minimal work and may not have been necessarily seeking justice. The Austin Chronicle article states that the case is "now headed for the U.S. Supreme Court," but the Fifth Circuit Pacer and the Supreme Court docket have no reference to any cert filing to date. It appears that the person who committed the crime, i.e., the person who transmitted the pornographic instant message, that initially began the criminal investigation remains at large.

Side Note: Given the fact that some unscrupulous police officers may consider using illegal means to manufacture probable cause and may even use "trickery and force" by staging an accident, theft, and chase to achieve a clandestine seizure, some law enforcement may view unsecured network's such as the one in this case as an excellent invitation to obtain a search warrant with the secret goal of finding other types of contraband, i.e., weapons and drugs.

Bottom Line: Be careful if you plan to host an unsecured wireless internet connection or allow others to use your internet connection. If you aren't, you may end up hosting a party for law enforcement with a valid search warrant even if you never did anything wrong.