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Open WAP = Probable Cause? 466

Posted by CmdrTaco
from the summon-sam-waterston dept.
RockoTDF writes "A court in texas has ruled that an open WAP is not a sufficient defense against child pornography charges, a ruling which could carry over to p2p users. In addition, it appears that an open WAP could be seen as probable cause by law enforcement."
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Open WAP = Probable Cause?

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  • probably? (Score:5, Funny)

    by Anonymous Coward on Monday April 23, 2007 @11:11AM (#18840539)
    Open WAP = Probably Cause?

    CmdrTaco = Editor?
    • by GodWasAnAlien (206300) on Monday April 23, 2007 @11:19AM (#18840635)
      My grammar sucks probably 'cause I have open WAP.
    • Probable Cause?!? (Score:4, Insightful)

      by Rukie (930506) on Monday April 23, 2007 @11:19AM (#18840639) Homepage Journal
      Thats like saying because you wanted to get a hand gun, your going to be a school shooter. There are TONS of open WAPs because people don't know better. It gives me the desire to go from home to home and do child porn searchs and FBI searches from all the homes to force this decision to get overturned. I mean come on.

      I don't know whether or not the guy was innocent/guilty but I do think that this "probable cause" thing is complete crap. If I see cops going down the streets with laptops I'll chase em away and sue the city! Mental anguish or something. (luckily, I don't live in texas ;))
      If they make openWAP's probable cause, then what about a coffee place where you get free wifi. Will the owner be held responsible for this customers actions? Will you be *REQUIRED* to get a permit for an open WAP. This is complete crap.
      • Re: (Score:2, Insightful)

        by giorgiofr (887762)

        Will you be *REQUIRED* to get a permit for an open WAP
        That's exactly how it is over here in supposedly so-much-more-free-than-the-US Europe. Also you have to keep ID for every user of the system and be able to track them individually. Needless to say, this doesn't exactly spur adoption of wifi spots and the likes.
        • by Uncle_Al (115529) on Monday April 23, 2007 @11:33AM (#18840855)
          Since Europe is not the uniform entity some people seem to think it is, your statement does not hold much weight.

          I am in europe (germany) and have never heard of any such rules.

          Would you care to elaborate?
          • Re:Probable Cause?!? (Score:5, Informative)

            by giorgiofr (887762) on Monday April 23, 2007 @11:42AM (#18840999)
            Sure thing. Check out the recently-approved Data Retention Laws. Link 1 [com.com] Link 2 [eweek.com]. They are cursory introductions, you can dig further if you wish. The articles don't talk about wifi spots but they are regulated too: they have to keep a copy of ID for each customer and be able to track them individually, as I said. Anyway you are perfectly right in not just believing me, so check it out. You'll be appalled.
        • by pubjames (468013)
          I think your facts are wrong. Where in Europe are you talking about? This certainly doesn't apply to Spain. Indeed, here there is a company called "fon" which actually encourages it.
          • What are you talking about? Fon knows about every connection and ties them to user ids, and they save the information, no doubt because otherwise the AP owner could be held responsible for any criminal activity...

            • Bad writing day... I meant to say "no doubt partly because otherwise the AP owner could be held responsible for any criminal activity" (of course the business model requires them to save the info).
          • by giorgiofr (887762)
            Yeah I know them, and in fact I was curious as to how they are getting around the data retention laws. I guess Spain has not harmonized its legislation with the EU directives yet.
        • In all seriousness: Can you provide links to people claiming that European countries are "more free" than the U.S.? I'm an ignorant USian and have never heard such things.
          • by giorgiofr (887762)
            Uhm, read any page on the internet where topics related to politics are discussed? Such as /.?
        • by Alphager (957739)

          That's exactly how it is over here in supposedly so-much-more-free-than-the-US Europe. Also you have to keep ID for every user of the system and be able to track them individually. Needless to say, this doesn't exactly spur adoption of wifi spots and the likes.
          That's pure and simple BULLSHIT. I have 3 open APs running; every fricking Starbucks got one around here, every McDonalds, etc. Your claim is BS.
          • Re: (Score:2, Informative)

            by giorgiofr (887762)
            Well, taking your frustration out on me isn't going to make the data retention laws go away. Google them a bit, they aren't hard to find.
            • Re: (Score:3, Informative)

              by Alphager (957739)

              Well, taking your frustration out on me isn't going to make the data retention laws go away. Google them a bit, they aren't hard to find.
              As i am active in several anti-dataretention groups, i know the new rules pretty well. The dataretention-rules do not apply to private citizens. My APs are 100% legal.
      • by Erioll (229536) on Monday April 23, 2007 @11:31AM (#18840831)
        The stack of Kiddie Porn DVDs convicted him, not the open access point. The whole thing revolves around the fact that they found an IM of somebody with an IP originating from his residence that contained a child porn picture. This got them a search warrant, and they found additional evidence including a stack of DVDs with child porn images on them (and think HOW MANY images are needed to fill more than one DVD).

        The only point where the open access point comes in to it is that he claimed that because it was open, it means that ANYBODY could have used IPs from inside his house, and thus the search should have been thrown out, and the evidence gathered suppressed. But the judge didn't go for it.

        In non-technical terms, it's like claiming that your house is always unlocked, thus any evidence they ever find there should never be admissible, since anybody could have put it there. And as I said above, the judge didn't go for it, and rightfully so IMO. So this isn't "police look for open access points, and go fishing wherever they find one" but rather "an open access point doesn't get you out of finding DVDs of illegal material in your house."
        • by Bill, Shooter of Bul (629286) on Monday April 23, 2007 @11:38AM (#18840937) Journal
          Or better yet its like them finding a trail of blood into your house, and claiming you always keep it unlocked. Good point. Sorry, I don't have mod points.
        • Re: (Score:3, Informative)

          by Lane.exe (672783)
          Right. The open AP had nothing to do with any sort of probable cause. His strategy at trial was to say that the search warrant that was sworn out to obtain the DVDs was earned illegally, thus making the fruits of that search illegal. The judge, reviewing the sufficiency of the warrant, did not believe it was issued in error, thus making the seizure of the DVDs legal under the Fourth Amendment. The DVDs were introduced into evidence, and the defendant was convicted of the crime of possession of child pornogr
      • Re:Probable Cause?!? (Score:5, Informative)

        by B'Trey (111263) on Monday April 23, 2007 @11:37AM (#18840913)
        The headline is highly misleading. What the court ruled was that if an IP used in the commision of a crime, in this case child pornography, is traced back to you, then that's probable cause for the issuance of a warrant to search your house. The court did not rule that just having an open WAP was probable cause for anything, nor did they rule that an open WAP wasn't a possible defense against the charge if there is no other evidence. After obtaining the warrant, the police found CDs with child porn in the individual's bedroom. That's the evidence that convicted him. He tried to have the evidence thrown out, arguing that there was no probable cause to issue the warrant. The court disagreed. If you have an open WAP, someone else may use it to commit a crime. But the probablity that you did so is sufficient to issue a warrant to search for additional evidence. So it's more like saying that if you buy a gun and someone else uses it to shoot someone, the police are going to get a warrant and come search your house.
      • by mcg1969 (237263) on Monday April 23, 2007 @11:43AM (#18841007)
        If you did what you suggest---go to a bunch of open WAPs and do child porn searches---then none of the people you target will ultimately get in trouble. They might get their homes searched, but the FBI wouldn't find any evidence of child porn, because you're long gone.

        Furthermore your second paragraph isn't a fair characterization of what happened here. The cops aren't going around searching for open WAPs. It was the defense that brought this argument, not the cops. The allegedly illegal IM traffic came from the defendant's IP address, and he used the open WAP argument to suggest that since it could have been a drive-by or neighbor, that they didn't have enough evidence to search his house. Well, they may not have had enough evidence to convict, certainly---but you don't need nearly as much to get the search warrant. I frankly agree with that decision. The evidence stated that a crime was committed in the vicinity of that house.
        • by hab136 (30884) on Monday April 23, 2007 @01:36PM (#18842587) Journal

          If you did what you suggest---go to a bunch of open WAPs and do child porn searches---then none of the people you target will ultimately get in trouble. They might get their homes searched, but the FBI wouldn't find any evidence of child porn, because you're long gone.

          Even if they find nothing, it's standard procedure to take everything that even remotely looks like a computer (like your Xbox/PS3/Wii), along with all accessories - printers, CDs, etc - and then only return it 3 years later when your lawyer hounds them enough.
    • Cmdr Taco == Editor
  • Accept Jury Duty (Score:5, Insightful)

    by gleather (596807) <`moc.liamg' `ta' `namrehtaelg'> on Monday April 23, 2007 @11:12AM (#18840543) Journal
    Just a reminder to ACCEPT jury duty if you get called. It is one of the best ways to directly affect how things work in the U.S.
    • Please RTFA (Score:5, Informative)

      by empaler (130732) on Monday April 23, 2007 @11:17AM (#18840611) Journal
      The identity of the user was only questioned after the fact. They actually found kiddie porn in the IP address registree's room. I'd bet that he'd stand much stronger, legally if they hadn't, but he's trying to get the case thrown out of court because he'd set up an unsecured Wifi, which his lawyer argued made it unlikely enough that it was him that the police should have walked away...
    • by slughead (592713) on Monday April 23, 2007 @11:38AM (#18840945) Homepage Journal
      Just a reminder to ACCEPT jury duty if you get called. It is one of the best ways to directly affect how things work in the U.S.

      Sure, aside from the (already mentioned) fact that 99.9% of the time it's DUI or something else inane.

      Also, most of the time, juries are advised to not judge the law, but judge whether or not someone broke the law.

      Of course, there's jack they can do to you as a juror if you say "Hey, I can't in good conscience let this kid go to jail for something this stupid; NOT GUILTY!" However, the judge can claim a mistrial if he finds out that's the reason for the 'not guilty' verdict, even after the verdict is read.

      If I ever get on a jury for a law I disagree with, the defendant is going to walk either by hung jury, mistrial, or not guilty verdict, and that's that.
      • by lawpoop (604919) on Monday April 23, 2007 @12:02PM (#18841357) Homepage Journal
        Given the number of libertarians that post on slashdot, I'm surprised nobody has enlightened you to the concept of Jury Nullification [wikipedia.org]. In the US legal system, juries judge the case *and* the law. Here's [umkc.edu] more information.
        • Re: (Score:3, Informative)

          by Dachannien (617929)
          In most jurisdictions, you will be instructed by the judge that your duty is narrowly defined to determine whether the defendant did what the prosecution alleges according to statute. If the law forbids someone from gargling peanut butter, then your job is to answer the question, "Did the defendant gargle peanut butter as alleged in the indictment?" Your job is not to determine whether you like the law or not. Crafting the law is within the purview of the legislature.

          Prosecutors will try to eliminate a j
      • Re: (Score:3, Informative)

        by Arkiel (741871)
        Hello Jury Nullification! A crying shame that this will never be included in actual Jury instruction.
    • by TheGreek (2403)

      Just a reminder to ACCEPT jury duty if you get called. It is one of the best ways to directly affect how things work in the U.S.
      Except that juries don't make determinations as to the admissibility of evidence.
  • solution. (Score:5, Interesting)

    by Anonymous Coward on Monday April 23, 2007 @11:12AM (#18840551)
    I have secured my wap.

    I hope nobody finds out that the passphrase is 0x01020304050607080910111213

    I also hope others do not do the same and we all create open accesspoints that are actually secure :-)

    Now we can claim we were hacked! problem solved and stupid lawyers and police are end run for at least a few more years.
  • by EveryNickIsTaken (1054794) on Monday April 23, 2007 @11:13AM (#18840555)
    This guy gave a conditional guilty plea even though "evidence" linked the yahoo account to his roommate. You don't accept a deal for 4 years in prison if you're not guilty. Clearly, someone is lying here.
    • by 99BottlesOfBeerInMyF (813746) on Monday April 23, 2007 @11:21AM (#18840667)

      This guy gave a conditional guilty plea even though "evidence" linked the yahoo account to his roommate. You don't accept a deal for 4 years in prison if you're not guilty. Clearly, someone is lying here.

      He plead guilty because they found stacks of DVDs with child pornography on them in his room. His only hope was to have that evidence nullified by claiming the search was illegal, under the reasoning that just because child porn was transmitted through his access point did not mean the cops has reason to suspect him in particular or search his residence. He has a slight point and warrants in these cases should be issued for the entire residence and all people therein. Still, it is pretty likely he and his roommate were both guilty.

      • by EveryNickIsTaken (1054794) on Monday April 23, 2007 @11:24AM (#18840735)
        So, the headline should actually say "Open WAP defense not valid in cases where you have stacks of incriminating evidence in your residence."
        • by enjo13 (444114) on Monday April 23, 2007 @12:51PM (#18842007) Homepage
          More correctly it should say 'Open WAP is not protection from search warrant.' That's essentially what the legal question was here. Does the fact that one has a Open WAP prevent the police from having probable cause to search your residence for electronic crimes? This guy was making an argument that he was essentially an ISP for whoever happened to drive by his house. There are established protections for ISP's that prevent search and siezure of their equipment when someone downstream transmits across their network. This guy was arguing that he should enjoy those same protections. The court ruled that when you run a unsecured wireless network that the police have probable cause to assume that you might be directly involved in whatever illegal traffic crosses your network (it's not clear how this applies to wireless points that themselves have downstream nodes). That's all..
          • Re: (Score:3, Interesting)

            So, in effect, if you want to send child pornography over the net, you should go to a Starbucks and use their Open WAP?
    • by garcia (6573) on Monday April 23, 2007 @11:25AM (#18840761) Homepage
      You don't accept a deal for 4 years in prison if you're not guilty. Clearly, someone is lying here.

      Because the general public (and thus the jury) probably won't understand what an Open WAP is and what it means in this case, his lawyer probably told him to take the deal instead of facing more time when he loses.
  • by 99BottlesOfBeerInMyF (813746) on Monday April 23, 2007 @11:17AM (#18840609)

    Just to clarify before a hundred people comment without understanding this distinction. The court in this case ruled that child pornography tracked to a given open access point was probable cause to search that residence and specifically the rooms belonging to the person who ran the open access point. They did not rule that running the open access point proved that the owner was guilty of transmitting the child pornography, but ruled him guilty because of the stacks of DVDs found in his room.

    • by AGMW (594303) on Monday April 23, 2007 @11:37AM (#18840903) Homepage
      ... and to continue the clarification, if I understand correctly, the guy was guilty as sin, but was trying to get off (and not for the first time *cough*) on a technicality - ie You can't use the evidence you found because you shouldn't have come into the room to search in the first place because, given that the access point was open, you couldn't prove who had actually used it, and therefore any evidence found (on the computer in question) would not (necessarily) be attributable to any individual.

      Nice try ass-hat!

      If he had got off on the technicality then the law would have, once again, shown itself to be stupid. In this case, it seems, sanity struggled to the surface and prevailed.

      • Re: (Score:3, Insightful)

        by Manchot (847225)
        If he had got off on the technicality then the law would have, once again, shown itself to be stupid.

        I'd hardly call the Fourth Amendment a stupid technicality. In this particular instance, it was determined to be irrelevant, but it doesn't mean that its general application is stupid. It protects us from random raids by the police by ensuring that any evidence collected improperly is useless to them.
    • by Billosaur (927319) *

      And while that may be true, this is the Guilty-Because-It's-On-The-News-And-They-Don't-Li e Age. Remember the whole Duke Lacrosse Incident? Gulity! String 'em up! Oh... wait... inconsistencies... hmmmmm... still... they look guilty... what?!? Not guilty? Knew it all along!

      As soon as your name (or IP address) is spread across the news as being attached to a crime, even innocently, your are convicted in the Court of Under-informed Public Opinion. Look at the guy they originally accused of the '96 Atlanta Ol

    • Re: (Score:2, Insightful)

      by Homr Zodyssey (905161)
      And for all of the people claiming that this is terrible -- here's the way I see it.

      Imagine a cop is walking down the street, and smells marijuana smoke in front of a house. This gives him probable cause to walk onto the property. As he gets nearer to the building, the smell gets stronger. This gives him probable cause to enter the building. He goes inside and finds a sack and a bong in someone's bedroom. The occupant of that room then says, "Hey man, you can't use that against me...that smell outs
  • by linuxkrn (635044) <gwatson@li[ ]login.com ['nux' in gap]> on Monday April 23, 2007 @11:17AM (#18840619)
    If you RTFA, it says they raided his place and found CDs of child porn. Now it also says he had a roommate and that the IM that got them in trouble was sent from his roommate's account. Which should have made them investigate him as well, but that's another story.

    Bottom line here is that there was evidence of child porn found locally at the address connected with that IP. So it's not really "using an Open WAP defense" as it would seem from summary. If they found nothing to collaborate the on-line transmissions at his address, then it would be more believable someone else could have done it.
    • by hey! (33014)
      It has to do with rules of evidence. He's not arguing that the stuff they found doesn't prove he's a perv. He's arguing that they obtained it illegally and therefore the evidence cannot be used to try him.

      The police just can't bash down your door and seize evidence that you posses contraband. They have to use legal methods to obtain evidence. That means either somebody with a right to do so allows them onto your property and permits the search, or they have a warrant issued under probable cause. Probab
  • by ivan256 (17499) on Monday April 23, 2007 @11:20AM (#18840655)
    It looks like the argument was that since this guy (who was actually guilty but was trying to have evidence suppressed) had an open access point, the cops had no probable cause to search, since it could have been anybody using his connection.

    The article, and the summary falsely conclude that having an open access point gives the authorities probable cause to search your premises and systems. In reality, what this means is that having an open access point doesn't mean the cops can't search, since "it remain[s] likely that the source of the transmissions [is] inside that residence".
    • by jedidiah (1196)
      ...which is a problem since you can end up accessing the wrong open WAP without really trying. Start out with a
      neighborhood or apartment complex with multiple unsecured WAPs and you're quickly into a situation where you can't assume a bloody thing. That's rather the point of wireless. You're relatively freed of particular physical limitations.

      OTOH, an unsecured WAP should trash probable cause. OTOH, an unsecured WAP should get the owner b*tch slapped.
  • No suprise here (Score:5, Interesting)

    by Todd Knarr (15451) on Monday April 23, 2007 @11:20AM (#18840657) Homepage

    I'm not surprised. I'm sure one of the things the court considered is that someone who knows enough about wireless to raise the "open access point" defense also knows enough to know the risks of an open WAP and to do something about it if only to protect themselves from exactly this sort of problem. And with the amount of publicity, even the average Joe by this point knows the risks of open WAPs. So I'm not surprised the judge essentially said "You knew it was open, you knew what the risks were, you didn't do anything about them. You're responsible for it.". Can you say "attractive nuisance"? Similar deal with probable cause, if the abuse of open WAPs is wide-spread enough for defendant's argument to be even someone probable then it's wide-spread enough that police can treat open WAPs as a known problem.

    And of course, if someone were using the WAP then the CDs wouldn't have been in his room. He might be able to make the argument that, given the IM name especially, the CDs belong to his roommate, but it looks like his attempt to get fancy scuttled that option.

    • someone who knows enough about wireless to raise the "open access point" defense also knows enough to know the risks of an open WAP and to do something about it

      No, they're not the ones raising the defense - their lawyers are (which is as it should be).

  • TFA states that they found a CD with child porn on it in his room and that was the only room searched. Even if he got off the hook on the image sent across Yhaoo IM he was toast. I'm just suprised the DA didn't try to use the guy's attempted defense of a roommate and an open WAP to get a warrant to search the roommate's room as well in an attempt to get them both. Even if the images sent across the network were tied back to the roommate (or somebody nextdoor, whatever) this guy was still toast over the C
    • by TheCarp (96830) *
      One could assume the roomate hid the cd in his room to take the heat off himself. Give himself an easy out if the police ever came to the apartment.

      That said, if that was his plan, you would think he would register the IM in his roomates name too.

      So it sounds to me like "blame it on the roomate" was his plan, and done badly.

      -Steve
    • Re: (Score:2, Insightful)

      by maxume (22995)
      He was attempting to have evidence obtained in the search excluded from the trial. The headline and summary and story are bizarre, as the open WAP was not the probable cause, the evidence of the traffic on that WAP was the probable cause. The ruling was that the possibility of the traffic coming from someone other than the owner of the access point was not enough to protect the owner from the search. That's pretty reasonable. If you tell police that gun registered to you and used in commission of a crime wa
  • by ArwynH (883499) on Monday April 23, 2007 @11:22AM (#18840705)
    It was not the WAP that got him jailed, but the fact that he had a CD full of child porn in his room. The Open WAP was just deemed not an acceptable reason to invalidate the search warrant and make the CD in admissible as evidence.
  • by rborek (563153) on Monday April 23, 2007 @11:22AM (#18840709)
    The issue was that he claimed that the mere fact that the FBI linked an IP address to him wasn't sufficient cause for a search warrant. They had conversations and logs of information coming from that IP address. The man claims that that is insufficient cause for a search warrant - and the trial judge and appeal court judges disagreed.

    He wasn't charged based on the IMs - he was charged because they found CDs of child porn in his room. Had they searched his place and found no child porn images, he most likely would not have been charged - at the very worst, he would have been charged and been able to raise a successful defence that it wasn't him (unless they had hard evidence to link the conversations to him).

  • by basic0 (182925) <mmccollow@yahoUMLAUTo.ca minus punct> on Monday April 23, 2007 @11:25AM (#18840743)
    "I'm sorry your honor, I'd like to request a brief recess so that I can bone the prosecution behind my assistant DA/girlfriend's back."

    "Very well, Mr.McCoy, but I'll remind you that this is a high-profile, ripped-from-the-headlines case that will decide the fate of alleged child pornographers for years to come, and I--Mr.McCoy, could you at least wait until the courtroom has been cleared?"

    Yes, it's offtopic, but have you ever WATCHED that show?
    • Old Lady #1: When my ex-husband passed away, the insurance company said his policy didn't cover him.
      Old Lady #2: They didn't have enough money for the funeral.
      Old Lady #3: It's so hard nowadays, with all the gangs and rap music..
      Old Lady #1: What about the robots?
      Old Lady #4: Oh, they're everywhere!
      Old Lady #1: I don't even know why the scientists make them.
      Old Lady #2: Darren and I have a policy with Old Glory Insurance, in case we're attacked by robots.
      Old Lady #1: An insurance policy with a robot plan? C
  • by fatboy (6851) on Monday April 23, 2007 @11:28AM (#18840793)
    There was cause to search his house because a crime appeared to have occurred there. When the house was searched, more evidence in support of establishing that a crime occurred there was found. I don't see how the second set of evidence could be thrown out, if all procedures were properly followed in establishing the cause to search his house. I don't see that it matters he had an Open WAP.

    If they searched his house and found no evidence supporting the initial reported crime, I believe he could use the Open WAP as defense.
  • by zappepcs (820751) on Monday April 23, 2007 @11:30AM (#18840825) Journal
    Now, if they have evidence, IMs, emails, browser logs, and enough to convince even /. crowds that there is evidence, that is all good and well.

    What if you are using an app that downloads from newsgroups automatically. You are a pr0n fan, but someone puts pictures in the newsgroup that are both undesirable and illegal that then are downloaded to your system. Unless you spot them and remove them, there they are to be found if inspected.

    Does anyone here know if there is a defense for this predicament? I'm not in it, but conceivably be some day.
  • by Orion_ (83461) on Monday April 23, 2007 @11:35AM (#18840883)
    The ruling is here [uscourts.gov].
  • Catch - 22 (Score:3, Interesting)

    by Jerry (6400) on Monday April 23, 2007 @11:41AM (#18840969)
    IF you run a password protected WAP and some cracker hacks your AP and begins downloading illegal stuff then these legal beagles will say that you are guilty because no one else can use your account.

    Either way you are hosed if someone uses your AP illegally.

  • Is that anything like Open Sores?
  • Apparently the court making that decision has no clue as to the technical ineptitude of most users that buy a wireless router. Odds are, the judges themselves are just as inept. Makes me sad to hail from Texas. I remember when my school system (PISD) was ranked 4th in the nation among independent school districts. Now I look at the rankings, it's fallen behind every other state. :( So much for education and No Child Left Behind.
  • I could not get to the linked article, but if they are talking probable cause to search, that smacks right in the face of the constitution.

    Having an open wep is no different thenleaving your livingroom window curtains open but not expecting the police to come breaking down your door to search your closet in your bedroom.
  • In america, If you leave a corpse in your living room and then open the windows so the neighborhood can see in, the police dont need a search warrant, because what they need is in plain sight. You can't later claim that they violated your 4th amendment rights because you have no reasonable expectation of privacy. This is why its legal to go dumpster diving, among other things. What's to stop the police from taking the same stance with an open WAP, since you've left it open, you're inviting the whole worl
  • by Luscious868 (679143) on Monday April 23, 2007 @11:53AM (#18841219)
    RTFA people. An IM that contained child porn was sent via Yahoo from this guy's IP address. It was reported, the authorities obtained the IP address used to send the IM and obtained a search warrant for this guy's house. Authorities discovered a stack of CD's that contained child porn when they searched his residence.

    I don't see the problem here. If someone was using his open WAP to send the IM authorities wouldn't have discovered child porn when they searched his house and/or computer and there would be no prosecution. The guy was on physical possession of the material in question.

    An open WiFi network can't be used as an argument against probable cause. It makes perfect sense to me. If illegal activity is occurring from a particular IP you can't even know if there was a WAP involved, let alone if it was open or not, at the time the crime took place. You need a search warrant to further investigate. Sure you couldcheck for an open WAP without a warrant, but all that would tell you is if there is an open or closed WAP there now, not if one was in place or was secured or not when the activity in question took place. To make that determination you'd need more information but at that point you do have probable cause for a search warrant.
  • by Russ Nelson (33911) <slashdot@russnelson.com> on Monday April 23, 2007 @11:58AM (#18841307) Homepage
    "For the children! We've got to close down the Internet for the children!"

    You can bet that the child pr0n horseman will cause all anonymous access to the Internet to be lost, no matter the cost to the public. At some point somebody is going to write a "render your own kiddie porn no real children involved" program, at which point the authorities are going to have to make or break the case that kiddie porn causes child abuse. What if it doesn't? Will they lie to protect their power over us? Will the Pope still be Catholic?

  • by lostatredrock (972881) on Monday April 23, 2007 @12:34PM (#18841779)
    The title of this summary is horribly misleading...now I know this is slashdot so no one RTFA, but I happend across it by other means this morning, the ruling was not that having an open WAP is probable cause for kiddy porn, the ruling was that an open WAP was no defense against a finding of probable cause.

    In this case they found that kiddy porn had been sent to someone else from this guys IP, they used this fact as probable cause to search his room were they found cd's full of kiddy porn.

    So this is not saying that the police can barge into someones house just because the have an open WAP, it is saying that if someone has an open WAP and something illegal is done via that open WAP then the police have probably cause to search the location of the WAP and I think this is perfectly reasonable, we are talking about probably cause here not conviction, I would have a problem if someone was convicted on just the evidence of a IP address period regardless of the presence of an open WAP, but I do not have a problem with this being considered cause.

    In a somewhat applicable analogy it is like getting a warrant to search an apartment after witnesses claim a man in that apartment had shot someone on the street, true the man might not be the apartment owner, but the fact that part of the crime did happen in the apartment is certainly probably cause to search the apartment.
  • by logicnazi (169418) <{moc.liamg} {ta} {izancigol}> on Monday April 23, 2007 @01:18PM (#18842351) Homepage
    Rather they made the reasonable ruling that if someone does something illegal from your IP then the police still have probable cause to get a warrant. Hell, they probably didn't even go that far since as long as the police acted in good faith the warrant would be valid and the police likely didn't even know he had an open WAP at that point.

    Calling this proof the open WAP defense doesn't work is the dumbest thing I ever heard. It's like claiming the defense, "I didn't do it my identical twin brother did it" won't work because the police will serve search warrants on both of you.

    The police just need to have good reason to believe there will be evidence relevant to the investigation at that location. Given there is a high probability the person owning the account was using it this is a perfectly justified search.
  • Biased perhaps? (Score:3, Insightful)

    by rm69990 (885744) on Monday April 23, 2007 @07:26PM (#18847335)
    Perhaps this is a bit biased, considering there is no mention in the summary of the stack of CDs containing child pornography found in the person's room that is claiming this defence. I'm sure that had something to do with this ruling.

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