Open WAP = Probable Cause?

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."

Probable Cause != Guilt

[99BottlesOfBeerInMyF]

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.

Please RTFA

[empaler]

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...

Hard to say it was someone else...

[linuxkrn]

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.

Re:Something is fishy here..

[99BottlesOfBeerInMyF]

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.

They found kid porn on a CD in his room

[ohearn]

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 CD they found. Accepting the plea bargain was probably this guy's only chance of avoiding a much longer sentence.

Story is a little different than the headline...

[rborek]

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).

Re:Accept Jury Duty

[iggymanz]

right on, it's more important to vote, to hire/fire local judges, and to get the right leader to appoint the right kind of supreme court justice (and last time I checked they weren't using juries). Vote in 2008, give the status quo a heave ho!

The 5th Circuit's opinion

[Orion_]

The ruling is here [uscourts.gov].

Re:Probable Cause != Guilt

[AGMW]

... 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:Probable Cause?!?

[B'Trey]

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.

Re:Probable Cause?!?

[giorgiofr]

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.

Re:Probable Cause?!?

[giorgiofr]

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.

For Christ Sakes RTFA

[Luscious868]

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.

Re:Accept Jury Duty

[lawpoop]

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:Probable Cause?!?

[Alphager]

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.

Re:Probable Cause?!?

[AndersOSU]

Didn't we try that once? [wikipedia.org]

Title is horribly misleading

[lostatredrock]

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.

Re:Probable Cause?!?

[Red Flayer]

You could limit the scope of federal power to prevent it from being a hassle while still letting you pool resources when it is beneficial.

Really? That's something I could do?

There is no limiting the scope of the federal government -- it's a juggernaut on a downhill rumble, and anything that gets in its way gets crushed (including so-called inalienable rights).

The US government is so large that it has lost the trait of being a collection of individuals; it is a bureacracy that exists to grow, and to enrich those who control it. As such, as long as what some interested party on the government wants serves the purpose of increasing the extent or growing the scope of the government, they will get what they want. Our rights are suffering the death of a thousand papercuts, but as long as we have American Idol and the NFL, it is allowed to happen.

Sorry for the rant. Wrt the specific issue of open WAP being considered probable cause, summary is quite a bit off. What is explained in TFA is that an open WAP is not enough to exclude probable cause that a crime has been committed at a location. That is, an open WAP doesn't sever the link between IP address and physical address (say, the street address provided by an ISP upon being served with a warrant). Because of this, the physical evidence (CDs of child porn) found at the location the warrant was served were judged to be admissible in court.

So, this isn't really an example of federal government expanding its provenance. It's an example of government applying several-hundred-year-old principles to a modern crime. In this one case it appears my tinfoil-hattedness is inappropriate.

They Did Nothing Of The Kind

[logicnazi]

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.

Re:So much for reasonable doubt...

[gnasher719]

'' Anyone else seeing reasonable doubt flying out the window with this crap decision?. The slope just got one HELL of bit more slippery! ''

Absolutely not. There _was_ reasonable doubt whether or not he was guilty. That's why the police got a search warrant. The expected outcome was (a) finding evidence that he was indeed guilty or (b) finding no evidence, which meant a good chance that someone sitting outside his house in his car did the downloading.

A third, less likely but possible outcome is that the police find evidence for a completely different crime. That evidence _can_ be used as long as the original search warrant was justified. Well, that is just tough.

Re:Accept Jury Duty

[Dachannien]

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 juror whom they suspect will try to nullify a law. Wear your marijuana leaf ballcap into the courtroom during voir dire for a drug possession case, and you'll probably be one of their picks to be excluded from the jury. Most jurors are asked at some point during this process, sometimes en masse by the judge, whether their personal beliefs would prevent you from rendering a verdict of guilty or a verdict of not guilty on the charges alleged, and since the question is answered under oath, they conceivably could be charged with perjury if they answer untruthfully.

Re:The Stack of Kiddie Porn DVDs convicted him...

[Lane.exe]

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 pornography.

Re:Probable Cause?!?

[profplump]

We tried that again later, with the current constitution. It actually defines a lot of rights reserved specifically for the states and people. It's just that FDR and Lincoln (among others, but they're high on the list) decided they didn't like those limits, and popular support for breaking those limits prevented their enforcement.

Re:Accept Jury Duty

[Arkiel]

Hello Jury Nullification! A crying shame that this will never be included in actual Jury instruction.

Re:News like this worries me...

[AndrewM1]

That would simply be a Mistake of fact [wikipedia.org]. From Wikipedia:

"A defendant goes into a supermarket and places eight items in a basket which is presented to the cashier for payment in the usual way. Both honestly believe that all eight items have been scanned, and the defendant pays the sum shown on the bill. A store detective, however, notices that a mistake was made by the cashier so that only seven items were actually priced. This detective arrests the defendant after leaving the store. Since the defendant honestly believes that he has become the owner of goods in a sale transaction, he cannot form the mens rea for theft (which is usually dishonesty) when he physically removes them from the store. Accordingly, he should be acquitted."

Same here. If you honestly believed you were downloading legal, adult pornography, and someone slipped a few kiddie pics into there, you would have no mens rea for the crime and would be aquitted (asuming they couldn't prove you had used the pics, or that your belief that you weren't getting kiddie porn wasn't unreasonable. For example, if you downloaded everything from alt.sex.kids, you couldn't claim it was a mistake; since a reasonable person should have expected that they might get child porn from there.)