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."

Accept Jury Duty

[gleather]

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.

Something is fishy here..

[EveryNickIsTaken]

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.

Re:Accept Jury Duty

[jimstapleton]

And that 1 time out of 100 where it's a tech case, you'll get booted because you have a clue about the subject matter.

Remember, Justice isn't just blind, it's also retarded.

Probable Cause?!?

[Rukie]

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.

Open WAP != No Probable Cause

[ivan256]

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".

Re:Something is fishy here..

[EveryNickIsTaken]

So, the headline should actually say "Open WAP defense not valid in cases where you have stacks of incriminating evidence in your residence."

Re:Something is fishy here..

[garcia]

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.

Re:Probable Cause?!?

[giorgiofr]

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.

The Stack of Kiddie Porn DVDs convicted him...

[Erioll]

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."

Re:Accept Jury Duty

[qwijibo]

If you ever end up in court, do you want to be tried by a jury of people too dumb to get out of jury duty? Read up on jury nullification. Without people knowledgeable and willing to perform jury duty, you end up with a crowd of people who votes the way the court directs them to vote.

In many cases, like the type you cite, it's pretty simple. But you don't get to throw a monkey wrench into the types of cases you care about if you're not willing to serve on any jury.

Re:Accept Jury Duty

[Anonymous Coward]

Either that or they don't want people who think "Having a brain" means "Being disrespectful of authority on principle"

Re:Accept Jury Duty

[Atraxen]

"how exactly would this involuntary servitude have any bearing on affirming or defending our rights?"
- Your Comment

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense."
- Amendment IV, Bill of Rights

That's how - by sitting on a jury, so are upholding your right to be tried by one. This is, after all, a participatory republic (non-standard term intentionally used to avoid the inevitable and obligatory participatory democracy vs republic argument.)

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

[Bill, Shooter of Bul]

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:Accept Jury Duty

[slughead]

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.

Re:Accept Jury Duty

[Otter]

Given that neither the submitter nor 95% of the people commenting here correctly understand what the defendant was arguing, I'm not so sure I want you people on my jury either.

If you did what you suggest

[mcg1969]

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.

Re:Probable Cause?!?

[jedidiah]

Where's the personal responsibility around here?

Sure it sucks that everything is crap and tends to lead to these sorts of problems. However, the fact still remains that people are allowing themselves to be potentially unwitting accomplices to all manner of nefarious activity. There should be a higher bar than "blissful willful ignorance".

Idiocy & laziness shouldn't be an excuse.

Re:Probable Cause != Guilt

[Homr Zodyssey]

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 outside could have come from anywhere."
That argument isn't going to work.

Re:They found kid porn on a CD in his room

[maxume]

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 was stolen, they are still going to be able to get a search warrant, waving your hands in the air and saying it wasn't you isn't enough.

did anybody not see this one coming?

[Russ Nelson]

"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?

Re:Probable Cause?!?

[nanosquid]

That's like complaining about the US Federal Government. Yeah, it may suck, but the alternative--50 independent nation states on the US continent--would suck even more.

Re:Probable Cause?!?

[profplump]

Not necessarily. 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. Now if only Lincoln and FDR, or anyone since then, had respected those limits.

Re:Probable Cause?!?

[hazem]

However, the fact still remains that people are allowing themselves to be potentially unwitting accomplices to all manner of nefarious activity.

Damn straight! And lets start with all those guys in yellow hats building and maintaining roads. Just think of all the illegal things that happen because of roads:

people can transport drugs anywhere there's a road
terrorists can move about freely
child kidnappers can quickly take their victims somewhere else
drunk drivers use roads to kill their victims
people speed in their cars
and worst of all, people talk on their cellphones while driving

Roads must end! And we can start with those horrible people who build and maintain them. /sarcasm

A lot of people intentionally open WAPs so others can access the internet. In my town, Portland, OR, there are groups actively encouraging this.

If anything, this is a move by the police (state) to keep people afraid of being free. But that's what it's like in the land of the (not so) free and the home of the (not so) brave.

Re:Something is fishy here..

[enjo13]

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..

So much for reasonable doubt...

[Newer Guy]

"In this case it is clear that there was a substantial basis to conclude that evidence of criminal activity would be found at 7608 Scenic Brook Drive," wrote the Court. "[T]hough it was possible that the transmissions originated outside of the residence to which the IP address was assigned, it remained likely that the source of the transmissions was inside that residence."

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

Re:So much for reasonable doubt...

[maxume]

Reasonable doubt doesn't apply to gathering evidence(and never has), it applies to convicting someone on that evidence.

The defendant was trying to get the evidence obtained in the search excluded, on the basis that anybody could have been the source of the traffic on the WAP that he owned and operated; the court ruled that as the owner and operator of the WAP, it is reasonable to assume that traffic on that WAP is a sound basis for a search. It is not a crap decision, it is perfectly reasonable.

Re:Probable Cause?!?

[Mister Whirly]

If you responsibly set up your Wifi so it isn't wide open, there isn't an issue to begin with. If you leave it open, then the irresponsibility of others IS passed along to you for allowing it. Open Wifi is asking for trouble, and there is only a limited need for it. Most open Wifi spots are due to laziness or ignorance. Can you please explain the pressing need to have open, unrestricted, unlogged Wifi??

If you mounted a phone on the outside of your house and put a "FREE USE" sign over it, would you be pissed when you got the long distance bill??

Re:If you did what you suggest

[hab136]

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.

Re:Accept Jury Duty

[jb.hl.com]

I haven't sat on a jury yet, as I get dismissed right there. They don't want people with brains.

No, they want someone who can actually do jury duty without making a fuss about how he's the only one who can think for himself in a room full of clueless sheep. The reason you got dismissed is because you were being deliberately obstructive, obnoxious even, for no real reason.

You sound like you're trying to roleplay some kind of House M.D. fanfic. It's quite worrying.

Re:Probable Cause?!?

[hesiod]

> If you mounted a phone on the outside of your house and put a "FREE USE" sign over it, would you be pissed when you got the long distance bill??

No, but I also don't expect to be jailed for threatening to kill the president because someone misused my generosity and decided to play a prank. If I didn't commit the crime, I shouldn't be held liable.

Is the Wal-Mart employee liable because they enabled the transaction that led to a murderous maniac possessing a kitchen knife?

Is the American public to blame because they elected a murderous maniac who... wait, bad example.

Re:Probable Cause != Guilt

[Manchot]

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.

Re:Probable Cause?!?

[myowntrueself]

but the alternative--50 independent nation states on the US continent--would suck even more.

Hey, not for the rest of the world!

Break-up of the United States? Bring It On! :)

Re:Probable Cause?!?

[anothy]

this is fun.

first, you provide two alternatives (current US government vs. 50 independent states) and implicitly assert that they are the only two available. this is false. historically, we've got the Articles of Confederation, of course, to illustrate an obviously distinct alternative, but then there's the fact that the current US government does not particularly resemble the government we had ~200 years ago. the most significant changes have been the results of amendments, but changes in judicial interpretation is also very important. some of these changes have been positive (yay for no more slavery! yay for women voting!), some are negative (what happened to all other powers falling to the states or the people?), and on several the jury's still out (like direct election of senators; much more complicated than it seems). the point is change happens, if only slowly, and that change represents another alternative (arguably the most viable).

second, why are you assuming or asserting that having 50 independent countries would suck? there's nothing to prevent those countries from entering into treaties to, for example, allow unfettered travel between them or share a currency. this is much the same as the origin of the EU (another example of where the current incarnation does not reflect the initial formulation). personally, that actually sounds kinda good. decentralizing the power would likely have the effect of making us a bit less abusive of it, at least. several of our states have intact free-standing governments that predate the US. probably more than any industrialized country in the world, the US Federal government could just close up shop with a relative minimum of fuss and a short transition period.

sounds kinda fun, actually; would certainly be an exciting change. Vermot's got its own succession movement; probably the largest in the country. there's a smaller but still noticeable one in Hawai'i, which makes sense (since we got the country in the first place through pretty bad means), a bunch of "the south will rise again!" yahoos down in the Confederacy, and a few not-really-significant ones in other places (like Manhattan). the trickiest legal issue is what the status of the reservations would be; they're already "odd", to say the least, but they sorta bypass the states and "report" directly into the federal government. maybe just stop futzing around with this "dual sovereignty" and "conquered nation" nonsense and make them independent? simplest, but not clear it's best (most would be friggin' tiny, for starters).

oh, and there is no "US continent". ;-)

Children

[Old Benjamin]

The biggest problem is the classification of some people as 'children'. The day someone turns 18 it doesn't magically make them a responsible adult. The line has been set as by age, but unfortunately that means very little. In fact, society would be much better off if there was a test that determined adulthood. It should cover: Common Sense, Ability to transport oneself, Ability to house, feed, and take care of oneself, Ability to do the same for others. Generally do things which are necessary in our society. Creating this test would eliminate the arbitrary line, one which says that you can suddenly make your own decisions, smoke, etc.

Biased perhaps?

[rm69990]

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.