Open WAP = Probable Cause? 466
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."
probably? (Score:5, Funny)
CmdrTaco = Editor?
Probably 'cause (Score:5, Funny)
Re:Probably 'cause (Score:5, Funny)
I have open WAP.
Is it contagious?
Re:Probably 'cause (Score:5, Funny)
I'm told it is viral and will give you open sores.
Re:Probably 'cause (Score:5, Funny)
It's sexually transmitted (usually, F->M), so don't worry about it.
Re:Probably 'cause (Score:4, Funny)
Probable Cause?!? (Score:4, Insightful)
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.
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Re:Probable Cause?!? (Score:5, Funny)
I am in europe (germany) and have never heard of any such rules.
Would you care to elaborate?
Re:Probable Cause?!? (Score:5, Informative)
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Re:Probable Cause?!? (Score:4, Insightful)
Re:Probable Cause?!? (Score:4, Informative)
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Re:Probable Cause?!? (Score:5, Informative)
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.
Example of bad reporting (Score:3, Interesting)
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Hey, not for the rest of the world!
Break-up of the United States? Bring It On!
Re:Probable Cause?!? (Score:4, Insightful)
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".
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Re:Cite your sources (Score:2)
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Re:Probable Cause?!? (Score:4, Insightful)
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.
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.
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If you mounted a phone on the outside of your house and put a "FREE USE" sign over it, would you be piss
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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
The Stack of Kiddie Porn DVDs convicted him... (Score:5, Insightful)
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:The Stack of Kiddie Porn DVDs convicted him... (Score:5, Insightful)
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Re:The Stack of Kiddie Porn DVDs convicted him... (Score:4, Interesting)
Simple, really. They just enacted laws that said that every occupant of the house could be presumed to have equal liability unless they could demonstrate cause as to why they shouldn't. Not exactly guilty until proven innocent, but definite guilt by association. Welcome to the "War" on (some) drugs.
Didn't say it was a stack of pedo-porn ... (Score:3, Interesting)
They just said it was a stack with pedo-porn. Remember screenshots from Traci Lords career are still around - and they are sill illegal in the US since she was under 18 while filming. So downloading a CD with a single shot from one of her films gets you a Pedo rap.
Without knowing the pictures & the quantity/percentage of the images, you can't really say anything. In some cases, the source is important too. If you burn archives from usenet, I'm sure your archive is going to contain some. In that light 1
Re:Probable Cause?!? (Score:5, Informative)
If you did what you suggest (Score:5, Insightful)
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:If you did what you suggest (Score:4, Insightful)
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.
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Accept Jury Duty (Score:5, Insightful)
Please RTFA (Score:5, Informative)
Re:Accept Jury Duty (Score:4, Insightful)
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 (Score:5, Informative)
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Prosecutors will try to eliminate a j
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Re:Accept Jury Duty (Score:5, Insightful)
Remember, Justice isn't just blind, it's also retarded.
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Re:Accept Jury Duty (Score:5, Insightful)
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I'll admit, I didn't RTF, mostly because my thoughts are - if you are dumb enough to use unsecured wireless, you deserve whatever you get.
It's worse than that. (Score:3, Interesting)
I was calle
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how exactly would this involuntary servitude have any bearing on affirming or defending our rights?
You have three rights here that you're protecting:
1. The right to have a jury of ordinary people decide what the facts are when you're charged with a crime.
2. The right to serve on a jury.
3. The right not to be put in ja
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Re:Accept Jury Duty (Score:4, Interesting)
"I have a brain and can think outside the parameters of instructions given by the judge. There is at least one side that doesn't want me on the jury, and perhaps even both sides. If you choose me to be on the jury, you'll find out what my wife already knows, I'm a pain in the arse."
I haven't sat on a jury yet, as I get dismissed right there. They don't want people with brains.
Re:Accept Jury Duty (Score:5, Insightful)
Re:Accept Jury Duty (Score:4, Insightful)
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.
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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 (Score:4, Insightful)
- 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.)
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Re:Accept Jury Duty (Score:4, Interesting)
On the other hand, the judge let me out of a murder trial because I pulled the "I work for a small company and three weeks would hurt the business badly", which he was sympathetic to. (And which was true...)
solution. (Score:5, Interesting)
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.
Re:solution. (Score:5, Funny)
No worries, I've changed it for you already. :P
Something is fishy here.. (Score:5, Insightful)
Re:Something is fishy here.. (Score:5, Informative)
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.
Re:Something is fishy here.. (Score:4, Insightful)
Re:Something is fishy here.. (Score:5, Insightful)
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Re:Something is fishy here.. (Score:4, Insightful)
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.
Probable Cause != Guilt (Score:5, Informative)
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.
Re:Probable Cause != Guilt (Score:4, Informative)
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.
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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.
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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
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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
Hard to say it was someone else... (Score:4, Informative)
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.
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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
Open WAP != No Probable Cause (Score:3, Insightful)
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".
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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)
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.
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No, they're not the ones raising the defense - their lawyers are (which is as it should be).
They found kid porn on a CD in his room (Score:2, Informative)
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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
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It was not the WAP that got him jailed, but the CD (Score:4, Interesting)
Story is a little different than the headline... (Score:4, Informative)
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).
Summon Sam Waterston... (Score:5, Funny)
"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?
damn robots... (Score:2)
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
It makes sense in this case. (Score:4, Interesting)
If they searched his house and found no evidence supporting the initial reported crime, I believe he could use the Open WAP as defense.
News like this worries me... (Score:4, Interesting)
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.
The 5th Circuit's opinion (Score:3, Informative)
Catch - 22 (Score:3, Interesting)
Either way you are hosed if someone uses your AP illegally.
Open WAP (Score:2)
This is stupidity in it's prime (Score:2)
proabable cause? (Score:2)
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.
Open WAP is ALREADY probable cause. (Score:2)
For Christ Sakes RTFA (Score:5, Informative)
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.
did anybody not see this one coming? (Score:4, Insightful)
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?
Title is horribly misleading (Score:4, Informative)
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.
They Did Nothing Of The Kind (Score:3, Informative)
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)
Re:So much for reasonable doubt... (Score:5, Informative)
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.