United States v. Ahrndt, 2010 WL 373994 (D. Or. Jan. 28, 2010).
Factual Background Edit
In 2007, a woman referred to as "JH" connected to the internet in her house in Oregon, but due to a wireless network malfunction she inadvertently connected to one of her neighbor’s wireless networks. She accessed iTunes, which allows users on the same wireless network to share files, and accessed a folder on her neighbor’s computer that appeared to contain child pornography. She contacted the authorities who repeated her connection to an open network and accessed her neighbor’s files, which contained at least one image of child pornography. Only one wireless network within range of JH's house was accessible without a password and the Department of Homeland Security obtained a search warrant to determine the IP address of the open wireless network and a second warrant to search the home of its owner. Agents found child pornography on his computer.
Trial Court Proceedings Edit
He moved to suppress the evidence seized after the officers' access of defendant’s files using JH's computer, arguing that without that access the 1st and 2nd warrants would not have been issued. He argued that the access of his files through JH's computer was an illegal warrantless search in violation of his Fourth Amendment rights. He argued, in the alternative, that his expectation of privacy was per se reasonable because JH's conduct was illegal under the Electronic Communications Privacy Act (ECPA). How motion was denied.
Appellate Court Proceedings Edit
Courts have long recognized a difference in a person’s reasonable expectation of privacy depending on the type of technology they are using, such as landlines versus cordless phones. Because it is possible to pick up the calls of other cordless phone users, sometimes without trying, there is much less expectation of a private call that the courts, and society, accepts when using one. The same is true when using a wireless network; there is a higher expectation of privacy when using one that is protected by a password than in using one that is open to the public. Even though the particular router that defendant used came open by default, he was provided with instructions following his purchase for adding a security password. Defendant did not argue that he was for some reason unable to use a password so his expectation of privacy was necessarily reduced.
Similarly, his use of the iTunes share feature was voluntary. He was within his rights as an iTunes user not to share certain files, or even not to share any files at all, and still use the service. Even if he were required to share all the files on his computer to use iTunes he still had the option to use something else to download music.
While the ECPA does prohibit unauthorized access of networks and stored data, nothing about JH or the officers using JH's computer’s access was unauthorized. Using an open wireless network may be unethical if you know someone has forgotten to setup a password, but there is an exception to the enforcement of ECPA provisions for networks that are setup to be shared. Using a computer that is voluntarily sharing files on iTunes through an unsecured connection has all the signs of an open network that welcomes access by third parties.
Because defendant took no reasonable steps to protect his data he had no reasonable expectation of privacy and the court denied his motion to suppress the evidence that resulted from JH’s access and the resulting warrants and searches by Homeland Security.