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Using the Internet? You’re open to warrantless monitoring, court says

If you’re accessing the Internet, be warned: You may be surrendering any expectation of privacy protection from authorities and leaving yourself open to being tracked without a search warrant, according to a new legal ruling issued earlier this month.

A federal court in Pittsburgh last week ruled against a request to suppress evidence in a case surrounding the possible downloading of child pornography, explaining that the man making the request “could have no reasonable expectation of privacy in the signal he was sending to or receiving” from the wireless router he had connected to. The man in question is Richard Stanley, who was indicted earlier this month for possessing child pornography after having been tracked down using a program called “Moocherhunter” that allows users to measure physical distances between wireless routers and devices connected to it.

Stanley was apparently connected to the wireless signal of a neighbor (without said neighbor’s knowledge) when he was downloading the pornography; authorities initially tracked the IP address of the account downloading the porn, which led to the identification of the owner of the wireless router in question, who was soon ruled out of the investigation. From there, police used Moocherhunter to locate Stanley’s signal, and then his actual location, leading to his arrest. Post-arrest, Stanley argued that the authorities should have needed a warrant to use Moocherhunter… but the courts, apparently, disagree.

In her ruling, District Judge Joy Flowers Conti explained, “An internet subscriber does not have a reasonable expectation of privacy in his IP address or the information he provides to his Internet Service Provider, such as Comcast, in order to legally establish an internet connection, and likewise, a person connecting to another person’s wireless router does not have an expectation of privacy in that connection.” Conti likened it to a 1979 case where the Supreme Court ruled that no search warrant was needed to use a device that records what telephone numbers are dialed by a suspect; in both cases, the information is being voluntarily surrendered to a third party, she pointed out, and are therefore not being treated as private or secret information by the suspect.

That’s not enough for everyone, however; the distinction may rest upon whether people are actually even aware that they’re surrendering information in the first place. While it’s clear that someone is dialing a phone number, for example, not everyone understands that connecting to a wireless router means that their computers are releasing identifiable information about their location, after all. Orin Kerr, a law professor and Fourth Amendment expert at the George Washington University, puts it like this: “When you’re connecting to the wireless network, you’re broadcasting a signal, even though you might not know it… This gets to the black box problem. Do you assume the user knows how computers work or not?”

Marketa Sims, the assistant federal public defender who worked with Mr. Stanley on the case in question, is thinking along similar lines: “When Stanley connected to the other person’s router, he didn’t [intentionally] reveal his location,” she said. “The question here is whether the government needs a warrant to find your location when you haven’t broadcast it.” Or, perhaps, the question may be, is ignorance of transmission the same thing as not transmitting at all…?

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