Why Wi-Fi is Constitutionally SignificantPosted by Scott Heiser, Director of ALDF's Criminal Justice Program on March 8, 2010
In the world of animal crimes prosecutions, it is common knowledge that those who participate in the underground world of animal fighting have a very real and frequently indulged need to communicate about their illegal exploits. They do so for a variety reasons, including the need to:
- Set the terms and address the logistics of the next “match.”
- Disseminate fight results.
- Build a dog’s (or a kennel’s) “pedigree” (or brand).
- Exchange new training methods.
- Explore new techniques in providing unlicensed veterinary care to a worthy animal who may have been lucky enough to survive a fight.
- Facilitate the attendant financial crimes (e.g., money laundering and tax fraud).
- Discuss current law enforcement techniques with an eye toward avoiding detection and to otherwise facilitate their ongoing conspiracy to commit multiple felony crimes.
For different reasons, the same is true for illegal puppy mill operators. The reality is that in today’s world, we all (even those who commit crimes against animals) do a huge share of our communicating over a computer network and of those networks, many if not most are wireless (a/k/a “Wi-Fi”). While a blog is hardly the venue for a detailed analysis of the Electronic Communications Privacy Act (ECPA), a recent Federal District Court case out of Oregon (United States v. Ahrndt) prompted me to make a couple of observations about Wi-Fi and the Fourth Amendment. But first, a short summary of the Ahrndt’s case.
In Ahrndt, the defendant’s neighbor (referred to as “JH” in the opinion) stumbled on to Ahrndt’s unencrypted Wi-Fi with an SSID of “Belkin54G.” JH noticed that a “new” iTunes folder was available for browsing–the defendant had shared his iTunes library called “Dad’s LimeWire Tunes” by overriding the iTunes default setting to not share folders (Ahrndt used LimeWire to acquire the files he stored in this folder). When JH looked in the defendant’s shared folder she found filenames consistent with child pornography (oh, by the way, per the opinion, Ahrndt has a prior sex offense conviction but was still claiming to be employed as a representative with H-P–you know, the computer company). JH called the police, who duplicated JH’s steps and then completed a full investigation that identified Ahrndt as the owner of the “Belin54G” network (note the federal rule on accessing unencrypted Wi-Fi networks at 18 U.S.C. § 2511(2)(g)(i)). Ahrndt was subsequently indicted. Predictably, Ahrndt filed a motion to suppress all of the evidence against him. However, the trial court would have none of it: in reaching his conclusion, Judge King noted that:
When a person shares files on LimeWire, it is like leaving one’s documents in a box marked "free" on a busy city street. When a person shares files on iTunes over an unsecured wireless network, it is like leaving one’s documents in a box marked "take a look" at the end of a cul-de-sac. I conclude that iTunes’ lesser reach and limit on file distribution does not render it unlike LimeWire in terms of its user’s reasonable expectation of privacy.
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Having failed to demonstrate either a reasonable objective or subjective expectation of privacy, defendant cannot invoke the protections of the Fourth Amendment. When JH and [the investigating officer] accessed the child pornography in defendant’s iTunes library, no search occurred. [Defendant’s motion to suppress, DENIED].
So, about those observations: (1) this case and the appellate authorities cited therein are excellent resources for anyone wanting to learn more about the ECPA; (2) this case illustrates just how out-of-touch Oregon is when it comes to search and seizure issues–had this case been filed in an Oregon Circuit Court, Ahrndt would have had a very good chance of getting all of the computer evidence (i.e., the child porn and thus the heart of the case) excluded. See, State v. Carston, 323 Or 75, 82, 913 P2d 709 (1996) and State v. Prew; and (3) in my experience, those who investigate animal crimes all too often overlook the wealth of evidence that is in a suspect’s “electronic record,” and an offender’s unencrypted Wi-Fi network is an excellent place to start–not to mention his cell phone bills and call logs, his text messaging history, his social networking pages and Twitter accounts (but get a warrant first, especially if you practice in a state like Oregon, that doesn’t follow the more common and rational Fourth Amendment jurisprudence).