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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."
Open WAP = Probably Cause?
CmdrTaco = Editor?
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.
Idiot.
I have secured my wap.
:-)
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.
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.
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.
The identity of the user was only questioned after the fact. They actually found kiddie porn in the IP address registree's room. I'd bet that he'd stand much stronger, legally if they hadn't, but he's trying to get the case thrown out of court because he'd set up an unsecured Wifi, which his lawyer argued made it unlikely enough that it was him that the police should have walked away...
If you RTFA, it says they raided his place and found CDs of child porn. Now it also says he had a roommate and that the IM that got them in trouble was sent from his roommate's account. Which should have made them investigate him as well, but that's another story.
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.
My grammar sucks probably 'cause I have open WAP.
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.
Support the source, Open Source! An entire site developed with OSS
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".
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.
It was not the WAP that got him jailed, but the fact that he had a CD full of child porn in his room. The Open WAP was just deemed not an acceptable reason to invalidate the search warrant and make the CD in admissible as evidence.
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).
"I'm sorry your honor, I'd like to request a brief recess so that I can bone the prosecution behind my assistant DA/girlfriend's back."
"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?
There was cause to search his house because a crime appeared to have occurred there. When the house was searched, more evidence in support of establishing that a crime occurred there was found. I don't see how the second set of evidence could be thrown out, if all procedures were properly followed in establishing the cause to search his house. I don't see that it matters he had an Open WAP.
If they searched his house and found no evidence supporting the initial reported crime, I believe he could use the Open WAP as defense.
--fatboy
Now, if they have evidence, IMs, emails, browser logs, and enough to convince even /. crowds that there is evidence, that is all good and well.
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.
Support NYCountryLawyer RIAA vs People
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."
The ruling is here.
IF you run a password protected WAP and some cracker hacks your AP and begins downloading illegal stuff then these legal beagles will say that you are guilty because no one else can use your account.
Either way you are hosed if someone uses your AP illegally.
Running with Linux for over 20 years!
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.
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.
Nerd rage is the funniest rage.
RTFA people. An IM that contained child porn was sent via Yahoo from this guy's IP address. It was reported, the authorities obtained the IP address used to send the IM and obtained a search warrant for this guy's house. Authorities discovered a stack of CD's that contained child porn when they searched his residence.
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.
"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?
Don't piss off The Angry Economist
The title of this summary is horribly misleading...now I know this is slashdot so no one RTFA, but I happend across it by other means this morning, the ruling was not that having an open WAP is probable cause for kiddy porn, the ruling was that an open WAP was no defense against a finding of probable cause.
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.
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.
Nerd rage is the funniest rage.
Rather they made the reasonable ruling that if someone does something illegal from your IP then the police still have probable cause to get a warrant. Hell, they probably didn't even go that far since as long as the police acted in good faith the warrant would be valid and the police likely didn't even know he had an open WAP at that point.
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.
If you liked this thought maybe you would find my blog nice too:
'' Anyone else seeing reasonable doubt flying out the window with this crap decision?. The slope just got one HELL of bit more slippery! ''
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.
Really, the /. summary is just an example of bad reporting. I mean, you take the story, completely twist it, and come out with something brand new. It's like some kind of bizarre transmogrification.
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 shot of a 17 year old on a full CD doesn't a Pedo case make. An entire directory of obvious children in obvious sexual positions does.
You get booted if you have a clue, period. Doesn't matter whether the case involves technical issues or not. Neither the prosecution nor the defense want intelligent, educated individuals on juries. They really don't, in spite of any claims they make make to the contrary, and the reason for that is simple. People that are actually capable of juggling numbers, analyzing statistical claims, and generally seeing through the ridiculous arguments both sides may try to present are simply not wanted.
... but I had no confidence in their being able to come to a rational judgment, or be able to see through an emotional play or some other courtroom con job. All the other people like me that had technical, scientific or engineering qualifications were dismissed (at least, as many of us as could be using peremptory challenges.)
I was called to jury duty about ten or twelve years ago. I really didn't have any idea what to expect, but I was prepared to be a responsible citizen. What I did not expect was to be booted from nearly a dozen courtrooms because I answered honestly when asked, "What do you do for a living?"
"I'm an engineer, Your Honor." I would say. In every single case, the instant those words came out of my mouth a peremptory challenge was issued for my dismissal. I tried varying it a little, "I'm a software engineer" or "I'm a programmer." No dice. I didn't really understand what was going on until later (I kinda took it personally, at the time) when an attorney relative of mine said that that was just how the system worked. One judge asked me what kind of TV shows and books I read. I said, well, I tend to like science fiction. He laughed and asked me if I meant Star Trek and Doctor Who, that kind of thing. I said, "Yes, Your Honor." Everyone else in the courtroom also laughed, but within five seconds the defense attorneys had conferred and the lead counsel spoke into his mike, "Ah, Your Honor, we'd like to dismiss this juror." Fuck. It wasn't so much that I wanted to spend some unknown number of days (or months, or years) serving as a juror but by the end of the day I was getting pretty pissed at the time I'd wasted, when I'd had virtually zero chance of ever being selected in the first place.
I was more than a little disturbed when I saw the caliber of people that managed to survive the selection process. Housewives, bartenders, gardeners, people from all walks of life who shared one thing in common: lack of intelligence and education. I'm not picking on my fellow citizens, so don't misunderstand me here: I got to know a number of them in the hours I spent waiting for my next rejection. Most seemed to be very decent human beings
The system (at least in the area where I live) apparently selects for the least educated, least intelligent, most easily swayed individuals for jury duty. I hope I never land in court, where my fate revolves around the understanding of a complex technical issue. I'd probably never see the light of day again.
The only good news was that by the time they let us leave, I discovered the local McDonald's was still open and I used the eight bucks they gave me to buy a Big Mac meal with a large Coke.
The higher the technology, the sharper that two-edged sword.
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.
"The quickest way to end a war is to lose it" -Orwell
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.