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."

Comments

probably?

[Anonymous Coward]

Open WAP = Probably Cause?

CmdrTaco = Editor?

Accept Jury Duty

[gleather]

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.

Re:Accept Jury Duty

[jimstapleton]

And that 1 time out of 100 where it's a tech case, you'll get booted because you have a clue about the subject matter.

Remember, Justice isn't just blind, it's also retarded.

Re:Accept Jury Duty

[Archangel Michael]

Every time I get called for Jury Duty, I go. And when they ask if anyone has a reason NOT to sit on the jury, I raise my hand. They ask me for my excuse, and I say ..

"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

[Anonymous Coward]

Either that or they don't want people who think "Having a brain" means "Being disrespectful of authority on principle"

Re:Accept Jury Duty

[Atraxen]

"how exactly would this involuntary servitude have any bearing on affirming or defending our rights?"
- 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.)

Re:Accept Jury Duty

[slughead]

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.

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

[Otter]

Given that neither the submitter nor 95% of the people commenting here correctly understand what the defendant was arguing, I'm not so sure I want you people on my jury either.

Re:Accept Jury Duty

[FuzzyDaddy]

Still worth it. I was part of a hung jury over a guy that sold $10 worth of Crack cocaine to an undercover officer. One day of jury selection, one half day trial, 2 and a half days arguing. But it was really and interesting process.

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...)

Re:Accept Jury Duty

[lawpoop]

Given the number of libertarians that post on slashdot, I'm surprised nobody has enlightened you to the concept of Jury Nullification. In the US legal system, juries judge the case *and* the law. Here's more information.

Re:Accept Jury Duty

[jb.hl.com]

I haven't sat on a jury yet, as I get dismissed right there. They don't want people with brains.

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.

Re:Accept Jury Duty

[Arkiel]

Hello Jury Nullification! A crying shame that this will never be included in actual Jury instruction.

solution.

[Anonymous Coward]

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.

Re:solution.

[UnknowingFool]

I hope nobody finds out that the passphrase is 0x01020304050607080910111213

No worries, I've changed it for you already. :P

Something is fishy here..

[EveryNickIsTaken]

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.

Re:Something is fishy here..

[99BottlesOfBeerInMyF]

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.

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..

[EveryNickIsTaken]

So, the headline should actually say "Open WAP defense not valid in cases where you have stacks of incriminating evidence in your residence."

Re:Something is fishy here..

[garcia]

You don't accept a deal for 4 years in prison if you're not guilty. Clearly, someone is lying here.

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.

Re:Something is fishy here..

[enjo13]

More correctly it should say 'Open WAP is not protection from search warrant.' That's essentially what the legal question was here. Does the fact that one has a Open WAP prevent the police from having probable cause to search your residence for electronic crimes? This guy was making an argument that he was essentially an ISP for whoever happened to drive by his house. There are established protections for ISP's that prevent search and siezure of their equipment when someone downstream transmits across their network. This guy was arguing that he should enjoy those same protections. The court ruled that when you run a unsecured wireless network that the police have probable cause to assume that you might be directly involved in whatever illegal traffic crosses your network (it's not clear how this applies to wireless points that themselves have downstream nodes). That's all..

Probable Cause != Guilt

[99BottlesOfBeerInMyF]

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

[AGMW]

... and to continue the clarification, if I understand correctly, the guy was guilty as sin, but was trying to get off (and not for the first time *cough*) on a technicality - ie You can't use the evidence you found because you shouldn't have come into the room to search in the first place because, given that the access point was open, you couldn't prove who had actually used it, and therefore any evidence found (on the computer in question) would not (necessarily) be attributable to any individual.

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.

Please RTFA

[empaler]

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...

Hard to say it was someone else...

[linuxkrn]

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.

Probably 'cause

[GodWasAnAlien]

My grammar sucks probably 'cause I have open WAP.

Re:Probably 'cause

[Frankie70]

I have open WAP.


Is it contagious?

Re:Probably 'cause

[Anonymous Coward]

Is it contagious? I don't have any idea if WAP is contagious but something called GPL sure is.

I'm told it is viral and will give you open sores.

Re:Probably 'cause

[nanosquid]

Is it contagious?

It's sexually transmitted (usually, F->M), so don't worry about it.

Re:Probably 'cause

[AragornSonOfArathorn]

I have open WAP. Is it contagious? No, that's OpenCLAP.

Probable Cause?!?

[Rukie]

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.

Re:Probable Cause?!?

[Uncle_Al]

Since Europe is not the uniform entity some people seem to think it is, your statement does not hold much weight.

I am in europe (germany) and have never heard of any such rules.

Would you care to elaborate?

Re:Probable Cause?!?

[B'Trey]

The headline is highly misleading. What the court ruled was that if an IP used in the commision of a crime, in this case child pornography, is traced back to you, then that's probable cause for the issuance of a warrant to search your house. The court did not rule that just having an open WAP was probable cause for anything, nor did they rule that an open WAP wasn't a possible defense against the charge if there is no other evidence. After obtaining the warrant, the police found CDs with child porn in the individual's bedroom. That's the evidence that convicted him. He tried to have the evidence thrown out, arguing that there was no probable cause to issue the warrant. The court disagreed. If you have an open WAP, someone else may use it to commit a crime. But the probablity that you did so is sufficient to issue a warrant to search for additional evidence. So it's more like saying that if you buy a gun and someone else uses it to shoot someone, the police are going to get a warrant and come search your house.

Re:Probable Cause?!?

[giorgiofr]

Sure thing. Check out the recently-approved Data Retention Laws. Link 1 Link 2. They are cursory introductions, you can dig further if you wish. The articles don't talk about wifi spots but they are regulated too: they have to keep a copy of ID for each customer and be able to track them individually, as I said. Anyway you are perfectly right in not just believing me, so check it out. You'll be appalled.

Re:Probable Cause?!?

[profplump]

Not necessarily. You could limit the scope of federal power to prevent it from being a hassle while still letting you pool resources when it is beneficial. Now if only Lincoln and FDR, or anyone since then, had respected those limits.

Re:Probable Cause?!?

[AndersOSU]

Didn't we try that once?

Re:Probable Cause?!?

[hazem]

However, the fact still remains that people are allowing themselves to be potentially unwitting accomplices to all manner of nefarious activity.

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. /sarcasm

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.

Re:Probable Cause?!?

[Red Flayer]

You could limit the scope of federal power to prevent it from being a hassle while still letting you pool resources when it is beneficial.

Really? That's something I could do?

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.

Re:Probable Cause?!?

[anothy]

this is fun.

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". ;-)

No suprise here

[Todd Knarr]

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 CD

[ArwynH]

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.

Story is a little different than the headline...

[rborek]

The issue was that he claimed that the mere fact that the FBI linked an IP address to him wasn't sufficient cause for a search warrant. They had conversations and logs of information coming from that IP address. The man claims that that is insufficient cause for a search warrant - and the trial judge and appeal court judges disagreed.

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...

[basic0]

"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?

It makes sense in this case.

[fatboy]

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.

News like this worries me...

[zappepcs]

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.

The Stack of Kiddie Porn DVDs convicted him...

[Erioll]

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."

Re:The Stack of Kiddie Porn DVDs convicted him...

[Bill, Shooter of Bul]

Or better yet its like them finding a trail of blood into your house, and claiming you always keep it unlocked. Good point. Sorry, I don't have mod points.

Re:The Stack of Kiddie Porn DVDs convicted him...

[Achromatic1978]

I'm sure there must be case law on the roommate scenario, since it probably comes up often in drug cases. Does anyone know what the precedents are?

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.

If you did what you suggest

[mcg1969]

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.

Re:If you did what you suggest

[hab136]

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.

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.

For Christ Sakes RTFA

[Luscious868]

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.

did anybody not see this one coming?

[Russ Nelson]

"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?

Title is horribly misleading

[lostatredrock]

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.

Re:So much for reasonable doubt...

[gnasher719]

'' 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.