Have you ever "borrowed" access to someone else's Wi-Fi network? Industry estimates are that up to 32% of people who use computers have tried to get on a wireless network that was not theirs, at one time or another. In and of itself, this is a minor infraction, more a commentary on the general decline of civility and good manners in our society than anything else.
Yet, in the case of a defendant named Richard Stanley, his choice to use someone else’s Wi-Fi without permission has given rise to an interesting series of Fourth Amendment legal issues as his prosecution for possession of child pornography proceeds forward in federal court in Pittsburgh.
This case is yet another example of a new world of technological capabilities regularly being utilized by state and federal law enforcement. How these capabilities will interact with and be molded by the Fourth Amendment’s prohibition against unreasonable searches remains an evolving and ever more fascinating story.
Back to Mr. Stanley. It is alleged that Mr. Stanley was downloading contraband images, yet he was doing it using someone else’s Wi-Fi and hence the IP address of an unknowing and innocent party.
The police were able to trace the downloads to the actual IP address, obtained the innocent subscriber’s address via a warrant and searched the subscriber’s home. And proceeded to find… nothing…since this subscriber was not the party actually downloading the images. The subscriber was quickly cleared.
The police then turned to "Moocherhunter", a software program that works with a directional antenna to trace the location of other devices connected to a subscriber’s wireless router. "Moocherhunter" did its job and pointed the way to Mr. Stanley. This enabled the authorities to obtain a warrant to search his home. Mr. Stanley was indicted late last year.
He has attempted to suppress the evidence that was found arguing that the police should have obtained a warrant before they used Moocherhunter. This argument was rejected by the federal trial court in Pittsburgh, which held that since an Internet subscriber does not have a reasonable expectation of privacy with respect to his or her IP address or location, that a non-subscriber who, in essence, steals such access has no expectation of privacy as well.
Mr. Stanley is planning to appeal the denial of his suppression motion to the Third Circuit.