No Privacy Expectation On Unsecured Wireless Network

There is no reasonable expectation of privacy for the content in files stored in a computer linked to an unsecured Wi-Fi connection, even if the access to the network is not authorized.

An Oregon federal court denied a motion to suppress evidence found on a convicted sex offender’s computer. A neighbor of the defendant used without permission the defendant’s unsecured Wi-Fi connection. While on the defendant’s network, the neighbor opened an iTunes file and discovered pornographic material. The neighbor then called police who replicated the neighbor’s actions, saw the pornographic material, and then obtained a court order to search the defendant’s computer. The defendant was charged with transportation and possession of child pornography.

The court found that the “accidental and unauthorized use of other people’s wireless networks is a fairly common occurrence.” While that “does not alone eliminate defendant’s right to privacy under the Fourth Amendment,” the court found that since defendant did not change the wireless router’s setting from no-password to protected and did change the iTunes setting from not sharing to sharing, there is no expectation of privacy.

“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,” the court wrote.

The court also rejected defendant’s argument that the search violated the Electronic Communication Privacy Act. The Act is intended to protect against the unauthorized interception of electronic communications and protect stored electronic communications and defines the circumstances under which law enforcement agents must obtain a search warrant. The court found that because the network was not secured, the Act did not apply since the information was “readily accessible to any member of the general public with a Wi-Fi enabled laptop.”

United States of America v. John Henry Ahrndt, D.C. Oregon, No. 08-468-KI, filed January 28, 2010.