Last week was a busy week for the Fourth Amendment in the Courts of Appeal. On the same day that the Eleventh Circuit ruled that the Fourth Amendment covers data obtained from cell towers, the Third Circuit in U.S. v. Stanley ruled that the Fourth Amendment does not cover information obtained from a person’s use of an open Wi-Fi network. Federal criminal defense attorney Hope C. Lefeber explains how both cases demonstrate the courts’ willingness to apply constitutional standards to new technology.
In Stanley, the Third Circuit was faced with a particularly technical—but interesting—Fourth Amendment issue. The government’s cyber crime unit had come across data suggesting that child pornography was being downloaded from a certain IP address. After obtaining a warrant and searching the corresponding home address, the government concluded that the owner of the IP address was not responsible. Instead, because the owner’s IP address was “open” (meaning that it was not password protected), the government concluded that the suspect was likely accessing the materials through that IP address but from another physical location.
When the suspect next logged on to the network, the government tracked his location—without a warrant—using a device designed to pinpoint Wi-Fi “moochers.” The device showed that a computer in Richard Stanley’s apartment was being used to access the surveilled IP address. After obtaining a warrant, the government searched Stanley’s apartment and recovered over 140 files of child pornography.
Stanley sought to exclude the evidence recovered from his home on the grounds that the government traced the wireless signal from his computer without a warrant and in violation of his Fourth Amendment rights. The District Court denied Stanley’s motion to suppress evidence and he was ultimately convicted of possessing child pornography. Stanley duly appealed the Fourth Amendment issue to the Third Circuit and the Third Circuit affirmed the District Court’s decision.
Stanley’s primary argument was that the government’s actions in this case were similar to the actions taken by the government in U.S. v. Kyllo. In Kyllo, the Supreme Court ruled that the government’s use of heat detection technology to discover that the defendant was growing marijuana was unconstitutional without a warrant. The Third Circuit agreed that the cases were similar—in both cases, the government used a device to discover information that was otherwise unobtainable. But, the Third Circuit noted one salient difference: in Kyllo, the activity monitored by the device (the increased heat signals) was confined to the defendant’s own home but in this case the activity monitored by the device (logging on to another person’s Wi-Fi network) was not confined to the defendant’s own home. As articulated by Judge Smith:
" In effect, Stanley opened his window and extended an invisible, virtual arm across the street to the Neighbor’srouter so that he could exploit his Internet connection. In so doing, Stanley deliberately vent ured beyond the privacy protections of the home, and thus, beyond the safe harbor provided by Kyllo."