Police blotter: Open Wi-Fi blamed in child porn case
Texas man says FBI's search warrant was invalid because a neighbor could have been using his unsecured 802.11 wireless connection.
What: A Texas man, whose home is raided in search of child porn, points to an open Wi-Fi connection that is not password-protected. He is convicted of possession of child pornography but appeals the decision, asserting an invalid search warrant.
When: 5th Circuit Court of Appeals rules on April 11.
Outcome: Conviction and prison sentence upheld.
What happened, according to court documents:
In early 2004, a woman in New York state told her local police that she had received an instant message with sexually explicit images of minors. The instant message allegedly came from the Yahoo ID "famcple."
The complaint was forwarded to the FBI's Buffalo, N.Y., field office, which then sent a subpoena to Yahoo for information about the owner of the "famcple" screen name.
Yahoo reported that the owner's name was "Mr. Rob Ram" and that he had been using the IP address 24.27.21.6, which was in turn traced back to Time Warner Cable. Through a second subpoena, the FBI learned from Time Warner that the IP address in use at that time was linked to Javier Perez, who lived on Scenic Brook Drive in Austin, Texas.
The usual steps followed: Perez's home was raided, and a special agent carted off his belongings.
What makes this case relevant to Police blotter is that Perez challenged the search warrant as unlawful. He claimed the open, unsecured wireless network in use meant that roommates or "neighbors would have been able to easily use (his) Internet access to make the transmissions."
Although the FBI didn't know it when they raided his home, one of Perez's housemates was named Robert Ramos--suspiciously similar to the Yahoo account owner's name of "Mr. Rob Ram."
Nevertheless, the FBI did say it discovered CDs with child porn in Perez's area of the house. He was arrested and charged with one count of possession of child pornography. After a federal judge denied his motion to suppress the evidence seized during the search, Perez entered a conditional guilty plea. He was sentenced to four years and 9 months in prison.
He appealed to the 5th Circuit Court of Appeals, which last week affirmed the lower court's ruling.
One can read an excerpt from the discussion below, but what deserves focus is the appeals court's statement that it was "likely" that the user of the IP address was inside Perez's home. That was a consideration that originally helped lead to the issuing of a search warrant.
It is possible that the user was inside Perez's home. But if there was, in fact, an open 802.11 Wi-Fi network, it's also possible that it was being used by anyone within a radius of a few hundred feet.
In a worst-case scenario, it isn't hard to imagine someone using another person's unsecured wireless connection to send child porn to the FBI, and then watch the agents show up and seize the target's computers and perhaps arrest the person in the process. Such a scenario will become even more of a possibility when future wireless networking technologies offer longer ranges.
This is not a new issue. A Washington Post article in February described the case of an elderly woman whose open wireless connection had apparently been used to distribute child porn.
Excerpts from the 5th Circuit's opinion:
Probable cause does not require proof beyond a reasonable doubt; a magistrate need only have a substantial basis for concluding that a search would uncover evidence of wrongdoing. A magistrate's determination is entitled to deference by reviewing courts.
In this case it is clear that there was a substantial basis to conclude that evidence of criminal activity would be found at 7608 Scenic Brook Drive. The affidavit presented to the magistrate included the information that the child pornography viewed by the witness in New York had been transmitted over the IP address 24.27.21.6, and that this IP address was assigned to Javier Perez, residing at 7608 Scenic Brook Drive, Austin, Texas, 78736.
Perez argues that the association of an IP address with a physical address does not give rise to probable cause to search that address. He argues that if he "used an unsecure wireless connection, then neighbors would have been able to easily use (Perez's) Internet access to make the transmissions." But though it was possible that the transmissions originated outside of the residence to which the IP address was assigned, it remained likely that the source of the transmissions was inside that residence.
Perez also argues that evidence that illicit transmissions were made does not give rise to probable cause that physical evidence would be located at the residence. However, the New York witness stated that the images she observed appeared to be videos played on a television screen transmitted via a Webcam. There was therefore a basis to believe that the suspect would have such videos in his residence.
Moreover, Britt stated in his affidavit that, in his experience, persons interested in child pornography typically retain numerous images of child pornography as well as "material documenting the arrangements, the introduction, and tasks to consummate the acquisition of child pornography." Based on this information, there was probable cause to believe that physical evidence of violations of the child pornography laws would be located at 7608 Scenic Brook Drive.