Leaving Your WiFi Open Decreases Your Fourth Amendment Rights To Privacy?

from the wait-a-second... dept

Wed, Feb 10th 2010 8:20am — Mike Masnick

We've had numerous discussions on this site about both the legality and ethics of open WiFi networks. And yet, the issue still comes up now and again -- but who knew it was a Constitutional issue? Thomas O'Toole shares the news of a ruling in Oregon, that suggests a user who left his WiFi open gave up certain 4th Amendment rights to privacy. Though, actually, the details of the case suggest it's not so much the open WiFi that's the issue, but the fact that the guy also left illegal material in shared Limewire and iTunes folders. It was just that police were able to confirm that by connecting to his open WiFi. But the court does make a specific statement on the WiFi issue, noting:

"as a result of the ease and frequency with which people use each others' wireless networks, I conclude that society recognizes a lower expectation of privacy in information broadcast via an unsecured wireless network router than in information transmitted through a hardwired network or password-protected network."

While O'Toole doesn't think there's anything earth shattering about this, I'm not sure I agree. I think, in this case, the guy probably gave up rights to privacy by putting the content in shared folders that were available widely -- but I don't think that just because you're using an open WiFi network you've set yourself a "lower expectation of privacy." I would suspect that most users have no idea that it's less secure, and I wonder why the type of network used should really determine the level of 4th Amendment protections.

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Filed Under: fourth amendment, open wifi, privacy, wifi

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intellectual integrity, 10 Feb 2010 @ 8:24am

UM does having an unlocked house door mean that?
go on tell me. IF i have my front door unlocked but shut do YOU have the legal right of entry

NO
same thing with other stuff see how govt is getting scaredy pants about tech again hindering tech

SHAME ON USA
SHAME ON OBAMA
you are no better and in fact YOU WILL BE EQUAL to bush as of today and tomorrow YOU CAN TRY TO BE WORSE AND YOU MIGHT succeed
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romeosidvicious (profile), 10 Feb 2010 @ 8:43am

Most 4th amendment privacy expectations are based on "reasonable expectation of privacy" and have moved around based on different cases and circumstances. I think that it would be entirely reasonable, pardon the pun, for a sysadmin to have no expectation of privacy on any system connected to an open wifi network but my mom likely would. However Windows warns you when connecting to an open wifi network that your data is not encrypted and could be read by anyone else on the network so maybe even then there is a lowered expectation of privacy. So "I would suspect that most users have no idea that it's less secure" isn't likely accurate. Most users have read that warning, because most users are Windows users, and know it's less secure. How much that affects your 4th amendment rights may be another story.

@intellectual integrity: This case is really more like having your door open and kilo of cocaine on your table. If the cops drive by and see it they most certainly can arrest you for having it. These items were in folders shared through limewire AND iTunes (RTFA) to anyone on the intertubes and this was mentioned in the decision. In fact the point was made that he had to change settings to share everything in the manner in which he did. He purposefully made the materials available to the world. The open wifi connection is merely the manner in which they viewed the publicly shared material. I don't think there could be any expectation of privacy after reading the article. The open wifi isn't even really the issue here, despite Mike focusing on it for his op-ed, the core of the case was the this dude shared his stuff to the world, from multiple sources, and the wifi connection was just the vehicle that they verified it with. So it's more like giving away drugs to anyone that walks into your yard and then complaining that the cops walked into your yard, got drugs, and arrested you. The privacy issue was null and void when he shared those folders over the intertubes.
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The Anti-Mike (profile), 10 Feb 2010 @ 8:50am

Open WiFi is pretty much the same as putting your computer screen up against your living room window. Anyone who walks by can see what is on your screen.

it is the electronic equivalent of leaving your curtains open at night and turning on a lot of bright lights inside your house. Don't be surprised when someone walking by can see what you are doing.

Another way to look at it as electronic "plain sight", sort of like a wide open garage, the passenger seat of a car in a traffic stop, or the like.

I wonder why the type of network used should really determine the level of 4th Amendment protections.

It isn't any different from those rights in real life. The police can work from what they can see in plain sight. If the guy had locked his network, sort of like putting something in the glove box instead of leaving it on the passenger seat of the car, or whatever, he would have no issue. As soon as law enforcement would have to break security or hack a key, it wouldn't be plain sight anymore.

I am surprised you are even asking, it's pretty obvious.
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Chronno S. Trigger (profile), 10 Feb 2010 @ 8:59am

Re:
"Open WiFi is pretty much the same as putting your computer screen up against your living room window. Anyone who walks by can see what is on your screen."

That is an idiotic comment. That's just like saying leaving your front gate open allows just anyone to kick in your door. There are other securities on your PC that block people from just connecting in. This is why Mike pointed out that he shared the files. That's like the garage metaphor you have.

I would guess that the comment was not to justify arresting him but more to justify connecting to his network and not allow this guy to get off on a technicality (even police hacking into a PC is considered illegal and is not admissible in court).
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HrilL, 10 Feb 2010 @ 9:07am

Unsecured = Public
As far as I'm concerned if you leave your network open to everyone than it is no longer a private network. If your wireless signals are broadcast on to my property or into a public area then it now becomes a public network. If you don't want to have a pubic network then secure it. It takes all of 1 minute to log in to a router and turn security on. Hell even 64bit wep would work. Even though it is not secure you clearly want your network to be private and someone would have to break into it in order to gain access.
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Pixelation, 10 Feb 2010 @ 9:11am

Apparently, if you are going to break the law, do it over a secured connection.
The judge does say "..lower expectation of privacy" not NO expectation of privacy.
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Freedom, 10 Feb 2010 @ 9:13am

Me Ponders...
Someones sends an SMTP (non-encrypted) e-mail - any expectations of privacy? Any network between the sender - host mail server - to receive mail server - to receiver can all snope in on the message. In the electronic world it is similar to having a phone conversation where those in close promixity at both locations can overhear you.

What about all other non-encrypted traffic - http, etc.

I think one could make a good argument that privacy on non-protected traffic is limited ???

Just thinking out loud.

As an aside, when did not understanding how something works or the law for that matter become a reasonable excuse? Just because someone doesn't understand the public nature of an open wi-fi, a smtp e-mail or http sessions, does that mean that they should have more privacy due to their ignorance than a sysadmin type (although that may be a bad assumption that all sysadmins understand the fundementals of their trade)? They whole freedom without responsibility has always really bugged me.

Freedom
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HrilL, 10 Feb 2010 @ 9:16am

Re: UM does having an unlocked house door mean that?
Umm its illegal to go onto someones property without their permission. But in the case of open wireless the signal is going into a public place.

If you grow Marijuana plants in your back yard and they can be seen from the street then the cops have probable cause to go onto your property.

You can't compare going onto private property with connecting to an open wireless network that is accessible in a public location.

If you want to run your network open but don't want people to join it then you need to lower your broadcast power so your signal doesn't go into a public place.
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Anonymous Coward, 10 Feb 2010 @ 9:17am

I dunno
"but I don't think that just because you're using an open WiFi network you've set yourself a 'lower expectation of privacy.'"

I dunno, its just an open broadcast, I think he has a good point.
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Dark Helmet (profile), 10 Feb 2010 @ 9:19am

Re: I dunno
"I dunno, its just an open broadcast, I think he has a good point."

But shouldn't some distinction be made since the police have to actively log into the network, even if it IS open?
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Paul (profile), 10 Feb 2010 @ 9:19am

Re: Unsecured = Public
There is a difference between an open network and an open computer. I don't have enough information here to know if he was actually sharing folders in an unrestricted fashion over his network. But supposing he WASN'T, then in addition to getting access to his network, they would have to additionally gain access to his computer files. In this latter case, I think he should have had the expectation that nobody could see into his computer.

This would not be much different than a land owner providing an access road across their property. Certainly such a path can be publicly accessed, but having access to such a path does not allow the public to enter the person's yard and house. Just to keep adding to the "reasoning by analogy" pattern of various comments in this thread.

It isn't too tough to share your Internet connection without sharing your network or the computers in your network. But I don't think most people understand what is involved to do so.
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Matthew Henry, 10 Feb 2010 @ 9:20am

An expectation of privacy needs to be both subjectively and objectively reasonable. While this guy may not have known that he left his files open to the public, he would still fail the subjective test.

This case is consistent with prior Fourth Amendment precedent. If you have a loud conversation in a crowded restaurant and anyone can hear you, you've waived your expectation of privacy. Same things goes for electronic communications and information that leave open for others to see.

Fourth Amendment law for the Internet is being largely established in child pornography cases like this one. As you would expect, this is leading to some decisions that find the Fourth Amendment to be quite narrow for online communications. Like it or not, this decision was consistent with the previous case law and reached the right conclusion.
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Matthew Henry, 10 Feb 2010 @ 9:23am

Re:
I meant to say the OBJECTIVE test, rather than the subjective test, obviously.
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Anonymous Coward, 10 Feb 2010 @ 9:26am

By your logic
If someone locks down their network or encrypts their email, they must have something to hide.

We should believe that the desire for privacy is an indication of guilt.
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ethorad (profile), 10 Feb 2010 @ 9:27am

Re: Re:
I'm with TAM on this one. If you leave something where anyone can see it - be it on the passenger seat of your car, in your window or in a shared folder on an unsecured network - you should expect that people will see it. And expect to deal with any repercussions.

After all, the police already use binoculars to watch people while on stakeouts (at least they do in the movies). They also use heat cameras to detect houses that are overheated and therefore potential cannabis farms. And so why not a computer to scan your unsecured network for illegal activity? In each case using technology to detect something that's freely emitted from your house unencrypted.

Leaving your front gate open doesn't allow someone to kick in your door, any more than having a road up to your front gate allows people to kick the gate in.
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The Anti-Mike (profile), 10 Feb 2010 @ 9:29am

Re: Re:
I don't know why you think I am saying differently.

His open WiFi is an open WiFi, period. If he makes thing available (sharing, open P2P network, whatever) that can be seen on that open WiFi without any passwords or any other security requirements, then it is open.

If you leave your gate open and lock your front door, you don't have any issues, and you have an expectation of privacy.

If you leave your gate open, leave your front door open, and stand there having a very loud discussion with someone about your next drug deal, you have little expectation of privacy.

The open WiFi is just that, an open invitation. If he wasn't sharing stuff, there would be no issue.
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Anonymous Coward, 10 Feb 2010 @ 9:30am

By my logic
I should add that this only applies to individuals. If corporations or the government desire privacy, it's for your benefit or national security.
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Chronno S. Trigger (profile), 10 Feb 2010 @ 9:30am

Re: Re: UM does having an unlocked house door mean that?
Let's get a good metaphor in here. Having an open WiFi is like unlocking and opening your door and having a sign in your front yard saying "Open House". This allows anyone in. Now think that all your drawers in your house are locked (since in most operating systems the folders are locked by default), no one can reasonably open those drawers without your permission. Sharing a file is like unlocking a drawer, more reasonable for people to look inside.

This guy basically put the sign in front of his house, opened the door, and left the drawer open. The cops would be able to just walk in and arrest him. If ether one of those two facts where changed (the drawer was locked/files weren't shared, or the sign wasn't there/WiFi WEP encrypted) a search without warrant is illegal. This is why the statement is there, to justify getting on his network. The shared folders justified the cops seeing what they needed.

So the moral of the story is; if you have an open WiFi and want to keep it that way, password protect your computer.
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Chronno S. Trigger (profile), 10 Feb 2010 @ 9:34am

Re: Re: Re:
The way you said it made it sound like you think the only justification was the open WiFi. That if he didn't have the files shared it would still be OK.
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ethorad (profile), 10 Feb 2010 @ 9:36am

Re: Re: I dunno
The police also have to actively look at their radar gun to detect speeders. And the radar gun has to actively zap (to use the technical term) your car to read the speed.

Besides, laptops can be pretty good at automatically logging into unsecured wifi. And sometimes secured wifi ... obligatory xkcd
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ethorad (profile), 10 Feb 2010 @ 9:39am

Re: By your logic
We should believe that the desire for privacy is an indication of guilt ... says the guy posting as Anonymous Coward!

Something to hide? :)
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Chronno S. Trigger (profile), 10 Feb 2010 @ 9:43am

Re: Re: Re: I dunno
Windows XP is not only good at automatically connecting to unsecured WiFi, but also really good at automatically connecting to unsecured shared folders and printers.
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Anonymous Coward, 10 Feb 2010 @ 9:46am

Re: Unsecured = Public
Please suggest this to Comcast.

When I got cable internet with them, and ensuing wireless for other comps in the house, those wireless connections were unsecured by DEFAULT. The tech made no mention of such things, I was not knowledgeable or aware of such things, I left it to them to take care of such things (I presumed security was part of the installation), I depend on them to inform me of such things.

Two years later I had to call them about a wireless adapter issue, and only then did the guy on the phone mention that my wireless connection was not secured. He guided me through the process of locking it down.

I've noticed there are several households in my neighborhood that have had unsecured wireless for years. I'm fairly certain they simply do not know to ask or wonder or do anything about it. There are many, many more people like that than there are people who are aware of needing or able to lock their wireless down.

To me, that is the salient point in Mike's article: the judge's statement is too presumptive about people's knowledge of wireless security (even though it may be case specific here) to be declaring their 4th amendement rights are lessened if they don't lock it up somehow.
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btr1701 (profile), 10 Feb 2010 @ 9:46am

Wifi
> but I don't think that just because you're using an open WiFi network
> you've set yourself a "lower expectation of privacy."

I usually agree with most of your positions on various issues but not on this one. Using an open network is the very definition of lowered privacy expectation.

> I would suspect that most users have no idea that it's less secure

Not really relevant. Most people have no idea they have a lower expectation of privacy in their trash if it's set out on the curb (as opposed to remaining in their driveway) but that's how the courts have ruled.

The standard isn't based on one's personal expectation of privacy. It's based on a reasonable expectation of privacy that society is willing to recognize. In this case the judge ruled-- rightly so-- that society doesn't recognize a privacy interest in someone using a publicly accessible network.
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btr1701 (profile), 10 Feb 2010 @ 9:48am

Re: Re: UM does having an unlocked house door mean that?
> f you grow Marijuana plants in your back yard and they can be
> seen from the street then the cops have probable cause to go
> onto your property.

Which they still can't do without a warrant. Probable cause is only the first step in process. After establishing probable cause, they have to go before a judge who decides whether it's valid or not, then issues a warrant accordingly. Only then can the cops enter the property.
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ethorad (profile), 10 Feb 2010 @ 9:49am

Re: Re: Re: Re: I dunno
Hehe, now I'm thinking of doing my printing on my neighbour's printer to save on ink. Of course I doubt they'll be happy when I knock on their door to collect my printouts.
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joe king, 10 Feb 2010 @ 9:50am

If the guys actions are accurately portrayed in the article,
then he's pretty goddamn stupid to 1) leave his wifi unsecured and 2) keep Limewire crap IN a shared folder to begin with.

I'd be willing to bet that clown's PC is overloaded with viruses and other such crap as well.
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jjmsan (profile), 10 Feb 2010 @ 9:50am

Re: UM does having an unlocked house door mean that?
Actually this is more like holding an Open House than leaving the door unlocked.
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:), 10 Feb 2010 @ 10:02am

Maybe.
Insecure WiFi without any protection can not be viewed as expectancy of privacy.

On the other hand if it had a simple encrypted line it would be sufficient to claim privacy expectations because you did take steps to secure it even if it is ineffective.

Now if you open that encrypted channel and put a open door in it which anyone can find it then you can't really expect privacy.

So I do agree the type of network is not important, if it has encrypted channels is the relevant part and the judge apparently agrees as he specifically use the words "unsecured wireless network router".

What I do disagree though is the "lax security" what constitute lax security?

That should be clarified.

Having failed to demonstrate an expectation of privacy that society is prepared to accept as reasonable

How are judges deciding what is reasonable or not?

Most people don't understand what a router is, ask anyone outside IT and they will tell you it is a box that connects them to the internet. They don't know it is a computer, they don't know it can be infected, hacked etc.

So what is the minimum expectation for reasonable?

Me thinks is the very act of using a encrypted channel which most view as putting a password including the judge.

The test should be, do I need to do anything to get access to that data?

If it is open and there was no steps to secure it there are no expectations of privacy, but if there was an attempt to secure it even a weak one then there should be privacy concerns.

If you encrypt something and link to a public node and exchange information with it there is no privacy

That all said I agree that the judge should not have defined the medium in which the data was being transported as less or more private he should have focused on the barriers to get to the data and the hint that because wireless is so easily used by others should have no bearing on the decision it implies that if someone do try to secure his communications and is unsuccessful he had no expectations of privacy and that is disturbing.
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Sneeje (profile), 10 Feb 2010 @ 10:07am

Re: Re: Re: UM does having an unlocked house door mean that?
Right, they can only enter if they believe there is someone at risk of harm.
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Chris, 10 Feb 2010 @ 10:16am

Re:
Ah... lawyers. (As to mikes point) I think the current case is distinguishable from your cocaine hypothesis. A police officer using merely his "naked eye" is different from using technology to snoop around. And courts have been reluctant to allow the use of technology to aid police in snooping criminals (helicopters notwithstanding).

However, I agree with you that even if you accept that open wifi connections do not lower a users expectation of privacy, this case would be similarly decided. However, it is a scary precedent that a court might use to expand upon when a police officer sniffs a wifi connection without a warrant and says "well, it wasn't protected".
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:), 10 Feb 2010 @ 10:22am

Land analogies.
This also have repercussions for people using public servers and complaining about hotlinking.

The data is there be served by the owners server and it is being used by other people there are simple solutions for it that would require others to go through hoops to get to that data.

deeplinking should not be infringement in any way if the guy don't do nothing to secure his data.
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:), 10 Feb 2010 @ 10:27am

Aggregators
That should also be applicable to aggregators if they find resources in the open they should not be liable or responsible for any of it.

Don't like people linking to you?

Just code that verifies the referrer it will block imidiatly anyone outside your website
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Urza9814, 10 Feb 2010 @ 10:34am

Re: UM does having an unlocked house door mean that?
That makes absolutely no sense. Wifi is being _broadcasted_. _YOU_ are sending it outside of your home. That's like saying if I stand out in my yard and throw baseballs at everyone else's house, nobody else should be allowed to touch them or even look at them because they're my property.

Wifi is a radio broadcast. If you don't want other people looking at it, encrypt it or make sure it doesn't leave your property. If it goes onto someone else's property, they have every right to tap into it. Same with any other radio broadcast.
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The Anti-Mike (profile), 10 Feb 2010 @ 10:41am

Re: Re: Re: Re:
The open wifi is the "plain sight". What he has or doesn't have on the virtual front seat is what he goes to jail for.
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Anonymous Coward, 10 Feb 2010 @ 10:51am

Re: Re: Re: UM does having an unlocked house door mean that?
This statement is not correct. If the police can see a violation in clear view, they do not need a warrant. Thus probably cause. Think they can't? Just try to grow some weed and then demand to see the search warrant when they've got you face down in the dirt.

Search warrants are issued when the police can show a valid justification to search areas unseen to the public.
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Any Mouse, 10 Feb 2010 @ 10:52am

Re: Re: UM does having an unlocked house door mean that?
True and false. The broadcast does not include information on the computer unless that information is request. The request can be seen as an intrusion.
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Anonymous Coward, 10 Feb 2010 @ 10:58am

The fundamental flaw in most of these "unlocked door" analogies is that people are adding an Open House sign into the equation. An open house sign is a specific invitation into the property and an unlocked door is not.

I can remove my front door completely and it still does not give people the right to just walk into my house anytime they desire.
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taoareyou (profile), 10 Feb 2010 @ 11:05am

"reasonable" privacy
I recall reading a story not too long ago about a guy in his kitchen, late morning, making coffee, nude. A woman and her daughter cut across his yard and looked into his kitchen window (I imagine the curtains were either semi-transparent or drawn, like most kitchen curtains are).

Instead of the woman being arrested for trespassing, the man was arrested because she could see him naked, making coffee.

One would think that if you stumble downstairs after getting out of bed in the morning to make coffee, you should not have to be concerned that you could go to jail if someone peeps in your window and sees you are not wearing clothes.

A reasonable right to privacy is not as simple as it sounds. If someone can see you (even if they are viewing you from your own property, without your permission) the standards for being in public can apply.

An unsecured wi-fi signal that can be picked up by neighbors or even from the public road in front of your home are can't be expected to be more private. Suppose you have naked photos on your PC and a teenager finds them via your open network. You have now given pornography to a child the same as if you had printed the pictures and left them in a box sitting on the sidewalk.

Should the contents of that box be considered private?
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Anonymous Coward, 10 Feb 2010 @ 11:12am

Re: Re: UM does having an unlocked house door mean that?
That makes absolutely no sense. Wifi is being _broadcasted_. _YOU_ are sending it outside of your home.

I could maybe see that argument if someone were just receiving the signal, but when someone connects to the network they are also broadcasting back onto your property (the connection requires 2-way communication).
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Michial Thompson, 10 Feb 2010 @ 11:19am

Re: Re: Re: UM does having an unlocked house door mean that?
#25;

You are only partly right about Probably cause. If drugs were in plain sight, they do have every right to arrest you at that moment.

The need for a Warrant is only to search and/or access areas not in plain sight and for specific things.

So if the drugs were in your back yard and visible through the fense gate they could arrest you for that. NOW if you had a hundred pounds inside a storage shed with the door closed and locked and no windows. They would require the warrant to search that shed. IF they did not have the warrant and opened the shed without your permission then you would walk free and clear for the contents.
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A Guy, 10 Feb 2010 @ 11:22am

It's not doors, it's windows
It's not whether your door is unlocked, its whether your curtains are open.

The courts have ruled, many times, that if you have your curtains open so people can see in, you have willingly given up some measure of your right of privacy.

I believe the open wi-fi may be more akin to this. If you drive by, you can see in my windows. If you drive by, you can see my shared folders. I don't see a dramatic shift in fourth amendment rights here.
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Anonymous Coward, 10 Feb 2010 @ 11:22am

Re:
I think that it would be entirely reasonable, pardon the pun, for a sysadmin to have no expectation of privacy on any system connected to an open wifi network but my mom likely would.

The key word is "reasonable". If mom doesn't know about setting up WiFi routers, then she can hire someone that does. It would not be reasonable for her to expect that she had properly secured her network knowing that she was ignorant of how to do so. Thus, she would have no *reasonable* expectation of privacy on it.
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Anonymous Coward, 10 Feb 2010 @ 11:27am

Re:
Open WiFi is pretty much the same as putting your computer screen up against your living room window.

If someone else were to say that, I might think that they were just ignorant. However, considering that it's TAM, I more inclined to think that he's just lying as usual.
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The Mighty Buzzard, 10 Feb 2010 @ 11:34am

Re: Re:
That is an idiotic comment. That's just like saying leaving your front gate open allows just anyone to kick in your door.
It's actually a lot closer to saying leaving your curtains open allows just anyone to look in the window. We're talking about being able to see what's actively being done not rifling through every file on your computer; the shared files were a separate issue.
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Anonymous Coward, 10 Feb 2010 @ 11:37am

Re: Re: Unsecured = Public
When I got cable internet with them, and ensuing wireless for other comps in the house, those wireless connections were unsecured by DEFAULT. The tech made no mention of such things, I was not knowledgeable or aware of such things, I left it to them to take care of such things (I presumed security was part of the installation), I depend on them to inform me of such things.

If they came out and installed it, then they certainly should have and if anything bad happened because of their gross negligence then I think they should be held accountable for it.

I've noticed there are several households in my neighborhood that have had unsecured wireless for years. I'm fairly certain they simply do not know to ask or wonder or do anything about it.

My WiFi is open on purpose. But then again, I know how to secure the rest of my system.
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Anonymous Coward, 10 Feb 2010 @ 11:42am

Re: Re: Unsecured = Public
the judge's statement is too presumptive about people's knowledge of wireless security (even though it may be case specific here) to be declaring their 4th amendement rights are lessened if they don't lock it up somehow.

Not at all. If people don't know how to set up their routers, they can hire someone who does. Otherwise, failure to do so indicates that they don't care and thus have no *reasonable* expectation that it is properly secured.
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Anonymous Coward, 10 Feb 2010 @ 11:47am

Re: Maybe.
Most people don't understand what a router is, ask anyone outside IT and they will tell you it is a box that connects them to the internet. They don't know it is a computer, they don't know it can be infected, hacked etc.

Then, if they care, they should hire someone who does.
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Anonymous Coward, 10 Feb 2010 @ 11:49am

Re: It's not doors, it's windows
The courts have ruled, many times, that if you have your curtains open so people can see in, you have willingly given up some measure of your right of privacy.

But what if you're too dumb to close the curtains or you just don't care if they're open?
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Anonymous Coward, 10 Feb 2010 @ 12:12pm

Weird
The 4th amendment does not guarantee privacy. It guarantees against unreasonable search and seizure.

This person had a shared wireless connection (ie: pubic, both in permissions and medium), and data in shared folders (ie: public, by permissions).

Law enforcement did not trespass but accepted an extended invitation for data access. As far as I can tell, there is no privacy issue because there was no private data.

I'm not sure the intent of the constitution is to protect stupid and/or ignorant people.

Tough luck. But if you're going to traffic in illegal goods, you might want to do it in a back alley, rather than in the middle of a busy street.
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Anonymous Coward, 10 Feb 2010 @ 12:44pm

Re: Weird
The 4th amendment does not guarantee privacy. It guarantees against unreasonable search and seizure.

The courts have ruled that a reasonable expectation of privacy plays into whether or not a search and seizure is reasonable.
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Big Al, 10 Feb 2010 @ 1:42pm

Re: Re:
So, using binoculars or watching a publicly mounted CCTV camera (both forms of technology rather than the 'naked eye') would be frowned on by the courts?
I suggest you try it and come back with the results...
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Anonymous Coward, 10 Feb 2010 @ 2:03pm

Re: Re: Re:
So, using binoculars or watching a publicly mounted CCTV camera (both forms of technology rather than the 'naked eye') would be frowned on by the courts?

Well, the courts have frowned on such things as peepholes, hidden CCTV cameras, 2-way mirrors and the like. Or are you trying to argue that someone wearing eyeglasses or contact lenses isn't using their "naked eyes"? Seriously?
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Bignumone, 10 Feb 2010 @ 3:58pm

Re: open garage door, open curtains
These are poor analogies. A more accurate example would be if I were to leave my garage open with a thin curtain protecting the contents from view. Or putting up shears (only) on the outside of my house.
People walking by could look in, but they would have to take action first. Pulling aside the analogous curtains, or actually looking up my SSID and linking to my network.
Like the contents of my house or my garage, it is no one's concern what I am doing on the web. Even if my actions are illegal, unless the intruders are police with a warrant, they may not pull aside the curtains and look inside.
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AnonCow, 10 Feb 2010 @ 4:21pm

"...Plain view doctrine, an exception to the Fourth Amendment, should not apply to digital evidence. Searches pursuant to warrants for digital property are easily transformed into general searches of a suspect's digital property because police, by necessity, must perform a comprehensive search of a suspect's digital property in order to properly execute a digital property warrant. Courts have already begun to apply the plain view doctrine in a manner that allows police to use anything found during a search of digital property (e.g., computers) as evidence of crimes beyond the scope of the warrant. General searches are proscribed by the Fourth Amendment. Therefore, courts should stop applying the plain view doctrine to digital evidence."

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=949575
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AnonCow, 10 Feb 2010 @ 4:24pm

So, it sounds like even if I only use MAC address filtering, I can still retain my Fourth Amendment protections. Since that would, in a legal definition, close my network although very insecurely.
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Bad Analogy Guy, 10 Feb 2010 @ 6:32pm

Re:
"Open WiFi is pretty much the same as putting your computer screen up against your living room window. Anyone who walks by can see what is on your screen."

No it's not.

Open wifi allows access to the outbound connection to the internet and possibly connection to the lan which might allow access to unprotected file storage. It would take significant effort to gain access to what is displayed upon a screen connected to a computer which is connected to the lan.
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rootbeer, 10 Feb 2010 @ 8:40pm

Re: Re: UM does having an unlocked house door mean that?
Not true at all. If fact in most states it is illegal to even attempt to access any computer network without receiving proper authorization.

For example...
http://money.cnn.com/2005/07/07/technology/personaltech/wireless_arrest/

Yes, if you can receive the signal go ahead get Wireshark and listen away. But try to connect, even if its open, and you have broken the law.
In fact, sometimes its not even legal if you get permission because the person with the wireless AP is purchasing that Internet connection for their personal use and is not authorized to redistribute it.
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Anonymous Coward, 10 Feb 2010 @ 11:36pm

Re: Re: Re: UM does having an unlocked house door mean that?
Not true at all. If fact in most states it is illegal to even attempt to access any computer network without receiving proper authorization.

Which an open WiFi automatically gives out.

For example...
http://money.cnn.com/2005/07/07/technology/personaltech/wireless_arrest/

And if my memory serves me correctly, those charges were also quietly dropped because the prosecutors decided that there was no evidence that he actually broke any law.

In fact, sometimes its not even legal if you get permission because the person with the wireless AP is purchasing that Internet connection for their personal use and is not authorized to redistribute it.

That would be between them and their ISP. It would not make *your* actions illegal.
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msterrick, 11 Feb 2010 @ 5:48am

Re: Re: Re: UM does having an unlocked house door mean that?
Not true. Thats what probable cause means . That they had cause based on the visual. The same as if you are playing loud music while sitting around in youre house getting high. The neighbor calls police. They arrive door is open on house , they nock on screen door or ring bell and no one hears. They now can enter youre home and you will be arrested when they walk in on you. Party in the back yard they can walk right in due to noise or they smell something suspicious. Same as suspicious smell gets you pulled out of youre car an searched all with out warrants.
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btr1701 (profile), 11 Feb 2010 @ 3:56pm

Re: Re: Re: Re: UM does having an unlocked house door mean that?
> This statement is not correct.

Yes, it is.

> If the police can see a violation in clear view, they do not need
> a warrant.

Nope. That only gives them probable cause to present to a judge to *get* a warrant. The only exception is exigent circumstances where there's imminent risk that either evidence will be destroyed or physical harm will come to someone.

You need to stop taking your civics lessons from TV shows and movies.

> Thus probably cause.

That's not even the right term. I'm both a federal agent and an attorney. You're some guy who doesn't even know that the concept is called "probable cause", not "probably cause".

I know my job and if I went busting onto someone's property without a warrant just because I saw some pot plants in the back yard, I'd blow the case for the prosecution (because even a 1st-year law student could get all the evidence suppressed on 4th Amendment grounds) and open myself up to a Section 1983 civil suit for violation of constitutional rights under color of law.
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btr1701 (profile), 11 Feb 2010 @ 4:00pm

Re: Re: Re: Re: UM does having an unlocked house door mean that?
> You are only partly right about Probably cause.

You're not even right about what it's called. It's *probable* cause, not "probably" cause.

> If drugs were in plain sight, they do have every right to arrest
> you at that moment.

Plain sight doctrine only applies when the police are already on the property with the permission of the owner. If the cops respond to a noise complaint at your house, for example, and they ask to come inside and ask you some question, and you allow it, the cops don't have the right to search your home without a warrant but they can seize and arrest based on any evidence that is in plain sight.

But if they're not even on the property, they can't enter it based on seeing some marijuana plants growing in the backyard without a warrant.
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btr1701 (profile), 11 Feb 2010 @ 4:08pm

Re: Re: Re: Re: UM does having an unlocked house door mean that?
> Not true.

Yes, it is true.

> Thats what probable cause means.

No, it's not. Read the 4th Amendment. Probable cause is only the *basis* for a warrant that allows search and seizure. The state can't search based on probable cause alone. A warrant must first be issued based on that probable cause.

> That they had cause based on the visual.

Yes, and when they present that to the judge and ask for a warrant, they'll most likely get one but until they do, they can't legally enter.

> The same as if you are playing loud music while sitting
> around in youre house getting high. The neighbor calls
> police. They arrive door is open on house , they nock on
> screen door or ring bell and no one hears. They now can enter
> youre home and you will be arrested when they walk in on you.

As a cop myself, you don't know how happy it makes me when I deal with suspects who think they know so much about the law but really know so little. What you wrote above is wrong on so many levels I don't even know where to start. You think cops can walk right into your home at will so long as they knock on the door first? Seriously? You really believe that?

Un-freaking-believable.
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Martin O'B (profile), 27 Feb 2010 @ 4:05pm

Re: UM does having an unlocked house door mean that?
Your analogy is wrong. It's more like you left your front door unlocked, and when I walked up to the door and knocked, you invited me in to wander around and look at anything I wanted to look at.

With open wifi, if my computer tries to connect, and there isn't any security, your router will assign me an address on your network and let me connect.
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