Broadcasting Expectations: an Unprotected Wireless Network Takes on Constitutional Dimensions

• Citation: Vol. 7 No. 1
• Publication year: 2011

Washington Journal of Law, Technology and Arts Volume 7, Issue 1 Summer 2011

Broadcasting Expectations: An Unprotected Wireless Network Takes on Constitutional Dimensions

Duncan Stark(fn*)

Abstract

In January 2010, the U.S. District Court for the District of Oregon decided U.S. v. Ahrndt, the first case regarding the reasonable expectation of privacy in a home wireless internet network. The court found that the defendant had no reasonable expectation of privacy in his unsecured home wireless network because he had openly shared information on a system freely accessible by his neighbors. This Article examines the Ahrndt case and the potential legal effect this issue may have on an individual's expectation of privacy in his or her wireless network and personal computer files. This Article concludes that although the exact effects of new technologies on search and seizure law have not been fully explored by the courts, people should not expect the courts to consider unencrypted wireless networks to be private.

Table of Contents

Introduction......................................................................................2

I. Fourth Amendment Framework: An Emphasis On Reasonableness.........................................................................3

II. District Court Finds No Reasonable Expectation of Privacy in Unsecured Wireless Networks................................4

III. Implications for Privacy in secured and Unsecured Wireless Networks....................................................................6

A. Expectation of Privacy in Wireless Communications.........6

B. Password Protection.............................................................7

C. Distinguishing Ahrndt..........................................................9

D. Restrictions on Unauthorized Network Access...................9

E. Reduced Privacy Expectations in File-Sharing Networks .10

Conclusion.....................................................................................11

Introduction

Defendant John Henry Ahrndt, on trial for transportation and possession of child pornography, challenged the admissibility of key evidence based on the fact that the materials were discovered on his computer through his home wireless network by a police officer without a warrant.(fn1) In the first case of its kind, the U.S. District Court for the District of oregon found that Ahrndt could not have had a reasonable expectation of privacy in files he shared openly on an unsecured wireless network, preventing his claim that the officer violated the Fourth Amendment.(fn2)

This Article discusses the extent of protections against searches and seizures under the Fourth Amendment, discusses the new issues raised by the Ahrndt case, and explores possible future cases that may present similar issues. This Article also analyzes cases arising out of related new technologies to determine their potential influence on the law of search and seizure and the legality of searching computer networks.

I. Fourth Amendment Framework: An Emphasis On Reasonableness

The Fourth Amendment provides citizens with the right to be secure from unreasonable government searches and seizures of their persons, houses, papers and effects.(fn3) The Amendment provides no protection against searches performed by private citizens,(fn4) and it has been established that invasions of a defendant's privacy by governmental agents subsequent to invasions by a private party are tested by the degree to which they exceed the scope of the private search.(fn5)

The United States Supreme Court decision in Katz v. United States introduced a two-part test for determining whether a court-issued warrant is required for a search or seizure.(fn6) First, a person must subjectively expect privacy in the thing searched, and second, society must recognize this expectation as reasonable.(fn7) The cases discussed in this Article, in general, turn on the second prong of this test: whether the expectation of privacy is one society accepts as reasonable.

In applying this standard to specific situations, the Supreme Court has taken a case-by-case approach. However, some trends emerge from an analysis of the relevant cases. For example, the Court has recognized that developments in technology have served to decrease reasonable expectations of privacy.(fn9)

In Rakas v. United States, the Court articulated a standard that is often applied by lower courts to evaluate whether a reasonable expectation of privacy exists in a given situation.(fn10) In that case, the Court stated that "legitimation of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society."(fn11) Ninth Circuit precedent provides further guidance by establishing factors to help courts determine whether a reasonable expectation of privacy exists. These include the defendant's possessory...