Third Circuit Court of Appeals – In United States v. Stanley, No. 13-1910, (3d Cir. June 11, 2014) the Third Circuit upheld the conviction of a man who downloaded child pornography by “mooching” off his neighbor’s unsecured wireless Internet connection. Finding that there was no reasonable expectation of privacy, the court allowed the evidence seized with the assistance of software known as “MoocherHunter.”
Richard Stanley possessed child pornography that he received online using a signal from his neighbor’s unsecured wireless router. Corporal Robert Erdely of the Pennsylvania State Police was investigating distribution of child pornography, when he became aware of a peer-to-peer sharing network that appeared to contain child pornographic images. He located the IP address of the user and determined that the user was a Comcast Cable subscriber. Erdely then obtained a court order compelling Comcast to reveal the subscriber’s name and address. Erdely’s search of the person’s home found no child pornography, but he discovered that the wireless Internet router was not password protected. As a result, he concluded that the offender was likely using this person’s Internet router to obtain the offending materials. In other words, the Third Circuit noted, “Erdely determined that the computer in question was ‘mooching’ off the Neighbor’s Internet connection.” Opinion p. 5. The neighbor then allowed Erdely to connect a device to his router that would reveal the IP addresses of computers connected to his network.
Using a “MoocherHunter” device – mobile tracking software that can be downloaded by anyone from the manufacturer’s website – Erdely attempted to locate the offender by using MoocherHunter’s passive mode. This allows the user to enter an address of a wireless card he wishes to locate, and the device measures signal strength. As the MoocherHunter antenna is pointed toward or gets closer to the computer in use, the signal increases in strength. Before deploying the MoocherHunter, Erdely discussed with an Assistant United States Attorney for the Western District of Pennsylvania whether he needed a search warrant to utilize the device. They concluded that it would be impossible to get a warrant without first knowing which specific address the signal was coming from, which could not be ascertained with precision without the MoocherHunter. So without a warrant, Erdely took the MoocherHunter to an apartment complex where the signal was emanating from and ultimately determined that Stanley’s apartment was the source. Erdely then obtained a search warrant for Stanley’s home and discovered the child pornography.
The district court upheld Stanley’s conviction. Stanley appealed.
The Third Circuit explained that a search occurs in two ways: one is when the government physically occupies private property for the purpose of obtaining information; the other is when the government violates a person’s reasonable expectation of privacy that society recognizes as “legitimate.” Opinion p. 10. Stanley conceded that the government did not physically search his property. Rather, he claimed that the MoocherHunter search violated his reasonable expectation of privacy. The Third Circuit explained that a determination of whether a reasonable expectation of privacy has been violated depends on two criteria: (1) whether the individual had an actual or subjective expectation of privacy in the area to be searched; and (2) whether the expectation of privacy is objectively justifiable under the circumstances.
The Third Circuit distinguished Erdely’s search using the MoocherHunter from the search at issue in Kyllo v. United States, 533 U.S. 27 (2001), in which police remained outside a private home but used thermal imaging technology to locate heat lamps being used to grow marijuana. The Supreme Court in Kyllo held that using the heat sensing technology violated the defendant’s expectation of privacy because his criminal activities had been confined solely to his residence, and law enforcement gained information “regarding the interior of the home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area.” Kyllo, 533 U.S. at 34. This was particularly true when the technology used is not readily available to the general public. The Third Circuit determined that not only was the MoocherHunter technology readily available to the public by downloading it from the Internet, but Stanley did not confine his activities to his own home. In fact, by sharing the child pornography with other Internet users, Stanley deliberately projected “outside of his home, as it required interactions with persons and objects beyond the threshold of his residence.” Opinion p. 14 (emphasis in original).
As a result, unlike the defendant in Kyllo, Stanley “deliberately ventured beyond the privacy expectations of the home, and thus, beyond the safe harbor provided by Kyllo.” Opinion p. 14. Even though Stanley’s transmission started in his home, the Third Circuit found that he could not reasonably expect privacy in the invisible radio waves he was transmitting, particularly due to the nature of his illegal activities. By acting as a “virtual trespasser” in the words of the Third Circuit, Stanley forfeited his expectation of privacy, particularly when the MoocherHunter “revealed only the path of this signal and not its contents.” Opinion p. 16.
The Third Circuit also was wary of rewarding Stanley’s unauthorized Internet access. By more effectively hiding his locale from law enforcement (the investigation began with Stanley’s neighbor who owned the unsecured wireless router), Stanley could not then ask society to recognize an expectation of privacy. The Third Circuit compared the MoocherHunter to a drug sniffing dog – it merely heightens senses and allows for discovery of evidence or information not otherwise accessible to normal human perception – which is permissible and not considered a search.
Although it agreed substantially with the district court’s decision, the Third Circuit fell short of adopting the district court’s reasoning in its entirety. The wireless signal was not information being “conveyed,” but instead was partial information that led to Erdely’s additional investigation and which he ultimately used to obtain a warrant to search Stanley’s home. Stanley did not assume the risk that his neighbor would provide his information to law enforcement because the neighbor never had that information – hence the need for the MoocherHunter. The Third Circuit was concerned about a holding that an Internet user discloses his or her signal every time it is routed through third-party equipment, because “without adequate qualification, [it could] unintentionally provide the government unfettered access to this mass of private information without requiring its agents to obtain a warrant.” Opinion p. 25.
