Better secure that wireless

A recent post by Thomas O'Toole of the Ecommerce and Techlaw blog reports that a federal court in Oregon has decided that if your network is not secured, you have given up your right to privacy. So, according to the judge evidence taken from the defendants computer was admissable, even though the sheriff searched without a warrant - because he accessed the computer over the open wireless network in the defendants home.

With no more information than that, I would say the defendant, John Henry Ahrndt, was right. But there is a lot more to tell. Mr. Ahrndt had an unsecured network, sharing a folder using limewire, and sharing his iTunes library. A neighbor often had trouble with her internet connection, and her modem would automatically pickup Mr. Ahrndts network and connect to it. One day she noticed a shared iTunes library, also with no password. She looked at it, saw some things that looked wrong to her, and reported it. A sheriff's deputy responded, and she repeated what she had done before. Based on what was found, a series of warrants were issued that culminated in seizing the defendants router, computer and a variety of storage devices.

O'Toole has no problem with the decision. He doesn't believe it breaks any new ground. Mike Masnick at Techdirt disagrees. He is concerned because having an open wireless network appears to mean you have surrendered your right to privacy on your computer.

I read the decision, and it appears to be completely in line with similar decisions regarding technologies like cordless phones and cell phones. And I can't really find any fault with it. Not only is the decision in accord with similar cases regarding analogous technologies, the judge explicitly states that having an open wireless network does not, by itself, remove your constitutional privacy protections:

Society's recognition of a lower expectation of privacy in unsecured wireless networks, however, does not alone eliminate defendant's right to privacy under the Fourth Amendment. In order to hold that defendant had no right to privacy, it is also necessary to find that society would not recognize as reasonable an expectation of privacy in the contents of a shared iTunes library available for streaming on an unsecured wireless network.

I can't speak for society, but for myself the combined facts that the guy was running an unsecured wireless network and broadcasting a shared, unprotected iTunes library on it pretty much removes any right to privacy on his computer. Claiming invasion of privacy in such a case is kind of like building a glass house, not putting up curtains and complaining if someone sees you naked.

I might feel differently Mr. Ahrndt were not a convicted sex offender and the evidence gathered wasn't pictures of children as young as five. But I doubt it.

[This is the second time I've had a post not publish when it's supposed to. What's going on?]