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Inside Privacy Updates on Developments in Global Privacy & Data Security from Covington & Burling LLP

Court Rules that Police Use of Wi-Fi Tracking Software is Not a Fourth Amendment Search

Posted in Litigation, United States

Earlier this month, a federal judge held that the Fourth Amendment does not prevent the police from using tracking software to determine the location of a person who is tapping into an unsecured Wi-Fi connection.

In 2010, a Pennsylvania state police officer began investigating distribution of child pornography over a peer-to-peer file-sharing network.  The officer traced the IP address of one distributor to a home in Allegheny County.  The officer obtained a warrant and searched the residence, but he did not find any evidence of child pornography.  Because the home’s Wi-Fi connection was unsecured, the officer suspected that the child pornography distributor was using the home’s Wi-Fi connection for its activities and thus was located nearby.  The resident agreed to cooperate with police to identify the person who was accessing and using his Internet connection.

To track the location of the distributor, the officer used Moocherhunter, software that allows the user to pinpoint the exact location of a computer that is using a Wi-Fi signal.  The officer traced the signal across the street to the home of Richard Stanley.  The officer obtained a warrant to search Stanley’s home, and based on the evidence collected, Stanley was indicted for possessing visual depictions of minors engaged in sexually explicit conduct.

Stanley moved to suppress the evidence collected in the search of his home, arguing that use of the Moocherhunter software violated his Fourth Amendment rights.  On November 14, Judge Joy Flowers Conti of the United States District Court for the Western District of Pennsylvania denied the motion to suppress.  Judge Conti concluded that because the Wi-Fi signal Stanley was using belonged — and was accessible — to Stanley’s neighbor, Stanley “did not have a legitimate expectation of privacy in the wireless signal.”  In other words, Stanley had no reason to expect that the information he was transmitting over that Wi-Fi network would remain private.

In Kyllo v. United States, the Supreme Court held that the government’s use of a thermal imaging device to monitor a person’s home was a Fourth Amendment search because the device was “not in general public use.”  Stanley asserted that Moocherhunter also is not in general public use.  But Judge Conti disagreed, concluding that Kyllo does not apply because Stanley voluntarily transmitted his Wi-Fi signal to his neighbor’s router.