Did you hear the one about the Immigration and Customs Enforcement (ICE) agents who woke a Buffalo, New York man and his wife shortly after 6 a.m. when the agents broke down the couple’s back door? Seconds later, the agents were screaming at the man and threw him down the stairs. U.S. Attorney William Hocul and an ICE agent later apologized to the homeowner involved.
According to the Associated Press, an ICE agent had identified the homeowner’s Internet protocol address (IP address) as one using a peer-to-peer file sharing service to download alleged child pornography some two weeks before. The agent connected to the peer-to-peer account using the IP address and browsed the user’s shared files, a typical practice in that sort of investigation. However, in this case the homeowner who was also the identified subscriber of the IP address was actually not the user who had downloaded any child pornography. He was only the subscriber of the IP address. The user who downloaded the alleged child pornography had done so using the homeowner’s unsecured wireless network connection.
Ok, law enforcement makes mistakes from time to time. They knock down the wrong door. They make reparations. They debrief and try to be more careful when they can and life moves on. Probable cause is not proof beyond a reasonable doubt, nor is it proof beyond all doubt. We get that. But that’s not what happened in this case. It is not what happens in any case in which unsecured wireless networks are used to facilitate criminal activity. Not anywhere. Not in Connecticut . Not in any of the cases I’ve consulted on or have knowledge of or that I have reviewed.
In fact, when it comes to wireless networks, the police in Connecticut can be quite cavalier at times. Police will sometimes conduct additional investigation to determine whether the IP address subscriber was likely the same person who downloaded illegal content. More often, however, they do not. Police do not usually investigate whether an IP address is connected to a wireless network, and then attempt to determine whether or not there is more than one computer involved or another computer user. Police, prosecutors, and very often judges, deem it sufficient probable cause that allegedly illegal content was downloaded and that the IP address used to do so is identified in the warrant application.
The AP article quoted Georgetown Law Professor Orin Kerr, who warned consumers to secure any unsecured wireless connections. If we do not, we may be inviting law enforcement officers to roust us out of bed. and find ourselves face down on our living room floor looking at the dust bunnies under our couch with guns trained upon the back of our heads and Vibram soled boots on our backs.
There are two problems with this scenario. First, it shouldn’t be sufficient for police to simply connect an IP address to an address and alleged criminal activity to establish probable cause to issue a search warrant for the home. In our increasingly wired society, unsecured wireless utilization is a fact of life in these United States, but hard data is lacking. As a matter of our civil liberties, why should we even entertain the proposition that a failure to secure our wireless network invites the possibility of being the target of a criminal investigation and subject to a search? This type of seizure involves the search and extended seizure of our property by law enforcement of all of our personal and confidential digital information until we are proven innocent. Good grief, is this the way the Constitutional guarantee against unreasonable search and seizure works in the new millennium?
The second problem with operating on the assumption that the onus is on citizens to secure their wireless networks, rather than assuming that law enforcement will conduct adequate and thorough investigations, is that the police are often not challenged on their assertions and conclusions . Much of the defense bar and many members of the bench have not sufficiently educated themselves as to the technology involved. Our law has developed over the course of centuries, much of it in the analog era, and this new digital technology and shared network architecture poses special challenges to our freedoms. It can be dangerous to blithely follow the admonitions of law enforcement officers who have a smattering of legal knowledge and even less technical proficiency in the networks involved.
The prosecutors who pass along these search warrants along and the judges who sign them may be persuaded by the use of techno-babble and boilerplate jargon. This language may be incorrect or overly broad or even inapplicable to the case at hand. The crimes alleged can overshadow the thoroughness of the investigation, or the possible ‘inadvertent’ errors in the technical mumbo jumbo. Tell that to the innocent homeowner who was thrown down his own stairs at 6 a.m..
As a profession, we have a duty to do better. We’re not stupid, for chrissakes. We have mastered more intimidating foes. For example, how many of us have figured out the child support guidelines that were something of a mystery when first issued? Surely that’s more of a brain teaser than mastering the concepts underlying the Internet and wireless networking.
Because of this ignorance, some people are being wrongly accused. Law enforcement can go too far, but there is no one within the prosecutors’ ranks and few within the defense bar to push back, or to even question what is happening in these cases. Under the theory of "trash in, trash out," some of the case law being developed also reflects this inadequacy. As an urgent matter, the police, prosecutors and defenders need to become more educated about how wireless communications technology actually works and apply basic legal principles to these cases. The reach of technology to the law is broader still. It reaches civil litigation and permeates every aspect of the law and our disposition of justice. To best serve our clients, all of us must master the concepts or we will certainly fail to zealously represent them.
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