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466 comments

probably? (5, Funny)

Anonymous Coward | more than 7 years ago | (#18840539)

Open WAP = Probably Cause?

CmdrTaco = Editor?

Probably 'cause (4, Funny)

GodWasAnAlien (206300) | more than 7 years ago | (#18840635)

My grammar sucks probably 'cause I have open WAP.

Re:Probably 'cause (4, Funny)

Frankie70 (803801) | more than 7 years ago | (#18840665)


I have open WAP.


Is it contagious?

Re:Probably 'cause (5, Funny)

Anonymous Coward | more than 7 years ago | (#18841077)

Is it contagious?
I don't have any idea if WAP is contagious but something called GPL sure is.

I'm told it is viral and will give you open sores.

Probable Cause?!? (4, Insightful)

Rukie (930506) | more than 7 years ago | (#18840639)

Thats like saying because you wanted to get a hand gun, your going to be a school shooter. There are TONS of open WAPs because people don't know better. It gives me the desire to go from home to home and do child porn searchs and FBI searches from all the homes to force this decision to get overturned. I mean come on.

I don't know whether or not the guy was innocent/guilty but I do think that this "probable cause" thing is complete crap. If I see cops going down the streets with laptops I'll chase em away and sue the city! Mental anguish or something. (luckily, I don't live in texas ;))
If they make openWAP's probable cause, then what about a coffee place where you get free wifi. Will the owner be held responsible for this customers actions? Will you be *REQUIRED* to get a permit for an open WAP. This is complete crap.

Re:Probable Cause?!? (2, Insightful)

giorgiofr (887762) | more than 7 years ago | (#18840779)

Will you be *REQUIRED* to get a permit for an open WAP
That's exactly how it is over here in supposedly so-much-more-free-than-the-US Europe. Also you have to keep ID for every user of the system and be able to track them individually. Needless to say, this doesn't exactly spur adoption of wifi spots and the likes.

Re:Probable Cause?!? (4, Funny)

Uncle_Al (115529) | more than 7 years ago | (#18840855)

Since Europe is not the uniform entity some people seem to think it is, your statement does not hold much weight.

I am in europe (germany) and have never heard of any such rules.

Would you care to elaborate?

Re:Probable Cause?!? (0)

Anonymous Coward | more than 7 years ago | (#18840987)

Ditto for France and Denmark (both in Europe for the geographically challenged), there's no such nonsense in those two countries either.

Re:Probable Cause?!? (0)

giorgiofr (887762) | more than 7 years ago | (#18841055)

Sorry man but the EU has spoken. Your country WILL obey. You wanted this idiotic mess of an EU, now deal with the consequences.

Re:Probable Cause?!? (5, Informative)

giorgiofr (887762) | more than 7 years ago | (#18840999)

Sure thing. Check out the recently-approved Data Retention Laws. Link 1 [com.com] Link 2 [eweek.com] . They are cursory introductions, you can dig further if you wish. The articles don't talk about wifi spots but they are regulated too: they have to keep a copy of ID for each customer and be able to track them individually, as I said. Anyway you are perfectly right in not just believing me, so check it out. You'll be appalled.

Re:Probable Cause?!? (0)

Anonymous Coward | more than 7 years ago | (#18841085)

I'm guessing the rules the person is referring to are the ISP data retention policies they created recently.
They require keeping logs of all users, all emails sent etc for a couple of years.

Sounds ok to me tho, I'd gladly trade that to be classed as an ISP.. The freedom to download whatever I want. If they want records I'll use the Intel/MS/WhiteHouse defence.. eh.. what emails/backups???

Re:Probable Cause?!? (1)

pubjames (468013) | more than 7 years ago | (#18841009)

I think your facts are wrong. Where in Europe are you talking about? This certainly doesn't apply to Spain. Indeed, here there is a company called "fon" which actually encourages it.

Re:Probable Cause?!? (1)

Jussi K. Kojootti (646145) | more than 7 years ago | (#18841149)

What are you talking about? Fon knows about every connection and ties them to user ids, and they save the information, no doubt because otherwise the AP owner could be held responsible for any criminal activity...

Re:Probable Cause?!? (1)

Jussi K. Kojootti (646145) | more than 7 years ago | (#18841203)

Bad writing day... I meant to say "no doubt partly because otherwise the AP owner could be held responsible for any criminal activity" (of course the business model requires them to save the info).

Re:Probable Cause?!? (1)

giorgiofr (887762) | more than 7 years ago | (#18841171)

Yeah I know them, and in fact I was curious as to how they are getting around the data retention laws. I guess Spain has not harmonized its legislation with the EU directives yet.

Re:Cite your sources (1)

Lord Bitman (95493) | more than 7 years ago | (#18841035)

In all seriousness: Can you provide links to people claiming that European countries are "more free" than the U.S.? I'm an ignorant USian and have never heard such things.

Re:Cite your sources (1)

giorgiofr (887762) | more than 7 years ago | (#18841121)

Uhm, read any page on the internet where topics related to politics are discussed? Such as /.?

Re:Probable Cause?!? (1, Insightful)

jedidiah (1196) | more than 7 years ago | (#18841063)

Where's the personal responsibility around here?

Sure it sucks that everything is crap and tends to lead to these sorts of problems. However, the fact still remains that people are allowing themselves to be potentially unwitting accomplices to all manner of nefarious activity. There should be a higher bar than "blissful willful ignorance".

Idiocy & laziness shouldn't be an excuse.

Re:Idiocy is an excuse! (1)

Rukie (930506) | more than 7 years ago | (#18841153)

Idiocy:lack of knowledge. somebody knows that you are driving from Chicago to Detroit. This person puts a bag of weed or cocaine underneath the rear bumper. Because you didn't know it could be stored there, nor that it was there, you are held liable for possession of cocaine/weed when you get pulled over for speeding. Its the same thing, either way your screwed.

Re:Probable Cause?!? (1)

Alphager (957739) | more than 7 years ago | (#18841139)

That's exactly how it is over here in supposedly so-much-more-free-than-the-US Europe. Also you have to keep ID for every user of the system and be able to track them individually. Needless to say, this doesn't exactly spur adoption of wifi spots and the likes.
That's pure and simple BULLSHIT. I have 3 open APs running; every fricking Starbucks got one around here, every McDonalds, etc. Your claim is BS.

Re:Probable Cause?!? (1, Informative)

giorgiofr (887762) | more than 7 years ago | (#18841199)

Well, taking your frustration out on me isn't going to make the data retention laws go away. Google them a bit, they aren't hard to find.

The Stack of Kiddie Porn DVDs convicted him... (5, Insightful)

Erioll (229536) | more than 7 years ago | (#18840831)

The stack of Kiddie Porn DVDs convicted him, not the open access point. The whole thing revolves around the fact that they found an IM of somebody with an IP originating from his residence that contained a child porn picture. This got them a search warrant, and they found additional evidence including a stack of DVDs with child porn images on them (and think HOW MANY images are needed to fill more than one DVD).

The only point where the open access point comes in to it is that he claimed that because it was open, it means that ANYBODY could have used IPs from inside his house, and thus the search should have been thrown out, and the evidence gathered suppressed. But the judge didn't go for it.

In non-technical terms, it's like claiming that your house is always unlocked, thus any evidence they ever find there should never be admissible, since anybody could have put it there. And as I said above, the judge didn't go for it, and rightfully so IMO. So this isn't "police look for open access points, and go fishing wherever they find one" but rather "an open access point doesn't get you out of finding DVDs of illegal material in your house."

Re:The Stack of Kiddie Porn DVDs convicted him... (4, Insightful)

Bill, Shooter of Bul (629286) | more than 7 years ago | (#18840937)

Or better yet its like them finding a trail of blood into your house, and claiming you always keep it unlocked. Good point. Sorry, I don't have mod points.

Re:Probable Cause?!? (5, Informative)

B'Trey (111263) | more than 7 years ago | (#18840913)

The headline is highly misleading. What the court ruled was that if an IP used in the commision of a crime, in this case child pornography, is traced back to you, then that's probable cause for the issuance of a warrant to search your house. The court did not rule that just having an open WAP was probable cause for anything, nor did they rule that an open WAP wasn't a possible defense against the charge if there is no other evidence. After obtaining the warrant, the police found CDs with child porn in the individual's bedroom. That's the evidence that convicted him. He tried to have the evidence thrown out, arguing that there was no probable cause to issue the warrant. The court disagreed. If you have an open WAP, someone else may use it to commit a crime. But the probablity that you did so is sufficient to issue a warrant to search for additional evidence. So it's more like saying that if you buy a gun and someone else uses it to shoot someone, the police are going to get a warrant and come search your house.

If you did what you suggest (5, Insightful)

mcg1969 (237263) | more than 7 years ago | (#18841007)

If you did what you suggest---go to a bunch of open WAPs and do child porn searches---then none of the people you target will ultimately get in trouble. They might get their homes searched, but the FBI wouldn't find any evidence of child porn, because you're long gone.

Furthermore your second paragraph isn't a fair characterization of what happened here. The cops aren't going around searching for open WAPs. It was the defense that brought this argument, not the cops. The allegedly illegal IM traffic came from the defendant's IP address, and he used the open WAP argument to suggest that since it could have been a drive-by or neighbor, that they didn't have enough evidence to search his house. Well, they may not have had enough evidence to convict, certainly---but you don't need nearly as much to get the search warrant. I frankly agree with that decision. The evidence stated that a crime was committed in the vicinity of that house.

Re:probably? (1)

SentauR (960961) | more than 7 years ago | (#18840967)

This is going to be the new plea in the court system. "How do you plead? Guilty, Not Guilty or OPEN WAP."

Re:probably? (1)

carrier lost (222597) | more than 7 years ago | (#18841221)

Cmdr Taco == Editor

Accept Jury Duty (5, Insightful)

gleather (596807) | more than 7 years ago | (#18840543)

Just a reminder to ACCEPT jury duty if you get called. It is one of the best ways to directly affect how things work in the U.S.

Re:Accept Jury Duty (0, Troll)

iggymanz (596061) | more than 7 years ago | (#18840569)

accepting jury duty 99 times out of 100 will mean sitting in a trial about some punk who held up a liquor store, or some domestic dispute, or some DUI case......how exactly would this involuntary servitude have any bearing on affirming or defending our rights?

Re:Accept Jury Duty (5, Insightful)

jimstapleton (999106) | more than 7 years ago | (#18840613)

And that 1 time out of 100 where it's a tech case, you'll get booted because you have a clue about the subject matter.

Remember, Justice isn't just blind, it's also retarded.

Re:Accept Jury Duty (2, Informative)

iggymanz (596061) | more than 7 years ago | (#18840815)

right on, it's more important to vote, to hire/fire local judges, and to get the right leader to appoint the right kind of supreme court justice (and last time I checked they weren't using juries). Vote in 2008, give the status quo a heave ho!

Re:Accept Jury Duty (0, Offtopic)

wbates (232236) | more than 7 years ago | (#18840877)

Yeah, but I have yet to see much in the way of an elected official or candidate who knows much about technology. They always seem ready and willing to accept FUD. They tend to take the "let's be extra cautious" route instead of the "educate me" route.

Re:Accept Jury Duty (4, Insightful)

Otter (3800) | more than 7 years ago | (#18840971)

Given that neither the submitter nor 95% of the people commenting here correctly understand what the defendant was arguing, I'm not so sure I want you people on my jury either.

Re:Accept Jury Duty (1)

jimstapleton (999106) | more than 7 years ago | (#18841027)

I wis simply replying to the GP's comment on going to jury duty so you can be an 'informed' juror instead of a the jury only being clueless schmucks - except modern legal procedures don't allow informed jurors.

I'll admit, I didn't RTF, mostly because my thoughts are - if you are dumb enough to use unsecured wireless, you deserve whatever you get.

Re:Accept Jury Duty (0, Flamebait)

LighterShadeOfBlack (1011407) | more than 7 years ago | (#18840647)

accepting jury duty 99 times out of 100 will mean sitting in a trial about some punk who held up a liquor store, or some domestic dispute, or some DUI case......how exactly would this involuntary servitude have any bearing on affirming or defending our rights?
You get to defend the basic American right to bear arms in the face of a liqour store attendant while demanding money.

Re:Accept Jury Duty (0, Offtopic)

iggymanz (596061) | more than 7 years ago | (#18840783)

haha, that's a hoot. But us gun nuts say the liquor store attendant can pull the trigger on the twelve gauge with magnum goose load under the counter aimed at the punk's crotch too

Re:Accept Jury Duty (0, Offtopic)

paganizer (566360) | more than 7 years ago | (#18841167)

....And the 4 other customers in the store have a right, and duty, to pull out their legal & licensed 10mm & 44's and simultaneously dispense evolutionary law.

Re:Accept Jury Duty (1, Offtopic)

RESPAWN (153636) | more than 7 years ago | (#18840847)

How did this not get modded flamebait? This post has absolutely nothing to do with open WAPs and is an intentionally inflamatory comment, posted no doubt with the hopes that others will respond with similarly inflamatory comments about our rights to own guns.

Mods, please review your guidelines. (Specifically the part about not modding comments simply becuase you may or may not agree with the poster's sentiments.)

Re:Accept Jury Duty (0, Troll)

LighterShadeOfBlack (1011407) | more than 7 years ago | (#18840907)

You might want to turn down your sense of outrage. It seems to be set to hyper-fucking-sensitive.

My post was nothing more than an off-the-cuff remark. A joke, if you want. Not too sure how it got +2 Insightful within 5 minutes but whatever, don't blame me for what mods do with my post.

Re:Accept Jury Duty (1)

WrongSizeGlass (838941) | more than 7 years ago | (#18841021)

LSOB,
In order to prevent a recurrence of this situation please stop posting insightful jokes. ;-)

Re:Accept Jury Duty (1)

Thunderstruck (210399) | more than 7 years ago | (#18840805)

Are you assuming that the Punk/Lover/Driver is guilty before you even hear the evidence? If you were the accused, and you believed you were innocent, would you want a jury to listen to you?

how exactly would this involuntary servitude have any bearing on affirming or defending our rights?

You have three rights here that you're protecting:

1. The right to have a jury of ordinary people decide what the facts are when you're charged with a crime.
2. The right to serve on a jury.
3. The right not to be put in jail if there is reasonable doubt as to your guilt.

Actually serving on a jury affirms and defends all of these.

Re:Accept Jury Duty (2, Funny)

Fangs78 (1028038) | more than 7 years ago | (#18840965)

I would rather have the right to have a jury of kittens decide what the facts are if I'm charged with a crime...Think about that! Everyone would be busy looking at those cute balls of fur rolling around in a cardboard box, while I sneak away with the judges hot daughter! W00t!

Re:Accept Jury Duty (3, Interesting)

Archangel Michael (180766) | more than 7 years ago | (#18840819)

Every time I get called for Jury Duty, I go. And when they ask if anyone has a reason NOT to sit on the jury, I raise my hand. They ask me for my excuse, and I say ..

"I have a brain and can think outside the parameters of instructions given by the judge. There is at least one side that doesn't want me on the jury, and perhaps even both sides. If you choose me to be on the jury, you'll find out what my wife already knows, I'm a pain in the arse."

I haven't sat on a jury yet, as I get dismissed right there. They don't want people with brains.

Re:Accept Jury Duty (5, Insightful)

Anonymous Coward | more than 7 years ago | (#18840887)

Either that or they don't want people who think "Having a brain" means "Being disrespectful of authority on principle"

Re:Accept Jury Duty (2, Insightful)

qwijibo (101731) | more than 7 years ago | (#18840839)

If you ever end up in court, do you want to be tried by a jury of people too dumb to get out of jury duty? Read up on jury nullification. Without people knowledgeable and willing to perform jury duty, you end up with a crowd of people who votes the way the court directs them to vote.

In many cases, like the type you cite, it's pretty simple. But you don't get to throw a monkey wrench into the types of cases you care about if you're not willing to serve on any jury.

Re:Accept Jury Duty (1)

Notquitecajun (1073646) | more than 7 years ago | (#18840935)

Hey, watch the plagiarism. "When you go into court, you are putting your fate into the hands of 12 people who weren't smart enough to get out of jury duty." - Norm Crosby

PARENT IS PLAGARIST! (0)

Anonymous Coward | more than 7 years ago | (#18841187)

"Watch out for plagarism" -Me

I demand $6,000,000 in damages be paid to me immediately.

Re:Accept Jury Duty (4, Insightful)

Atraxen (790188) | more than 7 years ago | (#18840931)

"how exactly would this involuntary servitude have any bearing on affirming or defending our rights?"
- Your Comment

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense."
- Amendment IV, Bill of Rights

That's how - by sitting on a jury, so are upholding your right to be tried by one. This is, after all, a participatory republic (non-standard term intentionally used to avoid the inevitable and obligatory participatory democracy vs republic argument.)

Re:Accept Jury Duty (0)

sirinek (41507) | more than 7 years ago | (#18840953)

By the 6th amendment, if we are accuused of a felony (such as robbing liquor store or the charges brought up in TFA) we have a right to a trial by a jury of our peers.

That includes you assuming you are an American.

Re:Accept Jury Duty (0)

Anonymous Coward | more than 7 years ago | (#18841105)

The 6th Amendment deals with the rights of the Accused in a criminal prosecution. There are no requirements that the accused be a citizen or even a resident.

Re:Accept Jury Duty (1)

hmbcarol (937668) | more than 7 years ago | (#18841145)

I suspect your definition of "rights" is far narrower than that of the founders.

One important component of protecting citizens rights is for us to pony up and do jury duty every once in a while. Those precious online rights you care about are based on precedent from good old fashioned civil rights in "First Life".

Re:Accept Jury Duty (1)

SupremoMan (912191) | more than 7 years ago | (#18841195)

You get to throw the book at them :)

Please RTFA (5, Informative)

empaler (130732) | more than 7 years ago | (#18840611)

The identity of the user was only questioned after the fact. They actually found kiddie porn in the IP address registree's room. I'd bet that he'd stand much stronger, legally if they hadn't, but he's trying to get the case thrown out of court because he'd set up an unsecured Wifi, which his lawyer argued made it unlikely enough that it was him that the police should have walked away...

Re:Accept Jury Duty (0)

Anonymous Coward | more than 7 years ago | (#18840755)

remember jury nullification is illegal and helps the terrorists win!
only commie pinko bastards would dare to think different than the judge and prosecuting attorney.

GWB is the smartest man in the USA!

WOO I love this ACID TRIP! WOOOO!

(Because you have to be on drugs to believe all that!)

Re:Accept Jury Duty (3, Insightful)

slughead (592713) | more than 7 years ago | (#18840945)

Just a reminder to ACCEPT jury duty if you get called. It is one of the best ways to directly affect how things work in the U.S.

Sure, aside from the (already mentioned) fact that 99.9% of the time it's DUI or something else inane.

Also, most of the time, juries are advised to not judge the law, but judge whether or not someone broke the law.

Of course, there's jack they can do to you as a juror if you say "Hey, I can't in good conscience let this kid go to jail for something this stupid; NOT GUILTY!" However, the judge can claim a mistrial if he finds out that's the reason for the 'not guilty' verdict, even after the verdict is read.

If I ever get on a jury for a law I disagree with, the defendant is going to walk either by hung jury, mistrial, or not guilty verdict, and that's that.

solution. (5, Interesting)

Anonymous Coward | more than 7 years ago | (#18840551)

I have secured my wap.

I hope nobody finds out that the passphrase is 0x01020304050607080910111213

I also hope others do not do the same and we all create open accesspoints that are actually secure :-)

Now we can claim we were hacked! problem solved and stupid lawyers and police are end run for at least a few more years.

Re:solution. (1)

mpathetiq (726625) | more than 7 years ago | (#18840739)

Mine is 12345678901234567890abcdef. Feel free!

Re:solution. (4, Funny)

UnknowingFool (672806) | more than 7 years ago | (#18840759)

I hope nobody finds out that the passphrase is 0x01020304050607080910111213

No worries, I've changed it for you already. :P

Something is fishy here.. (5, Insightful)

EveryNickIsTaken (1054794) | more than 7 years ago | (#18840555)

This guy gave a conditional guilty plea even though "evidence" linked the yahoo account to his roommate. You don't accept a deal for 4 years in prison if you're not guilty. Clearly, someone is lying here.

Re:Something is fishy here.. (4, Informative)

99BottlesOfBeerInMyF (813746) | more than 7 years ago | (#18840667)

This guy gave a conditional guilty plea even though "evidence" linked the yahoo account to his roommate. You don't accept a deal for 4 years in prison if you're not guilty. Clearly, someone is lying here.

He plead guilty because they found stacks of DVDs with child pornography on them in his room. His only hope was to have that evidence nullified by claiming the search was illegal, under the reasoning that just because child porn was transmitted through his access point did not mean the cops has reason to suspect him in particular or search his residence. He has a slight point and warrants in these cases should be issued for the entire residence and all people therein. Still, it is pretty likely he and his roommate were both guilty.

Re:Something is fishy here.. (4, Insightful)

EveryNickIsTaken (1054794) | more than 7 years ago | (#18840735)

So, the headline should actually say "Open WAP defense not valid in cases where you have stacks of incriminating evidence in your residence."

Re:Something is fishy here.. (3, Insightful)

garcia (6573) | more than 7 years ago | (#18840761)

You don't accept a deal for 4 years in prison if you're not guilty. Clearly, someone is lying here.

Because the general public (and thus the jury) probably won't understand what an Open WAP is and what it means in this case, his lawyer probably told him to take the deal instead of facing more time when he loses.

Not to forget the fingerprints on the DVDs (0)

Anonymous Coward | more than 7 years ago | (#18841043)

DVDs are flat smooth surfaces ideal for holding fingerprints, as anybody with a three year old will tell you. If they guy was innocent then he would be going on about how his room mate's fingeprints were all over the child porn.. As it is, going on about how his access point was open so they had no right to find the DVDs is total bull. They probably didn't even know that it was his access point until they entered the place.

Think physical; you shoot someone in your house, then claim that the police search which found the weapon was illegal because some of your windows were unlocked, so the police could have thought that it was a long distance sniper. BAAAHHHHH.

Probably Cause? (0)

Anonymous Coward | more than 7 years ago | (#18840557)

Is this a new legal term?

You probably did it. ??

Re:Probably Cause? (1)

master0ne (655374) | more than 7 years ago | (#18840941)

probablt cause is a OLD legal term, what is means is that the police have gatherd enough evidence to support you "probably did it" that it merits a search warrant to actually establish weather or not you did it, and in cases where they "did it" or where its unclear, its upto the courts to sort it out. In this case, they gatherd probable cause (he probably did it because the ip address was his), searched his house, found kiddie porn laden DVD's in his room (establishing he DID it), the courts took over from there... finding him guilty of the crime.

Re:Probably Cause? (0)

Anonymous Coward | more than 7 years ago | (#18841107)

Probably Cause?
Probablt Cause??

I'm in the twilight zone here.

Probable Cause != Guilt (5, Informative)

99BottlesOfBeerInMyF (813746) | more than 7 years ago | (#18840609)

Just to clarify before a hundred people comment without understanding this distinction. The court in this case ruled that child pornography tracked to a given open access point was probable cause to search that residence and specifically the rooms belonging to the person who ran the open access point. They did not rule that running the open access point proved that the owner was guilty of transmitting the child pornography, but ruled him guilty because of the stacks of DVDs found in his room.

Re:Probable Cause != Guilt (3, Informative)

AGMW (594303) | more than 7 years ago | (#18840903)

... and to continue the clarification, if I understand correctly, the guy was guilty as sin, but was trying to get off (and not for the first time *cough*) on a technicality - ie You can't use the evidence you found because you shouldn't have come into the room to search in the first place because, given that the access point was open, you couldn't prove who had actually used it, and therefore any evidence found (on the computer in question) would not (necessarily) be attributable to any individual.

Nice try ass-hat!

If he had got off on the technicality then the law would have, once again, shown itself to be stupid. In this case, it seems, sanity struggled to the surface and prevailed.

Re:Probable Cause != Guilt (1)

Billosaur (927319) | more than 7 years ago | (#18840985)

And while that may be true, this is the Guilty-Because-It's-On-The-News-And-They-Don't-Lie Age. Remember the whole Duke Lacrosse Incident? Gulity! String 'em up! Oh... wait... inconsistencies... hmmmmm... still... they look guilty... what?!? Not guilty? Knew it all along!

As soon as your name (or IP address) is spread across the news as being attached to a crime, even innocently, your are convicted in the Court of Under-informed Public Opinion. Look at the guy they originally accused of the '96 Atlanta Olympics bombing. His name was dragged through the media for weeks until they suddenly found out it was actual an anti-abortion freak who thought he was doing "good works" (Ok, this is a very vague outlay of the incident, but it was over 10 years ago and if you want specific infor, Google it). He had the hardest time getting his life back once he was fully acquitted. Don't kid yourself -- guilt and innocence are relative to your media profile now.

Re:Probable Cause != Guilt (2, Insightful)

Homr Zodyssey (905161) | more than 7 years ago | (#18841179)

And for all of the people claiming that this is terrible -- here's the way I see it.

Imagine a cop is walking down the street, and smells marijuana smoke in front of a house. This gives him probable cause to walk onto the property. As he gets nearer to the building, the smell gets stronger. This gives him probable cause to enter the building. He goes inside and finds a sack and a bong in someone's bedroom. The occupant of that room then says, "Hey man, you can't use that against me...that smell outside could have come from anywhere."
That argument isn't going to work.

Hard to say it was someone else... (3, Informative)

linuxkrn (635044) | more than 7 years ago | (#18840619)

If you RTFA, it says they raided his place and found CDs of child porn. Now it also says he had a roommate and that the IM that got them in trouble was sent from his roommate's account. Which should have made them investigate him as well, but that's another story.

Bottom line here is that there was evidence of child porn found locally at the address connected with that IP. So it's not really "using an Open WAP defense" as it would seem from summary. If they found nothing to collaborate the on-line transmissions at his address, then it would be more believable someone else could have done it.

Hate to nitpick (1)

rehtonAesoohC (954490) | more than 7 years ago | (#18841017)

If they found nothing to collaborate the on-line transmissions at his address

I think you mean corroborate.

Re:Hard to say it was someone else... (1)

hey! (33014) | more than 7 years ago | (#18841191)

It has to do with rules of evidence. He's not arguing that the stuff they found doesn't prove he's a perv. He's arguing that they obtained it illegally and therefore the evidence cannot be used to try him.

The police just can't bash down your door and seize evidence that you posses contraband. They have to use legal methods to obtain evidence. That means either somebody with a right to do so allows them onto your property and permits the search, or they have a warrant issued under probable cause. Probable cause is evidence that would indicate to a reasonable person a crime had been committed, and that the search in question would turn up evidence relating to that crime.

In this case, it sounds like the intercepted an IM sent over an open wi-fi.

There are some very, very interesting implications here.

The "Open WAP" argument is not a defense, it is a (very weak) grounds for excluding evidence. The argument is that the warrant was not valid, because nobody can prove who the communication came from. However, if my lawyer were giving me advice like this (which he would not), I'd fire him. You don't have to prove a crime has been committed by a person to show probable cause. Once they show that it's reasonably certain that a crime has been committed, and that it is reasonable to believe that a search of the premises is likely to turn up relevant information, they then have probable cause. Evidence for probable cause can be much weaker than evidence proving guilt beyond reasonable doubt. The whole point of a warrant is to make it possible to gather evidence of a crime as yet unprovable by that standard.

The other implication here is somewhat more startling: that the intercept itself was legally proper. You have to have evidence to show probable cause, and that evidence has to be obtained by proper means. The grounds by which the intercept was ruled proper would be very interesting to know. Is it permissible to intercept your neighbor's wi-fi, or is that a special power the police are allowed? What if the wi-fi is encrypted and you have means to decrypt it? What happens when your neighbor beams his satellite TV shows over wi-fi?

With respect to this person's roommate and neighbors, they may not have probable cause until they have evidence the roommate and neighbors use the access point. If the ISP account is in the accused name, it's quite certain that he at least is one user.

Probably cause (0, Offtopic)

Junior J. Junior III (192702) | more than 7 years ago | (#18840623)

You have the write to remain soylent. Anything you do say can and will be used against you in a cart of law.

Open WAP != No Probable Cause (2, Insightful)

ivan256 (17499) | more than 7 years ago | (#18840655)

It looks like the argument was that since this guy (who was actually guilty but was trying to have evidence suppressed) had an open access point, the cops had no probable cause to search, since it could have been anybody using his connection.

The article, and the summary falsely conclude that having an open access point gives the authorities probable cause to search your premises and systems. In reality, what this means is that having an open access point doesn't mean the cops can't search, since "it remain[s] likely that the source of the transmissions [is] inside that residence".

Re:Open WAP != No Probable Cause (1)

jedidiah (1196) | more than 7 years ago | (#18841209)

...which is a problem since you can end up accessing the wrong open WAP without really trying. Start out with a
neighborhood or apartment complex with multiple unsecured WAPs and you're quickly into a situation where you can't assume a bloody thing. That's rather the point of wireless. You're relatively freed of particular physical limitations.

OTOH, an unsecured WAP should trash probable cause. OTOH, an unsecured WAP should get the owner b*tch slapped.

No suprise here (4, Interesting)

Todd Knarr (15451) | more than 7 years ago | (#18840657)

I'm not surprised. I'm sure one of the things the court considered is that someone who knows enough about wireless to raise the "open access point" defense also knows enough to know the risks of an open WAP and to do something about it if only to protect themselves from exactly this sort of problem. And with the amount of publicity, even the average Joe by this point knows the risks of open WAPs. So I'm not surprised the judge essentially said "You knew it was open, you knew what the risks were, you didn't do anything about them. You're responsible for it.". Can you say "attractive nuisance"? Similar deal with probable cause, if the abuse of open WAPs is wide-spread enough for defendant's argument to be even someone probable then it's wide-spread enough that police can treat open WAPs as a known problem.

And of course, if someone were using the WAP then the CDs wouldn't have been in his room. He might be able to make the argument that, given the IM name especially, the CDs belong to his roommate, but it looks like his attempt to get fancy scuttled that option.

Re:No suprise here (0)

Anonymous Coward | more than 7 years ago | (#18840795)

First off, some of enjoy getting free wireless and realize that somehow sharing our own contributes to that (When someone does me a favor I pay it forward and so on.

Second you try to defend him? He needs to learn what sexual predator means, you're not the one to teach him...

That would be Big Steve.

Re:No suprise here (1)

computational super (740265) | more than 7 years ago | (#18840875)

someone who knows enough about wireless to raise the "open access point" defense also knows enough to know the risks of an open WAP and to do something about it

No, they're not the ones raising the defense - their lawyers are (which is as it should be).

Re:No suprise here (0)

Anonymous Coward | more than 7 years ago | (#18841143)

"I'm sure one of the things the court considered is that someone who knows enough about wireless to raise the "open access point" defense also knows enough to know the risks of an open WAP and to do something about it if only to protect themselves from exactly this sort of problem"

Guilty till proven innocent? Nonsense. There is no way any court should find "well you've got good advisors who've found a defence that's wrecked the prosecution case, therefore you must be an evil mastermind in the first place - guilty!"

They found kid porn on a CD in his room (1, Informative)

ohearn (969704) | more than 7 years ago | (#18840685)

TFA states that they found a CD with child porn on it in his room and that was the only room searched. Even if he got off the hook on the image sent across Yhaoo IM he was toast. I'm just suprised the DA didn't try to use the guy's attempted defense of a roommate and an open WAP to get a warrant to search the roommate's room as well in an attempt to get them both. Even if the images sent across the network were tied back to the roommate (or somebody nextdoor, whatever) this guy was still toast over the CD they found. Accepting the plea bargain was probably this guy's only chance of avoiding a much longer sentence.

Re:They found kid porn on a CD in his room (1)

TheCarp (96830) | more than 7 years ago | (#18840943)

One could assume the roomate hid the cd in his room to take the heat off himself. Give himself an easy out if the police ever came to the apartment.

That said, if that was his plan, you would think he would register the IM in his roomates name too.

So it sounds to me like "blame it on the roomate" was his plan, and done badly.

-Steve

Re:They found kid porn on a CD in his room (2, Insightful)

maxume (22995) | more than 7 years ago | (#18841189)

He was attempting to have evidence obtained in the search excluded from the trial. The headline and summary and story are bizarre, as the open WAP was not the probable cause, the evidence of the traffic on that WAP was the probable cause. The ruling was that the possibility of the traffic coming from someone other than the owner of the access point was not enough to protect the owner from the search. That's pretty reasonable. If you tell police that gun registered to you and used in commission of a crime was stolen, they are still going to be able to get a search warrant, waving your hands in the air and saying it wasn't you isn't enough.

Probable Cause for Warrant/Evidence in Court (1)

geoffrobinson (109879) | more than 7 years ago | (#18840701)

If I am reading the summary and the article correctly and if your wirless network is open and bad stuff is traced to it, there is probable cause for obtaining and sharing that evidence in court.

It weighs against you. But if you can show you were in the middle of a wilderness trip when illegal stuff was downloaded, I doubt you will be found guilty.

It was not the WAP that got him jailed, but the CD (3, Interesting)

ArwynH (883499) | more than 7 years ago | (#18840705)

It was not the WAP that got him jailed, but the fact that he had a CD full of child porn in his room. The Open WAP was just deemed not an acceptable reason to invalidate the search warrant and make the CD in admissible as evidence.

Story is a little different than the headline... (3, Informative)

rborek (563153) | more than 7 years ago | (#18840709)

The issue was that he claimed that the mere fact that the FBI linked an IP address to him wasn't sufficient cause for a search warrant. They had conversations and logs of information coming from that IP address. The man claims that that is insufficient cause for a search warrant - and the trial judge and appeal court judges disagreed.

He wasn't charged based on the IMs - he was charged because they found CDs of child porn in his room. Had they searched his place and found no child porn images, he most likely would not have been charged - at the very worst, he would have been charged and been able to raise a successful defence that it wasn't him (unless they had hard evidence to link the conversations to him).

Summon Sam Waterston... (4, Funny)

basic0 (182925) | more than 7 years ago | (#18840743)

"I'm sorry your honor, I'd like to request a brief recess so that I can bone the prosecution behind my assistant DA/girlfriend's back."

"Very well, Mr.McCoy, but I'll remind you that this is a high-profile, ripped-from-the-headlines case that will decide the fate of alleged child pornographers for years to come, and I--Mr.McCoy, could you at least wait until the courtroom has been cleared?"

Yes, it's offtopic, but have you ever WATCHED that show?

Re:Summon Sam Waterston... (1)

WrongSizeGlass (838941) | more than 7 years ago | (#18840909)

Yes, it's offtopic, but have you ever WATCHED that show?
Yes, but only to count the adorable wrinkles in Fred Thompson's brow. Grrrrr ...

It makes sense in this case. (3, Interesting)

fatboy (6851) | more than 7 years ago | (#18840793)

There was cause to search his house because a crime appeared to have occurred there. When the house was searched, more evidence in support of establishing that a crime occurred there was found. I don't see how the second set of evidence could be thrown out, if all procedures were properly followed in establishing the cause to search his house. I don't see that it matters he had an Open WAP.

If they searched his house and found no evidence supporting the initial reported crime, I believe he could use the Open WAP as defense.

News like this worries me... (3, Interesting)

zappepcs (820751) | more than 7 years ago | (#18840825)

Now, if they have evidence, IMs, emails, browser logs, and enough to convince even /. crowds that there is evidence, that is all good and well.

What if you are using an app that downloads from newsgroups automatically. You are a pr0n fan, but someone puts pictures in the newsgroup that are both undesirable and illegal that then are downloaded to your system. Unless you spot them and remove them, there they are to be found if inspected.

Does anyone here know if there is a defense for this predicament? I'm not in it, but conceivably be some day.

Re:News like this worries me... (1)

WrongSizeGlass (838941) | more than 7 years ago | (#18840955)

Does anyone here know if there is a defense for this predicament? I'm not in it, but conceivably be some day.
Personally I would recommend ceasing the automated p0rn downloads and doing them the old fashioned way ... by hand.

Re:News like this worries me... (1, Interesting)

Anonymous Coward | more than 7 years ago | (#18841109)

In the UK that makes you guilty.

They have separate offences of making an image, transmitting an image, and storing an image. You will be breaking the last one. Ignorance is not an excuse. It's similar to having your drink spiked - you are still guilty of driving over the limit.

I have wondered why more viruses are not passed out with kiddy-porn pictures attached. Just one getting spread well about would really shake up the legislative process. Especially if it got onto Congress or Senate machines.

 

The 5th Circuit's opinion (2, Informative)

Orion_ (83461) | more than 7 years ago | (#18840883)

The ruling is here [uscourts.gov] .

Catch - 22 (2, Interesting)

Jerry (6400) | more than 7 years ago | (#18840969)

IF you run a password protected WAP and some cracker hacks your AP and begins downloading illegal stuff then these legal beagles will say that you are guilty because no one else can use your account.

Either way you are hosed if someone uses your AP illegally.

Another example... (0)

b0s0z0ku (752509) | more than 7 years ago | (#18841025)

Let's say that your house smelled like ammonia and the neighbors called the cops. The cops got a search warrant and found a meth lab operating in your garage. Your defense was, "but ... I always left the door unlocked!" Do you think that would fly in court?

Maybe if you were on vacation and the place was closed for the summer, but not if you were living there at the time.

-b.

Open WAP (1)

carrier lost (222597) | more than 7 years ago | (#18841091)

Is that anything like Open Sores?

This is stupidity in it's prime (1)

Khyber (864651) | more than 7 years ago | (#18841093)

Apparently the court making that decision has no clue as to the technical ineptitude of most users that buy a wireless router. Odds are, the judges themselves are just as inept. Makes me sad to hail from Texas. I remember when my school system (PISD) was ranked 4th in the nation among independent school districts. Now I look at the rankings, it's fallen behind every other state. :( So much for education and No Child Left Behind.

proabable cause? (1)

nurb432 (527695) | more than 7 years ago | (#18841157)

I could not get to the linked article, but if they are talking probable cause to search, that smacks right in the face of the constitution.

Having an open wep is no different thenleaving your livingroom window curtains open but not expecting the police to come breaking down your door to search your closet in your bedroom.

Open WAP is ALREADY probable cause. (1)

KimiDalamori (579444) | more than 7 years ago | (#18841213)

In america, If you leave a corpse in your living room and then open the windows so the neighborhood can see in, the police dont need a search warrant, because what they need is in plain sight. You can't later claim that they violated your 4th amendment rights because you have no reasonable expectation of privacy. This is why its legal to go dumpster diving, among other things. What's to stop the police from taking the same stance with an open WAP, since you've left it open, you're inviting the whole world to look in and see. If they find evidence of copyright infringement, or kiddie porn, what's to stop them from saying it was in plain sight?

For Christ Sakes RTFA (4, Informative)

Luscious868 (679143) | more than 7 years ago | (#18841219)

RTFA people. An IM that contained child porn was sent via Yahoo from this guy's IP address. It was reported, the authorities obtained the IP address used to send the IM and obtained a search warrant for this guy's house. Authorities discovered a stack of CD's that contained child porn when they searched his residence.

I don't see the problem here. If someone was using his open WAP to send the IM authorities wouldn't have discovered child porn when they searched his house and/or computer and there would be no prosecution. The guy was on physical possession of the material in question.

An open WiFi network can't be used as an argument against probable cause. It makes perfect sense to me. If illegal activity is occurring from a particular IP you can't even know if there was a WAP involved, let alone if it was open or not, at the time the crime took place. You need a search warrant to further investigate. Sure you couldcheck for an open WAP without a warrant, but all that would tell you is if there is an open or closed WAP there now, not if one was in place or was secured or not when the activity in question took place. To make that determination you'd need more information but at that point you do have probable cause for a search warrant.
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