Monday, February 15, 2010

Wi-fi Privacy and Trespassing

You may or may not have noticed that in a comment to my last post, Lokkju said he found the

decision [in U.S. v. Ahrndt] troubling, mainly because it was illegal under Oregon law for the woman to access the network in the first place - unsecured or not. For an officer of the law to then direct her to continue in her illegal activities. . . .

I assume Lokkju’s reference to the involvement of a law enforcement officer in the continued accessing of Ahrndt’s unsecured wireless network was a factor that weighs in favor of finding that the accessing was a search under the 4th Amendment. (For the standard used to determine if there was a 4th Amendment search, see my last post.)

It’s a perfectly logical point since, as Lokkju noted, I have a 4th Amendment expectation of privacy in my home (at least the parts of my home that aren’t observable by someone standing outside) even though I go out and don’t lock my front door. It’s clear that if I go away without locking my door, it is a 4th Amendment search for a law enforcement officer to walk up on my front porch, open my door and go inside (even look inside).

The problem with extrapolating that to the wi-fi network scenario is that law isn’t always logical, or maybe I should say, isn’t always consistent in its logic. There’s a very good argument that JH’s accessing Ahrndt’s network, both alone and with Officer McCullough (if you want to find out who they are and what happened, check my last post), wasn’t a 4th Amendment search. I am not saying it shouldn’t be a search; I’m saying that given certain doctrines, I don’t think a court would hold that it was a search.

The source of that argument lies in a 4th Amendment doctrine known as the “open fields” rule. As Wikipedia explains, the U.S. Supreme Court articulated the open fields rule in Hester v. United States, 265 U.S. 57 (1924), which

stated that `the special protection accorded by the Fourth Amendment to the people in their ‘persons, houses, papers, and effects,’ is not extended to the open fields.’ This opinion appears to be decided on the basis that open fields are not a `constitutionally protected area’ because they cannot be construed as `persons, houses, papers, [or] effects.’

Hester was based on the common law. As the U.S. Supreme Court explained sixty years later, in Oliver v. U.S., 466 U.S. 170 (1984), the common law

distinguished `open fields’ from the `curtilage,’ the land immediately surrounding and associated with the home. . . . The distinction implies that only the curtilage, not the neighboring open fields, warrants the Fourth Amendment protections that attach to the home. At common law, the curtilage is the area to which extends the intimate activity associated with the `sanctity of a man's home and the privacies of life,’ Boyd v. U.S. 116 U.S. 616 (18856), and therefore has been considered part of home itself for Fourth Amendment purposes. Thus, courts have extended Fourth Amendment protection to the curtilage; and they have defined the curtilage, as did the common law, by reference to the factors that determine whether an individual reasonably may expect that an area immediately adjacent to the home will remain private.

As Wikipedia explains, Hester was based on the premise that 4th Amendment privacy is predicated on spatial considerations, i.e., certain spaces are “private” while others are not. The common law notion of privacy the Court applied in Hester was a categorical conception of privacy, a conception the Supreme Court abandoned in 1967 when it decided Katz v. U.S., 389 U.S. 347.

The issue in Katz, as I’ve noted, was whether the FBI’s wiretapping a phone call Katz made from a phone booth was a 4th Amendment search; the government said it wasn’t a search because the FBI never “trespassed into” the phone booth. The bug was on the outside. Before the Supreme Court, Katz

argued that the [phone] booth was a ‘constitutionally protected area.’ The Government has maintained . . . that it was not. But this effort to decide whether . . . a given ‘area’ . . . is ‘constitutionally protected’ deflects attention from the problem presented by this case. For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. . . . .But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.

Katz v. U.S., supra. After Katz was decided, many seem to have assumed it implicitly overruled Hester, which meant that the old, common law-based distinction between “open fields” and curtilage” was dead. The Supreme Court, though, didn’t see it that way. In Oliver v. U.S., supra, the Court “reaffirmed” the common law, holding that “no expectation of [4th Amendment] privacy legitimately attaches to open fields.” The effect, as Wikipedia notes, is that we have two standards: the Katz, reasonable expectation of privacy test I summarized in my last post, and the open fields doctrine.

The way courts apply the two standards, Katz basically governs “inside” activity while the open fields doctrine governs “outside” activity. If you live in a rural area and your home is surrounded by acres of fenced land, you don’t have a 4th Amendment expectation of privacy in any of the land except a little bubble that surrounds your house – the curtilage. In U.S. v. Dunn, 480 U.S. 294 (1987), the Supreme Court said that in deciding if land near your home is curtilage (4th Amendment protected) or open fields (not protected by the 4th Amendment), courts look at four factors:

the proximity of the area . . . to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by.

U.S. v. Dunn, supra. To see how open fields works in practice and why I think it’s relevant to Lokkju’s point, we need to look at the facts in Dunn. Law enforcement officers suspected Dunn was manufacturing methamphetamine, but didn’t have enough probable cause to get a warrant. This is what they did to get probable cause:

[Dunn’s Texas] ranch comprised approximately 198 acres and was completely encircled by a perimeter fence. The property also contained several interior fences, constructed mainly of posts and multiple strands of barbed wire. The ranch residence was situated 1/2 mile from a public road. A fence encircled the residence and a nearby small greenhouse. Two barns were located approximately 50 yards from this fence. The front of the larger of the two barns was enclosed by a wooden fence and had an open overhang. Locked, waist-high gates barred entry into the barn proper, and netting material stretched from the ceiling to the top of the wooden gates.

On the evening of November 5, law enforcement officials made a warrantless entry onto [Dunn’s] property. A DEA agent accompanied by a [Houston Police] officer . . . crossed the perimeter fence and one interior fence. Standing . . . between the residence and the barns, the DEA agent smelled what he believed to be phenylacetic acid . . . coming from . . . the barns. The[y] proceeded to . . . . the larger barn. . . . The officers walked under the barn's overhang to the locked wooden gates and, shining a flashlight through the netting on top of the gates, peered into the barn. They observed what the DEA agent thought to be a phenylacetone laboratory. . . . At this point the[y] departed from [Dunn’s] property, but entered it twice more . . . to confirm the presence of the . . .laboratory.

U.S. v. Dunn, supra. The officers used what they saw at Dunn’s ranch, along with other information, to get the search warrant they used to search his ranch, including his home. U.S. v. Dunn, supra.

Dunn moved to suppress the evidence, claiming it was a search for officers to cross his perimeter fence and walk around the property surrounding his home and the barns because he had a reasonable expectation of privacy in that area under the Supreme Court’s decision in Katz. Dunn lost. The Supreme Court applied the open fields doctrine and held that Dunn’s only reasonable expectation of privacy, as to the exterior of his home (and the barns), was the small bubble of land immediately around those structures. U.S. v. Dunn, supra.

Essentially the same thing happened in the Oliver case, except that he had “No Trespassing” signs prominently displayed on his property. Oliver v. U.S., supra. Oliver also argued that the officers’ coming onto his property without permission violated his 4th Amendment expectation of privacy under Katz, but the Court ignored Katz and applied the open fields doctrine to hold there was no search. The Court also rejected Dunn’s argument that the officers’ conduct constituted a 4th Amendment search because they trespassed on his land in violation of state law:

The law of trespass . . . forbids intrusions upon land that the Fourth Amendment would not proscribe. For trespass law extends to instances where the exercise of the right to exclude vindicates no legitimate privacy interest. Thus, in the case of open fields, the general rights of property protected by the common law of trespass have little or no relevance to the applicability of the Fourth Amendment.

Oliver v. U.S., supra. As lower courts have noted, you can always sue the law enforcement officers who trespassed on your land or try to have them prosecuted for criminal trespass, but the criminal trespass is irrelevant for the purposes of 4th Amendment analysis.

And that, finally, brings me back to Mr. Ahrndt and his unsecured wireless network: If I were a prosecutor confronted with Lokkju’s argument about trespassing by entering an unlocked door, I’d say that’s not what happens with an unsecured wireless network. JH didn’t enter “into” Ahrndt’s home to use the network; the network effectively came to he (and, later, to Office McCullough).

Therefore, since we’re talking about “outside” activity, I’d argue that Officer McCullough’s conduct is governed by the open fields rule, not by Katz. I’d then argue that since the wireless network signal extended beyond the curtilage of Ahrndt’s home which, as the opinion noted, was “about 150 feet away” from JH’s home. We’d have to apply the four Dunn factors to decide if the signal extended outside the curtilage of Ahrndt’s home, but it almost certainly did. I’ve read a lot of 4th Amendment curtilage cases, and it would be really, really difficult (even impossible) to establish a curtilage that extended that far.

So if you keep your wireless signals contained “inside,” they’re protected by the Katz rule. But if you let them “escape” outside your curtilage, you may have lost any 4th Amendment expectation of privacy you originally had in them.

That is the current state of 4th Amendment law. I, like others, think we should get rid of the open fields doctrine and use Katz as the standard for determining whether a 4th Amendment expectation in all cases. In other words, I think we should take the Katz Court at its word, when it said the 4th Amendment “protects people, not places.”


Clem Work said...

To what extent are these 4th Amendment principles and precedents applicable to tort claims of intrusion (invasion of privacy)against media or others?

Susan Brenner said...

Since the 4th Amendment only applies when there's state action, it probably has limited applicability in that civil context.

Courts might look to 4th Amendment principles to see if, for example, someone's using another person's wifi violates a reasonable expectation of privacy, same with examining contents of files open for sharing.

You'd have to check with someone who does civil, tort law to get a reliable answer to that.

Clem Work said...

Thanks, Susan. Sounds reasonable.

Detective W said...

I have seen several comments from people saying that it is obvious that this network was set up out of the box. They reference the network name and that there is no password. I would argue that even if that is so, that does not mean it is a 4th amendment violation.

When I bought my car I received it from the dealer unlocked and with no tag on it, but a reasonable person would not forget to lock it or get tags. Why is this any different?

With the amount of information about setting a password and changing the defaults provided to someone using a wireless router why would that restrict LEO's? If plain ignorance is a good defense how do you determine the actual ignorant for those feigning ignorance?

Nick Selby said...

You raise the important issue of the "network coming to JH". I like that argument more than the more complex Curtilage/open fields one because the it's simpler.

I have long believed that an unsecured wireless network is in fact an invitation for others to join it. With the proliferation of free wireless in the US, and the trivial technical skills needed to protect an access point, how is a person reasonably to determine that an unsecured hotspot is public or private?

How can we know if we're authorized? Maybe by seeing a network ID that doesn't have a "lock" symbol on it - in seeking to define how people become authorized to access a computer network, the New York Penal Law tries to define authorization through various means, like notice. It provides for a presumption that notice of such authorization is given where, "the computer is programmed to automatically display, print or announce such notice ...." (New York Penal Law Section 156.00). Is the announcement of network availability an authorization under the law to use it?

In a 2005 article I wrote for the Albany County (NY) Bar Association newsletter, I quoted attorney Scott Almas as saying,

"I am particularly troubled by how a user is supposed to know whether or not the owner of the Open WAP is authorizing use of the access point where the owner broadcasts to the world the presence of the access point and takes no steps to secure it. By the very nature of WAPs, there is no reasonable way to post or provide oral notice, and it can be difficult to interpret from the broadcasted name of the access point whether authorization is intended."

"In light of the fact that protecting the WAP is free, simple to do, and strongly recommended by the access point manufacturers during the set up process," Almas said, "I believe anyone who sets up a WAP and does not follow the advice to install even the most basic, minimal safeguards should be presumed to be providing authorization to access the Open AP for otherwise lawful Internet use." (Selby, N & Sacklow, I (2005) (Online) "A proposal for Reasonable Wireless Security for Law Firms" (Available:

Thanks for a great discussion!

DanMiami said...

Susan... as usual, a pleasure reading your posts! Thanks for the great discussion. Let me know when you come back through South Florida - we haven't talked in quite a while and would love to do lunch!

DanMiami said...

Another great discussion Susan - thanks for sharing!

We haven't talked in quite a while - let us know when you come back through South Florida so we can do lunch!

Loki said...

Detective W,

Your comment has quite an amazing assumption in it - would you argue that an unlocked car on private property can be searched without a warrant? That because it is not locked, there is no reasonable expectation of privacy?
If so, can you cite any case law that would back this up?

Detective W said...

"Your comment has quite an amazing assumption in it - would you argue that an unlocked car on private property can be searched without a warrant? That because it is not locked, there is no reasonable expectation of privacy?"

But the problem is that no law enforcement officer went on his property to access his network. He broadcasted a signal for anyone in range to access. As such your private property argument doesn't really apply to this situation.

I guess you are right in one respect. I gave a poor example. I should have said that someone placed a car on a public street, unlocked, with the keys in the ignition, and a sign that reads, "Free loaner car. Use whenever you want."