CA3: Use of MoocherHunter to isolate unauthorized wifi signal usage did not violate privacy

Using MoocherHunter software to see who was using another person’s wifi internet connection to download child pornography was not a search. After officers established that the signal was strongest from defendant’s apartment, they got a search warrant for his apartment and computer.
United States v. Stanley, 2014 U.S. App. LEXIS 10833 (3d Cir. June 11, 2014):

The thrust of Stanley’s argument on appeal is that Erdely’s use of the MoocherHunter was an unlawful search under Kyllo. We disagree, and hold that Stanley’s expectation of privacy is not one that society is prepared to recognize as legitimate.

In Kyllo, police officers suspected that the defendant was growing marijuana inside of his home. 533 U.S. at 29. Without obtaining a warrant, these officers parked across the street and scanned the defendant’s home using a thermal imager. Id. at 29-30. This device revealed that certain portions of the home’s exterior were unusually warm, leading police to believe that the defendant was using high-powered halide lamps inside. Id. at 30. The Supreme Court held that this scan was a search, and established a rule that “obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area constitutes a search-at least where (as here) the technology in question is not in general public use.” Id. at 34 (internal quotation marks and citation omitted).

One could argue that this language, considered in the abstract, encompasses Erdely’s use of the MoocherHunter. The MoocherHunter, like the thermal imager in Kyllo, is surely “sense-enhancing technology,” as it detects radio waves which cannot be perceived by unaided human senses. Further, Erdely used this sense-enhancing technology to obtain “information regarding the interior of [Stanley’s] home that could not otherwise have been obtained without physical intrusion”: the fact that a wireless card associated with particular Internet activity was located there. Id. See also United States v. Karo, 468 U.S. 705, 714-18 (1984) (holding that the government’s use of a tracking device to discover that a particular barrel was located inside the defendant’s home was a search for purposes of the Fourth Amendment). Finally, the government does not contend that the MoocherHunter is technology that is “in general public use.”

Critical to Kyllo’s holding, however, was the fact that the defendant sought to confine his activities to the interior of his home. He justifiably relied on the privacy protections of the home to shield these activities from public observation. See Kyllo, 533 U.S. at 34 (characterizing the thermal imaging scan as a “search of the interior of [Kyllo’s] home[],” which it considered to be “the prototypical … area of protected privacy”). See also id. at 37 (“In the home, our cases show, all details are intimate details, because the entire area is held safe from prying government eyes.”) (emphasis in original). Stanley can make no such claim.

Stanley made no effort to confine his conduct to the interior of his home. In fact, his conduct-sharing child pornography with other Internet users via a stranger’s Internet connection-was deliberately projected outside of his home, as it required interactions with persons and objects beyond the threshold of his residence. In effect, Stanley opened his window and extended an invisible, virtual arm across the street to the Neighbor’s router so that he could exploit his Internet connection. In so doing, Stanley deliberately ventured beyond the privacy protections of the home, and thus, beyond the safe harbor provided by Kyllo. See United States v. Broadhurst, No. 3:11-cr-00121-MO-1, 2012 WL 5985615, at *5 (D. Or. Nov. 28, 2012) (distinguishing the use of a MoocherHunter-like device from the thermal scan in Kyllo because “in Kyllo, the heat signals were not being intentionally sent out into the world to connect publicly with others.”); United States v. Norris, No. 2:11-cr-00188-KJM, 2013 WL 4737197, at *7 (E.D. Cal. Sept. 3, 2013) (“In this case the agents used Moocherhunter to pick up signals the defendant was voluntarily transmitting to [his neighbor’s router], not information confined to the private area of defendant’s home.”).