Defendant’s computer was set to share files on his wireless network. A neighbor’s wireless router failed, and her computer which regularly shared files, too, automatically picked up defendant’s system, and she saw folders indicative of child pornography. The defendant had no reasonable expectation of privacy in the files that could be shared by anybody who accessed his wireless network. United States v. Ahrndt, 2010 U.S. Dist. LEXIS 7821 (D. Ore. January 28, 2010):

A. Diminished Reasonable Expectation of Privacy in Data Broadcast via Unsecured Wireless Network Router

At the suppression hearing, defendant argued that a wireless network should be given no less protection than a hardwired network under the Fourth Amendment. According to defendant, if, hypothetically, defendant had possessed a hardwired home network, and officer McCullough had obtained access to defendant's computer via the hardwired network, there would no question that his access violated a reasonable expectation of privacy.

Courts, however, have long held that different communications hardware and technologies carry different reasonable expectations of privacy. For example, while users of traditional hardwired phones generally have a reasonable expectation of privacy in their conversations, Katz v. United States, 389 U.S. 347, 352, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967), users of cordless phones generally do not because of the ease of intercepting wireless transmissions. See, e.g., United States v. Hall, 488 F.2d 193, 198 (9th Cir. 1973) (particular speakers on radio telephones knew they could be overheard, and thus had no justifiable expectation of privacy); Tyler v. Berodt, 877 F.2d 705, 706-07 (8th Cir. 1989) (no justifiable expectation of privacy in conversations on cordless telephone); United States v. Hoffa, 436 F.2d 1243, 1247 (7th Cir. 1970) (no expectation of privacy for conversation over mobile telephones under Fourth Amendment analysis); Edwards v. Bardwell, 632 F. Supp. 584, 589 (M.D. La. 1986) (no privacy expectation for conversation "broadcast by radio in all directions to be overheard by countless people"); State v. DeLaurier, 488 A.2d 688, 694 (R.1.1985) (phone came with manual alerting owner that conversation could be transmitted to others);

In the leading case on the subject, Tyler, the Berodt family discovered that their cordless telephone could intercept the cordless phone conversations of Scott Tyler, who lived four houses down the street. 877 F.2d at 705. ... In so holding, the Eighth Circuit acknowledged that the expectation of privacy in wireless phones is different from that of wired phones because the practical realities of the different technologies give rise to varied subjective and objective expectations.

The expectation of privacy in cordless phones is analogous to the expectation of privacy in wireless networks, because wireless networks are so easily intercepted. Wireless networks are similar to cordless phones in that they transmit data over radio waves. James Ridge, What Happens When Everything Becomes Connected: The Impact on Privacy When Technology Becomes Pervasive, 49 S. Tex. L. Rev. 725, 735 (2008). Unlike cordless phone signals, however, a wireless router signal can be received by an unauthorized user even though that user will not usually encounter personal or confidential information. Daniel Kamitaki, Beyond E-mail: Threats to Network Security and Privileged Information for the Modern Law Firm, 15 S. Cal. Interdisc. L.J. 307, 340 (2006). By using the wireless network signal for internet access, a joyrider 1 is not made privy to personal information of the broadcasting user. Ned Snow, The Law of Computer Trespass: Cyber Security or Virtual Entrapment?, 2007 Ark. L. Notes 109, 110 (2007). Information transmitted to and from the internet is invisible to the other user of a Wi-Fi signal. Id. In addition, most joyriders assume that using another person's unsecured wireless connection is entirely legal, Kamitaki, supra at 340-41, and experts have pronounced it ethical. Randy Cohen, The Ethicist: Wi-Fi Fairness, N. Y. Times, Feb. 8, 2004, at 6, available at 2004 WLNR 5575601. In any event, accidental unauthorized use of other people's wireless networks is a fairly common occurrence in densely populated urban environments. Kamitaki, supra at 341. Purposeful unauthorized use is perhaps equally ubiquitous, because, as one high-technology researcher put it, "Wi-Fi is in the air, and it is a very low curb, if you will, to step up and use it." Michel Marriott, Hey Neighbor. Stop Piggybacking on My Wireless, N.Y. Times, Mar. 5, 2006, at 11, available at 2006 WLNR 3698466.

1 A "joyrider" is someone who "use[s] an open Wi-Fi connection to access the Internet." Benjamin Kern, Whacking. Joyriding, and War-Driving: Roaming Use of Wi-Fi and the Law, 21 Santa Clara Computer & High Tech. L.J. 101, 138 (2004).

Here, defendant used a Belkin54G wireless router to blanket his house and the surrounding area with wireless internet. He did not password-protect the wireless network, so any person within range could access it. JH had accessed the Belkin54G router multiple times. At the hearing, special agent Tony Onstadt testified that although the default setting of the Belkin54G router is not to have password protection, the router comes with a manual that includes detailed instructions on how to password-protect the router. According to his testimony, the manual stresses the importance of password protection. Agent Onstadt also testified that the range of the router was up to 400 feet in the shape of a donut around the house.