Feeds

Open Wi-Fi proves no defence in child porn case

Appeal court allows evidence despite unsecured network

Boost IT visibility and business value

A man has been found guilty of possessing child pornography despite arguing that his open wireless internet network meant the case against him could not be proved.

The case was triggered by an explicit image of a child which was sent over Yahoo!'s instant messaging network. The internet protocol (IP) address was traced to Javier Perez.

The Federal Bureau of Investigation (FBI) searched Perez's residence under warrant and discovered several CDs in his room that carried images of child porn. It was the only room of the house that was searched.

It soon transpired that the Yahoo! account used to send the original image belonged to someone listed as Rob Ram. Perez shared his residence with Robert Ramos and operated an open wireless internet (Wi-Fi) connection.

Perez argued that his open connection meant that anybody within 200 feet could have used his internet connection, meaning that it could not be conclusively proved that the original instant message came from him.

This in turn meant that the search warrant was issued in error and the evidence on the CDs gathered illegally. That evidence should be disregarded and the conviction based on it quashed, Perez argued.

The US Court of Appeal for the Fifth Circuit has rejected Perez's case, saying that the evidence should not be disregarded.

"In this case it is clear that there was a substantial basis to conclude that evidence of criminal activity would be found at [the address]," the judge wrote. "[T]hough it was possible that the transmissions originated outside of the residence to which the IP address was assigned, it remained likely that the source of the transmissions was inside that residence."

Some people involved in unlawful activity such as music and film file sharing have reportedly begun opening up their wireless networks as a pre-emptive court defence. They argue that it could not be subsequently proved that they were behind the file sharing if their network was open and, theoretically, anyone in the vicinity could have used their network for any purpose they liked.

OUT-LAW last year reported the case of Tammie Marson, a US resident who argued that her open Wi-Fi network meant that it could not be proved that she engaged in file sharing.

Marson had been accused by record labels Virgin, Sony BMG, Arista, Universal, and Warner Brothers of illegally sharing copyrighted music files.

Marson's lawyer Seyamack Kouretchian of Coast Law Group told OUT-LAW Radio that evidence that Marson's connection was used was not enough. "The best that they could do, the absolute best was prove that the music was on a computer that had accessed the internet through her internet connection," he said. "You had neighbours who would have had access to her internet connection over a wireless router so it could have been anybody."

The record labels backed down from their case against Marson.

Copyright © 2007, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

Build a business case: developing custom apps

More from The Register

next story
The police are WRONG: Watching YouTube videos is NOT illegal
And our man Corfield is pretty bloody cross about it
China hopes home-grown OS will oust Microsoft
Doesn't much like Apple or Google, either
UK government accused of hiding TRUTH about Universal Credit fiasco
'Reset rating keeps secrets on one-dole-to-rule-them-all plan', say MPs
Fast And Furious 6 cammer thrown in slammer for nearly three years
Man jailed for dodgy cinema recording of Hollywood movie
Caught red-handed: UK cops, PCSOs, specials behaving badly… on social media
No Mr Fuzz, don't ask a crime victim to be your pal on Facebook
e-Borders fiasco: Brits stung for £224m after US IT giant sues UK govt
Defeat to Raytheon branded 'catastrophic result'
Don't even THINK about copyright violation, says Indian state
Pre-emptive arrest for pirates in Karnataka
Yes, but what are your plans if a DRAGON attacks?
Local UK gov outs most ridiculous FoI requests...
prev story

Whitepapers

Implementing global e-invoicing with guaranteed legal certainty
Explaining the role local tax compliance plays in successful supply chain management and e-business and how leading global brands are addressing this.
5 things you didn’t know about cloud backup
IT departments are embracing cloud backup, but there’s a lot you need to know before choosing a service provider. Learn all the critical things you need to know.
Why and how to choose the right cloud vendor
The benefits of cloud-based storage in your processes. Eliminate onsite, disk-based backup and archiving in favor of cloud-based data protection.
Top 8 considerations to enable and simplify mobility
In this whitepaper learn how to successfully add mobile capabilities simply and cost effectively.
High Performance for All
While HPC is not new, it has traditionally been seen as a specialist area – is it now geared up to meet more mainstream requirements?