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Open Wi-Fi proves no defence in child porn case

Appeal court allows evidence despite unsecured network

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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.

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