Open Wi-Fi proves no defence in child porn case
Appeal court allows evidence despite unsecured network
Agentless Backup is Not a Myth
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.
COMMENTS
re: Well, it might be a defense if he hadn't burnt it onto CD...
From a common sense POV you are right, but from a legal POV you have missed the point.
He never said that the CDs weren't his, and the never said they weren't evidence of child porn. The argument was that the search warrant was issued based on an instant message that may not have come from him; therefore the search warrant was illigal.
Under the american justice system if a search warrant is invalid then all the evidence collected under that warrant has to be disregarded. Therefore if this warrant was proved invalid the jury would have to disregard the CDs - even though they proved his guilt. It's a legal loophole which is often used by criminals to get off, fortunately in this case the judge closed the loophole and the guy was sent down.
(BTW i an NOT defending him here, just explaining the article, he deserves what he got)
Sort of no
An open wifi network is not excuse enough to explain why you're computer is infested with child porn.
If someone else did it through your network, your computer wouldn't be the one with the dodgy pictures, theirs would.
Mostly they wouldn't store it on your computer to incriminate you, because you would more than likely notice, and you would more than likely cut off their access. I suppose it is possible, but it doesn't make a lot of sense. It's not a particularly good way of convincing a jury there's reasonable doubt to your guilt.
Now if you're claiming they used your wifi connection to download porn, and your computer as a spambot to distribute it, then you would presumably have some sort of evidence to back that up.
Like buying an antivirus program, scanning your computer and printing out the logs.
No? Well you're stuffed then.
And of course, as someone else has already pointed out - it's a bit of stretch to say you conveniently had a writable CD in your burner and they conveniently decided to make a copy for you, without your knowledge - then after thinking about it, snuck in your house and hid it.
Sounds like the jury and the cops did their job and a twisted bit of work is safely locked up - where he'll enjoy a new kind of pornography with himself playing the starring role.
Another slant to this "open networks" defense...
Let's say you're a file sharer and you open your network with a view to prevent prosecution, saying that "I had an open network and didn't know that people were using it."
Is this not the same as running a brothel, leaving the front door open so people can go as they please, but staying in the living room and claiming "I didn't know what was going on, so it's not my fault!"
At the end of the day, it's your house, your phone line, your modem, and your wireless network, so it's your responsibility to keep it that way. Giving access to someone else doesn't make them responsible for how they use it.
IT infrastructure monitoring strategies
Requirements Checklist for Choosing a Cloud Backup and Recovery Service Provider
Cloud based data management
Enabling efficient data center monitoring
Agentless Backup is Not a Myth
