New opinion — moocher-hunting isn’t searching

One new opinion today.

Richard Stanley thought he’d figured out how to share child porn on the internet without getting caught: instead of using his own internet connection, he mooched his neighbor’s (non-password protected) wifi. Police can track the activity to the neighbor’s ISP, but that doesn’t tell them who’s mooching. Pretty clever.

Unfortunately for Mr. Stanley, the state police also had a clever idea: bring in the “MoocherHunter.” A MoocherHunter, as you no doubt already know, is a software tool that measures directional signal strength to give you an idea where a wifi moocher is. It hunted, Stanley confessed, and he pled guilty but reserved the right to challenge the warrantless MoocherHunter-ing. Today, CA3 affirmed, denying Stanley’s appeal and holding that moocher-hunting isn’t searching.

The case is US v. Stanley. Opinion by Smith, joined by Shwartz (mostly) and Scirica. The opinion’s earnest use of “mooching” throughout is endearing.

At the end of the opinion is an interesting detour for Fourth Amendment nerds and CA3 nerds. Having found no search, the court nevertheless went on to criticize the district court’s  alternative reasoning rationale that people assume the risk that what they send over the internet will be exposed to police. The panel majority rejected this view because it “could, without adequate qualification, unintentionally provide the government unfettered access to this mass of private information without requiring its agents to obtain a warrant.”

Interestingly, Shwartz did not join that section of the opinion. Also interestingly, she did not write separately, but instead Smith explained her contrary position in a footnote. Shwartz viewed the discussion as unnecessary (it’s obviously dicta) and in any event she viewed the district court’s assumption-of-risk holding as correct in cyber-trespassing cases.

Early news coverage here.