The Fourth Amendment Unplugged : Electronic Evidence Issues & Wireless Defenses - Wireless Crooks & the Wireless Internet Users Who Enable Them

The increasing prevalence of unsecure Wireless Internet connections presents unique legal challenges for criminal and civil defendants and government prosecutors alike. The vast majority of home and corporate wireless networks are used without security measures. As a result, anyone with a laptop and a wireless network card can access the Internet to commit a crime simply by being within 500 feet of an unsecure wireless Internet connection. Criminals can have accessed the Internet without leaving a trace, rendering unknowing wireless network owners the most likely suspects. In November 2003, the first criminal charges were brought against defendants who allegedly usurped wireless networks to commit crimes. Although the crimes charged are not specific to wireless networks (viewing child pornography or using a computer to penetrate a corporation's network), their commission via wireless networks presents significant legal problems. The defendant-owner of an unsecure wireless network faces almost insurmountable difficulties in offering evidence to prove someone else used his network to commit a crime. The government faces an equally difficult task of proving it was, in fact, the defendant who committed a crime. Wireless networks present electronic evidence issues that warrant careful Fourth Amendment analyses. Although Fourth Amendment search and seizure doctrine is largely settled, courts disagree on and have expanded the boundaries for warrantless searches for electronic evidence. In 2003 two cases effectively increased the government's power to conduct warrantless searches, which will effect wireless crime prosecution. This paper examines Fourth Amendment issues regarding warrantless searches in crimes committed via wireless networks. Traditionally accepted presumptions, burdens of proof, legal theories and possible legislative solutions are introduced and discussed