Secure Your Router, There’s Activist Judges About

Are you reading this on wireless broadband? Is your router security on? Do you have a firewall? If not you may wish to go and do that after reading this.

This post is about injustice in a US child porn case, but the subject matter’s not really the point. You have to disregard the nature of the alleged crime in considering the principles involved, distasteful as the subject matter may be and inclined as many of us are to assume guilt where there is only unproven accusation.

If this case creates precedent (and I presume it does, being an appeal court, though IANAUSL) then any wifi subscriber could be convicted of any illegal activity taking place on their open wifi network whether it’s actually them or not. Yes, it’s dumb to leave your network open, but does that make you responsible for any and all crimes committed via the connection? The defendant in this case was convicted on evidence that seems hardly evidence at all. The Register:

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.”

[…]

Copyright © 2007, OUT-LAW.com

Well maybe so, and that probably constituted enough probable cause for a search of the building, but it was a multi-resident building with an open wifi connection and they don’t seem to have proved any real connection between the defendant and the download.

The court that heard this appeal, the US Court of Appeal for the Fifth Circuit, is one of the most conservative courts in a Bushie-dominated court and justice system, so much so that 5 members of the court were considered by Bush for appointment to the Supreme Court.

It also seems to consider itself independent from settled law and precedent:

“It really is quite unusual for a lower federal court to thumb its nose at the Supreme Court so explicitly,” said Peter B. Edelman, a professor of constitutional law at Georgetown University law school. “If you look at some of the other courts, I doubt you’ll find the same kind of flaunting defiance.”

Theodore M. Shaw, the director of the NAACP Legal Defense Fund, said it is “extraordinary” how many times the Supreme Court felt it necessary to chastise the 5th Circuit. “We are not talking about a liberal Supreme Court,” he noted. “We’re talking about a conservative Supreme Court that apparently became frustrated with the 5th Circuit’s failure to meaningfully review criminal convictions for constitutional infirmities . . . cases involving prosecutorial misconduct, police misconduct, racial discrimination. Those problems were not being addressed by the 5th Circuit, so the Supreme Court had to step in”

And more than once. Chief Judge of the 5th circuit is Edith Hollan Jones:

Jones has been mentioned frequently as being on the list of potential nominees to the Supreme Court of the United States. The Chicago Sun-Times and several other newspapers reported on July 1, 2005 that she had also been considered for nomination to the Supreme Court during the presidency of George H. W. Bush.

Jones was named one of the five worst judges in Texas (and was the only federal judge on the list) by the liberal leaning newsmagazine The Texas Observer, which cited polls of Texas attorneys.[2]

Oh, and guess what: she’s a big fan of the Federalist Society, that training ground for GOP placemen and women in the Justice department. From a speech she gave there:

Supreme Court Has Been Contributing to Social Decay, Jones Argues

Since the 1960s, the U.S. Supreme Court has been issuing decisions contrary to the generally held values of Americans, imposing a “modish, untested philosophical notions and extreme libertarianism that would have left the [Constitution’s] Framers aghast,” Edith Jones, a judge on the New Orleans-based U.S. Court of Appeals for the Fifth Circuit, told a packed room Jan. 28 in a speech sponsored by The Federalist Society.

Surveys show that “95 percent of Americans say they believe in God. People everywhere subscribe to the values of the Ten Commandments—don’t steal, don’t kill, don’t covet—however they are phrased,” she said.

The Court “got out in front of the self-governing society, overturning local authorities and self-governing groups and imposed these values on society,” Jones declared. “I love this country. I love the heritage on which it was built. I want my children to have that heritage. Once people lose self-control it results in the growth of repressive government. When you don’t have internal control, you have to have external ones.”

Jones outlined five areas in which decisions have had what she considers socially damaging consequences: crime and punishment, pornography, family relations, public order and youth and education. The Warren Court, she contended, “extravagantly assumed the power to dictate new ‘rights’ not expressly stated in the Constitution and in so doing foisted its philosophical vision on the United States with consequences far beyond the Court’s imagining.”

It’s a court dominated by right wing zealots and dangerous to the public and the rule of law:

Last year, even conservative lawyers paused when a three-member panel of the court ruled 2 to 1 that a death penalty defendant was not entitled to a new trial even though his attorney had slept through part of his trial. “It would seem to anyone in support of the death penalty that a defense attorney ought not sleep through a trial,” Shaw said.

The majority, which included Jones, wrote that it “cannot determine whether [the defense attorney] slept during a ‘critical stage’ ” of the trial. When the full 5th Circuit reviewed the decision, the court reversed itself.

“It is not a happy place for civil rights lawyers to be,” said Mary Howell, a lawyer in New Orleans who has argued before the court. “For many of us, practicing before the court means avoidance. What’s unfortunate is that lawyers are becoming very selective about which cases they chose to take to the court, and many cases that have merit don’t make the cut. It has had a chilling effect.”

Ah the classic Bushie combination of apparent ineptitude and ignorance of the law masking the cold-blooded application of rightwing social policy via the sunversion of the justice system. Now why does it not surprise me that such loyal Bushies would make a decision like this?

Just think how very convenient it could be: all you’d have to do is idly drive by, use open wifi to google ‘al-qaeda’, or ‘bomb designs’ and drive off again, your target user nicely implicated. With the powers Bushco’s justice department has to look at ISP records and snoop on private emails and phonecalls, think how very tempting it would be to pick out and swoop on individual liberals, Patriot Act in hand.

A commenter at ZDnet puts it better than I can:

The whole point of disallowing evidence gathered from illegal searches is to discourage illegal searches. If a simple record of a download from an open Wi-Fi point can trigger a search, then all any law official would have to do in order to get permission to search your home and seize your computers would be to download child porn through your open Wi-Fi point from their car out in front of your home. Once that door has been openned, even if they don’t find child porn, other evidence of other crimes such as misstating your taxes can become the basis of other charges. Even if they don’t find anything, the RICO laws make it so that in order to get your computer and other property back you have to sue the government. Just the fact that they couldn’t prove their case is NOT enough for you to have your property returned.

Think that’s paranoid? Tell that to Grandma.

This decision also has a chilling effect on the freedom to communicate, which is just fine and dandy with the government. The Register gives the story that law enforcement is pushing:

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.

It’s very hard not to see this as another front in the war on free speech. Fully open and integrated public wifi networks and completely anonymous or pseudonymous communication have been the holy grail of the libertarian wing of wired-world idealists since forever but I gently suggest that it really is a little naive to think that any government, let alone one as corrupt as Bush’s, would countenance it. Completely unfettered free speech is not in the governmental interest.

The extreme cynic in me can’t help but think how very useful it is for the Right that this legal issue has come to appeal in the context of a child porn case. The subject matter is so toxic that any mainstream legal media commentator or reporter could, and undoubtedly would be accused of being objectively pro-molestation by a baying mob of pitcforked wingnut bloggers and columnists if they champion the case. Handy,that.