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Wireless Address Info and the Fourth Amendment

When you access the Internet wirelessly, your computer is broadcasting information, including your MAC address (Media Access Control), a code unique to your device. The strength of your signal is also readily detectable. Do you have a privacy interest in any of that, protected by the Fourth Amendment? No, said the Ninth Circuit yesterday in United States v. Norris, No. 17-10354. The police can tune in along with everybody else.
To connect to the internet, Norris's devices sent a wireless signal transmitting the MAC address of the devices to the password-protected wireless router in Apartment 242. Once connected, Norris accessed the router to utilize the internet connection without authorization.

Although physically located in his home, Norris's wireless signal reached outside his residence to connect to the wireless router in Apartment 242. The FBI captured Norris's wireless signal strength outside Norris's residence to determine the source of the signal. The FBI's actions may be likened to locating the source of loud music by standing and listening in the common area of an apartment complex. Although the music is produced within the apartment, the sound carries outside the apartment. Just as no physical intrusion "on constitutionally protected areas" would be required to determine the source of the loud music, no physical intrusion into Norris's residence was required to determine the strength of the wireless signal emanating from the devices in his apartment. Jardines, 569 U.S. at 11.

We conclude that no subjective expectation of privacy exists under these circumstances, where information is openly available to third parties. "What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection." Katz, 389 U.S. at 351 (citations omitted); see also California v. Ciraolo, 476 U.S. 207, 213-14 (1986) (holding that use of an aircraft in public airspace to view marijuana plants in the backyard of a home did not violate the Fourth Amendment); California v. Greenwood, 486 U.S. 35, 40-41 (1988) (concluding that search of publicly exposed garbage did not violate the Fourth Amendment); United States v. Borowy, 595 F.3d 1045, 1047-48 (9th Cir. 2010) (upholding search of computer files using file-sharing software available to the public).

Norris probably thought he was pretty clever, downloading and uploading his kiddie porn while mooching wirelessly off his neighbor's account rather than one directly traceable to him. Not clever enough.

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