Case o' The Week: Freeloaders Forfeit Fourth - Norris, the internet, and curtilage

  Internet moochers get no Fourth love.

United States v. Norris, 2019 WL 5688802 (9th Cir. Nov. 4, 2019), decision available here.

Players: Decision by Judge Rawlinson, joined by Judges Schroeder and O’Scannlain. Hard-fought appeal by former ED Cal AFPD John Balazs.  

Facts: The FBI investigated the distribution of child porn through a file sharing network. Id. at *1. The agent couldn’t determine the physical address for the porn’s source: “boysforboys1.” Id. A search of an apartment linked to this address revealed no evidence of child porn. Id.

  Using “Moocherhunter” software, the agents traced the suspected signal that – without permission -- logged onto the apartment’s router. The signal strength of the child-porn addresses suggested they originated in a different nearby apartment. Id. at *2. The agents got a search warrant for this second apartment and found child porn. Norris was charged. Id. at *3.

  Norris moved to suppress, “alleging that use of the Moocherhunter software amounted to a warrantless search in violation of the Fourth Amendment.” Id. The court relied on Jardines, and concluded that because there was no encroachment on Norris’s curtilage there was not a Fourth Amendment violation. Id. The court “concluded that Norris lacked a subjective, reasonable expectation of privacy, because he connected to a third-party’s router without authorization and assumed the risk that his signal would reveal the MAC address to authorities.” Id.

  Norris was convicted after trial and appealed.

Issue(s): “[ ] Norris seeks to have us apply the protections of the Fourth Amendment to the use of a wireless tracking program to identify the address of his wireless device.” Id. at *1.

Held: “[W]e conclude that no Fourth Amendment search occurred in the course of identifying Norris’s wireless device . . . .” Id. 

  “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 . . . . We conclude that no subjective expectation of privacy exists under these circumstances, where information is openly available to third parties.” Id. at *4.

Of Note: What about Kyllo? Recall that in that case SCOTUS rejected the cops’ use of thermal-imaging technology to hunt for heat consistent with weed-grow lights. Id. at *5. Isn’t that analogous to the sniffing of Norris’s internet signal here? 

  Not according to the Ninth. 

  “We agree with the district court that Kyllo does not dictate the conclusion that a Fourth Amendment search occurred in this case.” Id. “Unlike in Kyllo, where the defendant confined his illegal activities to the interior of his home and relied on the privacy protections of the home to shield these activities from public observation, Norris’s activities reached beyond the confines of his home, thereby negating any expectation of privacy.” Id.

   Judge Rawlinson is equally unpersuaded that Norris had a reasonable expectation of privacy in the signal: “it strains credulity to suggest that society would be prepared to recognize an expectation of privacy as reasonable when an individual gains access to the internet through the unauthorized use of a third-party’s password-protected router located outside his residence.” Id. at *6.

How to Use: What if, like the Big Bang Theory’s “Penny,” Norris was an authorized internet moocher? The Norris opinion doesn’t get that far, id. at *5, so there may be a sliver of “reasonable expectation” remaining in that fact pattern.

                                               

For Further Reading: Norris is another round Fourth Amendment peg in a square technology hole. A better approach is “digital curtilage.” 

  For an interesting piece discussing that idea, see Professor Andrew Ferguson, The Internet of Things and the Fourth Amendment of Effects, available here.

Image of Penny from “Big Bang Theory” from https://www.pinterest.com/pin/464996730251364996/

Steven Kalar, Federal Public Defender N.D. Cal. Website available at www.ndcalfpd.org

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