FBI Use of Wireless Tracking Device Not a ‘Search’

It is not an illegal search when the FBI uses wireless-tracking software to detect the address of a wireless device that is downloading child porn by using a neighbor’s password-protected router, a federal appeals court ruled Monday.

The 9th US Circuit Court of Appeals upheld a conviction for distribution and possession of child pornography even though the FBI used a device to test the signal strength of the wireless device used to download material through his neighbor’s router.

The panel held that Alexander Norris had no expectation of privacy in the signal strength of his wireless device address given he was using a third-party’s password-protected wireless router. In addition, the panel held the FBI action did not amount to a search because there was no physical intrusion into the defendant’s residence.

The Norris investigation began in 2010 when an FBI agent initiated an investigation of child pornography distribution through a peer-to-peer file-sharing network. Although AT&T identified the downloads as coming from a subscriber in Davis identified as Apartment 242, the agent searched the apartment where three female UC Davis students lived. The agent discovered the IP address on the router was different from the IP address used to download the material.

The agent used software known as “Moocherhunter” to detect a device that had connected to the router without permission and found roughly 17 location readings in the vicinity of Apartment 242. They identified Norris. He was charged with distribution and possession of material that sexually exploits minors.

 He argued the search for his wireless device should be suppressed as an illegal warrantless search, but the judge equated it to a drug-sniffing dog checking luggage and allowed the search.

Norris was convicted on both counts and sentencing to six years in prison.

 Case: US v. Norris, No. 17-10354

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