Everybody’s Going Surfing: The Third Circuit Approves the Warrantless Use of Internet Tracking Devices in United States V. Stanley

On June 11, 2014, in United States v. Stanley, the U.S. Court of Appeals for the Third Circuit held that the warrantless use of a tracking device to detect the location of a wireless signal was not a search in violation of the Fourth Amendment. The court reasoned that because the defendant was using his neighbor’s open wireless network, the defendant did not have a reasonable expectation of privacy. The court’s reasoning was based on a belief that the use of an open wireless network, which is not password protected, is “likely illegal.” This comment argues that the Third Circuit erred in refusing to recognize the applicability of the test for “sense-enhancing devices” derived from the 2001 U.S. Supreme Court decision Kyllo v. United States. Further, the Third Circuit’s holding imperils an activity that many law-abiding citizens engage in daily.