VA: Privacy settings on P2P software create no privacy interest; computer was open to the world

By installing a P2P program on his computer and leaving it on, defendant opened his computer files to the world and waived any reasonable expectation of privacy in his computer. Relying on software settings that don’t work for privacy is inadequate. Rideout v. Commonwealth, 62 Va. App. 779, 753 S.E.2d 595 (2014):

Even though appellant testified that he was under the impression that he had disabled the sharing feature on Shareaza, the record establishes that appellant actually said to Detective McLaughlin, “I have been waiting for y’all to come.” Viewing the evidence in the light most favorable to the Commonwealth, as we must since it prevailed below, this statement in itself strongly suggests that appellant knew or at least suspected that files from his computer were able to be shared. Indeed, a rational trier of fact assessing the testimony at the suppression hearing could infer from this statement that appellant was aware that he was not the only individual with access to those files due to his installation of the Shareaza program. Certainly, the trial court was not obligated to believe appellant’s self-serving testimony that he believed that he had safeguarded his files containing child pornography from being shared on Shareaza — which, of course, is peer-to-peer software actually designed for the sharing of files over the internet. See Marable v. Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d 233, 235 (1998).

Here, the trial court expressly found that appellant lacked a reasonable expectation of privacy “when he installed a software program on his computer which has the primary purpose to share information among other computer users.” We, like the trial court, find several federal appellate court decisions to be applicable and instructive on this point. “‘Although as a general matter an individual has an objectively reasonable expectation of privacy in his personal computer, we fail to see how this expectation can survive [appellant’s] decision to install and use file-sharing software, thereby opening his computer to anyone else with the same freely available program.'” United States. v. Stults, 575 F.3d 834, 843 (8th Cir. 2009) (quoting United States v. Ganoe, 538 F.3d 1117, 1127 (9th Cir. 2008)). Thus, by simply installing file-sharing software onto his computer, appellant has “‘failed to demonstrate an expectation of privacy that society is prepared to accept as reasonable.'” Id. Appellant’s installation of Shareaza presents a situation that is analogous to a person who hands over the keys to his house to a number of friends. That person should not be surprised when some of those friends simply come inside his house without knocking on the door. Id.

Appellant contends, however, that his claimed attempt to apply settings to Shareaza to prevent others from accessing his files depicting child pornography creates an objectively reasonable expectation of privacy in those computer files. However, the decision in United States v. Borowy, 595 F.3d 1045, 1047 (9th Cir. 2010), is highly persuasive on the facts here. In Borowy, the defendant claimed that he had attempted to engage the feature in his version of peer-to-peer file-sharing software that would prevent others from downloading and viewing his files. However, that feature was not actually engaged, and an FBI agent was able to access incriminating files from the defendant’s computer. Id. Concluding that the defendant’s “subjective intention not to share his files did not create an objectively reasonable expectation of privacy in the face of such widespread public access,” id. at 1048, the appellate court affirmed the lower court’s decision to deny the defendant’s motion to suppress. Id. at 1049.