Post details: CA8: Joins other circuits holding P2P file sharing is a waiver of expectation of privacy in a computer
08/15/09
CA8: Joins other circuits holding P2P file sharing is a waiver of expectation of privacy in a computer
Using a peer to Peer (P2P) file sharing program for sharing child pornography is a waiver of any expectation of privacy in the computer to anybody who could access it. United States v. Stults, 575 F.3d 834 (8th Cir. 2009):
Several federal courts have rejected the argument that an individual has a reasonable expectation of privacy in his or her personal computer when file-sharing software, such as LimeWire, is installed. See, e.g., United States v. Ganoe, 538 F.3d 1117, 1127 (9th Cir. 2008) (holding that the defendant lacked a reasonable expectation of privacy in the downloaded files stored on his computer, meaning that an agent's use of a file-sharing software program to access child pornography files on the computer did not violate the defendant's Fourth Amendment rights); United States v. Perrine, 518 F.3d 1196, 1205 (10th Cir. 2008) (holding that defendant had no expectation of privacy in government's acquisition of his subscriber information, including his IP address and name from third-party service providers, where the defendant voluntarily transmitted such information to Internet providers and enabled P2P file sharing on his computer, which permitted anyone with Internet access the ability to enter his computer and access certain folders); United States v. Barrows, 481 F.3d 1246, 1249 (10th Cir. 2007) ("[The defendant] claims that he invited no one to use his computer and therefore expected its contents to remain private. Yet he surely contemplated at least some third-party access: he knowingly networked his machine to the city computer for the express purpose of sharing files."); United States v. Brese, No. CR-08-52-D, 2008 WL 1376269, at *2 (W.D. Okla. April 9, 2008) (unpublished) ("The Court finds that, notwithstanding any subjective expectation that Defendant may have had in the privacy of his computer, it was not reasonable for him to expect privacy in files that were accessible to anyone else with LimeWire (or compatible) software and an internet connection."); United States v. Borowy, 577 F. Supp. 2d 1133, 1136 (D. Nev. 2008) ("In this case, [the defendant] did not have a legitimate expectation of privacy in files he made available to others using P2P software.").
We hold that Stults had no reasonable expectation of privacy in files that the FBI retrieved from his personal computer where Stults admittedly installed and used LimeWire to make his files accessible to others for file sharing. One who gives his house keys to all of his friends who request them should not be surprised should some of them open the door without knocking. As a result, "[a]lthough 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 [Stults's] decision to install and use file-sharing software, thereby opening his computer to anyone else with the same freely available program." Ganoe, 538 F.3d at 1127 (internal citation omitted). Even if we assumed that Stults "did not know that others would be able to access files stored on his own computer," Stults did know that "he had file-sharing software on his computer; indeed, he admitted that he used it--he says to get music [and to download pornography]." Id. As a result, Stults "opened up his download folder to the world, including Agent [Cecchini]." Id. "Having failed to demonstrate an expectation of privacy that society is prepared to accept as reasonable, [Stults] cannot invoke the protections of the Fourth Amendment." Id.
Search warrant for a computer for evidence of drug activity could include trophy photos of drugs, and that led to the police coming upon child pornography. The warrant was sufficient and permitted seizure of child porn after it was discovered. (It was also argued by the government that the search of the computer was justified by the automobile exception, despite it being a closed container. The court was unimpressed with that argument, but did not have to decide it because of the warrant.) United States v. Burgess, 576 F.3d 1078 (10th Cir. 2009).*
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