{"id":3873,"date":"2010-03-26T06:58:58","date_gmt":"2010-02-19T05:48:53","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2010-02-19T05:48:53","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=3873","title":{"rendered":"CA9: P2P software opening computer a waiver of REP"},"content":{"rendered":"

The use of peer-to-peer (P2P) software on defendant\u2019s computer and opening that computer to the world was a waiver of the expectation of privacy in it. The fact defendant did not technologically know what he was doing is still a waiver. Also, the government\u2019s use of sophisticated software to search the computer for child pornography did not make the search unreasonable. United States v. Borowy<\/a>, 595 F.3d 1045 (9th Cir. 2010):<\/p>\n

Under Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967), government conduct qualifies as a search only if it violates a reasonable expectation of privacy. Whether Agent Mitchell engaged in an unconstitutional search and seizure is largely controlled by United States v. Ganoe, 538 F.3d 1117, 1127 (9th Cir. 2008), cert. denied, 129 S. Ct. 2037, 173 L. Ed. 2d 1122 (2009), which held that the defendant’s expectation of privacy in his personal computer could not “survive [his] decision to install and use file-sharing software, thereby opening his computer to anyone else with the same freely available program.” This result is consistent with that of other circuits that have considered the issue. See United States v. Stults, 575 F.3d 834, 842-43 (8th Cir. 2009) (citing Ganoe), petition for cert. filed 78 U.S.L.W. 3438 (U.S. Dec. 11, 2009) (No. 09-8153); United States v. Perrine, 518 F.3d 1196, 1204-05 (10th Cir. 2008).<\/p>\n

Borowy argues that his case is distinguishable from Ganoe because of his ineffectual effort to prevent LimeWire from sharing his files. However, as in Ganoe, “[t]he crux of [Borowy’s] argument is that he simply did not know that others would be able to access files stored on his own computer” and that, although Borowy intended to render the files private, his “technical savvy” failed him. Ganoe, 538 F.3d at 1127. Borowy, like Ganoe, was clearly aware that LimeWire was a file-sharing program that would allow the public at large to access files in his shared folder unless he took steps to avoid it. See id.; see also United States v. Heckenkamp, 482 F.3d 1142, 1147 (9th Cir. 2007 ) (“[P]rivacy expectations may be reduced if the user is advised that information transmitted through the network is not confidential and that [others] may monitor communications transmitted by the user.”). Despite his efforts, Borowy’s files were still entirely exposed to public view; anyone with access to LimeWire could download and view his files without hindrance. Borowy’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. See Ganoe, 538 F.3d at 1127; United States v. King, 509 F.3d 1338, 1341-42 (11th Cir. 2007) (per curiam). Because Borowy lacked a reasonable expectation of privacy in the shared files, Agent Mitchell’s use of a keyword search to locate these files did not violate the Fourth Amendment.<\/p>\n

Borowy also argues that the use of a “forensic software program” that is unavailable to the general public to confirm that the files contained child pornography rendered Agent Mitchell’s conduct an unlawful Fourth Amendment search. We disagree. Borowy had already exposed the entirety of the contents of his files to the public, negating any reasonable expectation of privacy in those files. Cf. California v. Ciraolo, 476 U.S. 207, 213-14, 106 S. Ct. 1809, 90 L. Ed. 2d 210 (1986) (finding the use of an aircraft to observe marijuana plants was not a Fourth Amendment search as it only revealed information accessible to any member of the public flying in the airspace); cf. also Kyllo v. United States, 533 U.S. 27, 40, 121 S. Ct. 2038, 150 L. Ed. 2d 94 (2001) (“Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’ ….”) (emphasis added). Moreover, the hash-mark analysis appears to disclose only whether the files in the list that Agent Mitchell’s keyword search returned were known child pornography. See United States v. Jacobsen, 466 U.S. 109, 122-26, 104 S. Ct. 1652, 80 L. Ed. 2d 85 (1984); United States v. Place, 462 U.S. 696, 707, 103 S. Ct. 2637, 77 L. Ed. 2d 110 (1983) (“canine sniff” of luggage left in public place is not a Fourth Amendment search). In this context, the hash-mark analysis functioned simply as a sorting mechanism to prevent the government from having to sift, one by one, through Borowy’s already publicly exposed files.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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