{"id":3885,"date":"2010-03-26T06:58:37","date_gmt":"2010-02-22T12:33:47","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2010-02-22T12:33:47","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=3885","title":{"rendered":"Fourth Amendment news–Effect of Kyllo<\/em> in Ninth Circuit’s Borowy<\/em> from 2\/17?"},"content":{"rendered":"

Susan Brenner on CYB3RCRIM3, published Kyllo and “A Forensic Software Program”<\/a> poses this question: Is use of sophisticated software to search a computer a Kyllo<\/a>-type search? <\/p>\n

She is discussing United States v. Borowy<\/a>, 595 F.3d 1045 (9th Cir. 2010) (posted here<\/a>). Apparently Kyllo<\/a> was belatedly injected into the case, and possibly not raised in the motion to suppress. The Ninth Circuit did not foreclose the possibility Kyllo<\/a> would apply, not just here.<\/p>\n

At one level, a Kyllo<\/a> argument seems a viable option in circumstances like those at issue in the Borowy<\/a> case because they are analogous to the circumstances at issue in Kyllo<\/a>, at least in one respect. <\/p>\n

In both instances, law enforcement captures information that is being broadcast from inside a home (the most sacrosanct \u201cplace\u201d for 4th Amendment purposes). The Kyllo<\/a> Court found, correctly IMHO, that the fact the officer was outside the home when he captured the heat signatures emanating from Kyllo\u2019s home did not prevent his actions from constituting a 4th Amendment search. Any other result would take us back to the bad old days when Olmstead<\/a> was the law. (As I\u2019ve noted in other posts, in Olmstead v. U.S.<\/a> the Supreme Court held it wasn\u2019t a search for federal agents to use a tap on a phone line outside Olmstead\u2019s home to listen in on his phone calls. The Supreme Court reversed Olmstead<\/a> in Katz<\/a>.)<\/p>\n

I\u2019m not, however, sure a viable Kyllo<\/a> argument is possible when it\u2019s directed at law enforcement\u2019s using P2P software to access files someone has made available for sharing online. Like other defendants who\u2019ve been caught because they were sharing child porn via P2P networks, Borowy claimed he didn\u2019t realize he was sharing files because he thought he\u2019d disabled the file-sharing feature. <\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

b2evALnk.b2WPAutP Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"","ping_status":"pingsdone","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"class_list":["post-3885","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/3885","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=3885"}],"version-history":[{"count":0,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/3885\/revisions"}],"wp:attachment":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=3885"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=3885"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=3885"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}