D.Mass.: BitTorrent software still subject to third-party doctrine despite its technical sophistication

Defendant claims that BitTorrent downloading is so sophisticated that the third-party doctrine of Smith and Miller should not apply. The court takes the argument seriously but rejects it. Carpenter doesn’t undermine the third-party doctrine, and the motion to suppress is denied. United States v. Carme, 2020 U.S. Dist. LEXIS 106465 (D. Mass. June 17, 2020):

At bottom, what Carme is urging is an extension of Carpenter’s expanded privacy protections to include software enabling the sharing of child pornography through a technology more difficult to detect than traditional P2P file sharing. As no one person could plausibly keep track of the entirety of a person’s movements over time as reflected in compiled CSLI data, Carme argues that because no one could see an entire file on his BitTorrent site, but only “a small piece of the file,” this court should “recognize that the aggregation of information might be covered by a reasonable expectation of privacy, even though each particular discrete set of data on its own would not.” Def.’s Resp. at 13.

To embrace Carme’s argument would require this court to essentially overrule the third-party exposure doctrine and the array of circuit cases holding (consistent with longstanding Supreme Court precedent), that “[a]n individual does not have an expectation of privacy in items or places he exposes to the public.” United States v. Bucci, 582 F.3d 108, 117 (1st Cir. 2009). More specifically, this court would be required to overrule (or substantially mangle) United States v. Morel, 922 F.3d 1 (1st Cir. 2019), in which the identical “Carpenter .. effected a sea change” argument was raised and rejected. Id. at 8. As the First Circuit noted in Morel, “Carpenter did not announce a wholesale abandonment of the third-party doctrine.” Id. at 8; see also United States v. Hood, 920 F.3d 87, 91 (1st Cir. 2019) (a computer user has no reasonable expectation of privacy in his IP address). Rewriting circuit law is simply beyond the power or the competence of this court. See United States v. Moore-Bush, 2020 WL 3249060 at *1 (1st Cir. June 16, 2020) (“The argument made in support of the district court’s suppression order [of evidence gathered from pole camera surveillance] is that the logic of the opinion in Carpenter should be extended to other technologies and other Fourth Amendment doctrines, and that this extension provides a basis to overturn this circuit’s earlier precedent …. Nothing in Carpenter’s stated ‘narrow’ analysis triggers [an exception] to the law of the circuit doctrine.”).