CA6: No reasonable expectation of privacy in hidden computer files still accessible by Limewire

Defendant had no reasonable expectation of privacy in his computer from police accessing it via Limewire when he was hooked up to the Internet. He did not create an expectation of privacy from his efforts to hide files on his computer. Warshak has no application to this situation. United States v. Conner, 521 Fed. Appx. 493 (6th Cir. 2013):

Warshak does not control this case because peer-to-peer file sharing is different in kind from e-mail, letters, and telephone calls. Unlike these forms of communication, in which third parties have incidental access to the content of messages, computer programs like LimeWire are expressly designed to make files on a computer available for download by the public, including law enforcement. Peer-to-peer software users are not mere intermediaries, but the intended recipients of these files. Public exposure of information in this manner defeats an objectively reasonable expectation of privacy under the Fourth Amendment. Katz v. United States, 389 U.S. 347, 351, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967) (“What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.”); see also California v. Greenwood, 486 U.S. 35, 40-41, 108 S. Ct. 1625, 100 L. Ed. 2d 30 (1988) (finding no reasonable expectation of privacy in “plastic garbage bags left on or at the side of a public street,” which are accessible by “members of the public” and left on the curb “for the express purpose of conveying [them] to a third party, the trash collector”).

Conner responds that he did not know the files he downloaded from LimeWire would be publicly accessible. To prove this point, he emphasizes efforts he made to keep these files private by moving them to compact disks and reinstalling his operating system on the computer to “wipe[] the hard drive clean.” But these efforts only prove that he was ineffective at keeping the files he downloaded from LimeWire from being detected. They do not establish that he was unaware of a risk of being discovered. As the Ninth Circuit observed when confronted with a similar argument, Conner’s “subjective intention not to share his files d[oes] not create an objectively reasonable expectation of privacy in the face of [the] widespread public access” to his files LimeWire created. United States v. Borowy, 595 F.3d 1045, 1048 (9th Cir. 2010) (rejecting Fourth Amendment privacy claim of defendant who unsuccessfully attempted to use LimeWire’s privacy features “to prevent others from downloading or viewing the names of files on his computer”).

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