Feds Can Search, Seize P2P Files Without Warrant

Feds Can Search, Seize P2P Files Without Warrant

Wired

2010-02-20

The authorities do not need court warrants to view and download files traded on peer-to-peer networks, a federal appeals court says.

Wednesday’s 3-0 ruling by the 9th U.S. Circuit Court of Appeals concerned a Nevada man convicted of possessing child pornography as part of an FBI investigation. Defendant Charles Borowy claimed the Fourth Amendment required court authorization to search and seize his LimeWire files in 2007.

The San Francisco-based appeals court, however, cited the nation’s legal standard, reiterating that warrants are required if a search “violates a reasonable expectation of privacy.” (.pdf)

Borowy, the court noted, “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.”

The defendant, however, claimed he had a reasonable expectation of privacy because he thought he had turned off LimeWire’s share feature.

He was sentenced to 45 months in prison after pleading guilty to child-porn charges. The deal allowed him to appeal whether the search and seizure of his computer files was unlawful. Ultimately, a forensic examination conducted with a search warrant found 600 images of child pornography, as well as 75 videos on his computer or in his house.

He was nabbed when an FBI agent logged into LimeWire and searched using the keyword “Lolitaguy,” a term the court said was “known to be associated with child pornography.”

The agent used a proprietary software program that verified hash marks of files and displays a red flag next to known images of child pornography. The agent used LimeWire’s “browse host” feature and downloaded seven of 240 files being shared on Borowy’s IP address — four of which turned out to be child pornography.

The court’s decision was not the first word on the issue and won’t be the last.

Tens of millions of people use peer-to-peer services daily. LimeWire, one of many popular peer-to-peer programs, boasts 50 million monthly users.

And the same federal appellate circuit that considered Borowy’s case ruled similarly in 2008. The Supreme Court declined to review that decision.

Two other federal circuits, the 8th and 10th, have recently issued similar rulings. The 8th U.S. Circuit Court of Appeals’ 2009 opinion is on appeal to the Supreme Court.