Metropolitan News-Enterprise


Thursday, February 18, 2010


Page 1


Panel Upholds Warrantless Search of Shared Computer Files


By SHERRI M. OKAMOTO, Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday declined to suppress images of child pornography obtained without a warrant through a publicly available peer-to-peer file sharing computer program.

In a per curiam decision, the appellate panel concluded that an FBI agent’s use of the LimeWire network to download and view files from Charles Borowy’s IP address was not an unconstitutional search and seizure.

According to Lime Wire LLC’s website, the company created the world’s most popular peer-to-peer file sharing application after its founding in 2000. The company claimed that LimeWire has over 70 million unique monthly users and approximately 5 million active users at any given moment.

Special Agent Byron Mitchell said that he logged onto LimeWire on May 3, 2007, and conducted a keyword search using the term “Lolitaguy,” which was known to be associated with child pornography.

From the list of results returned, Mitchell said he identified known images of child pornography using a software program that verifies the “hash marks” of files and displays a red flag next to known images of child pornography. At least one of these files was shared through Borowy’s IP address.

Child Pornography

Using the “browse host” feature of LimeWire, Mitchell explained that he was able to view a list of the names of all of the approximately 240 files being shared from Borowy’s IP address, several of which were explicitly suggestive of child pornography.

Mitchell testified that he downloaded seven files from Borowy’s IP address in order to view them and four contained child pornography.

A search warrant based on Mitchell’s investigation was later executed, which resulted in the seizure of Borowy’s laptop computer, various CDs, and floppy disks. These items contained more than 600 images of child pornography, including 75 videos.

Borowy moved to suppress all of the evidence, arguing that he had a reasonable expectation of privacy in the files since he had purchased and installed a version of LimeWire that allows a user to prevent others from downloading or viewing the names of files on his computer.

He claimed that he had attempted to utilize this feature, but it had not been engaged when Mitchell downloaded the seven files from his computer because rebooting the computer caused it to reset to its default setting of sharing files.

U.S. District Judge Larry R. Hicks of the District of Nevada declined to grant Borowy’s motion, finding Mitchell’s conduct was not a search under the Fourth Amendment. He further found the agent had probable cause to download the files from Borowy’s computer.

Guilty Plea

Borowy then conditionally pleaded guilty to possession of child pornography under 18 U.S.C. § 2252A(a)(5)(B), reserving his right to appeal the suppression decision.

The appellate panel concluded that the search and seizure issue was controlled by United States v. Ganoe, (2008) 538 F.3d 1117, which held that a defendant’s expectation of privacy in his personal computer could not survive his decision to install and use file-sharing software which opened his computer to anyone else with the same program.

 Although Borowy claimed his situation was distinguishable because he had made an effort to prevent sharing of his files, the panel reasoned that 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.

Privacy Expectation

“Borowy’s files were still entirely exposed to public view; anyone with access to LimeWire could download and view his files without hindrance,” the court said. “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.”

The court added that the software utilized by Mitchell, which was not available to the general public, functioned “simply as a sorting mechanism to prevent the government from having to sift, one by one, through Borowy’s already publicly exposed files,” and was not an unlawful Fourth Amendment search itself.

As for Borowy’s argument that Mitchell’s actions in downloading the seven files were an illegal seizure, the panel concluded that the agent had probable cause to do so since the file names for at least five of the files were explicitly suggestive of child pornography.

The panel, consisting of Judges Betty B. Fletcher, William C. Canby Jr., and Susan P. Graber, also declined to vacate Borowy’s guilty plea based on his being misinformed as to the term of supervised release to which he was subject, concluding that Borowy’s substantial rights had not been affected by the error.

The case is United States v. Borowy, 09-10064.


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