Feb 192010
 February 19, 2010  Posted by  Court, Featured News, Online

Computer users who sign up for peer-to-peer file-sharing programs don’t have a privacy right to be shielded from FBI probes, according to a federal appeals court ruling in San Francisco today.

The 9th U.S. Circuit Court of Appeals upheld the child pornography possession conviction of a Nevada man who was prosecuted after an FBI agent found he was sharing pornography files on the Internet.

The defendant, Charles Borowy, participated in LimeWire, a popular file-sharing program. LimeWire, established in New York 10 years ago, says it has 70 million users per month.
LimeWire has a privacy feature, but Borowy had not installed it.

Read more on SF Appeal. The court’s opinion can be found here.

From the court’s opinion:

[2] Borowy argues that his case is distinguishable from Ganoe because of his ineffectual effort to prevent LimeWire from sharing his files. However, as in Ganoe, “[t]he crux of [Borowy’s] argument is that he simply did not know that others would be able to access files stored on his own computer” and that, although Borowy intended to render the files private, his “technical savvy” failed him. Ganoe, 538 F.3d at 1127. 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. See id.; see also United States v. Heckenkamp, 482 F.3d 1142, 1147 (9th Cir. 2007 ) (“[P]rivacy expectations may be
reduced if the user is advised that information transmitted through the network is not confidential and that [others] may monitor communications transmitted by the user.”). Despite his efforts, Borowy’s files were still entirely exposed to public view; anyone with access to LimeWire could download and view his files without hindrance. 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. See Ganoe, 538 F.3d at 1127; United States v. King, 509 F.3d 1338, 1341-42 (11th Cir. 2007) (per curiam). Because Borowy lacked a reasonable expectation of privacy in the shared files, Agent Mitchell’s use of a keyword search to locate these files did not violate the Fourth Amendment.

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