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August 17, 2009, Alert No. 1,977.
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7th Circuit Affirms Dismissal of Challenge to Ordinance Requiring Cell Phones in Cars to be Hands Free

8/13. The U.S. Court of Appeals (7thCir) issued its opinion in Schor v. Chicago, affirming the District Court's dismissal of the complaint for failure to state a claim.

Gayle Schor and the other plaintiffs were ticketed by City of Chicago police for violating Chicago's municipal ordinance prohibiting the use of wireless telephones without a hands free device while driving a motor vehicle.

They filed a complaint in the U.S. District Court (NDIll) alleging violation of their federal Constitutional rights under the 4th Amendment and the 14th Amendment's Equal Protection clause. They also pled various state law claims. They sought declaratory and injunctive relief, and class certification.

The District Court dismissed the complaint. It also denied the plaintiffs' motion to amend their complaint to add claims for void for vagueness, and interference with a Constitutional right to travel.

The Court of Appeals affirmed the District Court in full in a brief opinion. It wrote that "this case has no legs whatever".

This case is Gayle Schor, et al. v. City of Chicago, et al., U.S. Court of Appeals for the 7th Circuit, App. Ct. No. 08-2837, an appeal from the U.S. District Court for the Northern District of Illinois, Eastern Division, D.C. No. 07 C 7119, Judge Ruben Castillo presiding. Judge Wood wrote the opinion of the Court of Appeals, in which Judges Manion and Rovner joined.

8th Circuit Rules There is No Expectation of Privacy in P2P Files

8/14. The U.S. Court of Appeals (8thCir) issued its opinion [35 pages in PDF] in USA v. Stults, affirming a criminal conviction that was based upon an FBI agent's search of LimeWire shared files on the defendant's computer. The Court of Appeals held that there is no reasonable expectation of privacy, in the context of the 4th Amendment, in files shared through the peer to peer, or P2P, program LimeWire.

Introduction. The 4th Amendment provides in full that "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The Supreme Court has held, particularly in its landmark landmark 1967 opinion in Katz v. U.S., 389 U.S. 347, that the 4th amendment requires a court issued warrant when there is a "constitutionally protected reasonable expectation of privacy".

Former Justice Harlan elaborated that "there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ``reasonable." (Parentheses in original.)

There is nothing inconsistent with traditional 4th Amendment analysis in this opinion, to the extent that it applies to files shared with the world over a P2P system. However, it may be notable that this opinion fails to clarify that this holding does not apply to private P2P software. The opinion does discuss or distinguish private P2P based software, such as Microsoft Office Groove 2007, which can be used, with expectations of privacy and secrecy, to increase productivity and efficiency in legitimate commercial collaborations.

There is thus the possibility that the FBI and other government agencies will rely upon this and similar cases involving publicly shared P2P files as authority for the proposition that if they can gain access to private P2P systems, then they can search files thereon without a warrant, and introduce evidence obtained thereby in court.

Background and District Court Proceeding. The FBI searched for people who use their computers to view child pornography (CP) by examining shared filed on P2P networks, including LimeWire. The Court of Appeals wrote that "P2P file sharing can be used to share child pornography and trade digital files containing images of child pornography."

In connection with the present case, the FBI found a few pictures in the nature of CP on one node of LimeWire. However, this provided the FBI with only an internet protocol (IP) address associated with that user. The FBI obtained from the internet service provide, Cox Communications, account information, including the name (Harold Stults) and address, of the user of that IP address.

The government then obtained a search warrant to search Stults' house. It seized both computer equipment and storage media. It found a larger amount of digital CP. A grand jury returned an indictment charging Stults with violation of 18 U.S.C. 2252(a)(4)(B) -- CP possession.

Stults moved to suppress the evidence seized in the search of his house on the grounds that it was conducted pursuant to a warrant issued on the basis of the FBI's warrantless search of his shared LimeWire files.

The District Court denied the motion to suppress. Conviction followed. Stults brought the present appeal.

Court of Appeals Opinion. The Court of Appeals affirmed.

It wrote that "Several federal courts have rejected the argument that an individual has a reasonable expectation of privacy in his or her personal computer when file-sharing software, such as LimeWire, is installed."

The Court of Appeals cited the 9th Circuit's 2008 opinion [19 pages in PDF] in USA v. Ganoe, 538 F.3d 1117, the 10th Circuit's 2007 opinion [8 pages in PDF] in USA v. Barrows, 481 F.3d 1246, and several District Court opinions.

The Court of Appeals held that "Stults had no reasonable expectation of privacy in files that the FBI retrieved from his personal computer where Stults admittedly installed and used LimeWire to make his files accessible to others for file sharing."

Ganoe and Barrows. The 9th Circuit wrote in Ganoe that "Although as a general matter an individual has an objectively reasonable expectation of privacy in his personal computer, see United States v. Heckenkamp, 482 F.3d 1142, 1146 (9th Cir. 2007), we fail to see how this expectation can survive Ganoe's decision to install and use file-sharing software, thereby opening his computer to anyone else with the same freely available program." See also, the 9th Circuit's opinion [13 pages in PDF] in Heckenkamp, and story titled "9th Circuit Constrains Computer Privacy" in TLJ Daily E-Mail Alert No. 1,563, April 10, 2007.

The 9th Circuit continued in Ganoe that "The crux of Ganoe's argument is that he simply did not know that others would be able to access files stored on his own computer. But he knew he had file-sharing software on his computer; indeed, he admitted that he used it -- he says to get music. Moreover, he was explicitly warned before completing the installation that the folder into which files are downloaded would be shared with other users in the peer-to-peer network. Ganoe thus opened up his download folder to the world, including Agent Rochford. To argue that Ganoe lacked the technical savvy or good sense to configure LimeWire to prevent access to his pornography files is like saying that he did not know enough to close his drapes. Having failed to demonstrate an expectation of privacy that society is prepared to accept as reasonable, Ganoe cannot invoke the protections of the Fourth Amendment."

But, the 9th Circuit did not consider 4th Amendment protection of private P2P systems in Ganoe.

The 10th Circuit's Barrows case was based on somewhat different facts. The defendant owned a computer, which he took to work, and left on at all times. A co-worker with some knowledge of computers (who also happened to be a police officer) sat down at his computer to try to resolve a problem with networked computers. He noticed a P2P program, and CP files. Further searching was done pursuant to warrant. The Court of Appeals held that the original search did not violate the 4th Amendment. One reason for the Court's holding was the defendant's "failure to password protect his computer".

The 10th Circuit opinion does not reference private P2P software.

Private P2P. The just released opinion of the 8th Circuit is 35 pages long. Nevertheless, it fails to include any statement that the holding is limited to open P2P systems in which anyone who installs the P2P software can access shared files on the computer of anyone else with the same software installed.

There exists a wide range of software that is either based on P2P technology, or operates likes P2P software, that enables closed groups of users to privately create, share, and edit files, and communicate. These programs may employ strong security, such as passwords and/or encryption. Programs such as Microsoft's Office Groove 2007 enable widely dispersed persons who work for different companies, government agencies, and/or organizations to collaborate online, including in document creation.

Other applications that enable private peer to peer, or friend to friend, file sharing include Turtle F2F and Gazerra.

Many federal statutes that protect privacy in the context of information and communications technologies contain exceptions for law enforcement and intelligence agencies. See, for example, 18 U.S.C. 1030(f). Such exceptions facilitate government access to private P2P systems. The 4th Amendment is different: it limits only governmental activity. In some situations, it could operate as the only potential limitation upon governmental searches of private P2P files.

This case is USA v. Harold Stults, U.S. Court of Appeals for the 8th Circuit, App. Ct. No. 08-3183, an appeal from the U.S. District Court for the District of Nebraska, Judge Joseph Bataillon presiding. Judge Smith wrote the opinion of the Court of Appeals, in which Judge Colloton and Riley joined.

In This Issue
This issue contains the following items:
  7th Circuit Affirms Dismissal of Challenge to Ordinance Requiring Cell Phones in Cars to be Hands Free
  8th Circuit Rules There is No Expectation of Privacy in P2P Files
  8th Circuit Affirms Denial of Telecom Tower Construction Permit
  More Court Opinions
8th Circuit Affirms Denial of Telecom Tower Construction Permit

8/6. The U.S. Court of Appeals (8thCir) issued its divided opinion [13 pages in PDF] in Sprint Spectrum v. Platte County, a 47 U.S.C. 332 telecom tower construction case.

Platte County, Missouri, denied cell phone service provider Sprint Spectrum permission to build a telecommunications tower. The relevant statute provides, among other things, that "Any decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record."

The Court of Appeals wrote that, in denying permission, Platte County issued a "four-page document" that "set forth several reasons for denial of the application, including conclusions that the tower would have a negative effect on property values and would ``dominate the immediate neighborhood so as to prevent development and use of neighboring property."

Nevertheless, Sprint argued that this satisfied neither the "in writing" nor "supported by substantial evidence" requirements. Sprint filed a complaint in the U.S. District Court (WDMo) alleging violation of Section 332.

The District Court granted summary judgment to Platte County. This appeal followed. The Court of Appeals affirmed.

Judge Bye wrote in dissent that the written decision "simply mirrored the first four of seven general standards listed in the Platte County Code", and "that because the "decision is not specific as to which of the general standards the tower transgressed, a reviewing court is left to speculate as to the real reason or reasons for the Commission's decision".

This case is Sprint Spectrum v. Platte County, U.S. Court of Appeals for the 8th Circuit, App. Ct. No. 08-1965, an appeal from the U.S. District Court for the Western District of Missouri. Judge Colloton wrote the opinion of the Court of Appeals, in which Judge Gruender joined. Judge Bye dissented.

More Court Opinions

8/13. The U.S. Court of Appeals (7thCir) issued its opinion in USA v. Daniel, affirming a conviction for violation of 18 U.S.C. 2442(b), which forbids knowingly enticing someone under the age of 18 to engage in sex. The defendant, James Daniel, communicated in an internet chat room with three undercover Indiana police officers pretending to be minor girls. The government prosecuted Daniel for requesting that one communicant meet him for sex. The government introduced as evidence at trial the transcripts of all three chats. However, it only disclosed that one was with an undercover officer. Daniel appealed. The Court of Appeals affirmed the conviction. It held that the withheld evidence was immaterial. The Court also reasoned that the withholding was harmless error because the other two chats were introduced for the purpose of showing intent, motive, and absence of mistake. This case is USA v. James Daniel, U.S. Court of Appeals for the 7th Circuit, App. Ct. No. 08-2672, an appeal from the U.S. District Court for the Northern District of Indiana, Hammond Division, D.C. No. 2:06-CR-165, Judge Rudy Lozano presiding.

8/12. The U.S. Court of Appeals (5thCir) issued its opinion [13 pages in PDF] in Fener v. Belo Corporation, affirming the District Court's denial of class certification. Todd Fener filed a complaint in the U.S. District Court (NDTex) against the Belo Corporation, which owns the Dallas Morning News (DMN), and several individuals alleging that they engaged in a fraudulent scheme designed to inflate the DMN's circulation artificially in the face of a nationwide downward trend in newspaper circulation. This case is Todd Fener, et al. v. Belo Corporation, et al., U.S. Court of Appeals for the 5th Circuit, App. Ct. No. 08-10576, an appeal from the U.S. District Court for the Northern District of Texas.

8/7. The U.S. Court of Appeals (2ndCir) issued its opinion [14 pages in PDF] in In the Matter of the Application of the New York Times Company to Unseal Wiretap & Search Warrant Materials. The Court of Appeals reversed the order of the U.S. District Court (SDNY) granting the New York Times' application to access sealed wiretap applications relating to the investigation of the prostitution business that provided service to Elliot Spitzer. The Court of Appeals held that the NYT is not entitled to the applications under either the Wiretap Act, or the First Amendment.

Washington Tech Calendar
New items are highlighted in red.
Monday, August 17

The House will not meet. It will return from its August recess on September 8.

The Senate will not meet. It will return from its August recess on September 8.

Tuesday, August 18

6:00 PM. Deadline to submit applications to the Federal Communications Commission (FCC) to participate in Auction 86. See, notice in the Federal Register, July 30, 2009, Vol. 74, No. 145, at Pages 38018-38033. Auction 86 pertains to licenses for unassigned Broadband Radio Service (BR) spectrum. This auction is scheduled to begin on October 27, 2009.

Wednesday, August 19

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking regarding reinstating an exemption for 4.9 GHz band applications from coordination via a certified frequency coordinator. This item is FCC 09-29 in WP Docket No. 07-100. See, notice in the Federal Register, May 21, 2009, Vol. 74, No. 97, at Pages 23816-23822.

Thursday, August 20

1:00 - 2:30 PM ET. The American Bar Association will host a panel discussion by teleconference and webcast titled "Upgrade to Outlook 2007 and Upgrade Your Client Retention". See, notice. Prices vary.

Friday, August 21

Deadline to submit comments to the National Telecommunications and Information Administration (NTIA) in response to its Notice of Inquiry (NOI) regarding implementation of the Commercial Spectrum Enhancement Act (CSEA) and relocation of federal systems in the 1710-1755 MHz band. See, notice in the Federal Register, July 7, 2009, Vol. 74, No. 128, at Pages 32131-32138.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding authorizing channels with bandwidths of as much as 30 MHz in the 6525-6875 MHz band, and allowing conditional authority on additional channels in the 21.8-22.0 GHz and 23.0-23.2 GHz band. The FCC adopted and released this NPRM [22 pages in PDF] on June 29, 2009. It is FCC 09-58 in WT Docket No. 09-114 and RM 11417. See, notice in the Federal Register, July 22, 2009, Vol. 74, No. 139, at Pages 36134-36139.

Monday, August 24

Deadline to submit comments to the Department of Homeland Security's (DHS) U.S. Citizenship and Immigration Services (USCIS) regarding "the E-Verify Program Designated Agent Process under which a participating employer may choose to outsource submission of employment eligibility verification queries for newly hired employees to a Designated Agent". See, notice in the Federal Register, June 23, 2009, Vol. 74, No. 119, at Page 29711.

Tuesday, August 25

6:00 - 9:15 PM. The DC Bar Association will host an event titled "How to Recognize Critical Software Intellectual Property Issues in Everyday Practice". The speakers will be David Temeles (Bean Kinney & Korman) and Todd Trivett (Jeff Parmet & Associates). The price to attend ranges from $89 to $129. Most DC Bar events are not open to the public. See, notice. Location: DC Bar Conference Center, 1101 K St., NW.

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) regarding complaints concerning invention promoters and responses from the invention promoters to these complaints. See, notice in the Federal Register, June 26, 2009, Vol. 74, No. 122, at Pages 30528-30529.

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