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

August 14, 2009. 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.