March 25, 2010
Intellectual Property, Internet & E-Commerce Alerts

Impossible for LimeWire P2P User to Have Privacy Expectation

In a criminal prosecution on child pornography charges, a defendant recently attempted to suppress the use of evidence consisting of files downloaded from his computer (IP address), on the basis of Fourth Amendment protection against unreasonable government search and seizure.  In what is by no means the first decision on the subject, the Ninth Court of Appeals held that the defendant could not possibly have any objectively reasonable expectation of privacy in computer files shared on the peer-to-peer file-sharing service LimeWire, even though he had purchased and attempted to use a version of LimeWire which included a security feature to prevent others from downloading or viewing the names of files on his computer.  The court held that the use of this P2P file-sharing service rendered all of the shared files potentially open to public viewing by any other user of the service, i.e., the general public.  The defendant's limited technical savvy and subjective but incorrect belief he had any degree of privacy protection, confers no privacy interest nor any protection against the government's retrieval and use against him of files which could be identified as being shared from his computer.  (United States v. Borowy, 9th Circuit No. 09-10064, February 27, 2010)
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