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Are Government Peer-to-Peer Software Searches Constitutional?

By Martha L. Arias

Cybercrime is rising and so are government computer searches. This is because when cybercriminals find new ways to conduct their activities, governments have to find new avenues to gather computer evidence. For instance, in certain cases United States law enforcement agents use peer-to-peer software to extract evidence from criminals' computers; this requires especial software and Internet connection at both ends.  Defendants have alleged violation of their constitutional rights and moved to suppress evidence gathered through this technique, but courts, almost unanimously, have held that these searches are constitutional; that is, they do not violate the Fourth Amendment to the United States (U.S.) Constitution.

The Fourth Amendment to the United States Constitution protects individuals against unreasonable search and seizures. It gives people the right to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures.  To this effect, it requires probable cause and an oath of affirmation describing the place to be searched and the persons and things to be seized when a warrant order is issued.  U.S. case law requires that a defendant alleging Fourth Amendment violations must prove that there is a reasonable expectation of privacy in the place searched or the thing seized.  Several circuit court tests have emerged to determine whether a reasonable expectation of privacy exists in a particular case.  The U.S. Court of Appeals for the 10^th Circuit, for instance, has held that defendant"s claim of reasonable expectation of privacy involves two inquires:   first, the defendant must show a subjective expectation of privacy in the area searched, and second, that subjective expectation of privacy is one that the society is prepared to recognized as reasonable. In other words, this court holds that one's expectation of privacy from the government intrusion is reasonable in light of all surrounding circumstances.   

U.S. v. Brese, case No. CR-08-52-D, District Court for the Western District of Oklahoma (2008), is a good example of a court's interpretation of Fourth Amendment claims when peer-to-peer software is used to gather evidence. In Brese, law enforcement agents accessed Brese's computer files by using peer-to-peer computer software called LimeWire.  Law enforcement agents suspected Brese had illegal pornographic files in his computer; thus, through a function that LimeWire offers, they searched for these files, found them and downloaded them to confirm their wary.  Afterward, law enforcement agents used an administrative subpoena to obtain the identity of the person associated to the Internet Protocol (IP) address where the computer was located.  A warrant order was obtained for defendant's home where he lived with other relatives.  On trial, defendant moved to suppress the evidence obtained through the peer-to-peer software alleging Fourth Amendment violation by the government. 

The government opposed suppression of this evidence.  They claimed the file-sharing function was not disabled and anyone with an Internet connection could have accessed the files in defendant's computer.  The government explained that the software allows direct connection via Internet between two computers that share files with anyone who uses compatible peer-to-peer software.  The government cited two similar peer-to-peer software cases where the court ruled that they do not violate the Fourth Amendment to the United States Constitution: United States v. Shafer, 472 F.3d 1219, 1221-22 (10th Cir. 2007) and United States v. Perrine, No. 06-3336, 518 F.3d 1196, 2008 (10th Cir. March 11, 2008).

The court in Brese held that despite defendant's subjective expectation of privacy in his computer files, this expectation was not reasonable because anyone with an Internet connection using LimeWire or compatible software could have accessed defendant's files.   Therefore, the court found that the government did not violate defendant's constitutional right because there was no reasonable expectation of privacy in his file-sharing files.

Full post as published by IBLS Internet Law Blog on June 07, 2009 (boomark / email).