In a case of first impression, a Fairfax Circuit Court says police use of a law enforcement search tool to monitor a peer-to-peer network and identify the IP address of a person who used the network to share child pornography did not implicate the Fourth Amendment; defendant had no reasonable expectation of privacy in use of the network.
In his motion to suppress, defendant argues the software used by the police to search the peer-to-peer network and identify his IP address without a warrant violates his right to privacy and is an unconstitutional search under the Fourth Amendment. This matter presents an issue of first impression in Virginia.
Here, defendant was allegedly sharing child pornography files which he had downloaded through a peer-to-peer network – eDonkey – to other users of that peer-to-peer network. The eDonkey network is open to the public and is comprised of millions of users. It is used for file-sharing. Defendant argues the warrantless use of the software to search this peer-to-peer network for child pornography is unconstitutional because this network is different from other peer-to-peer networks. In the eDonkey network each individual IP address cannot be identified by other network users. Also, the user does not control the fact that the files a user downloads on the network are shareable or that another user can search for and share these files while they are still downloading. On the other hand, the commonwealth argues that because defendant’s files of child pornography were available to any other user of the peer-to-peer network for downloading and viewing, he has no reasonable expectation of privacy under the Fourth Amendment.
Cases relied on by defendant only address physical intrusions or trespass on a defendant’s private property. Here, there was no physical intrusion. When the detective used the software program to monitor the peer-to-peer network of which defendant was a member, he did not gain access to any more portions of defendant’s computer than any other member of the peer-to-peer network. The detective was not able to access any other files on defendant’s computer; he was only able to access the folder with the files that defendant chose to share on the network. Defendant knew these files were available to the other millions of users on the network. In fact, defendant joined the peer-to-peer network in order to share files with the other users – the main purpose of the network. There was no physical intrusion by the detective – he did not enter defendant’s house, turn on defendant’s computer and search through his files. The detective only searched through files that defendant had made available to the public through the peer-to-peer network.
Simply put, why did defendant go onto a peer-to-peer network? He did so in order to share his downloaded files with others and to obtain files from others on the network. Could he have obtained child pornography without joining the peer-to-peer network? Of course he could have. He could have done so in the first instance before joining the peer-to-peer network. He did not have to share anything from his computer which he had downloaded directly. But he did so.
Could defendant have chosen to get out of the peer-to-peer network? Of course he could have. But he chose not to do so, and this decision was made at his own risk.
Motion to suppress is denied.
Commonwealth v. Do (Ney) No. FE 2012-1119 & 1120, June 4, 2013; Fairfax Cir.Ct.; Jessica Greis-Edardson, Ass’t Comm. Att’y; Nina Ginsberg for defendant. VLW 013-8-081, 11 pp.=