Can police search your computer via Peer-to-Peer Networks?

The Fourth Amendment gives people a right against unreasonable searches and seizures:

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.

Given this language, what protections are afforded to people who are participating in peer-to-peer sharing networks, such as BitTorrent, LimeWire, GigaTribe, and other services. The answer is: not many.

In U.S. v. Katz, the Supreme Court set out the general principle that a search only occurs when 1) a person expects privacy and 2) society believes that expectation is reasonable. The key prong is whether the expectation of privacy is “reasonable.”

As CYB3RCRIM3, a blog on technology and the law notes, the United States Supreme Court has consistently and repeatedly held that no search occurs where police may be using peer-to-peer technologies or file-sharing software to peer into your computer to see what may be on there. That’s because given that you are sharing the contents or some of the contents of your computer with the world, you have given up your expectation of privacy.

Even where you have taken measures to block certain access, if police are able to evade those firewalls or blocks by using the file-sharing or peer-to-peer software to look into your computer, such police actions do not constitute searches.

CYB3RCRIM3 notes that in a recent Federal District Court opinion (WL 010 WL 14427523) from Massachusetts, the court denied a challenge to the search warrant, which was predicated on a police officer’s warrantless look into a computer through file-sharing technology, by saying that because the Defendant, David Ladeau, had installed Gigatribe and, by doing so, enabled the sharing of information and filing on his computer with other Gigatribe users.

The Court wrote:

No matter how strictly Ladeau controlled who accessed his . . .files, he had no control over what those people did with information about the files once he granted them access. . . . .Once Ladeau turned over the information about how to access the network to a third party, his expectation of privacy in the network became objectively unreasonable. Because the files he claims were private were made available to anyone on the network, his expectation of privacy in those files was also objectively unreasonable. Ladeau bore the risk that any person who had access to his Gigatribe network would provide information to the police about illegal acts occurring on the network. As a consequence, he also bore the risk that such a person would enable the police to access the network and download any files Ladeau made available for download….

Anyone using file sharing software – from LimeWire to Gigatribe to BitTorrent – should be aware that they have given up any expectation of privacy, and that police have free run to look into one’s computer.

Damon Chetson

Damon Chetson is a Board Certified Specialist in State and Federal Criminal Law. He represents people charged with serious and minor offenses in Raleigh, Wake County, and the Eastern District of North Carolina. Call (919) 352-9411.