YNOT – Warrantless searches of computer files are acceptable under the U.S. Constitution, at least in some cases, two courts on opposite coasts ruled in mid-February.A New York state judge’s decision found internet service providers exempt from search warrant requirements because ISPs are not official agents of the government. On the same day, the U.S. Court of Appeals for the Ninth Circuit in California upheld an FBI agent’s remote warrantless search of a suspect’s files, saying when the suspect made the files available via a peer-to-peer network he gave up any expectation of privacy.
In the New York case, Jason Eames faced 10 counts of child exploitation after his ISP forwarded suspicious emails and video clips to the National Center for Missing and Exploited Children. NCMEC subsequently notified authorities. Eames sought to quash the evidence under the Fourth Amendment’s prohibition against unreasonable searches and seizures, but Manhattan Supreme Court Justice Rena K. Uviller denied the motion. In her decision, she noted that federal laws requiring ISPs to report child pornography do not automatically make government shills of private corporations.
“The federal statute does not require [America Online, Eames’ ISP], or any other internet provider, to monitor their subscribers’ transmissions or to search their content,” Uviller wrote. “It is only required to notify NCMEC if it detects such materials.”
Reports do not indicate how AOL became aware of the content of Eames’ communications.
The Ninth Circuit case also centered on child porn. In that case, the FBI used evidence downloaded during an agent’s warrantless snooping over P2P network LimeWire to obtain a search warrant for Charles Borowy’s laptop computer and peripheral storage media. Special Agent Byron Mitchell was able to download four child-porn images from Borowy’s ISP-assigned internet protocol address; the subsequent physical search yielded more than 600 obscene images and videos in his home. Borowy, whose LimeWire user name was “Lolitaguy,” sought Fourth Amendment suppression of all the evidence based on the LimeWire-assisted search.
Borowy pleaded guilty to child pornography possession in U.S. District Court in Nevada after the judge refused to grant a motion to suppress. The defendant then took the case to the appellate court with the same argument. The Ninth Circuit panel likewise denied the suppression request, ruling Borowy was aware of the file-sharing purpose of LimeWire, even though Borowy claimed he had taken steps to keep private the illegal images.
“Borowy’s files were still entirely exposed to public view; anyone with access to LimeWire could download and view his files without hindrance,” the panel noted in its decision. “Borowy’s subjective intention not to share his files did not create an objectively reasonable expectation of privacy in the face of such widespread public access.”
In addition, the panel noted, the FBI agent had probable cause to download Borowy’s files because their names were explicitly evocative of child exploitation.
