6th Circuit declines to extend Warshak reasoning to P2P

In a recent unpublished opinion, the Sixth Circuit held that its 2010 opinion in Warshak should not be extended to provide a reasonable expectation of privacy for users sharing files over Limewire. United States v. Conner, No. 12-3210 (6th Cir. 2013).

The defendant was convicted of receipt and possession of child pornography after law enforcement tracked the sharing of child pornography images on Limewire to him. A sheriff's deputy had searched for file names associated with child pornography, and found the defendant's IP address sharing them over the peer-to-peer (P2P) network.

On appeal, the defendant argued that the Sixth Circuit's decision in United States v. Warshak made the "search" of his computer a violation of the Fourth Amendment. In Warshak, the Sixth held that it was a violation of the Fourth Amendment for the government to compel Warshak's ISP to produce his emails without obtaining a search warrant with a showing of probable cause. The e-mails were obtained under the Stored Communications Act, which the Sixth Circuit therefore declared unconstitutional as it relates to this issue.

As for the search conducted on Limewire in the present case, however, the Sixth didn't buy the defendant's argument. The issue was whether P2P sharing "is different in kind from e-mail," and the court decided it was:

Unlike these forms of communication, in which third parties have incidental access to the content of messages, computer programs like LimeWire are expressly designed to make files on a computer available for download by the public, including law enforcement. Peer-to-peer software users are not mere intermediaries, but the intended recipients of these files.

The defendant attempted to argue that he did not know the files would be publicly available, but the court also found that the record proved otherwise. He had made multiple attempts to keep the files private, but the court held that the failure only showed he was "ineffective at keeping [them] ... from being detected" and not that "he was unaware of a risk of being discovered."