By Katherine Mannion, Staff Writer
The internet is large, powerful, and still growing. It permits communication across the world, from breaking news to benign updates. As the capabilities of the internet continue to grow, however, it also becomes easier to use it for nefarious purposes. From here, the courts need to make more decisions regarding the breadth of the power of warrantless searches.
In 2015, Justin Landry was arrested in Louisiana for allegedly having child pornography on his computer.[1] When arrested, all of his files were attached to a BitTorrent account.[2] BitTorrent is one of the most popular file sharing systems for large amounts of data in the world. It permits users to share files on a peer-to-peer network by essentially creating files that belong to everyone and no one all at once.[3] There is no centralized server; everyone who uses the service hosts pieces of the files.[4] It is often used to share video files and livestream events, such as hockey games, concerts, or other similar events that are otherwise inaccessible without a subscription.[5]
While this P2P network creates new opportunities to share information and relatively harmless files, it also creates opportunities for people like Landry to take advantage of a server-free, shared network for illegal activities. When Landry was being investigated, the detective on his case searched files on BitTorrent using software called Torrential Downpour; it allows users to isolate the identity of a source, even if the file has been split into pieces.[6] The software searches all public files or those files that users have chosen to share with others.[7] Using this tool, detectives found Landry’s numerous inappropriate photos and videos.[8] Landry made a motion to suppress the evidence found in this search — claiming that the search extended beyond publicly available files, thus violating his Fourth Amendment rights.[9]
The U.S. District Court for the Middle District of Baton Rouge denied this motion to suppress, stating that files that are voluntarily placed in the “shared” folder on P2P networks are considered publicly available; thus, the detective could search them using Torrential Downpour without violating the right against unlawful search and seizure.[10] This is not the first time a court has ruled this way. In U.S. v. Maurek, the U.S. District Court for the Western District of Oklahoma found that publicly shared folders do not have a reasonable expectation of privacy under a theory called the “third party doctrine.”[11] This doctrine states that there is no expectation of privacy for data shared with a third party, including internet providers, cell phone companies, and, now, BitTorrent networks.[12]
In the modern computer age — when users are placing countless amounts of information on the internet, in the cloud, or on various sharing services to prevent it from disappearing in the event of hardware damage — police have a right to search anything publicly available or shared with internet providers simply because it has been shared with a third party. Information put on the internet every day could be accessed and used as evidence without a warrant.
It is yet to be seen if this approach to BitTorrent and other sharing platforms will be widely adopted by the courts. But this does open the door to law enforcement having near limitless power to search what has been shared on the internet without basic legal standards like probable cause or reasonable suspicion. This could pose numerous dangers for the security and privacy of those who use the internet, regardless of whether they have committed a crime.
Sources
[1] http://www.wbrz.com/news/prairieville-man-arrested-after-selling-child-porn-to-undercover-detective/
[2] U.S. v. Landry, https://www.documentcloud.org/documents/3514396-document-14925187.html
[3] https://motherboard.vice.com/en_us/article/bittorrent-pirates-dilemma-matt-mason-interview.
[4] Id.
[5] Id.
[6] U.S. v. Landry, https://www.documentcloud.org/documents/3514396-document-14925187.html.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] U.S. v. Maurek, 131 F.Supp.3d 1258 (2015); https://fas.org/sgp/crs/misc/R43586.pdf
