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Name: United States v. Borowy
Case #: 09-10064
Court: US Court of Appeals
District 9 Cir
Opinion Date: 02/17/2010

Despite defendant’s subjective intent to prohibit file sharing, he did not have a reasonable expectation of privacy where computer files were shared with the public. Special Agent Mitchell logged on to LimeWire, a publicly available peer-to-peer file-sharing computer program, to monitor trafficking in child pornography. At least one of the files he discovered was later determined to be Borowy’s IP address and was explicitly suggestive of child pornography. Agent Mitchell then downloaded and viewed seven files from Borowy’s IP address, four of which were child pornography. Prior to downloading the files, Mitchell did not have access to their contents. Execution of a search warrant led to seizure of Borowy’s laptop, CDs and floppy disks, revealing more than six hundred images of child pornography, including videos. The district court denied Borowy’s motion to suppress the evidence, finding that Mitchell’s conduct was not a search, and that he had probable cause to download the files. The appellate court affirmed. Whether Agent Mitchell engaged in an unconstitutional search and seizure is largely controlled by United States v. Ganoe, which held that the defendant’s expectation of privacy in his personal computer could not survive his decision to install and use file-sharing software. Borowy had argued that his case was distinguishable from Ganoe because he made an ineffectual effort to prevent LimeWire from sharing his files; that although his “technical savvy” failed him, he intended to render the files private. However, despite Borowy’s efforts, his files were still exposed to public view and anyone with access to LimeWire could download and view them. Therefore, he lacked a reasonable expectation of privacy in the shared files. Agent Mitchell had probable cause to download the files because the file names were suggestive of child pornography.