This isn’t a post. It’s essentially a response to an email.
This morning, I received an email from someone who had heard about law enforcement’s using a program called Peer Spectre. The email said the author had heard about the program which, according to reports from some source(s), lets law enforcement officers
see what files are on a suspect's hard drive even if they have file sharing turned off. It apparently does this by scanning a file in the P2P configuration which shows which files have been downloaded through the program.
The email’s author thought this might have 4thAmendment implications, particularly with respect to the Kyllo issue I addressed in a post I did earlier this year.
Not having heard of Peer Spectre, I couldn’t reply knowledgeably to the email, but said I’d look into it and see if I could post something that would either help address this issue or maybe prompt responses from knowledgeable people who could address the issue.
I did some Google searches and found a couple of conferences that had offered training in how to use the program. I also found a paragraph in an affidavit issued in support of an application for a search warrant that talks about the program. If you’re interested, you can find the search warrant and warrant application here.
Paragraph 31 of warrant application Attachment A has this to say about Peer Spectre:
Your Affiant knows that Detective William Wiltse with the Salem, Oregon Police Department has created an automated software application, named Peer Spectre. This program operates on the gnutella network and reads the publicly available information from computers that are identified as offering child sexual abuse images for distribution. This software reads these reported offers to participate in the sharing of child pornography and reports the time, date, SHA1 value and filename for each computer in a consistent and reliable manner to the ICAC servers. Your Affiant has validated this software by running identical search terms through the manual method described above and the automated system using Peer Spectre and has confirmed that Peer Spectre performs in the same way, with matching results as the previous manual investigative techniques used in this operation to date. The Peer Spectre program provides beneficial data to ICAC officers by identifying and logging IP addresses that are offering to distribute child pornography.
If this is what (and all) Peer Spectre does, then I don’t see a 4th Amendment issue. If it’s only reading publicly available information, then using the program doesn’t constitute a “search” under the 4th Amendment. As I’ve explained in earlier posts, for something to constitute a 4th Amendment “search,” it has to intrude on a reasonable expectation of privacy.
As I’ve also explained, if you expose something to “public view,” you lose any 4th Amendment expectation of privacy in that thing or place. As the U.S. Supreme Court said, what a person knowingly exposes to public view isn’t protected by the 4th Amendment.
So unless the program does more than is described in the paragraph quoted above, I don’t see a 4thAmendment, Kyllo issue arising from law enforcement’s using the program.
I am, as I said, operating on incomplete information, so maybe there’s more to the program . . . aspects that might implicate the 4th Amendment. If anyone has more information on Peer Spectre and is willing to share it, I’d be interested in hearing it.