On February 24, 2011, a federal grand jury charged Jeremy
Brashear a grand jury with “distributing, receiving, and possessing material
constituting or containing child pornography, in violation of 18 U.S. Code § 2252A(a).” U.S. v. Brashear, 2013 WL 6065326 (U.S. District Court for the Middle District of Pennsylvania 2012). After
being indicted, he filed various motions, including one to suppress certain
evidence, which the District Court Judge denied. U.S. v.
Brashear, supra.
Most recently, and most relevant for the purposes of this
blog post, Brashear had a subpoena duces tecum issued to obtain certain
evidence he believed would be useful in his defense. U.S. v.
Brashear, supra. To understand
why he got the subpoena, it is necessary to understand how the case arose:
In 2010, Trooper Matt Powell of the
Pennsylvania State Police in Indiana, Pennsylvania, conducted an investigation
of peer-to-peer file sharing programs that may have contained child
pornography. . . . Peer-to-peer file sharing networks enable computer users to
share digital files between different network users. . . .
Trooper Powell used a program called
Roundup 1.4.1 (`RoundUp’) to search files available for sharing in the Gnutella
peer-to-peer file sharing network. . . . RoundUp is a modified version of the
file sharing software PHEX. . . . RoundUp utilizes a database of `hash values’
from files known to contain child pornography. . . .
This database enables law enforcement
to identify files with hash values that match the hash values of known child
pornography. . . . RoundUp only identifies computer files that are available
for downloading from a folder shared with the Gnutella network. . . .
During the course of his investigation, Trooper
Powell downloaded two videos from the IP address 174.60.89.228 that contained
child pornography. . . . In addition, Trooper Powell identified numerous files
associated with child pornography emanating from this same IP address. . . .
Comcast Cable Communications (`Comcast’) controlled the subject IP address. . .
.
Trooper Powell alerted Corporal Thomas Trusal to his
findings. . . . Accordingly, Corporal Trusal obtained a subpoena ordering Comcast
to provide subscriber and billing information for this IP address. . . .Based
upon an aggregate of investigative materials, including the identification of
the registered account holder, Corporal Trusal secured a search warrant for
1651 Kaiser Avenue, South Williamsport, Pennsylvania, 17702. . . .
Brashear resided in a trailer on the
property of the 1651 Kaiser Avenue residence. As a result of information
obtained through the execution of the search warrant, Brashear was arrested. .
. . Law enforcement eventually secured an additional search warrant for
Brashear's trailer and laptop. . . . This search revealed child pornography. .
. .
U.S. v. Brashear,
supra.
That brings us to the motion at issue in this opinion:
On July 25, 2013, Brashear filed an ex parte motion . . . for the issuance and service of a subpoena to
compel the Pennsylvania State Police (`PSP’) to provide the source code for
RoundUp. Defense counsel explained that he already obtained the PHEX source
code and sought access to the RoundUp source code to compare the two.
U.S. v. Brashear,
supra.
The District Court Judge granted Brashear’s motion
on July 26, 2013. . . .On September 23,
2013, Brashear filed a motion . . . to continue trial and jury selection. In
support, he averred that, as of that date, the PSP had not produced the
required source code. On
October 17, 2013, the government filed a motion to quash the subpoena. . . .
The government alleges that compliance would be unreasonable and oppressive
under Federal Rule of Criminal Procedure 17(c)(2). . . .
U.S. v. Brashear,
supra.
The judge began his analysis of the issue by noting Brashear
was alleging that
his subpoena is necessary to determine
whether the use of the RoundUp program violated [his] 4th Amendment rights. . .
. The government asserts that Brashear is attempting to improperly
use Rule 17 as a discovery vehicle, that the source code is subject
to the law enforcement privilege, and that the information sought is irrelevant
because the use of RoundUp did not violate Brashear's 4th Amendment rights. . .
.
U.S. v. Brashear,
supra.
The District Court Judge then explained that the
issuance of a subpoena is governed
by Federal Rule of Criminal Procedure 17. To obtain a subpoena
under Rule 17, the moving party must establish the following:
`(1)
that the documents are evidentiary and relevant; (2) that they are not
otherwise procurable reasonably in advance of trial by exercise of due
diligence; (3) that the party cannot properly prepare for trial without such production
and inspection in advance of trial and that the failure to obtain such
inspection may tend unreasonably to delay the trial; and (4) that the
application is made in good faith and is not intended as a general “fishing
expedition.” U.S. v. Nixon, 418 U.S. 683 (1974). The court must
reconsider the Nixon standard when
disposing of a motion to quash. U.S. v. Beckford, 964 F.Supp.
1010 (U.S. District Court for the Eastern District of Virginia 1997).’
U.S. v. Brashear,
supra.
He then took up Brashear’s argument, and ultimately found
that “the source code for RoundUp is not relevant because its use did not
violate Brashear's 4th Amendment rights”. U.S.
v. Brashear, supra. The judge explained that the
source code for the RoundUp program is
not relevant because investigating the use of a peer-to-peer file sharing
program does not violate the 4th Amendment's protection against unreasonable
searches. The 4th Amendment provides that `[t]he right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated.’ U.S. Constitution,
amendment iv.
A typical 4th Amendment analysis begins
with analyzing whether the defendant possesses a reasonable expectation ofprivacy in the object being searched. Katz v. U.S., 389 U.S. 347 (1967); Kyllo v. U.S., 533 U.S. 27 (2001). Numerous cases
have held that there is no reasonable expectation of privacy in files made
available to the public through peer-to-peer file sharing programs. See,
e.g., U.S. v. Stults, 575 F.3d 834 (U.S. Court of Appeals for the 8th Circuit 2009); U.S. v. Ganoe, 538 F.3d 1117 (U.S. Court of
Appeals for the 9th Circuit 2008); U.S. v. Perrine, 518 F.3d 1196 (U.S.Court of Appeals for the 10th Circuit 2008).
U.S. v. Brashear,
supra. For Katz
and P2P file-sharing, see this prior post.
For thoughts on Kyllo and P2P
file-sharing, see this other prior post.
The judge also noted that
Brashear wishes to compare the modified
source code for RoundUp with the original PHEX source code, but there is no
need. The RoundUp program only accesses files shared through the file sharing
network. . . .
By sharing files with the network,
Brashear essentially shared those files with the public. He had no reasonable
expectation of privacy over the files shared with Gnutella and, therefore, the
use of the RoundUp program could not have violated his 4th Amendment rights.
U.S. v. Brashear,
supra.
He also pointed out that Brashear argued, in response, that
in U.S. v. Jones, 132 S.Ct. 945 (2012),
the use of the RoundUp program
constituted a physical trespass of Brashear's `effect’ -- the computer -- and
was therefore an unreasonable search. In Jones, the Court
addressed whether the warrantless installation of a GPS tracking device to the
defendant's motor vehicle violated his Fourth Amendment rights. . . .
The Court concluded that the
defendant's `4th Amendment rights do not rise or fall with the Katz
formulation’ concerning the defendant's reasonable expectation of
privacy. U.S. v. Jones, supra.
Instead, the Court found that the defendant's
motor vehicle was an `effect’ and the warrantless physical trespass of that
`effect’ to obtain information or evidence constituted an unreasonable search
under the 4th Amendment. U.S. v. Jones,
supra. However, the Court noted that
`[s]ituations involving merely the transmission of electronic signals without
trespass would remain subject to [the] Katz analysis.’ U.S. v. Jones, supra (emphasis in
original).
U.S. v. Brashear,
supra.
As Wikipedia notes, the 4th Amendment says, in
pertinent part, that the “right of the people to be secure in their persons,
houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated”. Wikipedia (quoting 4th Amendment)
(emphasis added). In order to be protected
under the 4th Amendment, a place or an item must fall within one of
those four categories, i.e., must be a person, a house (or something
analogous), papers (or something analogous) or an “effect”.
The judge concluded his analysis of Brashear’s argument by
explaining that
[s]everal courts have rejected the
application of Jones to the investigation of file sharing
programs. See Russell v. U.S., 2013 WL 5651358 (U.S. District Court for the Eastern District of Missouri 2013); U.S. v. Nolan,
2012 WL 1192183 (U.S. District Court for the Eastern District of Missouri
2012); U.S. v. Brooks, 2012 WL 6562947 (U.S. District Court for the Eastern District of New York 2012); State v. Lemasters,
2013 WL 3463219 (Ohio Court of Appeals 2013)The court concurs with the
rationale of these decisions.
The investigation of a file sharing
program does not involve any physical trespass onto a constitutionally
protected area. Trooper Powell did not physically enter Brashear's home or
access his computer. Instead, Trooper Powell simply used a program that
identified child pornography available on a public peer-to-peer file sharing
program. This investigation involves `the transmission of electronic signals
without trespass’ and does not implicate Brashear's 4th Amendment rights
under Jones.
U.S. v. Brashear,
supra.
For these and other reasons, the judge granted the
prosecution’s motion to quash the subpoena.
U.S. v. Brashear, supra.
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