Not long
ago, I did a post on a defendant’s argument that evidence in a child
pornography case should be suppressed because investigators used the RoundUp
software. A few days ago, I ran across an opinion issued late last year that
addressed a variant of that argument. The issue arises in a different context
in this case, though.
The case
is U.S. v. Brashear, 2013 WL 6065326
(U.S. District Court for the Middle District of Pennsylvania 2013), and this is
how it 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. . . . 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 court of his investigation, Powell downloaded two videos from the IP address 174.60.89.228 that contained child pornography. .
. . [He] identified numerous files associated with child pornography emanating
from this same IP address. . . . Comcast Cable Communications controlled the
subject IP address. . . . Powell alerted Corporal Thomas Trusal to his
findings. . . .
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, [he] secured a search warrant for 1651 Kaiser
Avenue, South Williamsport, Pennsylvania, 17702. . . .
[Jeremy T.] 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.
The opinion then explains that on February 24, 2011, a
federal grand jury indicted
Brashear for distributing, receiving,
and possessing material constituting or containing child pornography, in violation of 18 U.S. Code § 2252A(a). . . . On July 26, 2012, [he] filed a motion . . . to suppress, which the court denied on October 12, 2012. . . .
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. . . .
The court granted the
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). . . . The motion is
fully briefed and ripe for disposition.
U.S. v. Brashear, supra.
The judge
began his analysis of the parties’ arguments by noting that Brasher claimed
his subpoena is necessary to determine
whether the use of the RoundUp program violated [his] 4th Amendment rights, the
Federal Electronic Communications Privacy Act (`FECPA’), 18 U.S. Code §
1510 et seq., the Pennsylvania Wiretapping and Electronic Surveillance Control Act (‘PA Wiretap Act’), 18 [Pennsylvania Consolidated
Statutes Annotated] § 5701 et seq., and the Gnutella network
protocol.
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, the FECPA, the PA Wiretap Act, or the Gnutella
network protocol.
U.S. v. Brashear, supra.
The judge
began the process of ruling on the parties arguments by noting 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, 418U.S. 683 (1974). The court must reconsider the Nixon standard when disposing of
a motion to quash. . . .
U.S. v. Brashear, supra.
The judge then held that he found
the source code for RoundUp is
not relevant because its use did not violate Brashear's 4th Amendment rights,
the FECPA, and the PA Wiretap Act. Further, any violation of the Gnutella
network protocol is irrelevant.
U.S. v. Brashear, supra.
He began his analysis with the 4th Amendment,
finding 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. CONST. amend. IV.
A typical 4th Amendment
analysis begins with analyzing whether the defendant possesses a reasonable
expectation of privacy in the object being searched. Katz v. U.S., 389 U.S. 347 (1967). . . . 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. . . .
U.S. v. Brashear, supra.
The judge also explained 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.
Brashear responds that, pursuant to 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 4th Amendment rights. . . . The
Court concluded the defendant's `4th Amendment rights do not rise or fall
with the Katz formulation’ concerning
the defendant's reasonable expectation of privacy. . . .
Instead, the Court found 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. . . . However, the Court noted that `[s]ituations involving
merely the transmission of electronic signals without trespass would remain subject
to [the] Katz analysis.’ Id. (emphasis
in original).
U.S. v. Brashear, supra.
This judge also pointed out that “several” 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. 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. Powell did not
physically enter Brashear's home or access his computer. Instead, 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.
The judge
quickly disposed of Brashear’s remaining arguments. He noted, first, that
Brashear also alleges that the subpoena
is relevant to determining whether the warrantless use of RoundUp violated the FECPA and
the PA Wiretap Act. Brashear provides no explanation for how these statutes
potentially apply in the case sub judice and the court is
unaware of any possible violation of these laws.
U.S. v. Brashear, supra.
And, finally, he noted that Brashear
states that the use of RoundUp violates
Section 4.4 of the Gnutella network protocol, which requires that users who are
able to download files must also be able to share files with others. . . .
Trusal testified that RoundUp is only able to download files from another computer
and is not able to upload any files. . . .
It is unclear how obtaining the RoundUp source
code would shed any further light on this alleged violation. Moreover, Brashear
does not posit how this alleged violation is relevant in the case sub judice. Indeed, application of the exclusionary rule is typically
reserved for violations of a constitutional dimension. . . .
U.S. v. Brashear, supra.
The judge therefore held that the source code for RoundUp
is simply not relevant to determining
any issue in the case. There is no indication that the use of RoundUp violated
Brashear's rights under the 4th Amendment, the FECPA, or the PA Wiretap Act.
The potential violation of the Gnutella network protocol is irrelevant. For the
above-stated reasons, the court will grant the government's motion to quash.
U.S. v. Brashear, supra. He then
entered an order to that effect, which brought this matter to an end. U.S. v. Brashear, supra.
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