Friday, January 04, 2013

Gigatribe, "Friends," Privacy and Trespass

I have done two prior posts dealing with 4th Amendment arguments and the use of evidence obtained from Gigatribe:  One addressed whether Gigatribe users have a 4th Amendment expectation of privacy in their files; the other addressed the related issue of whether a Gigatribe user consented to a law enforcement officer’s searching his files.

This post examines a recent case that involved similar issues, plus a new argument.  The case is U.S. v. Brooks, 2012 WL 6562947 (U.S.District Court for the Eastern District of New York 2012). The  federal judge who has the case began her opinion by noting that Taleek Brooks used “a `closed’ peer-to-peer filesharing program called GigaTribe under the username Tri-star.”  U.S. v. Brooks, supra.   

She explained that the

GigaTribe software allows a user to create a private peer-to-peer network through which selected files can be placed in specific folders on his computer, which files can be accessed by `friends’ that the network creator or owner has specifically invited to join his private network. Once a `friend’ request is accepted, the network owner grants the `friend’ access solely to files that the network owner has designated for sharing with that friend.  Additionally, the GigaTribe software also allows users to communicate with each other via private chat.

U.S. v. Brooks, supra. 

Now we come to how the case arose:

In or about December, 2011, Brooks . . . accepted a `friend’ request from an undercover FBI agent . . ., and designated for sharing with the undercover agent certain files containing child pornography which Brooks placed in his shared folders. . . . Although there is some indication in the record that Brooks may have accepted two `friend’ requests from the same or two separate agents, one on November 21 and the second on December 24, . . .

Brooks concedes that there was no chat or other communication between Brooks and the agent before Brooks accepted the `friend’ request(s), and that the undercover agent did not view any of Brooks' files until after Brooks `friended’ the agent and specifically designated files to be shared with the agent.

The undercover agent learned through a private chat with Brooks that Brooks was `interested in black boys 10 years old and older’ and proceeded to download nine image files and two video files depicting child pornography from Brooks. . . . 

Through the use of Tri-star's IP address, the undercover agent was able to ascertain Brooks' identity and home address. . . .

Pursuant to a search warrant, agents searched Brooks' home on January 13, 2012, seized a computer and two external harddrives, and found additional files containing child pornography that appear to have been produced by Brooks. . . .

U.S. v. Brooks, supra. 

Brooks was charged with “seven counts of sexual exploitation of a child” in violation of 18 U.S. Code § 2251(a), “one count of possession of child pornography” in violation of 18 U.S. Code § 2252(a)(4)(b) and “four counts of distribution of child pornography” in violation of 18 U.S. Code§ 2252(a)(2). U.S. v. Brooks, supra.   

He moved to suppress the evidence “recovered from” GigaTribe, arguing that it was obtained in violation of the 4th Amendment in any of all of three respects.  U.S. v. Brooks, supra. 

Brooks first argued that “he ha[d] a reasonable expectation of privacy in his GigaTribe files requiring a warrant supported by probable cause before the undercover agent could `friend’ him and remotely access” his files.  U.S. v. Brooks, supra.  As I have noted in prior posts, the test used to determine whether officers conducted a 4th Amendment “search” that required a warrant is (i) whether the defendant subjectively believed the place/thing searched was “private” and (ii) whether society is willing to accept the defendant’s belief as objectively reasonable.  As I have also noted in earlier posts, this test comes from the Supreme Court’s decision in Katzv. U.S., 389 U.S. 347 (1967). 

Here, Brooks argued that “he `maintained a reasonable expectation of privacy’ in his GigaTribe files because the peer-to-peer network was open only to `friends.’” U.S. v. Brooks, supra.  The judge did not agree:

[T]he Supreme Court has `consistently [ ] held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.’ Smith v. Maryland, 442U.S. 735 (1979). In applying this principle to emerging internet technologies, courts have uniformly held that a user of a private or `closed’ peer-to-peer network such as GigaTribe who makes available files to his `friends’ does not have an objectively reasonable expectation of privacy in those files he shared. . . .

This Court joins in so holding, and finds that once Brooks accepted the undercover agent as a `friend’ and designated as shared certain files to which the undercover could gain access, Brooks had no legitimate expectation of privacy in those shared files.

U.S. v. Brooks, supra.

Brooks tried to distinguish these earlier decisions, i.e., to show that they should not apply to this case, by arguing that in the Sawyer and Ladeau cases, the

government gained access to the defendant's computer by using the identity of a third-party to whom the defendant had already granted access. . . . In those cases, each defendant had accepted `friend’ requests from third parties, and the third parties provided the government with consent to use the `friend's’ computer account to view the files Sawyer and Ladeau shared with the third parties.

Those courts held that once a defendant granted his `friend’ access to his files, he had `no control over the manner in which his friends used that access,’ including turning over what they access to law enforcement. U.S. v. Sawyer, supra.

Here, Brooks has even less of an objective expectation of privacy than Sawyer and Ladeau because Brooks directly `friended’ the undercover agent and specifically made available to him the files in his shared folders. 

Indeed, if Sawyer and Ladeau assumed the risk that one of his `friends’ would alert law enforcement to the fact that he was trading child pornography, Brooks equally assumes the risk that one of his “friends” is actually a law enforcement agent. . . .

U.S. v. Brooks, supra (emphasis in the original).

Brooks next argued that he did not consent to the agent’s accessing his Gigatribe files, which meant that the agent could do so without first obtaining a search warrant.  U.S. v. Brooks, supra.   

As I have noted in earlier posts, and as Wikipedia explains, consent is an exception to the 4th Amendment’s default requirement that officers obtain a warrant that authorizes them to search a place or thing in which I have a reasonable expectation of privacy.  Basically, by consenting I waive, or give up, my 4th Amendment rights.

To be valid, consent must be voluntary.  It appears that Brooks argues his consent was not voluntary because “the undercover agent did not identify himself as law enforcement and may have deceived Brooks as to his true identity”.  U.S. v. Brooks, supra. 

The judge did not find this enough to nullify Brooks’ consent.  She noted, first, that

[t]his is not `the kind of “extreme” misrepresentation of investigatory purpose by which a person is “deprived[]” . . .  of the ability to make a “fair” assessment of the need to surrender his privacy [but rather] ‘the deception in question was the use of an undercover agent who obtained otherwise voluntary consent through the use of his adopted identity.’ U.S. v. Pollaro, 733 F.Supp.2d 364 (U.S. District Court for the Eastern District of New York 2010).

Indeed, to accept [Brooks’] argument would completely eviscerate the government's ability to conduct undercover operations in which its agents adopt fictitious identities.

U.S. v. Brooks, supra. 

The judge also noted that

here, without any prompting,  Brooks invited his `friend’ to remotely access the files Brooks had specifically placed into his shared folders, and the undercover agent did no more than that which Brooks invited him to do. . . . As such, the undercover agent's access to the files in Brooks' shared folders was reasonable under the 4th Amendment.

U.S. v. Brooks, supra. 

Finally, Brooks tried to rely on the U.S. Supreme Court’s recent decision in U.S. v. Jones, 132 S.Ct. 945 (2012), in which the Court held that the government’s installing a GPS tracking device on someone’s vehicle is a 4th Amendment “search.”  In reaching that result, the majority of the Court relied on the premise that installing the GPS device on someone’s vehicle was a trespass, which brought it within the 4th Amendment. 

 (If you would like to read more about what trespass has to do with the 4th Amendment, check out this blog post.)

The judge in this case began her ruling on Brooks’ third and final 4th Amendment argument by noting that the Jones Court “was careful to limit its holding to physical trespass”, which means that if there is no such trespass, the issue as to whether there was a 4th Amendment “search” is still governed by the Katz test noted above.  U.S. v. Brooks, supra. 

Because she found this was not the case, the judge rejected Brooks’ third argument:

In contrast to Jones, there is no evidence here that the undercover agent made any physical intrusion on a constitutionally protected area. The agent did not install any device or software on Brooks' computer to enable monitoring or tracking, did not physically enter Brooks' home, and did not physically access his computer. . . .

Nor did the agent remotely access any of Brooks' computer files until after Brooks granted him access, and only then did the agent access those specific files which Brooks' had designated for the agent to see. As such, the undercover agent did not physically intrude on any of Brooks' constitutionally protected areas.

Therefore, because this situation involves `merely the transmission of electronic signals without trespass,’ the Katz reasonable-expectation-of-privacy governs this analysis, which, as discussed above, does not implicate Brooks' 4th Amendment rights. 

U.S. v. Brooks, supra.

The judge therefore denied Brooks’ motion to suppress.  U.S. v. Brooks, supra. 

If you would like to read a little more about the case and see a photo of Brooks, check out the news story you can find here.

No comments: