6th Circuit Affirms: No Privacy Expectation for File-Sharers

COLUMBUS, Ohio—Last month, the United States Court of Appeals for the Sixth Circuit ruled in USA v. William Conner that people who use peer-to-peer networks cannot expect the same level of privacy they have when sending or receiving emails. In fact, they can’t expect any real privacy at all. The decision affirmed a lower court ruling handed down against William Conner, who was convicted by a jury in 2011 of four counts of receipt of visual depictions of child pornography and one count of possession of child pornography. Connor had made the files available on the LimeWire file-sharing service, which is currently disabled. Connor was sentenced by Circuit Judge Julia Smith Gibbons to 360 months in prison, after which he appealed the conviction and sentence, arguing that “the district court erred by concluding that he did not have a reasonable expectation of privacy in files he made publicly available on the LimeWire ‘peer-to-peer’ file-sharing service and finding that Conner’s crimes 'involved . . . distribution' under the Sentencing Guidelines because of his use of LimeWire.” The sheriff’s deputy assigned to monitor child pornography possession and distribution on LimeWire, he said, had committed an “unlawful, warrantless search under the Fourth Amendment” when he “identified a computer connected to LimeWire that was making ‘hundreds of files with titles indicative of child pornography’ available for download,” that was later identified as belonging to Connor. In addressing the question whether Connor in fact had a “legitimate expectation of privacy,” the three-judge panel had to answer the question only partly in the affirmative. The questions were explicated in a 2000 case, Bond v. United States: First, we ask whether the individual, by his conduct, has exhibited an actual expectation of privacy; that is, whether he has shown that “he [sought] to preserve [something] as private.” . .. Second, we inquire whether the individual’s expectation of privacy is “one that society is prepared to recognize as reasonable.” But the court quickly determined that “Conner’s argument fails because his expectation of privacy is not ‘one that society is prepared to recognize as reasonable.’” Connor tried to argue, per United States v. Warshak (2010), that “third-party access to information on one’s computer is consistent with a reasonable expectation of privacy in that information,” but while the court agreed that “the government could not compel a commercial ISP to turn over the contents of a subscriber’s e-mails without a warrant,” the same is not true for files shared via peer-to-peer networks. Unlike with emails, it reasoned, “Computer programs like LimeWire are expressly designed to make files on a computer available for download by the public, including law enforcement. Peer-to-peer software users are not mere intermediaries, but the intended recipients of these files. Public exposure of information in this manner defeats an objectively reasonable expectation of privacy under the Fourth Amendment.” Perhaps of more direct concern to Connor, the panel also affirmed the lower court’s sentence—240 months for the visual-depictions counts and 120 months for the possession count, to be served consecutively—which included an enhanced prison term for distribution, allowed under Sentencing Guideline § 2G2.2 (b)(3)(F). Connor argued two points. First, “that the ‘distribution’ enhancement does not apply to him. Second, he asserts that because he ‘did not intend to traffic in, or distribute,’ child pornography, the district court should have awarded him a two-level reduction.” But the panel determined that both claims lack merit. First, it noted that under the aforementioned section, a defendant engages in “distribution” when his or her conduct involves:   …any act, including possession with intent to distribute, production, transmission, advertisement, and transportation, related to the transfer of material involving the sexual exploitation of a minor. Accordingly, distribution includes posting material involving the sexual exploitation of a minor on a website for public viewing but does not include the mere solicitation of such material by a defendant. Second, it found that section 2G2.2 (b)(3)(F) does not require “proof of an ‘intent to distribute,’”  but rather found that, “The offense conduct only needs to ‘involve[]. . . distribution’ for the enhancement to apply, and ‘distribution’ is any act ‘related to the transfer of material.” The panel concluded, “We agree with the government that knowing use of LimeWire, much like the posting of a file on a website, is sufficient to trigger section 2G2.2(b)(3)(F)’s two-level enhancement.” The affirmation of the enhanced sentence for such conduct is supported, the panel stated in its ruling, by several other circuits. “While defendants in some of these cases have argued that they had ‘no knowledge that [their] computer[s] [were] equipped to distribute’ child pornography,” it wrote, “courts have not required the government to prove such knowledge.” Only the Eighth Circuit has “held that the presumption that users of peer-to-peer software understand they are sharing files with others can be rebutted by the defendant… In United States v. Durham, 618 F.3d 921 (8th Cir. 2010), the Eighth Circuit relied on this language to reverse a district court’s imposition of the ‘distribution’ enhancement on a defendant that used peer-to-peer software. The defendant in Durham showed that another person had installed file-sharing software on the defendant’s computer.” In this case, however, “Conner cannot point to ‘concrete evidence of ignorance’ in the record that would raise the issue the Durham court confronted; the only evidence on this topic that is in the record points in the government’s favor. Conner’s sister testified that [Connor’s niece, Bobby] Lawwell had shown her and Conner how to use LimeWire. Conner made ‘hundreds’ of files available for download, and the forensic computer examiner found numerous child pornography files on Conner’s computer with file paths indicating the images were downloaded from and being shared on LimeWire.” The panel concluded, “For these reasons, we affirm the judgment of the district court.” The ruling can be read here.