Computer users who sign up for peer-to-peer file-sharing programs don’t have a privacy right to be shielded from FBI probes, according to a federal appeals court ruling in San Francisco today.

The 9th U.S. Circuit Court of Appeals upheld the child pornography possession conviction of a Nevada man who was prosecuted after an FBI agent found he was sharing pornography files on the Internet.

The defendant, Charles Borowy, participated in LimeWire, a popular file-sharing program. LimeWire, established in New York 10 years ago, says it has 70 million users per month.
LimeWire has a privacy feature, but Borowy had not installed it.

An FBI agent who was monitoring child pornography trafficking in 2007 conducted a keyword search using the term “Lolitaguy,” a phrase that according to the FBI is known to be associated with child pornography.

Agent Byron Mitchell downloaded four child pornography files from Borowy’s Internet address.

Investigators then obtained a search warrant and found a total of more than 600 images and videos of child pornography on Borowy’s laptop computer, CDs and floppy disks.

Borowy pleaded guilty to possession of child pornography and was sentenced to three years and nine months in prison, but reserved his right to claim in an appeal that the initial keyword search of his files without a warrant violated his constitutional rights.

But the appeals court, citing a similar ruling issued two years ago, said Borowy’s expectation of privacy “could not survive his decision to install and use file-sharing software, thereby opening his computer to anyone else with the same freely available program.”

A three-judge panel also rejected Borowy’s argument that he intended to have privacy because he had bought LimeWire’s privacy feature.

The panel noted that Borowy failed to engage that feature and said he “was clearly aware that LimeWire was a file-sharing program that would allow the public at large to access files in his shared folder until he took steps to avoid it.”

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