United States v. Brashear, 2013 WL 6065326 (M.D.Pa.) November 2013

* This is a district court Judge’s ruling on a motion, which has not yet withstood appellate scrutiny.  However the issue presented is important to capture emerging trends in the field.

Similar to US v. Dillow (previously briefed), defendant Brashear was caught in a Peer-to-Peer investigation sharing child pornography.  The Trooper conducting the investigation was using Roundup to search for files on the Gnutella Network (Roundup is a modified version of the file sharing program Phex).  Roundup uses a database of hash values (of files known to contain child pornography).  Roundup identifies computer files available for downloading.  Defendant in this case filed an ex parte motion for the issuance of a subpoena on the Police Department to provide the source code for Roundup.   The court granted the motion.  The Police Department didn’t comply and Defendant filed a motion to compel.  The Government then moved to quash the subpoena.

The Government argued (like Dillow) that the Police Department does not possess the Roundup source code.  Brashear argued the source code was necessary to determine if the use of this program violated his Fourth Amendment Rights, the Federal Electronic Communications Privacy Act (FECPA), the Pennsylvania Wiretapping and Electronic Surveillance Control Act, and the Gnutella network protocol.

The Judge found no Fourth Amendment implications because files made public via peer-to-peer file sharing programs have no reasonable expectation of privacy. U.S. v. Stults, 575 F.3d 834 (8th Cir. 2009).  The Judge also made short work of defendant’s other arguments and found that any violation of the Gnutella network protocol was irrelevant to the criminal case at bar.

Subpoena Quashed.

This entry was posted in Defenses, Fourth Amendment, Technology. Bookmark the permalink.

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