## Facts

- LimeWire was a peer-to-peer (P2P) file-sharing program that allowed users to share files over a public network; one version included an optional feature intended to limit others’ ability to view or download a user’s shared files.
- A federal agent investigating online trafficking in child pornography logged onto LimeWire and ran a keyword search.
- Using a forensic program that flagged known child-pornography files (based on identifiers associated with prior known images), the agent identified a suspect file being shared from an IP address later traced to Charles Borowy.
- The agent used LimeWire’s functions to view the list of files being shared from that IP address (about 240 files) and downloaded seven files from Borowy’s computer; four downloads contained child pornography.
- At the time of the downloads, the LimeWire privacy feature that could have limited sharing was not enabled, and the files were available to other LimeWire users for download.
- Based on the agent’s downloads and observations, law enforcement obtained and executed a search warrant at Borowy’s residence, seizing a laptop and storage media (including CDs and floppy disks).
- A forensic review of the seized items revealed more than 600 images of child pornography.
- Borowy was charged with possession of child pornography and moved to suppress evidence from the computer and storage media, arguing the agent’s LimeWire activity was a warrantless Fourth Amendment search and seizure.
- The district court denied the suppression motion.
- Borowy entered a conditional guilty plea preserving his right to appeal the suppression ruling; he also argued on appeal that a plea-colloquy error concerning supervised release required vacating the plea.

## Issues

1. Whether an agent’s viewing of file names and downloading of files made publicly available through LimeWire constituted an unreasonable warrantless search or seizure under the Fourth Amendment when the defendant claimed he intended to make the files private.
2. Whether the agent’s use of a nonpublic forensic tool to flag suspected child-pornography files made the LimeWire access and downloads an unlawful search.
3. Whether a misstatement during the plea colloquy about the term of supervised release required vacating Borowy’s guilty plea under Federal Rule of Criminal Procedure 11.

## Decision

- The Ninth Circuit affirmed the district court’s denial of Borowy’s motion to suppress.
- The court held Borowy did not have a reasonable expectation of privacy in files he made available to the public through LimeWire, even if he subjectively intended to use a privacy feature.
- The court held the agent’s use of a forensic flagging tool did not convert access to publicly shared information into a Fourth Amendment search.
- The court rejected Borowy’s Rule 11 challenge, concluding the supervised-release advisement error did not warrant vacating the plea under the applicable standard of review.
- The judgment of conviction was affirmed.

## Legal Principles

- A person generally lacks a reasonable expectation of privacy in files intentionally or actually exposed to the public through a P2P file-sharing network; subjective intent to keep files private does not create Fourth Amendment protection when the files are in fact publicly shared.
- Law enforcement’s access to file names and shared-file lists available to any user of a public P2P network is not a Fourth Amendment search of private information.
- The use of software to identify or flag likely contraband within information already exposed to the public does not, by itself, create a Fourth Amendment search when it does not provide access to nonpublic contents.
- Downloads of files from a publicly shared folder on a P2P network do not violate the Fourth Amendment when the files are offered to the public for download.
- A Rule 11 error during a plea colloquy does not require vacatur of a guilty plea on plain-error review unless the defendant shows the error affected substantial rights, typically by showing a reasonable probability that he would not have pleaded guilty but for the mistake.

## Conclusion

In United States v. Borowy, the Ninth Circuit held that Borowy could not claim Fourth Amendment protection for child-pornography files that his LimeWire settings left available to the public, even if he meant to activate a privacy feature. Because the agent accessed only what LimeWire users could access and used a forensic flagging tool only to identify suspected contraband among publicly shared files, the court upheld the denial of suppression and affirmed Borowy’s conviction; it also declined to vacate the conditional guilty plea because the Rule 11 supervised-release error did not warrant relief under the governing review standard.


United States v. Borowy, 595 F.3d 1045 (2010)