Software Helps Law Enforcement Officers Track Child Pornography

Local law enforcement agencies in Pennsylvania and around the country continue to aggressively pursue those in possession of child pornography. Just as technology has made it easier for people to access the illegal content, it also has made it easier for investigators to track those who view, download and share child pornography files.

Police Targeting Peer-to-Peer Sites

Peer-to-peer file-sharing network sites are one of the prime places law enforcement officials are targeting their searches. Armed with special software that allows them to track users and images by unique identifiers, local and federal agents are able to conduct these searches seemingly without any legal limit.

The investigations work something like this: a police officer or other law enforcement official will log on to a peer-to-peer site like KaZaa or LimeWire and use key words to search for child pornography. Once the officer gets a hit, he or she will download the images.

Next, the officer will use software, like Fairplay or another type, to determine the IP (Internet Protocol) address of the person who sent the file. This information can be used to find the name and physical address of the person who registered the IP address, who may or may not have been the person to share the illegal images.

The FBI provides local law enforcement agencies with Fairplay and training for free. In addition to helping the police locate users through their IP addresses, Fairplay tracks the illegal images through "hash marks" or "hash values" - i.e. the unique digital fingerprints associated with each image of child pornography. The software then helps police sort through thousands of images by flagging those with hash marks that previously have been identified as child pornography.

Searches Found Not to Violate Fourth Amendment
Legally, one could question the constitutionality of the online searches law enforcement officials perform on these peer-to-peer sites. The Fourth Amendment prohibits unreasonable searches and seizures. Under the Fourth Amendment, with certain exceptions, the police must have a valid warrant prior to conducting a search of a person or their private property. If the police do not have a valid warrant, then any evidence seized during the illegal search is generally inadmissible at trial.

In Katz v U.S., the U.S. Supreme Court held that for something to be considered a search for Fourth Amendment purposes, the person must have a reasonable expectation of privacy in the place or thing to be searched. Whether the person has a reasonable expectation of privacy is both a subjective and objective question - the person must subjectively believe that the place is private and there must be an objective acceptance by society that this belief is reasonable.

While in general the police would need a valid warrant to seize a computer from a person's private home, several federal courts have ruled that the police do not need a warrant to search publicly accessible files from a private computer on a peer-to-peer site.

In the most recent of these cases, U.S. v Borowy, the Ninth Circuit Court of Appeals held that a federal agent did not need a warrant to view and download files shared on LimeWire, a peer-to-peer site. In Borowy, the appellant argued that the agent's acts in searching and downloading content from the peer-to-peer site constituted a search under the Fourth Amendment, and as such, the agent needed a warrant.

The court, however, disagreed and found that because the appellant had made the content publicly available on LimeWire, the appellant did not have a reasonable expectation of privacy in the content. Thus, the law enforcement officers had not conducted a search and did not need a warrant.

Other courts - including the Eight Circuit and Tenth Circuit - have issued comparable opinions in cases with fact patterns similar to Borowy.

Many computer users do not realize that everything they do while online can be traced by police armed with the appropriate software. Even images that users believe have been permanently erased from their computers can be found by computer forensic specialists.

Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

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