United States v. Borowy

LimeWire was a publicly available peer-to-peer file-sharing computer program. A particular version of LimeWire allowed a user to enable a feature that prevented others from downloading or viewing the names of files on the user’s computer. A federal agent logged onto LimeWire to monitor trafficking in child pornography. Using a forensic software program that displayed a red flag next to known pornography images, the agent conducted a keyword search in LimeWire and identified a file containing a child-pornography image shared through an IP address later determined to belong to Charles Borowy (defendant). The agent viewed the names of all 240 files being shared from Borowy’s IP address and downloaded and viewed seven files, four of which contained child pornography. The LimeWire feature that would allow Borowy to prevent others from downloading his files was not enabled when the agent downloaded the files from Borowy’s computer. Borowy’s laptop, CDs, and floppy disks were seized pursuant to a search warrant, and more than 600 images of child pornography were found. Borowy was charged with possession of child pornography. Borowy’s motion to suppress the evidence obtained from his laptop and disks was denied. Borowy entered a conditional plea of guilty and argued on appeal that the agent’s conduct in locating and downloading the files from LimeWire constituted a warrantless search and seizure in violation of Borowy's Fourth Amendment rights. Borowy maintained that because he intended to turn on the feature that would make his files private, he had a reasonable expectation of privacy in the files. Borowy also argued that the agent’s use of a forensic software program that was unavailable to the public made the search of his files unlawful.