Sex Offenders Beware: New Ruling Affirms that Law Enforcement Can Access Your File-Sharing Platforms and Digital Fingerprints

By Robert Phillips
Deputy District Attorney (ret.)  

LEGAL CONCEPTS:

• The sharing of child pornography via a peer-to-peer file-sharing platform 
• A hash value as a digital fingerprint 
• Search warrants for electronic devices; establishing probable cause 
• Motion to suppress; search warrants 
• The forensic analysis of a defendant’s electronic devices 
• Selective prosecution of a convicted child molester 
• Judgment of acquittal   

RULES:

(1) Law enforcement may use “peer-to-peer file-sharing platforms” that can be used to distribute child pornography to identify those who possess child pornography and are offering it for public download. A search warrant is supported by probable cause if, based on the totality of the circumstances, the application establishes a fair probability that contraband or evidence of a crime will be found in a particular place.  

(2) A Fourth Amendment search does not occur unless the defendant manifested a subjective expectation of privacy in the object of the challenged search and that society is willing to recognize that expectation as reasonable. Individuals do not have a reasonable expectation of privacy in electronic files they offer for public download.  

(3) The forensic analysis by law enforcement of a defendant’s electronic devices is not a “critical stage” of a criminal proceeding, thus negating the need for a defendant or his representatives to be present during such analysis.  

(4) A defendant in a child pornography case is not the victim of selective prosecution just because he or she has prior convictions for crimes against children. Also, convicted sex offenders do not comprise a “suspect class” for purposes of selective prosecution.  

(5) A defendant is not entitled to a judgment of acquittal absent any evidence to support his argument that any element of his conviction was inadequately supported by the evidence. 

ONE-MINUTE SUMMARY: ....