Appeal from Spokane Superior Court. Docket No: 12-1-00964-4. Judge signing: Honorable Maryann C Moreno. Judgment or order under review. Date filed: 11/04/2013.
David N. Gasch (of Gasch Law Office ), for appellant.
Lawrence H. Haskell, Prosecuting Attorney, and Brian C. O'Brien, Deputy, for respondent.
Authored by Robert E. Lawrence-Berrey. Concurring: Laurel H. Siddoway, Kevin M. Korsmo.
Robert E. Lawrence-Berrey,
[186 Wn.App. 903] [¶ 1] A trial court found Casey Peppin guilty of three counts of first degree possession of depictions of a minor engaged in sexually explicit conduct. In this appeal, Mr. Peppin challenges the trial court's denial of his motion to suppress the images of child pornography found on his computer. He raises an issue of first impression in Washington. He contends that law enforcement's use of enhanced peer to peer file sharing software to remotely access the shared files on his computer was illegal under the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington State Constitution. He maintains that such conduct represents an intrusion into his private affairs because he had a reasonable expectation of privacy in his personal computer files. We hold that Mr. Peppin did not have a constitutionally protected privacy right in the image files he shared with the public. We therefore affirm his convictions.
[¶2] On December 29, 2011, Spokane Detective Brian Cestnik conducted an online investigation of the Gnutella [186 Wn.App. 904] network to identify persons possessing and sharing child pornography. Using peer to peer software called Round Up version 1.5.3, Detective Cestnik found child pornography on Mr. Peppin's computer in a shared folder.
[¶3] Detective Cestnik's report of the investigation explains peer to peer file sharing. According to his report, peer to peer file sharing is a method of Internet communication that allows users to share digital files. User computers link together to form a network; the network allows direct transfer of shared files from one user to another. Peer to peer software applications allow users to set up and share files on the network with others using compatible peer to peer software. For instance, LimeWire and Shareaza are software applications that allow users to share files over the Gnutella network.
[¶4] To gain access to shared files, a user must first download peer to peer software, which can be found on the Internet. Then the user opens the peer to peer software on his or her computer and conducts a keyword search for files that are currently being shared on the network. The results are displayed, and the user selects a file for download. The downloaded file is transferred through a direct connection between the computer wishing to share the file and the user's computer requesting the file. The Gnutella network gives users the ability to see a list of all files that are available for sharing on a particular computer.
[¶5] For example, a person interested in obtaining child pornographic images opens the peer to peer software application on his or her computer and conducts a file search using keyword terms such as " preteen sex." The search is sent out over the network of computers to those using compatible peer to peer software. The results of the search are returned and displayed on the user's computer. The user selects the file he or she wishes to download. The file is then downloaded directly from the host computer onto the user's computer. The downloaded file is stored on the user's computer until moved or deleted.
[186 Wn.App. 905] [¶ 6] When more than one host computer offers the file that is requested, peer to peer software allows the user to download different parts of the file from different computers. This speeds up the time it takes to download a file. For instance, a person using Shareaza to download an image may actually receive parts of the image from multiple computers. However, often a user downloading an image file receives the entire image from one computer.
[¶7] Every file shared on the Gnutella network has a unique identifier based on a " Secure Hash Algorithm" (SHA1) value, sometimes called a hash value. The SHA1 value acts as a fingerprint for that file. It is computationally infeasible for two files with different content to have the same SHA1 hash value.
[¶8] A peer to peer file transfer is assisted by reference to an Internet protocol (IP) address. In general, the numeric IP address is unique to a particular computer during an online ...