Feds’ child porn probe of peer-to-peer Freenet software gets First Circuit approval

(CN) — A First Circuit panel on Tuesday upheld the conviction of a Massachusetts man facing a decade behind bars for possession of child pornography, finding the probe that led to his guilty plea was not unlawfully broad as he had claimed.

In a 29-page ruling, three federal appellate judges upheld a lower court’s finding that the investigation of Eric Robert Johnson’s activity on peer-to-peer file sharing software Freenet was in line with the Fourth Amendment.

Johnson had argued the government was using a modified version of Freenet called Freenet Roundup to illegally fish for illicit content.

“You have to look at the entirety of what the government was doing here,” Johnson’s defense attorney Christine DeMaso told the First Circuit last September. “They are broadly surveilling Freenet over a period of years, and in order to pierce Freenet’s privacy protection, they are gathering a substantial amount of data about him.”

The Fourth Amendment, Johnson argued, should protect him from government surveillance of his online activity.

“Unfortunately for Johnson,” the judges wrote Tuesday, “we must stop him in his tracks. With this argument, he is misconstruing the scope of the government’s conduct at issue.”

The government’s use of Freenet Roundup wasn’t broad surveillance as Johnson claimed, according to the judges. Instead, it merely allowed the government to function like any ordinary Freenet user “by using its node to receive others’ voluntary requests and retrieve data blocks.”

“And by dint of luck (or unluck), some ended up being Johnson’s,” ruled the court.

Indeed, the government used Johnson’s Freenet data to back a physical search of his residence in 2022. When investigators arrived, they found hard drives and other electronic devices with more than 5,000 files containing sexual abuse and rape of minor victims as young as infants and toddlers. They also recovered two children’s backpacks from under his bed that contained children’s clothing, a bag of children’s costumes, mutilated dolls and diapers.

The government claimed this search came after Johnson sent a request for child pornography on Freenet that was “passively” picked up by investigators using Freenet Roundup.

Johnson likened the situation to the government illegally probing an individual’s cellphone — a comparison the First Circuit judges wholly rejected.

“Unlike cellphones, Freenet is not so intertwined with its users’ lives that it could reveal the ‘whole of their physical movements,’” the judges wrote. “Far from it. Instead, it is a rarefied, file-sharing software with limited information on its users’ personal lives (insofar as a user chooses to upload personal details onto the platform).”

The First Circuit panel also didn’t put much weight behind Johnson’s claims that he should be afforded a reasonable amount of privacy on the platform, pointing to the fact that he was repeatedly warned by the platform that his IP address was vulnerable to identification.

“Johnson voluntarily connected his computer to strangers on Freenet to retrieve files,” the judges found.

And despite the content he sought, Johnson never opted to toggle on Freenet’s “Darknet” mode, which boasts more anonymity than its default setting. As a result, the court found Johnson was adequately warned that he “was opening his Freenet transmissions to the world, including the world of the government.”

Johnson’s public defender didn’t immediately respond to a request for comment.

The trio of judges behind Tuesday’s ruling included Joe Biden-appointed U.S. Circuit Judges Gustavo Gelpí and Lara Montecalvo, as well as U.S. Circuit Judge O. Rogeriee Thompson, a Barack Obama appointee.

Johnson pleaded guilty in 2024 to one count of possession of child pornography after failing to suppress the evidence against him with his constitutional arguments. He was already a lifetime Level 2 sex offender, previously convicted in 1992 on child rape charges in New Hampshire. His two minor victims were 7 and 8 years old at the time.

Prosecutors claimed their Freenet findings on Johnson were part of a broader effort to catch sharers and downloaders of child sex abuse content on the platform. In their briefs, they cited a study that found at least 30% of Freenet’s request traffic is for content related to child pornography.

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