First Circuit reckons with probe of peer-to-peer Freenet software in child porn case

(CN) — A Massachusetts man convicted of possessing child pornography is scrutinizing the federal probe that landed him a decadelong prison sentence in 2024.

Eric Robert Johnson argued to a First Circuit panel on Tuesday that his conviction was the result of an unlawful, broad search by investigators into his activity on Freenet, an anonymous peer-to-peer file sharing program.

A lower court previously rejected that argument and found the search constitutional, which Johnson claims was an erroneous ruling.

“You have to look at the entirety of what the government was doing here,” Johnson’s defense attorney Christine DeMaso told the federal appeals court. “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 government claims this is part of a broader effort to catch sharers and downloaders of child pornography using a modified version of Freenet to monitor this kind of behavior. In their briefs, prosecutors cited a 2020 study that found at least 30% of Freenet’s request traffic is for content related to child pornography.

Still, DeMaso argued that federal authorities never had a warrant to carry out this investigation, so the evidence that led to her client’s guilty plea should be deemed inadmissible.

“The Fourth Amendment protects situations in which people have a reasonable expectation of privacy,” DeMaso said.

The judges questioned whether this argument would extend into any searches into Freenet. U.S. Circuit Judge Gustavo Gelpí, a Joe Biden appointee, noted that information about crimes like arms dealing and terrorism could also be protected under this logic.

“If we find that there’s a reasonable expectation of privacy, and we find that your client is correct, then anybody who has information in Freenet would be barred from a government search,” Gelpí said.

U.S. Circuit Judge O. Rogeriee Thompson expressed similar skepticism.

“They’re not monitoring the whole of his movement,” the Barack Obama appointee said. “They don’t care, for instance, if he is looking for used automobiles. So they’re not monitoring everything he does on Freenet.”

But DeMaso argued that the government, in this case, “did not have a warrant to use modified Freenet” at all.

“And the warrant that they ultimately got to search Mr. Johnson’s home relied entirely on this warrantless search,” DeMaso added.

According to the Justice Department, a 2022 search of Johnson’s residence yielded hard drives and other electronic devices containing more than 5,000 files containing sexual abuse and rape of minor victims as young as infants and toddlers. Investigators 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.

Government lawyer Randall Kromm argued Tuesday that this search was initiated after Johnson sent a request for child pornography that was “passively” picked up by investigators using the program.

“We make much of the fact that it’s essentially a passive program,” Kromm said of the modified Freenet operation.

And that operation is not unlawful, Kromm argued, due in part to Freenet’s own warnings that anyone with “moderate resources” could theoretically trace a user’s activity back to them, despite its emphasis on anonymity.

“It’s probably unsurprising to anyone that the government has at least moderate resources and that the government could be a participant in any public forum like Freenet,” Kromm claimed, adding that the nature of peer-to-peer file sharing “opens your computer to somebody else to come and look at the files you have.”

The three-judge panel — which included U.S. Circuit Judge Lara Montecalvo, a Biden appointee, in addition to Gelpí and Thompson — didn’t immediately rule at the bench following Tuesday’s arguments.

Johnson pleaded guilty in 2024 to one count of possession of child pornography, nearly two years after his arrest. 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.

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