A convicted sex offender argued that the FBI’s search of his activities on an anonymous file-sharing site was unconstitutional.
(CN) – A First Circuit panel on Tuesday upheld the conviction of a Massachusetts man facing a 10-year prison sentence for possession of child pornography, concluding that the investigation that led to his guilty plea was not unlawfully expansive, as he had claimed.
In a 29-page ruling, three federal appeals judges upheld a lower court’s finding that the investigation into Eric Robert Johnson’s activities with the peer-to-peer file-sharing software Freenet was consistent with the Fourth Amendment.
Johnson had argued that the government was using a modified version of Freenet called Freenet Roundup to illegally fish for illegal content.
“You have to look at the totality of what the government has done here,” Johnson’s defense attorney, Christine DeMaso, told the First Circuit last September. “They monitor Freenet extensively over a period of years, and in order to breach Freenet’s privacy protections, they collect a significant amount of data about him.”
The Fourth Amendment, Johnson argued, should protect him from government surveillance of his online activities.
“Unfortunately for Johnson,” the justices wrote Tuesday, “we must stop him. This argument fails to recognize the scope of the government’s conduct at issue.”
The government’s use of Freenet Roundup was not widespread surveillance as Johnson claimed, the judges said. Instead, it simply allowed the government to function like any normal Freenet user “by using its node to receive voluntary requests from others and retrieve blocks of data.”
“And through luck (or bad luck), some ended up being Johnson’s,” the court ruled.
In fact, the government used Johnson’s Freenet data to support a physical search of his home in 2022. When investigators arrived, they found hard drives and other electronic devices containing more than 5,000 files containing sexual abuse and rape of minor victims as young as infancy and toddlers. Under his bed they also found two children’s backpacks containing children’s clothing, a bag with children’s costumes, mutilated dolls and diapers.
The government claimed this search occurred after Johnson sent a child pornography request on Freenet, which was “passively” picked up by investigators using Freenet Roundup.
Johnson compared the situation to the government’s illegal search of a person’s cellphone – a comparison that the First District judges rejected outright.
“Unlike cell phones, Freenet is not so intertwined with the lives of its users that it could reveal the ‘totality of their physical movements,'” the judges wrote. “Far from it. Instead, it is a sophisticated file-sharing software with limited information about its users’ private lives (if a user uploads personal data to the platform).”
The First Circuit panel also did not place much weight on Johnson’s claims that he should be afforded a reasonable level of privacy on the platform, citing the fact that he had been repeatedly warned by the platform that his IP address was identifiable.
“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 turn on Freenet’s “darknet” mode, which offers more anonymity than the default setting. As a result, the court concluded that Johnson was adequately warned that he was “opening his Freenet transmissions to the world, including the government world.”
Johnson’s public defender did not immediately respond to a request for comment.
The trio of judges behind Tuesday’s ruling included Joe Biden-appointed U.S. District Judges Gustavo Gelpí and Lara Montecalvo and Barack Obama-appointed U.S. District Judge O. Rogeriee Thompson.
Johnson pleaded guilty in 2024 to one count of possession of child pornography after failing to use his constitutional arguments to suppress the evidence against him. He was already a lifelong Level 2 sex offender and had previously been convicted of child rape in New Hampshire in 1992. 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 abuse content on the platform. In their pleadings, they cited a study that found that at least 30% of Freenet’s query traffic was for content related to child pornography.
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