On June 23, 2025 the Eleventh Circuit issued its opinion in United States v. Ewing. This case involves two issues related to child pornography charges that are new to the Eleventh Circuit.
The first issue concerns whether law enforcement require a warrant when using Torrential Downpour—a law enforcement exclusive software—to search for child pornography on BitTorrent, a peer-to-peer network. Generally, BitTorrent and other networks like it allows users to downloading file by pulling parts of the file from multiple sources. By downloading small parts of a file from multiple sources and reassembling them into the whole, these networks are efficient and faster. This is known as a “choking” algorithm. Using the bicycle example in the Eleventh Circuit’s opinion:
Suppose a user could download a bicycle from the BitTorrent network. The user would request a particular bicycle model, and BitTorrent would find manufacturers—“seeders” or “sharers”—of the various components for that desired bicycle model. Even if a single manufacturer could supply both the wheels and frame of the bicycle, the choking algorithm would direct the application to find each part from a different manufacturer. The bicycle would then be pieced together from many different manufacturers, and there would be “no native way to select who you got it from.”
Torrential Downpour is a software only available to law enforcement that allows law enforcement to bypass this choking algorithm. Law enforcement enters a hash value into Torrential Downpour and searches publicly available information on BitTorrent to locate files associated with that hash value. The software provides law enforcement with the IP addresses connected to the flagged files and then allows law enforcement “to force a single-source download of the file from that I.P. address.” In contrast to normal BitTorrent downloads, this is the equivalent of getting the entire bicycle at a specific store.
Law enforcement used this software to connect Ewing to child pornography on BitTorrent and obtain a search warrant. When that search warrant was executed, law enforcement discovery child pornography on Ewing’s devices.
Ewing filed a motion to suppress the evidence obtained in the search on the basis that the use of Torrential Downpour without a warrant was an illegal search in violation of the Fourth Amendment. Ewing presented two different types of arguments: (1) that Torrential Downpour constituted an illegal trespass into Mr. Ewing’s devices and (2) that he had a reasonable expectation of privacy in the files that Torrential Downpour violated.
The Eleventh Circuit, however, rejected these arguments on the same ground. Ewing shared the files on BitTorrent. This made the files available to anyone on BitTorrent. Because the files were publicly available, Torrential Downpour did not allow law enforcement access to any information not publicly available. This meant there was no trespass and no reasonable expectation of privacy.
The second issue the Eleventh Circuit addressed concerned the procedure for how trial courts should consider objections to the government showing child pornography to the jury. Before trial, Ewing filed a motion to prevent the government from showing the jury images of child pornography. As part of that motion, Ewing attempted to stipulate that the images were child pornography—his defense focused on arguing that he did not knowingly downloaded the files. According to Ewing, this stipulation reduced the probative value of the images to the point that it was too prejudicial to allow the government to show the images, making the images inadmissible under Rule 403, Fed. R. Evid. Nevertheless, the district court denied that motion without reviewing the challenged images.
On appeal, Ewing argued that the district court committed reversible error when it denied the motion without first reviewing the files to assess the image. Without this review, Ewing argued that the district court could not have properly evaluated the admissibility of the images.
On one hand, the Eleventh Circuit agreed with Ewing. The proper procedure was for the district court to review the images before determining whether the images were admissible. In Ewing’s case, however, the district court’s decision to deny Ewing’s motion was not erroneous based on the record. Critically, the Eleventh Circuit stressed that Ewing did not object to specific images on specific grounds. While the Eleventh Circuit’s opinion does not make it explicit, what the Court means is that, when defendants try to limit the number of child pornography images the Government wishes to show the jury, the defendant must argue about each image individually—providing specific grounds to challenge each individual image. Without this specific challenge, it is not possible for the Eleventh Circuit to properly evaluate whether the evidence violates Rule 403.
