WYOMISSING, PA — Let this be a lesson to those with illegal files on their personal computers: Don’t leave them on your hard drive when you take the machine in for an upgrade. If you do and they’re found, you have no one to blame but yourself.That’s essentially what the Superior Court of Pennsylvania ruled in early December, when Kenneth Sodomsky objected to video files found on his computer being used as evidence against him in a child-pornography trial. The files were discovered in 2004 by a Circuit City technician who was performing a hardware upgrade on the machine. After installing a new DVD burner, the technician searched through the video files on Sodomsky’s machine, locating several whose file names seemed to indicate they were “pornographic in nature.” When the tech viewed one of the files —in order to ensure the computer’s new software was functioning properly, he said — he found what he thought was child porn, so he turned the matter over to the authorities.
During pre-trial motions, the trial court granted Sodomsky’s request that the files be suppressed; the prosecution appealed, and the superior court overturned the trial court’s order.
Primarily, the appellate court’s decision was based on what it considered a lack of expectation of privacy on Sodomsky’s part. He had, after all, given the Circuit City technicians access to his hard drive and permission to upgrade the machine. The court found that the techs didn’t engage in unauthorized snooping through Sodomsky’s private files; instead, they used a “commercially accepted manner” of testing the equipment by “borrowing” files already on the computer.
“[Sodomsky] implies that the DVD drive should have been tested by inserting and playing a DVD,” the appellate court’s opinion read. “Nevertheless, as noted, [Sodomsky] did not ask how the burner would be tested nor did he place any restrictions regarding the manner of that procedure. As [the Circuit City technician’s] testimony indicated, the playing of videos already in the computer was a manner of ensuring that the burner was functioning properly. Once the search for videos was initiated, the list of [Sodomsky’s] videos appeared automatically on the computer screen. The employee testing the burner was free to select any video for testing purposes, as [Sodomsky] had not restricted access to any files. Therefore, [the technician] did not engage in a fishing expedition in this case…
“…[Sodomsky] knowingly exposed to the public, the Circuit City employees, the contents of his video files,” the opinion continued. “It is clear that Circuit City employees were members of the public; hence, if [Sodomsky] knowingly exposed the contents of his video files to them, as members of the public, he no longer retained an expectation of privacy in those videos nor could he expect that they would not be distributed to other people, including police.”
