Attorneys Get Child Porn Charges Dropped as FBI “Browses” into New Privacy Territory

The Dark Web’s Tor browser is easy to download and use. It is also anonymous. Except when it isn’t because the FBI is operating its servers.

In 2015, from a warehouse in Virginia, the FBI watched as users downloaded, traded and viewed illegal material from a child pornography website called The Playpen, operating through Tor. 

The FBI obtained a warrant which authorized the use of Network Investigative Technology (NIT) to identify locations and users. During the two week period in which the FBI operated The Playpen, over 100,000 people logged onto the site and shared 48,000 images, 20 videos and 13,000 links to child pornography. The technology revealed user’s actual IP addresses, typically protected by the Tor browser. These IP addresses were then traced back to actual users. 

FBI Hacker uses dark web to find criminal activity and child pornographers while FBI operates sting for child porn charges

Network Investigative Technique or NIT is a classified method which exploits an unknown vulnerability in the code base of the browser. Simply put, it enabled the government to operate the website, upload viral malware, and then watch users on the Dark Web

User identity and information was permitted to be communicated directly into the hands of law enforcement. 

Disclose tactics or risk dismissal?

This FBI sting, named Operation Pacifier, resulted in charges filed for nearly 200 related cases. While many of the defendants plead guilty to the charges, Jay Michaud did not.  Michaud was identified as a Playpen user and indicted for possession and receipt of child pornography in violation of 18 U.S.C. §2252(a)(2).  

He was also a well-known teacher from the state of Washington.

Counsel for Michaud fought for disclosure of the highly sensitive tactic that federal investigators used to exploit the vulnerability of the Tor browser.  They argued that the FBI should be required to disclose how exactly it was able to hack Playpen visitors’ computers using the NIT. If the government did not provide the information, it would prevent counsel from mounting an effective defense against the charges sought by the government. Counsel argued that the government should not be able to level on a defendant child porn charges that carries a five-year mandatory sentence while simultaneously undermining his trial rights through the refusal to disclose the NIT’s evidence.  

The judge agreed and ordered the US government to hand over the exploit’s source code, detailing particularly how it was able to use the Network Investigative Technique to circumvent the onion layers of anonymity in the Tor. 

Prosecutors were then forced by the judge to choose how to move forward. If they revealed their technique, criminal coders would immediately create a solution to block the agency from collecting data in the future. Moreover, providing this information could jeopardize an untold number of other investigations, both present and in the future. “The government must now choose between disclosure of classified information and dismissal of its indictment. Disclosure is not currently an option,” Annette Hayes, federal prosecutor, wrote in agreeing to dismiss the pending case against the defendant.  

A persuasive argument by the defense leads to FBI trade-off

Using the NIT raises several constitutional and privacy-related issues. It reveals the tension between public transparency and the level of secrecy required to maintain effective law enforcement in cases involving the anonymity provided by the Dark Web. There is a feeling of unease surrounding the method the FBI used in how the online surveillance was conducted. Some have argued that the government’s actions were unethical and that it had committed “outrageous conduct” by operating the site for two weeks, which led to further dissemination of the pornography.

Another issue brought up from this investigation is the reach of a single warrant. How does their investigation fit in with traditional 4th amendment search particularity requirements with this sort of a murky, dark web technology? The federal rules of criminal procedure have typically required that the warrant be issued in the same district as the ‘search’ to prevent the government from engaging in ‘fishing’ expeditions, thus preventing overreaching government surveillance. Here, there were hundreds charged based on the issuance of a single warrant obtained by agents in Virginia. 

As it stands now, there are few statutory guidelines in place to guide law enforcement, the courts, or the public regarding government hacking. Prosecutors said details surrounding how the FBI got their information was so sensitive that the government had no choice but to dismiss Michaud’s case, which depended on this technique.

Prosecutors cite an effort to balance competing interests, primarily how the information is compiled, based on the request for criminal discovery. In other words, the feds analyzed the trade-off: letting an alleged child pornographer free so that officials in the future may be able to catch other dark-web using criminals using the same confidential tactics used in this case. 

As a result, in raising this issue at the trial level, Michaud’s attorneys were able to have charges dropped in spite of the evidence against him, based on their zealous and persuasive advocacy. 

If you have legal questions regarding a criminal matter, contact Columbus, Ohio criminal defense lawyer Joe Edwards at 614-309-0243.  Attorney Edwards has over 25 years of experience representing individuals at the state and federal levels.

References:

Newman, L.H. (2017, March 7). The Feds Would Rather Drop a Child Porn Case Than Give Up a Tor Exploit. Retrieved from: www-wired-com.cdn.ampproject.org

Carter, M. (2016, November 1). Judge has ‘ethical and legal’ concerns over FBI running a massive ‘dark web’ child-porn site. Retrieved from: www.seattletimes.com

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