Search and Seizure

Feds Drop Child Porn Charges, Saying the Source of Their Evidence Is Secret

The DOJ won't reveal the source code for the software it used to identify Playpen visitors.

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Federal prosecutors in Seattle are dropping their case against Jay Michaud, a Vancouver man accused of accessing Playpen, a dark-web child pornography site that the FBI ran for 13 days in 2015 as part of a sting operation known as Operation Pacifier. But as Cyrus Farivar explains at Ars Technica, the decision has nothing to do with the morally dubious premise of that operation, which involved distributing child pornography to catch people who look at it.

Instead the Justice Department was stymied by another problem of its own making. Last year Robert Bryan, a federal judge in Tacoma, ruled that the government must reveal the source code for the "network investigative technique" (NIT) that the FBI used to get around the Tor anonymizing software shielding Playpen's visitors if prosecutors want to use the evidence obtained with the NIT against Michaud. Since the Justice Department says the source code is a secret, the evidence was suppressed.

"The government must now choose between disclosure of classified information and dismissal of its indictment," Annette Hayes, the U.S. attorney for the Western District of Washington, wrote in a motion filed on Friday. "Disclosure is not currently an option. Dismissal without prejudice leaves open the possibility that the government could bring new charges should there come a time within the statute of limitations when and the government be in a position to provide the requested discovery."

Operation Pacifier led to charges against nearly 200 people, many of whom have already pleaded guilty. Last year a defendant in West Virginia, Michael Lough, withdrew his guilty plea after a federal judge in Massachusetts suppressed evidence obtained with the government's Tor-compromising software. In the latter case, U.S. District Judge William G. Young ruled that the federal magistrate who issued the warrant allowing use of the NIT exceeded his jurisdictional limits by purporting to authorize searches outside the Eastern District of Virginia, where the Playpen server was located but the defendant was not. At least half a dozen other judges have agreed that the warrant was invalid because of that jurisdictional error, although some decided that the evidence obtained with the warrant still could be used because it qualified for the "good faith" exception to the exclusionary rule.

Lough, by the way, originally pleaded guilty to a single count of possessing child pornography, which under federal law is punishable by up to 10 years in prison but carries no mandatory minimum. The FBI agents who ran Playpen for two weeks, by contrast, committed multiple counts of distributing child pornography, which is punishable by up to 20 years in prison and carries a five-year mandatory minimum.

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  1. The FBI agents who ran Playpen for two weeks, by contrast, committed multiple counts of distributing child pornography, which is punishable by up to 20 years in prison and carries a five-year mandatory minimum.

    So now all we need is a prosecutor to bring these scofflaws to just…ah.

    1. This falls under the “King’s Men” exception. It’s right there in the Constitution, you just have to look really hard.

      1. Its well know it is in invincible ink between the lines of the commerce clause….fucking commerce clause is the root of all this BS.

  2. Dismissal without prejudice leaves open the possibility that the government could bring new charges should there come a time within the statute of limitations when and the government be in a position to provide the requested discovery.”

    The FBI agents who ran Playpen for two weeks, by contrast, committed multiple counts of distributing child pornography, which is punishable by up to 20 years in prison and carries a five-year mandatory minimum.

    “We can do whatever we want, whenever we want.”

    1. This might be why some folk around here scoff at all the “RULE OF LAW!!” talk.

  3. Running a child pornography ring to catch people who look at child pornography. Having sex with prostitutes in order to catch prostitutes. Dealing drugs in order to catch drug dealers. Concocting a terrorist plot in order to catch plotting terrorists. Running a murder for hire ring in order to catch those who would hire murderers. Where does it stop?

    Why is law enforcement allowed to break the very laws it seeks to enforce? Running a child pornography site and no one blinks. No one. Why isn’t everyone in the FBI involved with this sting currently sitting in jail for child pornography?

    1. Where does it stop?

      When the revolution begins.

      1. I am waiting……I have all my gear and ammo to boot.

    2. Seems like a good rule of thumb would be that if police can justify committing a crime in order to enforce laws against that crime, then it shouldn’t be a crime in the first place.

      It still works for the terrorism and murder for hire things because (as far as I know) they only pretend to do those things in the stings. Of course, it is often entrapment, but that’s a different problem.

      1. You know how you can tell the troll accounts are all one person or maybe one or two others, Zeb? They never post on threads like this. Look at this thread. There is not a single troll to be found. They only show up when they can throw shit about partisan political issues.

        1. That’s an interesting observation. But there are also plenty of partisan idiots in the world who are more interested in throwing shit than interesting debates.

          I’m not saying that there aren’t some malicious trolls who do what you describe. I just think that some people are too quick to assume that all or most trolls are those same assholes. There are plenty of trolls and annoying people to go around.

  4. I wonder how they pick the agents for child-porn duty. I mean, they’re all amoral husks so how do you choose? I guess it’s first-come, first-serve?

    1. People probably sign up so that they can catch predators, and then they slowly devolve into amoral husks.

      I feel bad for them in this case.

      1. Slowly devolve? You don’t get past the welcome mat at the FBI without being at least halfway there already.

        1. I don’t know if you are being too hard on the FBI, or too easy on the general population.

          But I don’t think they are that different from each other at the outset.

          1. Probably a little of both; after all, the number of slots open for cops IS limited. And what are the FBI but “super-cops” – and I am pretty sure they’re not all kind and cuddly like Mulder and Sculley either. They’re more like Agent Smith.

            1. The best line I can recall of “The X Files” was directed at the main pair of characters, Special Agents of the FBI, after the show had been running for years: “What’s so special about you?”

        2. This is very true and this remains true for almost everyone who stay in the military for more than one term.

    2. I guess it’s first-come, first-serve?

      You sick fuck.

  5. Operation Pacifier

    All right, gents. Let’s come up with a good name for this sting. Nothing too creepy, ok.

    1. Operation Bloody Diaper was already used.

    2. And there is nothing creepy or objectionable at all about the FBI running a large child pornography distribution operation. Nothing at all.

      Imagine if the FBI rather than busting drug smugglers started a drug cartel of their own and ran it for a few months so they could arrest anyone who bought or smuggled for them. That is what they did here. Now, forget your objections to the war on drugs for a moment and imagine you think drugs really are bad and believe in the war on drugs and think about that possibility. Wouldn’t it disturb you to think of the FBI using your tax dollars to smuggle drugs in and sell them to all comers with no idea where those drugs eventually went? Oh sure, they got around to arresting the people that bought from them, but only months later after the drugs had been sold down the line to who knows who else.

      That is what they did here. They distributed child porn and then a few months later got around to arresting the people who downloaded it. What happened to that child porn and how many other people got ahold of it was really not their problem.

      This should be a giant scandal. But of course it is not.

      1. Fast & Furious comes to mind. I wonder if Trump’s administration will poke around there. I’d love to see Holder’s smug smile wiped from his face when he stands in the dock for that. It would be much better than when the California state anti-gun legislator (but I repeat myself) was popped for selling illegal machine guns.

        1. I would give anything to see that. Sadly, I doubt we are living well enough to ever see something that great.

          18 USC 552A is the federal statute governing child pornography. It is a strict liability statute. It doesn’t contain any exceptions, not even for law enforcement purposes. It says in so many words that the possession and or distribution of child pornography is a crime. So the FBI agents involved in this committed multiple felonies. In a just world, they would be at the dock for that. And if people don’t like that, they need to ask themselves why they think such stuff should be illegal. It is contraband. The FBI running a child porn server is no different than it running a drug selling operation at the local high school.

      2. Given that the justification for the harsh penalties for simply viewing child porn is that it re-victimizes the people depicted and that more being available creates more demand, it is particularly fucked up and despicable.

        With a drug sting or something, at least they can somewhat plausibly claim that they aren’t making the problem they are supposedly fighting worse. In this case they just kept doing exactly what the criminal enterprise they took over was doing in the first place.

        1. You are right zeb.

        2. In this case, it’s digital goods being dealt with. Digital goods are endlessly replicable, so who knows how much farther and wider the agents caused the files to be distributed.

          1. Too bad the federal government did away with “private prosecutions” because I would donate a shit ton of my money to aid in the prosecution of these assholes.

  6. And where do they get their child porn? Do they create it themselves?

    1. They took over an existing dark web site and continued to run it.

  7. I’m obviously not a constitutional scholar, but I would think that a magistrate should have jurisdiction to authorize modification of a server that is located within his jurisdiction. When you access that server, you are giving implied consent to play by the rules of that server’s location.

    I am also not horribly upset by the idea that the feds seized a server, and then left it up for a couple weeks to see who was using it. That’s not the same as setting up a new server. And they didn’t leave it up for an undue period of time.

    However, I do agree that the defendants should have access to the source code, otherwise how can we be sure those defendants actually committed the acts?

    In reality, 10 years from now the source code will be obsolete and these perps will all get prosecuted.

    I wonder if they could have run this sting with dummy files. Could they prosecute for intent? Or do you have to establish that after downloading one demonstrably illegal photo, they continued to download more?

    1. The problem isn’t that hey modified the server. The problem is they will not tell the court or the defendants exactly how they did that. It is not a 4th Amendment issue. It is a due process issue.

      Think of it this way. The feds show up at your house one day and arrest you saying they know you downloaded all of this child porn. You get a lawyer and the lawyer asked the government “how can you prove my client downloaded that porn?”. And in response, the government says “we have this magic code that we embedded on his browser that told us he did it.” You attorney says “okay, show me the code so my experts can examine it and see if it really did what you say it did”. And the government’s response is “we can’t show you the code, you will have to trust us”.

      See why this is outrageous?

      1. I do agree that the defendants should have access to the source code. And that’s how the judge ruled.

        1. Yes. And the government is so afraid of giving it up, they let the guy walk to avoid doing that. The government doesn’t think it should have to bother to present evidence to convict people anymore. And when required to, they just drop the case.

    2. And they didn’t leave it up for an undue period of time.

      Actually, who the hell knows how long they actually ran it?

      1. Good point.

      2. And, if distributing child porn is such a horrible crime that the penalties currently attached to it are appropriate, I don’t see how they can justify continuing to distribute child porn when they have the ability to stop it immediately.

      3. I think the wired article above gives a decent timeline.

  8. And cops speed routinely without lights on, not in pursuit, not anything but wanting to speed. They routinely roll through red lights and stop signs, and change lanes without signalling, and don’t turn on their blinkers the correct distance before an intersection.

    Sometimes I wish we had robot traffic enforcement just to catch such scoff laws. Isn’t that what broken window policing is all about — stop the low level crime which just breeds contempt for the law and leads to serious crimes?

    Yeah, yeah. FYTW.

  9. Police at all levels should crack down on child porn with harsh punishment, but if the police are distributing the material then arresting those who look at it, how is that not entrapment?

    1. They didn’t advertise the site (I assume). They took over an existing site. So, I think that qualifies at catching people who were self-motivated.

      If they took over a site, and then spent $1M advertising it on backpage, then I will have a different opinion.

      1. So it’s OK to take over a site distributing material that victimizes children rather than shut it down?

        It’s a bit like the FBI taking over a murder for hire ring and watching the people involved instead of shutting it down. Sure, they didn’t advertise it or promote it, they just got access to the infrastructure and let things go on as they had been. Obviously the things happening weren’t that horrible, or they would have put an immediate stop to it and caught who they could.

    2. I feel like you already know the answer to this one….

  10. The food porn charges have not been dropped, because anybody who Instagrams their meal deserves all the Federal pound-me-in-the-ass prison they can eat.

  11. I’m sure you’re going to hear a lot of squawking about this one – how can you possibly support pedophiles? They should all just be thrown under the jail without a trial! The rules are there to protect the innocent, not the guilty. And we know these people are guilty because why else would they have been arrested? See, this is how we got Trump, because you people will protect child molesters but you won’t protect the children. I just hope and pray that a merciful Jesus will condemn you to burn in Hell for all eternity for insisting these evil perverts deserve a fair trial and that the good Lord guides President Trump to ignore the so-called “Constitution” you heathens and reprobates hide behind with your “rights” and your “due process” nonsense. The only people who complain about their rights being violated are the guilty, real Americans are happy to unquestioningly trust and support their government.

  12. The FBI runs its own Tor servers and sometimes takes control of them. They’ve all but admitted this since 2013.

    https://www.wired.com/2013/09/freedom-hosting-fbi/

    It’s too bad that people as vile as child pr0n purveyors and terrorists take advantage of Tor. I suspect mass surveillance is actually making it harder for the FBI to isolate and identify such people online.

    It’s like the security argument for open borders; if anyone could cross the border by having an ID scanned at a checkpoint, then the only people sneaking miles through the desert in the middle of the night would be terrorists, smugglers, cartels, et. al. They’d be easier to catch if there weren’t hundreds of thousands of people just looking for work to hide behind.

    Likewise, if the government weren’t engaging in mass surveillance, there would be far fewer people using clunky Tor browsers and other technologies to hide the stupid but innocent emails they exchange with friends and family. It’d be a hell of a lot more of a red flag.

    1. Interesting. I thought the law was explicit that hosts are not responsible for the content of the users.

      1. Freedom Hosting has long been notorious for allowing child porn to live on its servers. In 2011, the hactivist collective Anonymous singled out the service for denial-of-service attacks after allegedly finding the firm hosted 95 percent of the child porn hidden services on the Tor network. In the hearing yesterday, Donahue said the service hosted at least 100 child porn sites with thousands of users, and claimed Marques had visited some of the sites himself.

        Oh.

    2. I don’t know a single thing about Tor. So, please enlighten me. I find it hard to believe that many people use Tor to hide stupid innocent emails. Really? I am not saying it isn’t true because I really don’t know. I just find it very hard to believe.

      1. the wired article is interesting.

        I think people use also Tor for things like piracy. Argh.

        But also NGOs, etc.

        1. It is a pain in the ass to use. So, why would someone who didn’t really have anything to hide go through the trouble? I am sure some do, but not many. The NGO angle is a good point. But what percentage of TOR users are NGO? Not very many I would think.

          1. I know people who do, but they are paranoid of the government types.

            You know.

            Libertarians.

          2. People do a lot of pain-in-the-ass things out of “principle”.

          3. It isn’t as big of a pain in the ass as you think.

            There are whole Linux operating systems that run all communications through Tor browsers.

            Whonix does this and so does Tails, which you can run from a USB drive through an interface that looks like Windows–in case you’re at a library or internet cafe.

            Some people care about privacy like other people care about the Second Amendment. The chances of you average suburbanite needing to justifiably use their concealed carry gun are pretty remote, and carrying a gun around is a pain in the ass.

            People do it anyway.

            Some operating systems make it easy, too. Qubes is awesome that way. You can run both windows and Whonix simultaneously and seamlessly–but so they don’t even know about each other. It hides your IP and Mac address from your own applications.

            It’s getting easier, again, to cater to acerage people who just care about privacy for privacy’s sake.

            . . . not to mention so their wife doesn’t find out what they’re doing online or because they want to keep their soon to be ex-wife’s attorney out of their bank accounts.

            1. That’s a very good analogy.

  13. While ignorance, fear, hate, and hysteria about this issue are rampant in much of the general public, the question of the actual harmfulness of “child porn” is far from settled, and is the subject of ongoing debates in the psychology/social sciences community and in scientific journals.

    Scientific studies based on credible empirical evidence do not support the mass hysteria and moral panic that currently surround so-called “child pornography.” According to several objective research reports, some of which are discussed in the essay linked below, the viewing of this material can be seen as essentially a “thought crime,” is most often harmless, and does not always lead to behaviors which are currently considered to be criminal. Many ? perhaps most – of those charged with possessing and viewing “child pornography” have never been involved with a child. For an essay discussing this subject published in a reputable scientific journal, see http://www.shfri.net/effects/effects.cgi

    Also, the conjecture that all “child pornography” subjects are unwilling “victims” is not supported by empirical facts, and the concept that children are hurt every time their image is viewed simply is not rational ? the child most likely never knows about such viewings. Regarding “harm, Google “The Missing Mechanism of Harm”i

    For a free downloadable 94 page book on these issues which includes testimony from now grown former child “actors,” see http://www.shfri.net/shfp/beyond/beyond.html

    1. No, that’s not ok.

      1. It’s not that big of a deal though, seeing as how the FBI took over a server sharing that material and let it continue operating for months.

    2. I’m not touching that third rail.

      1. IT is like any other age of consent issue. It is impossible to draw a single line when someone can consent to something like that. But, you have to draw the line somewhere and as long as everyone knows the line, I have zero sympathies for the people who cross it.

        The better debate is why we make mere possession of child pornography, rather than producing it, a crime. I have a hard time justifying that. To me, it is a thought crime. The idea that the child is further victimized by someone having the picture is irrational. And I don’t buy for a minute that the people who make this crap are somehow driven by the market. They make it for free because they are that fucked up. So I think the possession laws are wrong. The laws against making the shit, however, are just fine.

        1. Then you have people advising that you shouldn’t unintentionally produce kid porn. They say you shouldn’t distribute pix of your kids that pedophiles might like & take as substitutes for, or as, kid porn. In other words, pix that you’d be perfectly comfortable with showing & not think of as porn, becomes a “problem” because it might gratify those who like kid porn. Otherwise there could be bad consequences for your kids because…?

    3. Paying for child pornography is awful and wrong for a number of reasons.

      For one, you’re creating an incentive for sick people to make more of it. They become accessories after the fact by rewarding the people who made it. They become accessories before the fact to future victims by encouraging child pornographers to make more.

      Also, the conjecture that all “child pornography” subjects are unwilling “victims” is not supported by empirical facts, and the concept that children are hurt every time their image is viewed simply is not rational ? the child most likely never knows about such viewings.

      Your qualitative judgements about how those victims should feel or how badly they were really harmed is beside the point.

      A child’s consent is unobtainable. Their parents’ right to consent was ignored.

      Respecting other people’s rights means respecting their right to consent. Raping someone in a coma isn’t okay so long as the victim never finds out about it or isn’t actually harmed by it. Having sex without someone’s consent is rape–regardless of whether you think they were damaged by it, their right to consent was ignored and violated.

      1. Raping someone in a coma isn’t okay so long as the victim never finds out about it or isn’t actually harmed by it.

        Why isn’t it OK? Isn’t all value subjective? How can you possibly harm someone never finds out about the loss or other subjection?

        If all value is not subjective, libertarian theory is undercut.

      2. Let me point out the flaws in your argument.

        “They become accessories before the fact to future victims by encouraging child pornographers to make more.”

        With the advent of webcam technology and how everyone has access to the internet, kids themselves (yes this includes preteens) are some of the biggest child porn producers. Child porn laws to not differentiate. It will consider a video a kid makes themselves for fun the same as a video of toddler rape.

        “Your qualitative judgements about how those victims should feel or how badly they were really harmed is beside the point.”

        The whole argument that “viewing the pic harms the child!” is not only besides the point but absolutely moronic.

        “A child’s consent is unobtainable. ”

        Don’t be a moron. “Hey you want some lunch?” “Yeah!” consent obtained. What you meant to say is that a child’s consent is subject to the assent of their guardians.

        “Their parents’ right to consent was ignored.”

        And what if we have some super hippy dippy sexually liberal parents that don’t mind their child being in sex exploration videos with someone the child likes? Do you find it okay to impose on the rights of all involved because you don’t like what they are all consenting/assenting to?

    4. A right is a right to make a choice. People whose consent was not obtained had their right to make a choice violated. The legitimate purpose of government is to protect people’s rights–including the rights of children.

      People who willingly view child pornography should be criminally prosecuted as accessories to child abuse. If what they do by viewing isn’t as bad as actually facilitating abuse in person, then their punishment should be less than that–but it’s still rightly a crime.

      If you willingly and purposely violated someone’s rights, it’s a crime.

      1. So if viewing a picture or video a person doesn’t want on the internet is a crime… then how come this only matters if the content is sexual? Mere possession/viewing is not criminal as there is no victim of the “viewing/possessing”. Selling or distributing, yes those make sense as crimes.

  14. Wow call me shock that a judge required the source code to be released for it to count! This is a serious issue in criminal and civil cases where you don’t have access to everything you need to prove your innocence.

    This is not a win by any means….it is just an example of the right thing being done for once.

  15. “Operation Pacifier”? For a kiddie porn sting? Illegal spying and entrapment aside, these mongoloids are a bunch of sick fucks. They’re reaching cop levels of sub-humanity, if they aren’t there already.

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