Outrageous? – Update for September 7, 2016

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For two weeks last year, the FBI ran one of the largest purveyors of child pornography on the Internet. And now, the agency would rather not talk about it.

pornC160829After arresting the North Carolina administrator of The Playpen, a child-pornography Internet bulletin board on the “dark web,” accessed through a Tor browser, agents seized the site’s server and moved it to Virginia warehouse. From there, they ran “Operation Pacifier,” a computer-hacking operation of unparalleled scope that has thus far led to criminal charges against almost 200 people.During the two weeks the FBI ran The Playpen, visitors to the site traded at least 48,000 images, 200 videos and 13,000 kiddie porn links. At the same time the smut was being transmitted, agents included a secret “Network Investigative Technique,” or NIT, to invade their users’ computers, gather personal information and send it back to the FBI.

In fact, recently filed court exhibits suggest that The Playpen site performed substantially better while under the FBI’s control, with a number of users even commenting on the improvements. The defense for the man accused of being the original administrator of Playpen says these improvements led to the site becoming even more popular. “The FBI distributed child pornography to viewers and downloaders worldwide for nearly two weeks, until at least March 4, 2015, even working to improve the performance of the website beyond its original capability,” Peter Adolf, an assistant federal defender in the Western District of North Carolina, wrote in a motion to have his client’s indictment thrown out for outrageous government conduct. “During those two weeks, the website’s membership grew by over 30%, the number of unique weekly visitors to the site more than quadrupled, and approximately 200 videos, 9,000 images and 13,000 links to child pornography were posted to the site.”

Defense counsel Adolf’s motion contends that “government agents worked hard to upgrade the website’s capability to distribute large amounts of child pornography quickly and efficiently, resulting in more users receiving more child pornography faster than they ever did when the website was running ‘illegally.’” He argues the FBI engaged in “outrageous conduct” by distributing child pornography on a massive scale. Such activity by government agents in an investigation could lead to dismissal of charges if, as Adolf writes, the conduct is “shocking” or “offensive to traditional notions of fundamental fairness.”

What is new here is the defense’s claim that the FBI deliberately improved the site’s functionality for its users, and that this in turn led to more people signing up to Playpen. Adolf does not provide any solid evidence for this apparent causality, but points to the archived Playpen messages which indicate improvements took place.

kittyporn160829The investigation has sparked a growing social and legal controversy over the FBI’s tactics and the impact on Internet privacy, as well as over the agency committing the more serious crime of distributing child porn in order to catch people committing the less serious crime of possessing child porn. Some critics have compared the sting to the notorious Operation Fast and Furious, in which the Bureau of Alcohol, Tobacco, Firearms and Explosives allowed the illegal sales of thousands of guns to drug smugglers, who later used them in crimes.

Now, the FBI’s refusal to discuss Operation Pacifier and reveal exactly how it was conducted is jeopardizing some of the resulting criminal prosecutions. Last month, in United States v. Michaud, a federal judge in Tacoma, Washington, suppressed the evidence obtained against a man indicted in July 2015 on a charge of receiving child pornography because the FBI refused to reveal how it was gathered.

Similar motions are pending in other prosecutions in Washington and elsewhere around the country. USA Today reported on Wednesday that in United States v. Scarborough, a Tennessee case, U.S. Magistrate Judge Clifford Shirley late last month declared the FBI’s search warrant process in its takeover of The Playpen server to be an illegal search, joining at least six other federal judges in the nation to so rule.

pornA160829But Magistrate Judge Shirley refused to exclude the evidence gleaned as a result of Operation Pacifier, ruling the FBI’s method of obtaining incriminating evidence against The Playpen users wasn’t nefarious but merely misguided. Shirley is allowing the evidence against Scarbrough to stand under the good faith exception, that the agents proceeded in good-faith reliance on the law.

According to court documents, between Feb. 20 and March 4, 2015, as many as 100,000 people logged onto the site, which was accessible only by using the anonymous “Tor” browser, which encrypts and routes Internet traffic through thousands of other computers to hide the identity of a user. Some defense attorneys estimate that over 1 million child porn images were distributed during that 2-week operation.

USA Today, FBI tactic in national child porn sting under attack (September 7, 2016)

Motherboard, Lawyer: Dark Web Child Porn Site Ran Better When It Was Taken Over by the FBI (August 23, 2016)

Seattle Times, FBI’s massive porn sting puts internet privacy in crossfire (August 27, 2016)


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