en

The VICE Channels

    Image: /Shutterstock

    Defense Lawyers Claim FBI Peddled Child Porn in Dark Web Sting

    Written by

    Joseph Cox

    Contributor

    On Tuesday, Motherboard reported that the FBI had carried out an “unprecedented” hacking campaign, in which the agency targeted at least 1,300 computers that were allegedly used to visit a site hosting child pornography.

    While it looks like several of those already charged will plead guilty to online child pornography crimes, one defense team has made the extraordinary step of arguing to have their client's case thrown out completely. Their main argument is that the FBI, in briefly running the child pornography site from its own servers in Virginia, itself distributed an “untold” amount of illegal material.

    “There is no law enforcement exemption, or statutory exemption for the distribution of child pornography,” Colin Fieman, one of the federal public defenders filing the motion to dismiss the indictment, claimed in a phone interview earlier this week. Jay Michaud, a Vancouver teacher arrested in July 2015, is also being represented by Linda Sullivan.

    “THE GOVERNMENT'S OPERATION OF THE WORLD'S LARGEST ‘HIDDEN SERVER’ CHILD PORNOGRAPHY SITE AND ITS GLOBAL DISTRIBUTION OF UNTOLD NUMBERS OF PICTURES AND VIDEOS IS OUTRAGEOUS CONDUCT THAT SHOULD RESULT IN DISMISSAL OF THE INDICTMENT,” a court filing dated November 20, 2015 reads.

    Fieman and Sullivan reason that if the methods of the investigation that supposedly identified his client “cannot be reconciled with fundamental expectations of decency and fairness,” then the indictment should be dismissed.

    A section of the filing, which outlines the defense lawyers' argument.

    In February 2015, the FBI seized the server of “Playpen,” which court documents described as “the largest remaining known child pornography hidden service in the world.” Instead of shutting the site down straight away, however, the FBI moved Playpen to a government controlled server in Virginia, and deployed a network investigative technique (NIT)—the agency's term for a hacking tool—in an attempt to identify people logging into the site. This NIT, according to other court documents, collected approximately “1300 true internet protocol (IP) addresses” between February 20 and March 4.

    In their argument, Fieman and Sullivan point to the Department of Justice's own view on the harm caused by the proliferation of child pornography. “Once an image is on the Internet, it is irretrievable and can continue to circulate forever,” the Department of Justice website reads. In an April 2015 press release, US Attorney Josh J. Minkler said that “Producing and distributing child pornography re-victimizes our children every time it is passed from one person to another.”

    In essence, the lawyers' point is that the FBI was, by running Playpen from its own servers, essentially distributing child pornography.

    So, according to their argument, it is unclear how the “Government can possibly justify the massive distribution of child pornography that it accomplished in this case.”

    They then posit that, rather than taking over the site to deploy a bulk hacking technique, and allowing the site to continue to distribute child pornography material in the process, the FBI could have posted individual links to malware-laden files on the site without running it from their own servers. Or, after seizing the site, the agency could have redirected users to a spoofed version of it, minus the child pornography material.

    "We are in a protracted street fight with the Department of Justice and the FBI"

    Instead, the FBI “continued to distribute thousands of illicit pictures and videos to thousands of visitors,” the filing states. It compares the case to “Operation Fast and Furious”: Between 2009 and 2011, law enforcement agents infamously proliferated illegal weapons in an attempt to trace them to Mexican drug cartels. Some of the weapons, however, ended up being used in the murder of a US Border Patrol agent.

    The Department of Justice did not reply to repeated requests for comment. The FBI did not respond to a request for comment in time for publication, but a spokesperson previously told Motherboard, “We are not able to comment on ongoing investigations, or describe the use of specific investigative techniques.”

    This argument to dismiss the indictment is just one of the more recent phases of a heated legal back-and-forth between Michaud's lawyers and the government. Since October, dozens of documents have been filed in the case, including motions to seal documents, affidavits, modifications to protective orders, and delays to responses.

    “We are in a protracted street fight with the Department of Justice and the FBI,” Fieman told Motherboard.

    Some of the issues circle around evidence: the defense argues that its client has not had access to important discovery information. It has had some success on that front though: on December 10, the Government wrote that the defense counsel will be provided with the computer code of the NIT under a protective order. The defense is also expected to receive a detailed list of the number of child pornography materials on Playpen while it was being run from an FBI server.

    The government's response to the motion to dismiss the indictment is currently sealed. It's unclear how the government has replied to the lawyer's arguments, but this move to have the indictment against a suspected online child pornographer totally scraped is a surprising and dramatic turn in a case that continues to grow in scope.

    11 20 2015 Motion to Dismiss Indictment