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    Judge Rules FBI Running Child Porn Site for 13 Days Was Not ‘Outrageous Conduct'

    Written by

    Joseph Cox

    Contributor

    Back in November, defense lawyers for a man charged with child pornography crimes argued that the case should be thrown out of court because of "outrageous conduct" by the FBI.

    That "outrageous conduct"? As part of the investigation, the agency had taken over a child pornography site and then hosted it from its own servers, meaning that the FBI had distributed illegal imagery in the process, the defense argued.

    On Friday a judge struck that argument down, denying the motion to dismiss the indictment against the defendant.

    “I am not shocked by this,” Judge Robert J. Bryan said in a hearing, according to a court transcript. “I did not find it outrageous.”

    The hearing started with Colin Fieman, representing Jay Michaud, a Vancouver public schools administration worker, laying out what he argued was misconduct by the FBI.

    "We are dealing with actions by law enforcement that were necessitated by the actions of the offenders choosing to use, and in fact misuse, technology in order to hide their identity"

    In warrant applications, for this case and previous similar ones, Fieman said the FBI did not disclose to the courts “that they are planning to continue the distribution of child pornography as part of their investigations.”

    “We consider that outrageous,” he continued, “because even if there is a legitimate argument for doing that as an investigatory need, which is not true, judges needs to be able to decide if it is appropriate. And, frankly, we believe it is appalling.”

    The case in question circles around the seizure of Playpen, a child pornography site hosted as a Tor hidden service. In court documents, the FBI described the site as “the largest remaining known child pornography hidden service in the world.” In February 2015, the agency took control of Playpen and ran it from servers in Virginia, in order to deploy a network investigative technique or NIT, which is the FBI's term for a hacking tool.

    The authorising warrant for the technique allowed the NIT to be deployed to anyone who logged into the site. The tool would then attempt to grab visitors' IP and MAC addresses, as well as some other technical information.

    In one court document, the FBI wrote that approximately 1,300 true IP addresses were obtained during the 13 days that the agency ran the site. But the move is part of the broader Operation Pacifier, a joint-investigation with Europol, and it appears that the FBI hacked computers as far afield as Greece and Chile.

    It's for these 13 days that Fieman argues the FBI peddled child pornography.

    “And all this time, while this is going on, the FBI itself is aiding and abetting the uploading and distribution of massive amounts of child pornography,” he continued in the hearing.

    Keith Becker, from the Department of Justice Criminal Division, however, argued that the bar needed in order to throw the case out had not been met.

    He emphasised that this sort of action was necessary due to the protections awarded by the Tor anonymity network. “We are dealing with actions by law enforcement that were necessitated by the actions of the offenders choosing to use, and in fact misuse, technology in order to hide their identity while they sought to exploit and abuse children online,” he said.

    Becker also said that the affidavit in support of the NIT made it clear to the judge approving it that “the child pornography website involved here was going to remain operating at a government facility.” He pointed out that a court responsible for handling appeals has consistently found that reverse-stings—operations that involve the FBI fabricating a scheme in order to entice potential criminals, and then charge them—did not constitute outrageous conduct.

    Instead, the government attached itself to a criminal enterprise “that was already established and ongoing,” he said.

    “The United States, the FBI, didn't create this website. It was created by its users and its administrators, and existed and substantially distributed child pornography long before the government ever took it over in an effort to actually identify its criminal users,” Becker continued.

    Judge Bryan, in closing the debate, said that “This motion has not reached that standard that the defense would have to show,” in order to justify a dismissal of the indictment.

    Peter Carr, a spokesperson for the Department of Justice, declined to comment on the ruling. Fieman told Motherboard in an email that “it is important to keep in mind that we are in the early stages of what will be very prolonged litigation.” He and others are preparing to challenge other points in related NIT investigations in front of different judges as well.

    The FBI declined to comment.