Lawyer Scrambles to Withdraw Plea After FBI Mass Hacking Case Collapses

Last month, a judge threw out evidence obtained by a piece of FBI malware—the first move of its kind—and then shortly after, another judge recommended in a related case that the same should happen.

Both cases stemmed from an FBI investigation into an online child pornography forum called Playpen. Now, in an early sign that other Playpen cases might face further legal challenges, at least one defense lawyer, whose client already submitted a guilty plea in relation to that investigation, is trying to use those judges' rulings against the FBI to try to withdraw his client's plea.

"Counsel knew of no defenses to the charge at the time of the guilty plea," Thomas G. Dyer, representing Michael P. Lough, wrote in a motion on Wednesday, and added "this is a new area of criminal law that is being litigated at this very moment throughout the entire country."

Lough was arrested as part of the FBI's investigation into the dark web child pornography site Playpen. In February 2015, the agency seized Playpen, and for just under two weeks ran the site from a government server in Virginia. During this time, the FBI deployed a network investigative technique (NIT)—the agency's term for a hacking tool—to identify visitors of the site.

In all, the FBI obtained over 1000 IP addresses of alleged US-based users of the site, and also hacked computers as far afield as Chile, Greece, and the UK. A Europol presentation discovered by Motherboard says that the agency has generated 3,229 cases as part of the same operation.

In his motion, Dyer references last month's events, where a Massachusetts judge ruled that the warrant used to authorise the mass hack was void. This was because the judge who signed that warrant, it was argued, did not have the legal power to greenlight a search and seizure outside of her own district in the Eastern District of Virginia.

"The defendant's guilty plea was not fully knowing because he was not aware of some of the legal events, analysis, and judicial opinions relating to the NIT warrant issued in the Eastern District of Virginia," Dyer continues. "Indeed, neither the defendant nor his counsel were aware of legal developments at the time of the defendant's plea because the new information on this subject was not readily discoverable despite due diligence. This case deals with a novel and cutting edge area of criminal law."

Just last week, the Supreme Court approved a change to Rule 41 of the Federal Rules of Criminal Procedure that will make warrants like that used in the Playpen investigation legal.

"This defendant also contends that the application of such rationale to the identical factual circumstances in this case may likewise lead to the suppression of the government's evidence here as well," Dyer writes.

In the agreement, which was filed in March, Lough pleaded guilty to possession of child pornography.

The Department of Justice has until May 19 to respond to the motion to withdraw. If the court then decides to allow the withdrawal of the guilty plea, Dyer writes that the defense will then file a motion to suppress; asking all evidence linked to the FBI's NIT to be thrown out.