FBI Pedophiles

2023-08-16

In 2015, the FBI seized control of the darknet server running "Playpen," the world's largest child porn exchange at the time. Rather than shut it down, the FBI continued operating the site for 12 days, distributing child pornography while they deployed malware (referred to as the "NIT" — Network Investigative Tool) attempting to identify any users they could prosecute.

...the Government has confirmed that it elected to distribute child pornography during the entire time it was operating the site.

As a result of illegally serving child porn to more than 100,000 pedophiles, the FBI was able to arrest and charge 135 individual users of the site, securing guilty pleas from many of them. However, multiple defendants fought their charges, and as a result, the legality of the FBI's operation was brought before the courts.

At the time, many judges ruled that the warrant the FBI used to obtain its evidence was unlawful under Rule 41 of the Federal Rules of Criminal Procedure, and therefore all evidence obtained as a result of the warrant was inadmissable. That's because the FBI lied to the judge in filing for its original warrant:

I, a federal law enforcement officer or an attorney for the government, request a search warrant and state under penalty of perjury that I have reason to believe that on the following person or property located in the _Eastern_ District of _Virginia_, there is now concealed...

While the original warrant was limited in scope to the Eastern District of Virginia, the FBI conducted a global dragnet and entrapment operation to identify its defendants whom were charged throughout the United States. While this was arguably an unconstitutional general search, at the time this was at the very least illegal per Rule 41, and several district courts ruled that the evidence must be suppressed. However, while these rulings were pending on appeal, the FBI successfully lobbied Congress to change the law so it could use a warrant issued by any federal judge to hack anyone in the world. Thus, the First, Third, Sixth, Seventh, Ninth, and Tenth Circuit appeals courts retroactively allowed the warrant in the pending criminal cases.

Even though the FBI successfully went through legal gymnastics to change the law to allow previously-inadmissable evidence in the middle of its criminal trials, they faced another problem: the evidence itself. One of the longest standing tenets of criminal law is that a defendant has the right to examine the evidence against him and use it to prepare a defense. In the case of U.S. v. Jay Michaud, the defendant demanded disclosure of the NIT malware code, which could have shed light on how exactly the FBI identified his IP address, and whether there were any problems in the code that could have misidentified his computer. The judge agreed, but the FBI refused to turn over the evidence, in part on the grounds that it had recently classified the NIT code.

In the final analysis, the Government cannot have it both ways — on one hand charging a defendant with an offense that carries a five year mandatory minimum sentence, and on the other hand undermining his trial rights by deferring to the FBI’s refusal to disclose evidence that the Court has found relevant and helpful. Having created this impasse, the Government must now address the consequences.

In this case, the judge decided that the FBI could keep its hacking tool secret, but then it couldn't use the evidence obtained by it to proscute Michaud. As a result, the FBI dismissed the case, deciding that its right to secrecy was more important than convicting a suspected pedophile.

U.S. v. Jay Michaud wasn't the only Operation Playpen case the FBI bungled and was forced to drop. In U.S. v. Scott Frederick Arterbury, the DOJ dropped the case after a district court ruled against the original warrant, but then tried to re-file the case after changing the law. Michaud appealed and prevailed at the Tenth Circuit using a double jeopardy defense, and the FBI was blocked from using its NIT evidence in the case.

The FBI's botched investigation and inability to secure convictions against suspected pedophiles after itself running an illegal child porn website raises an interesting ethical question: in order to catch a pedophile is it moral to become a pedophile?