Judge Says FBI's Child Porn Investigation Bordered On 'Outrageous,' Lets It Keep All Of Its Evidence

from the this-troubles-me-but-not-enough-to-actually-do-anything-about-it dept

Another ruling [PDF] has been handed down in the FBI’s multitudinous Playpen cases, this one consolidating four defendants in a Washington federal court. While the court does find aspects of the FBI’s child pornography distribution unpleasant, it’s not enough to result in anything more than some stern words. All evidence remains unsuppressed and all motions to compel discovery are denied. (h/t Brad Heath)

This was everything that was done with a single, Virginia-issued warrant.

For approximately 14 days, from February 20, 2015 through March 4, 2015, the FBI administered Website A from a government-controlled computer server located in Virginia, which forwarded a copy of all website communications to FBI personnel in Linthicum, Maryland. Once deployed by the Government, the NIT gathered approximately nine thousand IP addresses, approximately seven thousand of which were associated with computers in one of more than one-hundred countries other than United States. Dkt. 90-1 at 3, 5. The FBI maintains that it did not post content itself, but concedes that it allowed registered users to access the site, view and download child pornographic content for distribution, and post new content, including 44 “new” series of data. Id. at 3. Some website users commented on technical improvements to the site while under FBI control. Dkt. 90-3. A NIT has been relied on by the FBI in at least twenty-three other investigations. Dkt. 100.

Following this, the court explains that the FBI’s in camera, ex parte submissions justify its refusal to release more information on its NIT. Because of the nature of the submissions, there’s obviously not much to be gleaned from this “discussion,” other than it won’t be happening.

From there, the court lists several FBI activities that could be labeled “outrageous conduct:”

(1) The Government ignored the statute forbidding such conduct: “In any criminal proceeding, any property or material that constitutes child pornography . . . shall remain in the care, custody and control of either the Government or the Court.” 18 U.S.C § 3509(m).

(2) The Government facilitated the continued availability of Website A, a site containing hundreds of child pornographic images for criminal users around the world.

(3) The Government, in fact, improved Website A’s technical functionality.

(4) The Government re-victimized hundreds of children by keeping Website A online.

(5) The Government used the child victims as bait to apprehend viewers of child pornography without informing the victims and without the victims’ permission—or that of their families.

(6) The Government’s actions placed any lawyer involved in jeopardy for violating ABA Model Rules of Professional Conduct 8.4, and raise serious ethical and moral issues for counsel.

The court even calls out the government for its backward thinking — that such things shouldn’t be considered “outrageous” by courts because the criminals they were after were such terrible people.

The only justification for the acts of the Government, as provided by counsel, is that the end justifies the means, or in the Government’s words, “Because those who create, obtain, trade, distribute and profit from the imagery of the rape and sexual exploitation of children have turned to Tor in an effort to hide their activities, the United States has been forced to employ creative means to unmask the individuals engaging in the destructive and heinous criminal conduct.”

Despite all of this, the court lets the government slide. The balancing test doesn’t tip in the defendants’ favor. The government can cross many, many lines before the court starts adding tension to the leash. In these consolidated cases, the court doesn’t like what it sees in terms of the FBI’s actions, but still doesn’t see enough to dismiss the charges.

Not only that, but the court finds that the violations of Rule 41 jurisdictional limits and alleged lack of probable cause should have no effect on the collected evidence. The information collected by the NIT — namely, the suspects’ IP addresses — has “no expectation of privacy.” Anything else that colored outside the lines of statutes and laws can be excused through the good faith exception. The NIT warrant was facially valid, according to the court, even if the agent filing the affidavit may have known the search would exceed jurisdictional limits. The court finds a way around this by citing the DOJ’s letter containing its proposed Rule 41 changes (introduced by the defendants as evidence that the DOJ knew it was breaking the rules with the NIT warrant), rather than the expected precedential case law.

The DOJ letter reveals an intent to improve the rule, which does not rule out the possibility that DOJ could have considered Rule 41(b) sufficiently flexible to address changes in technology. See also, Dkt. 104-1. Furthermore, the record is silent as to the magistrate judge’s thoughts regarding the scope of the warrant at the time it was issued, and speculation on that subject is fruitless. The record does not show deliberate disregard.

In the end, the government wins. It gets to walk away from its outrageous conduct with (most likely) four new convictions and nothing but some lightly-singed feelings from an opinion front-loaded with a judicial benchslap. The rest is pretty much history. Whatever cases might fall apart because of what Rule 41 used to be will no longer be an issue in the future, as the DOJ’s jurisdiction “fix” is now law.

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Comments on “Judge Says FBI's Child Porn Investigation Bordered On 'Outrageous,' Lets It Keep All Of Its Evidence”

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28 Comments
Anonymous Coward says:

Re: Re:

What is concerning about the whole affair is how many FBI staff were actively involved in watching, uploading and downloading the various images and videos for their own personal pleasure?

Yet we see nothing of these people being prosecuted (maybe because they are above the law?).

When nefarious tactics are used by LEO’s to find perpetrators of various kinds of activities, then the LEO’s become no better (and generally worse) than the criminals they are supposed to be tracking.

Tracking and findings pigs does not mean you have to get down in the mud with them. This applies to every agency whether or not they be one of the three letter kind.

timmaguire42 (profile) says:

Re: Re: Re: Re:

It wouldn’t surprise me if this turned out to be true. It’s no secret that child porn chat rooms are populated mostly by police trying to entrap each other. I’ve heard prosecutors explain that line separating “artistic” from pornography and it boils down to little more than its porn if the prosecutor gets a woodie.

Anonymous Coward says:

Illegal to download?

How is it illegal to download something that the government is distributing?

If I distributed such images I would be in jail, how can the government do the same and not see any consequences?
Could I be found not guilty by providing the government of IP addresses that downloaded stuff and say “but I was just doing an investigation to catch these pervs!”? If I can’t get away with such claims how can the government?

Shame on me to think law was applied equally to everyone.

Pseudonym says:

Re: Illegal to download?

Right, and this is the central point, I think. The question of whether or not the evidence should be thrown out is almost beside the point. Is having evidence thrown out the worst punishment that the Government can be subjected to for what it did?

The Government distributed child pornography. It re-victimized hundreds of children, andused victims of child abuse as bait.

Forget having the evidence thrown out, whoever signed off on this should be in prison.

John Cressman (profile) says:

Horrible

Child porn is horrible… but “the ends justifies the means” can lead to even more horrible things. Just ask the victims of 9/11 or any other terrorist act.

The FBI broke the law. PERIOD. END OF DISCUSSION. The agents involved should be prosecuted for distributing child porn and the lawyers involved disbarred.

The stepped over a line and if someone doesn’t smack them upside the head, they’ll do it again and they’ll do worse.

“Beware that, when fighting monsters, you yourself do not become a monster… for when you gaze long into the abyss. The abyss gazes also into you.”

― Friedrich Nietzsche

Anonymous Coward says:

Faux Outrage!!!

This bullshit judge is just grandstanding.

It’s all an act until a judge actually orders a bailiff to arrest the prosecution on charges of “distribution of child pornography”.

This is the court today ladies and gentlemen… a 3 ring circus running entirely for the entertainment of the federal government. Every constitutional law and governing statute has been ignored extensively to fit the mood of the Judicial Patsy of the day.

That One Guy (profile) says:

Next time, don't bother

If the judge is going to act ‘outraged’ but give the government everything they want then they might as well save everyone the effort, leave the court for a ‘lunch break’ and tell the government to write up any ruling they want, they’ll sign it without reading when they get back.

If a judge is going to act like a rubber stamp leave the faux ‘outrage’ at the door, you’re not fooling anyone. Just sit down, shut up, and sign the papers the government hands you like a good little tool.

timmaguire42 (profile) says:

Some of those outrages are more outrageous than others, but the first one–there is legislation expressly forbidding this action, so why doesn’t the doctrine of separation of powers tie the judge’s hands?

Short of a finding of unconstitutionality (which wasn’t at issue here), since when does the judiciary have the power to pick and choose the laws it will enforce?

Animedude5555 (profile) says:

The reason this worked, is because in our society we regard pedophiles as the worst of the worst. Worse than murderers. Worse than Satan himself. And even if an action would be illegal for the FBI to take, in perusing any other kind of case (robbery, arson, even murder) the FBI will be allowed to get away with it in the cases involving pedophiles. And I completely agree. Our country’s future, and indeed humanity’s future, lies with our children. Yet children are the most vulnerable members of society. As such they deserve to be protected more than anybody else, and those who would harm children deserve to be punished more strongly than anybody else. There should be no hindered in finding and arresting pedophiles. The FBI should be allowed to do WHATEVER it needs to do, in order to collect the evidence it needs to effectively prosecute pedophiles. And I do agree that many of the techniques that they should be permitted to use when going after pedophiles, they should NOT be permitted to use in ANY other kind of case they may be working on (simply due to how powerful and unconstitutional some of those techniques might be). However, the constitution should NOT be permitted to hinder the FBI when it comes catching and prosecuting pedophiles.

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