Judge In Child Porn Case Reverses Course, Says FBI Will Not Have To Turn Over Details On Its Hacking Tool

from the no-unending-solitary-confinement-for-special-agents,-apparently dept

Back in February, the judge presiding over the FBI's case against Jay Michaud ordered the agency to turn over information on the hacking tool it used to unmask Tor users who visited a seized child porn site. The FBI further solidified its status as a law unto itself by responding that it would not comply with the court's order, no matter what.

Unfortunately, we won't be seeing any FBI officials tossed into jail cells indefinitely for contempt of court charges. The judge in that case has reversed course, as Motherboard reports.

The government's motion has been granted, and the FBI does not have to provide the exploit code to the defense as previously ordered. That means that the defense in the case will probably be unable to examine how the evidence against their client was collected in the first place.

It is not totally clear why Judge Robert J. Bryan changed his mind. On Thursday, the government and Bryan held a private meeting, where the government presented its reasons for nondisclosure of the Tor Browser exploit.
The judge apparently believes the defense should still be able to examine the code but apparently can't be bothered with ensuring this will happen.
Despite backtracking somewhat, Bryan still thinks the defense has a reason to see that code, according to audio of the public section of Thursday’s hearing provided by activist Phil Mocek. Of course, whether the FBI decides to then provide it is another matter.
Given the FBI's earlier promise to withhold the details of the NIT despite being ordered to disclose them, I'd say there's about a 0% chance of the FBI voluntarily turning this information over to the defense. Right now, the agency is working overtime just trying to keep the evidence it obtained with its hacking tool from being tossed out of three other courts. It's also facing the prospect that third-party interlopers like Mozilla may still result in it having to release these details to someone outside of its own offices. At this point, hardly anything's going the FBI's way, so it will take whatever it can get, even if it's only temporary relief.


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  • icon
    GrooveNeedle (profile), 17 May 2016 @ 10:44am

    Whoa, whoa, whoa...

    On Thursday, the government and Bryan held a private meeting, where the government presented its reasons for nondisclosure of the Tor Browser exploit.

    The Defense wasn't allowed at this meeting? Seems a bit one-sided... why is this not allowed/illegal?

    Look, give the FBI the option of showing the code, but add the stipulation that without sharing the code, all evidence is tossed. I'd rather the judge just throw some FBI guys in jail for contempt until the code is revealed, but tossing the evidence is a decent consolation prize.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 17 May 2016 @ 11:05am

      Re:

      Sounds like the FBI "educated" him on why he'd better change his mind and the judge saw the light.

      reply to this | link to this | view in chronology ]

      • identicon
        I.T. Guy, 17 May 2016 @ 11:53am

        Re: Re:

        "It is not totally clear why Judge Robert J. Bryan changed his mind."

        Men in Black suits and dark sunglasses had a "talk" with him.

        reply to this | link to this | view in chronology ]

        • icon
          Haywood (profile), 17 May 2016 @ 12:03pm

          Re: Re: Re:

          On the plus side he will see his wife and kids again.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 17 May 2016 @ 8:09pm

            Re: Re: Re: Re:

            Vanishing any one of them would be too complicated.
            The agencies did learn some things over time and one is to act in a way that there aren't any questions.

            Those kind of people while working with criminals know better than to act like them. His family is safe but people have accidents. Strokes are the #1 killer in the world...

            reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 17 May 2016 @ 5:32pm

      Re:

      The FBI are criminals, why on earth would they give people a defense against their illegal actions

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 May 2016 @ 10:51am

    I guess the FBI hacked into his computer and put child porn on it. Purely as a demonstration, of course.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 May 2016 @ 10:54am

    Tainted fruit.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 May 2016 @ 10:55am

    He probably came home to a horse's head on his bed.

    reply to this | link to this | view in chronology ]

  • identicon
    Whoever, 17 May 2016 @ 11:12am

    Police state?

    Isn't this textbook police state? Someone tried on the basis of secret evidence?

    In this case, it's "evidence gathered by secret means", but is that significantly different to secret evidence? The government hacked into his computer using secret methods, how does anyone know that the files existed on the person's computer before the government hacked in?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 17 May 2016 @ 4:08pm

      Re: Police state?

      Or how about this: the NIT happens to have a security exploit in its code that lets bad actors have full access to any machine it infects.

      That said, if I were the FBI, I wouldn't have deployed a NIT like this; I'd just have deployed something that called home to an FBI-owned address in the clear -- a NIT that they would have no issues revealing as it doesn't do anything special. It would have given them the same probable cause that they got using the method they used, but without anything they'd need to hide.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 May 2016 @ 11:14am

    The FBI under J. Edgar Hoover could ALWAYS get its way with presidents and judges alike, because the agency kept secret files on just about everyone.

    When facing a recalcitrant judge in the "good old days" the FBI could just dredge up some dirt and wave it in the official's face to make him more compliant. Or threaten to start a criminal investigation of some sort. But of course this was rarely even needed, as the FBI's fearsome reputation kept virtually all government officials cowering in fear.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 May 2016 @ 11:14am

    Sounds Like

    A courtroom chock full of criminals.

    reply to this | link to this | view in chronology ]

  • icon
    Uriel-238 (profile), 17 May 2016 @ 11:32am

    So a judge reverse course after a secret meeting

    I take this is grounds to appeal, on the basis that the Judge may no longer be impartial?

    If not this sounds like a severe security flaw And I know where your children sleep. may become a mainstay maneuver of the legal system.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 May 2016 @ 11:41am

    You are all forgetting that the constitution doesn't apply to suspected criminals. Especially if the suspect is accused of child pornography.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 May 2016 @ 11:43am

    Unfortunately, we won't be seeing any FBI officials tossed into jail cells indefinitely for contempt of court charges.

    But did not the king have you arrested immediately?

    By whom? It was I who commanded the musketeers; he must have commanded me to convey myself to prison; I would never have consented: I would have resisted myself.

    reply to this | link to this | view in chronology ]

  • identicon
    Quiet Lurcker, 17 May 2016 @ 2:14pm

    Computer data generated by FBI is the only 'evidence' in this case.

    Wouldn't it make sense, then for the court to require that the code/software used to develop the evidence be provided at least to the court for review, if not to the defense for similar purpose?

    And if the code/software isn't produced, does the prosecution have any right to proceed with the case?

    reply to this | link to this | view in chronology ]

  • identicon
    Digitari, 17 May 2016 @ 3:37pm

    well yeah but....

    SSSHHHHH is a seeeecreeet!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 May 2016 @ 5:29pm

    I will go with "they threatened the judge with either being murdered or setup with some other crime", in order to get a more favourable ruling.

    reply to this | link to this | view in chronology ]

  • icon
    Coyne Tibbets (profile), 17 May 2016 @ 6:11pm

    Conundrum solved

    Oh, what a conundrum. Secret evidence. Sixth Amendment Right to an effective defense. How ever can these possibly be reconciled?

    Hey, I know: "Case dismissed, with prejudice."

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 18 May 2016 @ 2:25am

    Isn't 'Merica wonderful?

    A citizen accused of wrongdoing dares to think they he should be able to see how the information was gathered to prove if it was legally gathered and is unable to do so.

    So what if that is guaranteed on some old piece of paper, it is all just window dressing. Throw everything we allegedly stand for out the window, because protecting secrets trumps the law & truth.

    Truth (as redacted), Justice (for some), & the 'Merica way... (allegations are all we need to prove them guilty, because we throw the book away because everything has to be secret.)

    Dude might be a pedophile, but what the courts are allowing to happen is way worse.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 May 2016 @ 3:17am

    It is not totally clear why Judge Robert J. Bryan changed his mind.
    Oh, it's totally clear why Judge Robert J. Bryan changed his mind.
    On Thursday, the government and Bryan held a private meeting

    MIB, politics and a healthy dose of "won't someone think of the children!?".

    Sure the dude's a sleazebag (and that's putting it mildly) but is it really worth pissing on due process (that will be abused) into law just to add another 5 years to a future inmate's sentence ?

    reply to this | link to this | view in chronology ]

    • icon
      Uriel-238 (profile), 18 May 2016 @ 10:48am

      Pissing on due process

      We made that decision as early as Al Capone. We decided it's worth breaking the system if the guy we're getting is bad enough.

      And of course, now every poor shlub in the wrong place at the wrong time is bad enough.

      And that makes all the rapists and sexual murderers (serial killers) into political prisoners, since due process is commonly circumvented for easy convictions.

      The United States loves easy convictions.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 May 2016 @ 4:53am

    secret laws

    secret courts

    and now.. secret evidence

    what in the fuck is happening

    land of the free indeed

    reply to this | link to this | view in chronology ]

  • icon
    GEMont (profile), 18 May 2016 @ 9:22am

    Lot of that going round these days...

    "Judge In Child Porn Case Reverses Course"

    Should read:

    Judge receives plain brown paper envelope full of pictures showing him and an obviously under-age boy, doing the dirty mamba, and a note that reads, "If your not with us, you're against us."

    Judge gets the picture - reverses position on Fed's illegal Child Porn activity.

    Can't think of a better example of Justice, American Style.

    ---

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 May 2016 @ 1:55pm

    FBI is fucking terrorist.

    reply to this | link to this | view in chronology ]

  • identicon
    zasporn, 23 Jun 2016 @ 4:51am

    Justice

    secret laws
    secret courts
    FBI ???

    Ohh may good!

    reply to this | link to this | view in chronology ]


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