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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  • identicon
    Anonymous Coward, 13 Dec 2016 @ 3:48am

    I do not like the no expectations of privacy argument in an IP address in this case, as it rather like saying you have no expectation of privacy in your phone number, so the break in to get it did not invade your privacy.

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

  • icon
    Ninja (profile), 13 Dec 2016 @ 3:57am

    The Govt knew their conduct was outrageous at best. But they were sure that shouting "for the children!" and getting a few pedophiles behind bars would make the collectivity forgive them because everybody hates pedophiles more than a little Constitutional breach.

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

    • identicon
      Anonymous Coward, 13 Dec 2016 @ 4:38am

      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.

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

      • identicon
        Anonymous Coward, 13 Dec 2016 @ 6:36am

        Re: Re:

        I think a majority of the pedos work in government in positions which are tasked with looking for the pedos.

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

        • icon
          timmaguire42 (profile), 13 Dec 2016 @ 8:24am

          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.

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

      • icon
        crade (profile), 13 Dec 2016 @ 7:48am

        Re: Re:

        "for their own personal pleasure" - does this matter? They are doing the harm. Whether they derive pleasure from it or not. If you murder 4 innocent people to bring a murderer to justice, are you better or worse than the murderer who killed one for his own personal reasons?

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

  • identicon
    Anonymous Coward, 13 Dec 2016 @ 5:10am

    This ruling is not surprising, unfortunately. "This is extremely disturbing what you did to get this evidence but since these are bad guys it's ok, just follow the rules next time ok." The ends do not justify the means but unfortunately that's what most judges allow these days.

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

  • identicon
    Anonymous Coward, 13 Dec 2016 @ 5:18am

    History Repeats

    First they came for the pedophiles...

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

    • icon
      Padpaw (profile), 13 Dec 2016 @ 9:00am

      Re: History Repeats

      It bothers me we only have the FBI's word these are pedophiles. Consider they broke multiple laws to arrest these "pedo's". How do we know they didn't just plant child porn on the computers of people they don't like.

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

  • identicon
    Anonymous Coward, 13 Dec 2016 @ 5:19am

    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.

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

    • identicon
      Pseudonym, 13 Dec 2016 @ 7:19pm

      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.

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

      • identicon
        Anonymous Coward, 15 Dec 2016 @ 4:58am

        Re: Re: Illegal to download?

        They actually facilitated in some cases. That's troubling. They need to reset whole tactics.

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

  • identicon
    Anonymous Coward, 13 Dec 2016 @ 5:55am

    Again, the *only* solution regarding judges who let this type of behavior slide is to reorient their brains such that they no longer occupy their skulls, but rather the wall behind them.

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

  • identicon
    John Cressman, 13 Dec 2016 @ 6:00am

    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

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

  • identicon
    Anonymous Coward, 13 Dec 2016 @ 6:11am

    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.

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

  • identicon
    I.T. Guy, 13 Dec 2016 @ 6:15am

    "namely, the suspects' IP addresses -- has "no expectation of privacy."

    I would bet anything that if you went and published the ip's of the Judges home's that think this, all of a sudden there would be an expectation of privacy.

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

  • icon
    scotts13 (profile), 13 Dec 2016 @ 7:58am

    Sauce for the goose

    Best of both worlds: "I'll let you keep the evidence gathered... but there are also some crimes YOU'LL have to answer for. Click YES to continue?"

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

    • identicon
      Pseudonym, 13 Dec 2016 @ 7:27pm

      Re: Sauce for the goose

      I think this is the best solution all around. In particular, it should satisfy those who complain that good evidence gathered illegally is thrown out. The evidence won't be thrown out, but if you did something illegal, you will answer for it.

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

  • icon
    That One Guy (profile), 13 Dec 2016 @ 8:13am

    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.

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

    • icon
      The Wanderer (profile), 15 Dec 2016 @ 5:50am

      Re: Next time, don't bother

      I infer that the term "outrageous" may be a term of art, probably used / defined in some relevant statute, and by saying that the FBI's conduct "bordered on" the "outrageous" the judge is saying that the conduct comes close to but does not quite cross the line into a violation of the statute in question.

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

  • icon
    timmaguire42 (profile), 13 Dec 2016 @ 8:31am

    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?

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

  • icon
    Padpaw (profile), 13 Dec 2016 @ 8:48am

    "you broke multiple laws, but I am going to let you get away with it solely because you are a government agency"

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

  • identicon
    I.T. Guy, 13 Dec 2016 @ 1:58pm

    Outrageous... That's ok. He won't act until it becomes ludicrous.

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

  • identicon
    me, 19 Dec 2016 @ 8:21pm

    I'll just betcha the judge kept copies. :)

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

  • icon
    Animedude5555 (profile), 9 Jan 2017 @ 4:58pm

    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.

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


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