from the porn-harder! dept
Another FBI/Playpen/NIT case has moved to the point of a motion to dismiss. The lawyer for defendant Steven Chase is arguing the government should abandon its prosecution because the FBI's activities during its conversion of child porn site Playpen into its own Rule 41-flouting watering hole were "outrageous." What did the FBI do (besides traveling beyond -- far beyond -- the warrant's jurisdiction to strip Tor users of their anonymity) to merit this accusation? It made Playpen a better, faster child porn website. Joseph Cox reports for Motherboard:
Newly filed court exhibits now suggest that the site performed substantially better while under the FBI's control, with users commenting on the improvements. The defense for the man accused of being the original administrator of Playpen claims that these improvements led to the site becoming even more popular.
“The FBI distributed child pornography to viewers and downloaders worldwide for nearly two weeks, until at least March 4, 2015, even working to improve the performance of the website beyond its original capability,” Peter Adolf, an assistant federal defender in the Western District of North Carolina, writes in a motion to have his client’s indictment thrown out.
The government generally isn't known for efficiency or immediate improvements, but the filing [PDF] points out that the gains were exponential.
From there the FBI distributed child pornography to viewers and downloaders worldwide for nearly two weeks, until at least March 4, 2015, even working to improve the performance of the website beyond its original capability. As a result, the number of visitors to Playpen while it was under Government control from an average of 11,000 weekly visitors to approximately 50,000 per week. During those two weeks, the website’s membership grew by over 30%, the number of unique weekly visitors to the site more than quadrupled, and approximately 200 videos, 9,000 images, and 13,000 links to child pornography were posted to the site.
A better child porn site, brought to thousands of criminal suspects all over the world by your tax dollars. What a time to be alive!
The motion to dismiss points out that making it easier and faster to download child porn images runs contrary to assertions the government has made in support of prosecutions and stricter penalties for child porn viewers.
This behavior is all the more shocking because the federal government itself – in sentencing memoranda, online mission statements, reports to congress, press releases, and arguments before this very Court and many others – has repeatedly emphasized that victims of child pornography are revictimized each and every time their images are viewed online. Despite these frequent pronouncements, the government here made no attempt during the two weeks it was running the site to reduce the harm to innocent third party victims by limiting the ability for users to view or access the images. Indeed, government agents worked hard to upgrade the website’s capability to distribute large amounts of child pornography quickly and efficiently, resulting in more users receiving more child pornography faster than they ever did when the website was running “illegally.”
And once the images have been downloaded from a (faster) source, they can be redistributed elsewhere, furthering the damage done to victims of child pornographers. It really can't be argued that the ends justified the means.
Once the government seized the server hosting the Playpen site, it possessed a wealth of information it could use to criminally prosecute users without resorting to operating the site for two weeks. Even if the government wanted to deploy an NIT, it could have done so without also rendering the Playpen site functional. It could have, for example, disabled access to the images of child pornography, turned off the ability to upload pictures or videos, or even just run the site for a much shorter period of time.
Moreover, as noted above, the government has charged less than 1% of Playpen members, the same percentage of users it already had IP addresses for on the day it seized the site. It cannot be that the government may distribute child pornography to a thousand users for each user it catches, particularly when it already has the necessary information to identify the same number of users before it had distributes a single image.
The defense points to a message [PDF] posted to the forums after the site was seized by the FBI as evidence the agency improved the site to better serve users (with its NIT). A Playpen administrator's account stated the following on February 28th, eight days after it took control of the site.
I upgraded the Token Ring to Ethernet about an hour ago and things seem to be working a bit better.
This is what the FBI will do to further its investigations: it will become a better distributor of illegal material than the criminals it's going after. The filing notes that a conservative estimate of the number of images distributed during the FBI's two-week hosting stint sits around one million.
Also of note: throwaway email accounts are to be expected when users create accounts at child porn sites. But I honestly expected more from the President of the United States.
The motion makes good points about the FBI's apparently hypocritical child porn distribution and points out it had many options -- including disabling image downloads -- to pursue that would still have allowed it to serve up its NIT to the site's visitors. Unfortunately, courts have a hard time finding law enforcement activity to be "outrageous" enough to toss cases. And in this particular prosecution, it's the worst of the worst being prosecuted: a child porn viewer.