A motion has been filed by the Department of Justice seeking to drop the indictment charges against a child pornography suspect who visited a child porn website called ‘The Playpen’ since the FBI didn’t want to disclose the details of the hacking tool that it used.
The agency refused to turn over any information about the Network Investigative Technique (NIT) exploit that it deployed on the popular TOR (The Onion Router) to gather information on Jay Michaud who is a school administrator of Vancouver, WA during its Operation Pacifier Child porn sting.
Jay Michaud was arrested in July of 2015 for viewing child pornography an affidavit exposed the horrific types of content that was hosted on the website.
The government was asked to reveal the source code for the Network Investigative Technique by a federal judge in Tacoma. Judge Robert Bryan argued that if prosecutors want to use the evidence obtained with the NIT against Michaud, it was necessary for them to reveal the source code for the NIT.
The indictment was dismissed without prejudice by Judge Bryan, implying that the DOJ can pick the case up again within the statute of limitation five years if it chooses to.
The federal prosecutor Annette Hayes wrote in the court filing that since the government remained unwilling to disclose certain discovery related to the FBI’s deployment of a Network Investigative Technique as part of its investigation into the Playpen child pornography site, the government has no choice but to seek dismissal of the indictment, adding that the DOJ work to resist disclosing the NIT was part of an effort to balance the many competing interests that are at play when sensitive law enforcement technology becomes the subject of a request for criminal discovery.
Judge Robert Bryan noted that the government must now choose between disclosure of its classified information and the dismissal of its indictment. In response, Annette Hayes, a federal prosecutor, wrote in a court filing that disclosure is not currently an option, adding that dismissal without prejudice leaves open the possibility that the government could bring new charges should there come a time within the statute of limitations when the government be in a position to provide the requested discovery.
The DOJ is currently prosecuting over 135 people nationwide whom they believe accessed the illegal website. Some defendants have pled guilty while others have had all charges against them dropped.
The former ACLU privacy and Security expert Christopher Soghoian made a statement in December in which he said that his concern with the economics of hacking is that if the government hacks enough people, hacking not only becomes an attractive way of surveilling ,but it becomes the cheapest way to spy on people.
Dozens of judges have argued that the warrant the FBI used was invalid because they overstepped their jurisdiction, although some decided that the evidence was obtained with the warrant still could be used because it qualified for the good faith exception. Government attorneys are asking the case to be reopened once the exploit is no longer classified.