Playpen Defendants 3, FBI 0

Judge tosses evidence in FBI Tor hacking child abuse case by Bill Carmada.

From the post:

A US federal judge on Wednesday excluded all evidence in a child pornography case that was acquired by the FBI through an exploit compromising the Tor network. The federal government hasn’t announced what it’ll do next, but if it can’t prevail in an appeal, its case against Vancouver, Washington teacher Jay Michaud may well be doomed.

Defendant prevails on the grounds of the FBI refusing to disclose its exploit.

Criminal law 101. The state can’t produce “evidence,” gathered by some unknown means and use it to “prove” the guilt of a defendant.

Every defendant gets to contest the evidence produced against them. In this case, the FBI has chosen to deny a defendant that right.

There are two other Playpen decisions to be aware of:

1) Suppression of Evidence Obtained by FBI’s Use of Network Investigative Techniques (NIT) by Scott Hughes.

From the post:

Last month, a United States district court judge threw out evidence in a child abuse imagery case that the Federal Bureau of Investigation (FBI) had obtained using a hacking tool. While the court ruled to suppress the evidence, it did not prohibit the FBI from using the hacking tool—called a “network investigative technique” (NIT)—to install malware code on suspects’ computers. Rather, the court’s ruling stated that the magistrate judge wrongly granted the FBI’s NIT warrant because the case was not within her jurisdiction, thus violating Federal Rule of Evidence 41(b). Still, this ruling marks a possible stumbling block to an FBI probe and the resulting charges against approximately 137 individuals in the United States.

United States vs. Alex Levin (decision)

This result will be different if an amended Rule 41 is approved (Congress must act by 1 December 2016).

The BBC headline: US Supreme Court approves expanded hacking powers was the first one to catch my attention, although it failed to point to the Supreme Court document in question. To cure that shortfall, see this transmittal letter and amendments to the Federal Rules of Criminal Procedure.

BTW, Scott’s post is an excellent example of how to write a useful blog post on legal issues. Quoting, summarizing, characterizing is all well and good, but many of us are interested in sources and not but the sources.

2) Second Judge Recommends To Discard Evidence Obtained From FBI Mass Hack

From the post:

Paul J Cleary, a Magistrate Judge, is the second judge to suggest that evidence obtained in the FBI mass hack,using malware planted by the federal agency on the infiltrated child porn site PlayPen, be thrown out.

In the mass hack case, the FBI uploaded the malware in February 2015 as part of Operation Pacifier.

On the 25th of last month, the same judge recommended for suppression of evidence (obtainedin the FBI mass hack) in a similar case.

The case involves Scott Fredrick Arterbury.

United States vs. Scott Frederick Arterbury (decision)

Another Rule 41 based decision, which would be decided differently under proposed changes to Rule 41 rules on search warrants.


Although the Rule 41 violation is clear and clean cut, I much prefer the suppression of evidence for failure to disclose its alleged hack of the TOR network. There are many ways to gather the information the FBI claims to possess and proof of how they came to possess it, is a critical link in the chain of evidence.

I have read differing numbers on the defendants charged out of Playpen, but accepting 137 as the high, there are as many as 134 defendants remaining.

Suggestions on how to document the remaining cases? I have searched both the FBI and Justice Department for any mention of the Playpen operation. Number of “hits”: 0.

If you didn’t know better, you would say “the FBI and Justice Department are ashamed of Operation Playpen.” Do you think?

PS: If you need a general background on this story, see: The FBI’s ‘Unprecedented’ Hacking Campaign Targeted Over a Thousand Computers by Joseph Cox.

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