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FBI’s Use of “Playpen” Child Pornography Website May Be Unconstitutional

The FBI recently admitted that it had operated a child pornography website known as “Playpen” for several weeks in 2015. The FBI was supposedly using this website in an attempt to identify computer users across the world who may have attempted to access illegal child pornography images on the “Playpen” website through the Tor network. The Tor network has been a hot target for the FBI and other federal agencies as they try to infiltrate and break the anonymity of the network and identify its users.

The FBI’s operation of “Playpen” is especially controversial because the FBI was allowing images of child pornography to be accessed, and possibly re-distributed, while the site was under the government’s control. Previously, the Justice Department had made clear that it considered every additional download or transmission of child pornography as another crime committed against the children who are pictured in these images. Despite this apparent concern, the FBI allowed the “Playpen” site to stay up and available for users to access and redistribute the illegal images and cause further harm to the child victims.

During its operation of the “Playpen” website, the FBI was able to identify a number of users who apparently attempted to access “Playpen” through the Tor network while the site was under government control. The government was able to use what it calls a Network Investigative Technique (NIT) to infect a user’s computer with malware designed to identify the user’s actual internet protocol (IP) address and other identifying information. To date, well over one hundred people have been arrested on federal child pornography and related charges across the United States based on information that the FBI obtained from this operation.

Aside from the obvious policy concerns with the FBI allowing people to access and possibly redistribute child pornography, the FBI’s control of “Playpen” and its expansive use of Network Investigative Techniques open the door for potential constitutional challenges to any searches or arrests made during this operation. While one federal judge recently rejected such a challenge, there are several constitutional arguments that can be made that may convince other judges that the FBI’s search technique was not specifically tailored to an individual suspected of violating a federal law. Under the 4th Amendment to the United States Constitution, searches must be reasonable and supported by sufficient probable cause that the search will yield evidence of a specific crime.

In this operation, the Government simply broadcast the NIT malware to any computer that tried to access the “Playpen” website. As a result, these “searches” were more like a fishing expedition that violates the 4th Amendment. The use of NIT’s in this manner may also violate Rule 41 of the Federal Rules of Criminal Procedure and the Federal Magistrates Act because the magistrate judge who signed this warrant and authorized this investigative technique appears to have violated this rule by exceeding the court’s geographic jurisdiction.

UPDATE: A federal judge in Massachusetts struck down the warrant authorizing the NIT finding that the magistrate judge did indeed exceed the jurisdictional limits of Rule 41 and the Federal Magistrates Act. The Department of Justice has criticized this ruling and is considering its options. It is possible that this ruling may persuade the Government to stop all prosecutions involving the use of this warrant, or to at least focus only on the most egregious users of the target website.

In addition to the federal prosecutions currently pending in the United States, the “Playpen” operation apparently obtained information from computer users around the world. If the FBI is using search warrants and the NIT’s to obtain information that is available only in a foreign country, the FBI may be violating international law. Before U.S. federal agents can execute a warrant in a foreign country, they need to get permission from the country where the warrant is being executed. While there is no doubt that foreign governments have been cooperating with the FBI in child pornography cases, it is possible that individuals charged in foreign countries may be able to challenge their arrests because of the way the FBI investigated their case.

Our firm has been successful in challenging evidence seized in child pornography cases in federal court. In fact, we recently convinced federal prosecutors to dismiss child pornography charges against our client a week before trial after we determined that the forensic evidence was unreliable and inconsistent.

While I certainly don’t condone or support the production, distribution or possession of child pornography, I am becoming increasingly concerned that the Government is using questionable investigative techniques in an attempt to do an end-run around the 4th Amendment. In my opinion, the only way to keep the Government from violating the Constitution is to challenge any search or other investigative technique that infringes on our constitutional rights.

We make no apologies for aggressively defending our clients in these cases and raising legitimate constitutional concerns where appropriate. If the Government is unable to prosecute child pornography possession cases without violating the Constitution, then they need to find another way to address this problem.