Last week, a dismissal of a highly controversial Federal District Court case involving child pornography out of Tacoma, Washington heightened debates over whether the need exists to modernize the Fourth Amendment’s language in order to better address our ever changing technological era. United States v. Jay Michaud arose from an investigation by the FBI into website, Playpen.com, a site that some individuals used to access child pornography. A Federal District Court Judge ruled in favor of Mr. Michaud’s Motion to Compel evidence which eventually led to the government having to dismiss the case against Mr. Michaud citing that they had no other choice but to protect classified information over dismissing an indictment. Michaud’s Motion was based in part on outrageous governmental conduct when investigating potential users of a website called Playpen, a site like Backpage.com that hosts both illegal and legal content.
From February 20, 2015 through March 4, 2015, the FBI took control of Playpen, which has since been shut down. The federal government described this site as the largest child pornography distribution site in the United States, although they have not yet provided documentation proving such. During the time that the FBI had control of Playpen, they continued to host child pornography. Playpen is hosted by a server called Tor, which is a system of volunteer operated servers that allows people to improve privacy and security on the internet. Tor is also used for some criminal activity, as it keeps websites from tracking private users by connecting servers by a series of virtual tunnels rather than a direct connection. Essentially, the FBI hacked into the private servers Tor established and found the private IP addresses of all users who accessed Playpen.
The FBI was allowed to hack in to the private servers pursuant to a search warrant signed by a Federal Magistrate, which allowed the government to search every IP address (including those outside its jurisdiction) that accessed the site, despite the fact that Tor normally afforded anonymity to its users. Using malware, the FBI was able to find personal information of all Playpen.com’s users. The FBI’s investigation brings up two very controversial and important issues: 1) did the FBI act outrageously by essentially “creating content” to trap users who were trying to access child pornography and sustain the site for an unduly extended period of time? 2) did the FBI act outrageously by hacking into private servers and accessing private IP address that were being kept private by Tor? Is that behavior in turn a violation of the private user’s Fourth Amendment rights?
In a conference earlier this year, Christopher Soghoian of the American’s Civil Liberties Union said, “My 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.” Mr. Soghoian is essentially saying that, for investigators, hacking will become the go-to interrogation process and will become the first tool used in investigators tool kit instead of being used only after all other options are exhausted. In America, citizens have rights to privacy. However, it is becoming ever apparent that the Fourth Amendment needs to be updated to provide a legislative framework for highly technical law enforcement practices that have up until now become unnecessary.
Defense Counsel in United States v. Michaud argued that the government operated outrageously because, during the time the FBI was controlling Playpen, the site had nearly 214,000 members and 114,000 new postings, and during that time the FBI took absolutely no steps to limit the amount of downloading and redistribution of the site’s content. Instead, Michaud’s counsel argued: the FBI elected to distribute child pornography the entire time. Defense Counsel further argued, “The Government’s conduct in this case appears to be unprecedented and would appall the average citizen.” Defense Counsel also argued that the FBI took matters even further when they acquired a warrant to obtain anyone who accessed Playpen.com’s personal information, even though Playpen is not solely a porn site and had a lot of legal content.
Since the government remains unwilling to disclose information related to the FBI’s deployment of a “Network Investigative Technique” (“NIT”)—such as how many people were actually searched during their control of Playpen and exactly how many videos were streamed etc.—the government had no choice but to dismiss the indictment of Mr. Michaud’s charges. In essence, there are several complex issues that arise when law enforcement technology and private information becomes criminal discovery.
Clearly, online undercover operations cause complex legal and policy issues. In this particular investigation of Playpen, it was the most extensive use of malware in US history used by the FBI, and as we said previously, there are constitutional privacy protections that prevent the government from accessing personal information from private citizens. However, there are very few rules against government hacking.
While the exclusion of the evidence and the dismissal in Michaud’s case did not necessarily result from a Fourth Amendment analysis, nor a finding that the government was overreaching, Castillo Law believes that–in some instances–arguments can be made that law enforcement oversteps their bounds in their investigation of sting operations and internet sex crimes and those arguments should be made where appropriate. If you or someone you know are facing these kinds of charges, contact us immediately at 480-206-5204.
 Tor is frequently used for chat rooms or web forums dedicated to victims of rape/domestic violence abuse survivors. Journalists also use Tor to communicate more safely with whistle blowers.
 Many other investigations have been led in order to stop sites that stream child pornography and “catch” individuals trying to access it. In these scenarios, the investigative party usually will put up duped links soliciting child pornography but then taking the individual trying to access the page to an error page. The fact that the FBI in this instance continued to stream child pornography, essentially “creating content” and sustaining the very thing they were trying to prevent, is quite egregious.
 A new sophisticated anti-hacking tactic is being used by many criminals, in what investigators are calling a “going dark problem.” Systems like Tor, which sometimes hide criminal activity, cannot just be hacked under the go-ahead of a coverall search warrant such as what was used in this case.