The FBI has decided to let one of its Playpen defendants walk rather than turn over information on its Network Investigative Technique. The NIT, deployed all over the world on the back of a single warrant obtained in Virginia, unmasked Tor users by dropping code on Playpen visitors' computers that sent back IP addresses and other information about the user's computer.
The warrant itself has been ruled invalid by a number of judges presiding over Playpen prosecutions, although not all of them have determined that the evidence obtained by the NIT should be suppressed. The FBI not only sent malware to site visitors, but it also ran (and possibly improved) the child porn website for two weeks while pursuing its investigation.
Michaud's lawyer asked the court to force the FBI to hand over information on the NIT. The FBI countered, saying it wouldn't turn over the information even if ordered to do so. Judge Bryan, after an in camera session with the agency, agreed with the government that there was a law enforcement need to keep the details of the tool secret. But he also made it clear the government couldn't have both its secrecy and its evidence. He ordered all evidence suppressed.
With all evidence deriving from the forced exposure of Michaud's IP address, there was nothing left for the government to work with. It could have voluntarily turned over information to Michaud's defense lawyer for examination, but has chosen instead [PDF] to let Michaud go free. (h/t Andrew Crocker)
On June 23, 2016, the United States Attorney’s Office for the Western District of Washington filed a protective Notice of Appeal to preserve the right of the United States to pursue an interlocutory appeal of the order of the district court granting the defense motion to compel and finding, as a remedy for the refusal to comply that the evidence of the Network Investigative Technique (NIT), the search warrant issued on the basis of that evidence and the fruits of that search should all be suppressed.
Upon further review within the Department of Justice or the Court’s order and the record in the case, the United States has concluded that this appeal should not be pursued. It is for that reason that the United States now respectfully requests that this appeal be dismissed.
The FBI is developing quite the reputation for dropping prosecutions in the face of challenges of its secret tools and techniques. The NDAs it hands out to every law enforcement agency seeking to purchase Stingrays not only tells them to obscure the device's use, but to let suspects walk if it seems some of this info might make its way into the courtroom.
What's more problematic here is the FBI/DOJ's two-faced stance on these issues. The FBI argues in court (often obtaining the court's agreement) that these questionable tactics (deploying malware, warrants that ignore jurisdictional limits, running child porn sites rather than shutting them down, etc.) are justified because the people it's going after (child porn viewers/distributors) are that terrible. But then it turns around and lets the very bottom of its basket of criminal suspect deplorables go free rather than hand over information to the defense. It does this even though the defense, the judge, and the DOJ would do all they could to protect as much of the NIT information as possible, including sealing documents and redacting those that are published.
Fortunately, the judge presiding over this case wasn't going to let the FBI have 100% secrecy and 100% of the derived evidence. And that has resulted in a voluntary dismissal of someone the government clearly felt was enough of a criminal menace that its extreme tactics were justified.
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