Instead of disclosing the classified techniques used by the FBI to catch an alleged pedophile, federal prosecutors in Washington state have instead decided to drop all charges against a man accused of trying to access a child porn website, raising questions about the government’s limitations in hacking criminal suspects.
The Department of Justice is in the process of investigating around 135 individuals who visited Playpen, a child pornography website that the FBI seized control of and operated for 13 days before shutting it down. To find out the identity of the users who visited the site, authorities used an exploit in the Tor web browser.
Tor is used to access the Deep Web (the section of the internet that is not accessible from normal web browsers). Tor deliberately hides and obscures the identity of its users by masking their IP addresses. However, with the exploit in use by federal agents, anyone can reportedly be tracked down with ease. The DoJ has labeled this method as a “network investigative technique,” or NIT.
In the case of United States v Jay Michaud, federal authorities refused to hand over the source code of the NIT demanded by defense attorneys as part of the criminal discovery process. The government was ordered to hand over the source code by US District Judge Robert Bryan in May 2016, but since that order the code has been classified, stopping the advancement of criminal discovery in over 100 Playpen-related cases that are still proceeding.
“The government must now choose between disclosure of classified information and dismissal of its indictment,” Annette Hayes, a federal prosecutor, wrote in a court filing on Friday. “Disclosure is not currently an option. 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 and the government be in a position to provide the requested discovery.”