FBI tactic in national child porn sting under attack

KNOXVILLE, Tenn. — When "teddybear555" logged onto The Playpen, a "dark web" child-pornography bulletin board, from a home in Tennessee last year, he had no idea his host was the FBI.

Neither did the tens of thousands of other users across the U.S. and the world who, in the two weeks the FBI played the role of child pornography purveying host, posted or swapped at least 48,000 images and 200 videos of the sexual abuse of children. The agency called the sting "Operation Pacifier." So far, more than 180 people have been arrested in the U.S., including Thomas Allan Scarbrough, a funeral director at Scarbrough Funeral Home in Rockwood, Tenn.

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But the FBI isn't drawing praise for its groundbreaking defeat of technology that affords anonymity to seekers of illicit goods on hidden websites. In court and out, the FBI is taking a beating, with judges across the nation declaring constitutional violations and Internet privacy advocates crying foul.

U.S. Magistrate Judge Clifford Shirley has become the latest jurist to deem the FBI's search warrant process in its takeover of The Playpen server as an illegal search and a violation of federal rules of criminal procedure. He issued his opinion late last month in Scarbrough's case and joins at least six other federal judges in the nation to so rule.

But Shirley refused to toss out the evidence gleaned as a result of Operation Pacifier, ruling the FBI's method of obtaining incriminating evidence against The Playpen users wasn't nefarious but merely misguided. Shirley is allowing the evidence against Scarbrough to stand under what's known as the federal good faith exception.

Shirley's ruling, the FBI's search warrant application and dueling motions filed by Assistant U.S. Attorney Matthew Morris and defense attorney Gregory P. Isaacs describe just how the FBI became one of the most prolific Internet purveyors of child pornography and what went awry with its plans.

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In late 2014, the FBI got a call from one of its law enforcement colleagues in a foreign country that led to the arrest of a Florida man who was serving as administrator of The Playpen from a server in North Carolina. The Playpen operates on what's known as the dark web, an encrypted network using hidden servers. Site visitors use the anonymous browsing tool Tor, which hides the user's Internet protocol, or IP, address. Launched in August 2014, the site had logged nearly 160,000 members in five months of operation.

The FBI took the server and, in a government facility in Virginia, installed a hacking tool called the network investigative technique, or NIT. First, however, the agency went to a federal magistrate judge in the Eastern District of Virginia and got legal permission to use NIT to essentially install malware on The Playpen users' computers. The malware fed the FBI identifying information about the users, including their IP addresses. The agency next legally sought from Internet providers the identities of the customers associated with those IP addresses and then agents across the country secured search warrants in their respective jurisdictions for the homes and computers of those customers.

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Scarbrough's home and computer was searched via that process in October 2015. The user identified on The Playpen as "teddybear555" and linked to Scarbrough's computer had spent 20 hours on the site in the two-week period of the FBI's sting. A forensic examination of his computer yielded child pornography, the government alleges, and Scarbrough was charged in March with possession and distribution of child pornography.

Isaacs joined defense lawyers across the nation in challenging the FBI's search warrant process. The key problem? Federal rules of criminal procedure have not caught up to the pace of technological advances and investigative techniques.

Federal magistrate judges do not, under current rules and the constitution, have the power to issue a search warrant for a location outside their jurisdictions. The magistrate judge in Operation Pacifier had jurisdiction only to authorize searches in the Eastern District of Virginia. But The Playpen users' computers were physically located in states across the country. By approving the FBI's use of NIT, the Virginia magistrate judge was essentially giving agents legal power to search computers not located within her jurisdictional reach. And even though the FBI later sought search warrants in each of the locales where the computers were located, its basis was the fruit of the Virginia search warrant.

Morris, like federal prosecutors across the nation, argued the FBI did not "violate the spirit of the rule because the officers sought a search warrant from a magistrate judge in the only district with any physical tie to the deployment of the NIT."

But Shirley ruled it's not the spirit that counts under the law and deemed the search of Scarbrough's computer flawed as a result. He did not toss out the evidence, though, saying the federal good faith exception applies. Under that exception, if the agents believed they were acting on a valid court order and did nothing underhanded, courts may allow the evidence to be used even when a search violates a defendant's rights. Tennessee has not yet adopted such an exception, so it applies here only to federal agents.

Of the nine courts to weigh in on the issue, three have sided with the FBI. Shirley noted a rule change to accommodate the NIT is under consideration, but the split among the courts is setting the stage for a U.S. Supreme Court review.

Follow Jamie Satterfield on Twitter: @jamiescoop

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