By Nicole Siino
In February 2015, the FBI obtained a search warrant to hack into the dark web to catch child pornography viewers and downloaders. Nationally, hundreds of people have been arrested for possessing and distributing child pornography and many motions have already been filed challenging the validity of the search warrants.
The dark web allows people to engage in illegal and criminal activity like buying and selling drugs and human organs, viewing illegal pornography, and much more. The dark web uses the public Internet but requires specific software configurations or authorizations to access its content. The dark web is a subset of the deep web, which is not indexed by search engines. Public organizations or individuals operate the deep web networks and often keep its users anonymous. Some of the biggest deep web networks are Freenet, I2P, and Tor. According to a December 2014 study, child pornography was the most common requested type of content on Tor.
In August 2014, the Tor network advertised and launched a website called “Playpen,” in which its primary purpose was to advertise and distribute child porn. A month after its launch, Playpen had 60,000 member accounts and after a year, that number rose to 215,000. Playpen averaged 11,000 visits per week and had over 117,000 posts. The posts included images of children being sexually abuse and offered advice to sexual abusers on how they could avoid detection. The FBI stated that Playpen was the “largest remaining known child pornography hidden service in the world.”
A month before the websites peak, the FBI seized the computer server running Playpen from its host in Lenoir, North Carolina. Instead of immediately shutting Playpen down, the FBI ran the website from its own servers in Newington, Virginia from February 20, 2015 to March 4, 2015. The FBI obtained a search warrant and installed a hacking tool named the networking investigative technique (NIT) onto the website. The FBI used the NIT to identify around 1,300 IP addresses. In a similar operation, “Operation Torpedo,” the FBI used the NIT to identify child porn users but on a much smaller scale. In Operation Pacifier the FBI was able to search thousands of computers pursuant to one search warrant.
Magistrate Judge Theresa C. Buchanan in the Eastern District of Virginia signed the warrant authorizing use of the NIT, which essentially authorized an unlimited number of searches of a number of unidentified targets throughout the entire world. The FBI then sought additional search warrants in the jurisdictions where the Playpen viewers were located. Under our current rules, federal magistrate judges do not have the authority to issue search warrants outside of their jurisdiction.
The cases involving this investigation have started to be decided, some as early as this past June, and some as recent as this month. In one case, the defendant was logged into Playpen while the FBI controlled the site. The FBI identified his location by his IP address. His home and computer were searched. During a motion to suppress hearing, U.S. Magistrate Judge Clifford Shirley refused to throw out the evidence found during the search but questioned the constitutionality of it. The judge allowed the evidence under the federal good faith exception. This exception allows evidence to be admitted, even if the search violated a defendant’s rights, if the agents believed they were acting with a valid court order. In another case, a judge suppressed evidence because the FBI refused to say how it was collected. In a different case, the court allowed the evidence because the defendant lived in the Eastern District of Virginia and the court analogized the NIT to a tracking device. Many courts have ruled on this issue, but only few side with the FBI.
Many motions to suppress and dismiss have already been filed in several different states. Defendants are questioning the legality of the search warrant and if the government violated their right to privacy under the Fourth Amendment. The courts are split on the issue, which could set the stage for a U.S. Supreme Court review.
Student Bio: Nicole is a staff member on the Journal of High Technology Law. She is second-year law student at Suffolk University Law School. She holds a B.A. in History from Roger Williams University.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.