Rather than share the now-classified technological means that investigators used to locate a child porn suspect, federal prosecutors in Washington state have dropped all charges against a man accused of accessing Playpen, a notorious and now-shuttered website.
The case, United States v. Jay Michaud, is one of nearly 200 cases nationwide that have raised new questions about the appropriate limitations on the government's ability to hack criminal suspects. Michaud marks just the second time that prosecutors have asked that [the] case be dismissed.
"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."
https://threatpost.com/doj-dismisses-playpen-case-to-keep-tor-hack-private/124102/
Intent on keeping details private about how it hacked the Tor browser, prosecutors with the U.S. Department of Justice on Friday asked to dismiss a case involving a suspect who visited the Playpen dark web child pornography site in 2015.
"The government must now choose between disclosure of classified information and dismissal of its indictment," Annette Hayes, a US attorney, wrote in a court filing (.PDF) on Friday. "Disclosure is not currently an option."
Hayes asked the court to drop charges around the case without prejudice, insisting the government has "simply acted to protect highly sensitive information from criminal discovery as was its obligation." There's a chance, if the exploit is unclassified later down the line, the government could reopen its case, she claims.
"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," Hayes wrote.
News the government is unwilling to disclose the exploit–something the FBI refers to as a "Network Investigative Technique" (NIT)–has seemingly been a long time coming; the DOJ has remained resolute to keeping the exploit under wraps. Last April the FBI refused to comply with the judge's request to describe how it compromised the Tor browser.
Previously: FBI Let Alleged Pedo Walk Free Rather Than Explain How They Snared Him
Related Stories
In a surprising and worrying move, the FBI has dropped its case against a man accused of downloading child sex abuse images, rather than reveal details about how they caught him.
Jay Michaud, a middle school teacher in Vancouver, Washington, was arrested in July last year after visiting the Playpen, a dark web meeting place tens of thousands of perverts used to swap mountains of vile underage porn.
Unbeknown to him at the time, the FBI were, for about a fortnight, running the site after taking over its servers, and managed to install a network investigative technique (NIT) on his computer to get his real public IP address and MAC address. The Playpen was hidden in the Tor anonymizing network, and the spyware was needed to unmask suspects – about 1,300 public IP addresses were collected by agents during the operation.
According to the prosecution, a police raid on his home revealed a substantial hoard of pictures and video of child sex abuse on computer equipment. But now, guilty or not, he's now off the hook after the FBI filed a motion to dismiss its own case [PDF] late last month.
Why? Because Michaud's lawyer insisted that the FBI hand over a sample of the NIT code so it could be checked to ensure that it didn't breach the terms of the warrant the FBI obtained to install the malware, and to check that it wouldn't throw up any false positives.
US District Judge Robert Bryan agreed, saying that unless the prosecution turned over the code, he'd have to dismiss the charges. The FBI has since been arguing against that, but has now decided that it's better to drop the case than reveal its techniques.
-- submitted from IRC
(Score: 4, Insightful) by Azuma Hazuki on Tuesday March 07 2017, @03:55AM (12 children)
What this means is this particular hack is likely used against nation states, and/or internally against citizens. If they revealed it they would lose too much leverage.
Nice going, asshats. Now a kiddie fiddler goes free *and* we know you're doing skeevy illegal unconstitutional shit on the sly.
I am "that girl" your mother warned you about...
(Score: 0) by Anonymous Coward on Tuesday March 07 2017, @04:25AM (1 child)
He probably is a pedophile, unfortunately because the government opted to fold on the case rather than pursue it through the trial phase, it means that this mans life is effectively over. He probably won't be able to get any more jobs of any sort and will have a hard time finding a place to live.
If he's guilty, that's probably not the worst thing in the world, but if he's not guilty and the evidence wasn't there for a conviction, the government presumably has a period of time during which they could change their minds and even if they don't, not being acquitted isn't the same as being acquitted or not charged in terms of public opinion.
(Score: 1, Insightful) by Anonymous Coward on Tuesday March 07 2017, @05:18PM
Excellent! Punishment without even the pretense of due process. Mmm mm, feels good, this land of the free and home of the brave!
(Score: 1, Interesting) by Anonymous Coward on Tuesday March 07 2017, @04:38AM (1 child)
OR....they're using the same exploit to actively find other pedophiles, and then simply use parallel construction in order to actually bring them in. Disclosing the details would nab this guy (who is, yes, a pedophile, but from the summary anyway appears to be merely a consumer, rather than a producer of the material) but in so doing effectively let an indeterminate number of kiddie porn producers go free.
It's not a situation that I think anyone is happy with, but I'm willing to trust they've got good reason for this. That they could still bring charges later on is definitely a nice caveat to this whole situation; I sort of wonder what country this guy will wind up fleeing to, assuming he can.
(Score: 0) by Anonymous Coward on Tuesday March 07 2017, @01:49PM
"but I'm willing to trust they've got good reason for this"
the freaking fbi? that locked barrett brown up for posting a link and a long list of other crimes against the people? don't be such a dumb, kiss ass.
(Score: 3, Touché) by Anal Pumpernickel on Tuesday March 07 2017, @04:57AM
Is he a child molester, a pedophile, a child molester and a pedophile, or is he none of those things? I don't think we know for certain he actually did anything he was accused of. It doesn't even look like he was charged with actually molesting children, so I'm not sure where the "kiddie fiddler" remark comes from.
(Score: 0) by Anonymous Coward on Tuesday March 07 2017, @09:07AM (1 child)
You give them way too much credit.
What it most likely means is that the software used contains has some not quite legal features, and they would be in big trouble if the judge was to find out about the evidence planting module.
Not a conspiracy theory, that did actually happen in Germany, when it was discovered that the "stats-trojaner" had features specifically for evidence planting.
(Score: 1, Informative) by Anonymous Coward on Tuesday March 07 2017, @01:51PM
of course pigs will plant evidence anytime they think they can get away with it. they rationalize it as they're the good guys and if they have to burn a few slaves to get what they want, then so be it.
(Score: 2) by Runaway1956 on Tuesday March 07 2017, @03:15PM (4 children)
"kiddie fiddler goes free"
Do you know that he is/was a kiddie fiddler? We can agree that he is a major fricking douchebag, and not worth the powder that it would take to blow him away. But, did he commit the act, or just fantasize about it, with the aid of some illegal images?
These are important questions, because we want to know how long he should suffer, before we allow him to die. Precisely which kind of douche is he? A mere passive pedo, or an active abuser of children?
(Score: 2) by Thexalon on Tuesday March 07 2017, @06:22PM (3 children)
Also very very relevant: What exactly was the evidence that he did anything at all? If all they have is something they aren't willing to let him confront, then for all we know this guy was completely innocent and didn't do what the FBI says he did. For all we know, the source of evidence they aren't willing to tell us about is a system in which somebody using Tor to browse a completely legal website that .gov has decided is Really Bad gets something injected into the page HTML when passing through FBI-controlled Tor nodes that instructs the browser to download some kiddie porn while alerting authorities as to its source. Which would mean that the kiddie porn is there because of the FBI, not because of the defendant.
A lot of people have a hard time with the whole "innocent until proven guilty" thing.
The only thing that stops a bad guy with a compiler is a good guy with a compiler.
(Score: 2) by Runaway1956 on Tuesday March 07 2017, @06:51PM (2 children)
True - the FBI could have planted the images. It's within their capability, I'm sure. But, why? Why snag some innocent fool, and set him up? If this man is innocent of the charges against him, then he is still crosswise with the FBI for a reason. If they set him up, they had some reason for putting forth the effort, however minimal that effort may have been. So - let's dismiss the likelihood that he's a terrorist, because the FBI has no problem framing people for terrorism.
Hell, maybe I've answered my own question. If they are willing to frame ignorant hicks for terrorism, just to boost their case rates, then they would be just as willing to frame another ignorant hick for child pornography.
(Score: 2) by Thexalon on Tuesday March 07 2017, @08:01PM (1 child)
People can end up crosswise with the FBI for reasons that have absolutely nothing to do with whether they've committed a crime. People have become targets because they wrote a letter to the editor expressing opposition to official government policies. Anti-Iraq War groups can and have been targeted for infiltration. Occupy Wall Street was targeted, and a few people were set up and framed for terrorism as you mention. I'm going to guess that they're also going after various right-wing and libertarian activist groups as well. Basically, they have a very long history of not being politically neutral in the slightest, and definitely not being dispassionate arbiters of the law.
So in the example I used, the FBI would be framing people because (a) they don't want people using Tor because it makes them a bit harder to track, and (b) they don't want people viewing certain legal websites, both of which are very plausible.
The only thing that stops a bad guy with a compiler is a good guy with a compiler.
(Score: 2) by butthurt on Tuesday March 07 2017, @11:36PM
> People have become targets because they wrote a letter to the editor expressing opposition to official government policies.
The FBI opened its file on Pete Seeger after he wrote a
[...] letter protesting and criticizing the California American Legion's resolution advocating deportation of all Japanese, citizens or not, after the war, and barring all Japanese descendants from citizenship.
--/article.pl?sid=15/12/23/1524255 [soylentnews.org]
...something that never became an official policy.
(Score: 5, Touché) by fido_dogstoyevsky on Tuesday March 07 2017, @04:32AM (3 children)
So "think of the children" is no longer an argument from any US government.
It's NOT a conspiracy... it's a plot.
(Score: 4, Insightful) by c0lo on Tuesday March 07 2017, @04:48AM
"Think of the children" was never an argument with law power. As such, I expect that it will still be used as it was until now (to justify laws limiting freedom).
More like like "You think of the children, meantime we (the govt) we'll think how we can track you better"
https://www.youtube.com/watch?v=aoFiw2jMy-0 https://soylentnews.org/~MichaelDavidCrawford
(Score: 2) by Gaaark on Tuesday March 07 2017, @11:43AM
No child left behind without something in their behind?
We are looking for a Peter File...
YES, I'm Peter File!
--- Please remind me if I haven't been civil to you: I'm channeling MDC. ---Gaaark 2.0 ---
(Score: 0) by Anonymous Coward on Tuesday March 07 2017, @11:48PM
There's also a matter of copyright infringement. You've seen those anti-piracy warnings on DVDs? This story shows exactly how much the FBI really cares about criminal copyright infringement.
(Score: 4, Interesting) by maxwell demon on Tuesday March 07 2017, @05:22AM
Their justification for applying the methods is that it allows them to find criminals. But then, they don't convict the criminals for fear of the methods getting known. So what does that man for the justification of the methods?
The Tao of math: The numbers you can count are not the real numbers.
(Score: 4, Interesting) by Anonymous Coward on Tuesday March 07 2017, @05:30AM (13 children)
Posting AC because this is not legal advice.
(Score: 3, Interesting) by mendax on Tuesday March 07 2017, @05:43AM (12 children)
I agree with this sentiment. I have trouble with the government bringing up someone on charges only to get them dismissed without prejudice. This sounds like double jeopardy. Either it should have enough legally obtained evidence to go to trial or the charges should be dismissed with prejudice. It would drive me crazy if the government had a serious charge like this hanging over me for years.
It's really quite a simple choice: Life, Death, or Los Angeles.
(Score: 0) by Anonymous Coward on Tuesday March 07 2017, @06:40AM (10 children)
What's worse is that simply by being charged with this kind of crime the guy's life is pretty much ruined. Sure, he's probably guilty, but since this hasn't gone through the whole process he isn't legally guilty. But, he's sure to suffer all sorts of harms as a result. In practice, that may actually be a good deal for him, if he's guilty, but if he's not guilty, then it's a grave injustice.
(Score: 2) by linuxrocks123 on Tuesday March 07 2017, @07:03AM (8 children)
He doesn't go on a sex offender registry. He doesn't have a criminal record. He can live wherever he wants and work for whomever will hire him. He can honestly fill out job application forms saying he's never been convicted of a crime. Sure, there might be a few really uptight or paranoid employers who will go on a background check rampage and find the dismissed case, assume he's guilty, and refuse to hire him ... but background checks are expensive, and super thorough ones that might -- or might not -- find the dismissed case are more expensive. He wants to work in a daycare center, he might have to find one that's not overly vigilant on its background checks, but I'd expect that's about the long and short of it.
How's his life ruined here?
(Score: 0) by Anonymous Coward on Tuesday March 07 2017, @11:09AM (3 children)
A Google search for a name is much cheaper than a background check. He will be followed by trolls throughout his life and hounded on social media or in his local community. A just society would keep the names of the accused hidden.
(Score: -1, Troll) by Anonymous Coward on Tuesday March 07 2017, @11:26AM (2 children)
A society that follows God's laws would allow him to have young girls as brides.
(Score: 0) by Anonymous Coward on Tuesday March 07 2017, @01:59PM
But loli haet pizza.
(Score: 0) by Anonymous Coward on Tuesday March 07 2017, @07:02PM
How many shekels per mina for one of your god's law child brides, Mikeeeee?
(Score: 4, Informative) by AthanasiusKircher on Tuesday March 07 2017, @04:49PM (2 children)
He doesn't go on a sex offender registry. He doesn't have a criminal record. He can live wherever he wants and work for whomever will hire him. He can honestly fill out job application forms saying he's never been convicted of a crime. Sure, there might be a few really uptight or paranoid employers who will go on a background check rampage and find the dismissed case, assume he's guilty, and refuse to hire him ... but background checks are expensive, and super thorough ones that might -- or might not -- find the dismissed case are more expensive. [...]
How's his life ruined here?
Here's how: the top Google search [google.com] hit for his name leads to THIS STORY [seattlepi.com], entitled, "FBI: Special ed teacher caught with infant rape photos."
To all of those who are critical when the European "right to be forgotten" stuff comes up, here's an example of why that's important. I don't think that European courts or Google have come up with a good long-term solution, but the issue is important, as in many cases where arrests occur and charges are then dropped or when an acquittal happens. The initial arrest with headlines "Kiddie porn guy caught!" are often prominently written up in media reports, but if they guy is ultimately acquitted or charges are dropped, the news media often doesn't even bother covering it (or if it does, it's buried on page 10 in a small blurb in the corner).
A couple of decades ago this wouldn't be an issue, because any records would be in a courthouse, and newspaper reports or whatever would be forgotten except by someone playing around with a microfilm machine at a library for hours. But now anything that draws media attention to you (particularly if you have a distinctive name) will likely be associated with you for life.
And if you think only "a few really uptight or paranoid employers" will be concerned when they do a Google search for a prospective employee's name and the words "INFANT RAPE" are in the title of the top hit... well, I don't know what to say. If the guy has any serious competition for a job or getting a new apartment or whatever, I'm sure many employers or landlords or whatever simply just won't call him back. They may not even bother to read more links if they're going through a pile of resumes.
Maybe this guy is an evil jerk who does evil things and deserves this sort of treatment. But that should be an issue decided in a court of law, not adjudicated by hyperbolic media stories and Google hits.
(Score: 2) by linuxrocks123 on Tuesday March 07 2017, @06:13PM (1 child)
In the event he finds people Googling his name to be a real problem, though I'm not convinced he will:
http://family.findlaw.com/marriage/how-to-legally-change-your-name.html [findlaw.com]
(Score: 3, Informative) by AthanasiusKircher on Tuesday March 07 2017, @06:45PM
Are you serious that you don't think prospective employers do searches on candidates? Again, a quick internet search will tell you otherwise [google.com].
Even a decade ago, surveys of recruiters showed something like 3/4 of them were already using internet searches to help screen candidates. More recent polls suggest 80% of prospective employers will do an internet search before inviting a candidate for an interview. I've even seen recent polls that say a majority of hiring managers go beyond internet searches and try to screen through social media presence. Heck, I've occasionally done internet searches to find out basic info on candidates who came in for interviews where I work, even when I wasn't even on the hiring committee! (Mostly just out of curiosity.)
And, sorry, but a name change won't survive even a basic info background check. Any employer who does any background screening whatsoever will directly ask for previous names and aliases. Unless this guy is looking for have temp jobs or flip burgers for the rest of his life, chances are most employers are going to find out about his history.
(Score: 2) by butthurt on Wednesday March 08 2017, @12:05AM
> How's his life ruined here?
Something like this?
http://edition.cnn.com/2016/11/06/politics/comey-tells-congress-fbi-has-not-changed-conclusions/index.html [cnn.com]
(Score: 3, Insightful) by Thexalon on Tuesday March 07 2017, @07:32PM
I don't know that, and neither do you. The whole point of the legal process is that just because somebody is charged does not in fact mean that they're probably guilty. A substantial percentage of those charged are found not guilty, and a substantial percentage of those convicted are also (in later studies) determined to be found not guilty.
The only thing that stops a bad guy with a compiler is a good guy with a compiler.
(Score: 2) by Joe Desertrat on Tuesday March 07 2017, @09:52AM
It would drive me crazy if the government had a serious charge like this hanging over me for years.
Don't worry, go crazy. I'm sure they could drum up something if they wanted to get rid of you.
(Score: 1, Insightful) by Anonymous Coward on Tuesday March 07 2017, @09:00AM
This has never been about stopping pedophilia or any other crime. The only thing they want to control is freedom and the people finding out that they have been manipulated to believe in things that are not real.
Democracy is one thing people think is real when it is not.
Hacking Tor Browser is about controlling dissent, keeping an eye on the people, mind control, ...
No one of us is safe from the hidden hand. The only way to be free is to expose the creatures behind all this.
(Score: 0) by Anonymous Coward on Tuesday March 07 2017, @12:58PM
wow! this is a f#cking outrage!
keeping computer (programs) insecure ("tor") AND not caring about the children ("no punishment for ,you child abuser")!
what a f#cking awesome government!
no problem sacrificing human (children) lifes on the alter of ubiquitous privacy busting spying powers!
being able to check on "covert" news (via "tor") from reporters on the frontline of the latest proxy war is more imported to weapons (and income) producing agenda ...
(Score: 0) by Anonymous Coward on Tuesday March 07 2017, @06:24PM (2 children)
"The greater good!"
SHUT IT!
Fascist country ramps up fascism, I feel safer already! Guess I should take my passport with me everywhere so I don't get caught without my "papers".
(Score: 2) by butthurt on Wednesday March 08 2017, @12:08AM (1 child)
It was Jeremy Bentham who wrote
[...] the legislation of a society is vital to maintain the maximum pleasure and the minimum degree of pain for the greatest number of people.
-- https://en.wikipedia.org/wiki/Jeremy_Bentham [wikipedia.org]
The same fellow devised the panopticon.
(Score: 0) by Anonymous Coward on Wednesday March 08 2017, @11:37PM
Pratchett semi-reused this when writing about taxation, extracting the maximum amount of milk with the minimum of moo.
(Score: 2) by Justin Case on Tuesday March 07 2017, @06:41PM
Did the victim get a say in whether to drop the case?
You know, the person this alleged criminal allegedly harmed?
That victim (if there is one) is entitled to justice. And oh by the way putting someone on an Evil Person List or locking them up for $LONGTIME does nothing whatsoever to undo the harm the victim experienced.
So... who's thinking about the kid(s) here?