Senior U.S. District Judge Leon Jordan ruled that the Federal Bureau of Investigation violated both the US Constitution and federal rules of criminal procedure when they hacked nearly 1,300 users who accessed the PlayPen child porn site.
During Operation Pacifier, the FBI took over the dark net child porn site PlayPen and ran it between February 20 and March 4, 2015. During that time, they uploaded malware, which they call NIT (Network Investigative Technology), to the computers of the website’s visitors. They managed to capture about 1,300 IPs showing the real world locations of the alleged pedophiles. Despite the Bureau’s success, they made some flaws in the case, which angered civil rights activists.
In the operation, the FBI firstly seized the North Carolina-based server and, in a government facility in Virginia, installed malware on PlayPen. However, the Bureau received a legal permission from a federal magistrate judge in the Eastern District of Virginia to use NITs. After they got the IP addresses of the suspects, the agency legally identified the users associated with the IPs with the help of internet service providers. Finally, they used search warrants all across the country to arrest and seize the electronic devices of the suspects.
During the two weeks period when the Bureau was controlling PlayPen, they played a role in distributing child pornography material, posting or swapping at least 48,000 images and 200 videos of the sexual abuse of children. So far, more than 180 people have been arrested just in the US.
Now, Knoxville federal judge Leon Jordan has joined to this group. According to him, the FBI violated the rights of more than 180 suspects, including Thomas Allen Scarbrough, a funeral director in Rockwood. He is not the first judge who ruled against the agency, there are at least six others.
Scarbrough’s home and computer were searched by the agency in October 2015. He was identified on the PlayPen website as “teddybear555”. The FBI also uncovered the funeral director had spent 20 hours on the site in the two-week period. According to official court documents, authorities found child porn on the man’s computer and Scarbrough was charged with possession and distribution of child pornography.
The problem for the FBI is the Virginia magistrate judge only had authority to allow a search within her jurisdiction. However, the agency used the information from that warrant to gather evidence from computers all across the nation. The Bureau responded with the statement that they could only infiltrate the PlayPen site with this nation-wide method, and the technique they used is so new the law just hasn’t caught up to it.
Assistant U.S. Attorney Matthew Morris argued the agents went to the Virginia magistrate judge since the server itself was located in her district and believed they were honoring the constitution by doing so. The whole case resulted in privacy experts all across the nation fearing the FBI would use NITs for all kinds of investigative spying.
Jordan allows the government to use the evidence gathered by the FBI in the case against Scarbrough over the objections of defense attorney Gregory P. Isaacs. Jordan used the “federal good-faith exception” to rescue the evidence. Under that exception, if federal agents believed they were acting under legal authority and did nothing illegal in their efforts to secure a warrant, the evidence can still be used.
“(Isaacs’) objections that officers acted deliberately, recklessly or with gross negligence and that it should have been apparent to law enforcement that the Virginia magistrate lacked authority to sign the warrant are simply unsupported by the record,” Jordan wrote.