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The FBI became one of the nation’s largest distributors of child pornography last year during an investigation that critics are comparing to Operation Fast and Furious.
The Seattle Times is alleging that the FBI, for two weeks, operated a confiscated server that allowed the distribution of 48,000 images, 200 videos and 13,000 links to child porn – with as many as 100,000 people logging on during the time in question, between Feb. 20 and March 4.
The controversy began when the FBI arrested the operator of “The Playpen” bulletin board – which was accessible only through the Tor browser – and then kept the website and server operational for about another two weeks, Seattle Times staff reporter Mike Carter wrote. Agents moved the site’s server from North Carolina to an FBI warehouse in Virginia. Defense attorneys in the case even say the FBI improved the website, boosting its visits from 11,000 a week to 50,000 a week.
“Defense attorneys and some legal scholars suggest the FBI committed more serious crimes than those they’ve arrested — distributing pornography, compared with viewing or receiving it,” Carter wrote.
Carter added that the operation – dubbed “Operation Pacifier” – “flies in the face of the Justice Department’s pronouncement that a child is re-victimized every time a pornographic photo is viewed or distributed.”
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The FBI declined to talk to The Seattle Times but has defended its actions in court.
“The United States, the FBI, did not create this website,” said Assistant US Attorney Keith Becker during a January hearing. “It was created by its users, and administrators, and existed and substantially distributed child pornography long before the government took it over in an effort to actually identity its criminal users.”
The FBI may have broken other laws during the investigation, and it has refused to reveal how it penetrated the Tor browser to discover the users of the websites. Although 186 people have been charged, some of them could be dismissed because the FBI won’t give defense attorneys information on how it all was gathered, The Times reported.
The government may have used only one warrant to conduct its investigation, instead of – as required – getting a warrant in the same district as the search, The Times said. Such a rule prevents “fishing expeditions,” defense attorneys say.
The “FBI cannot be trusted with broad hacking powers,” said Colin Fieman, a Tacoma-based attorney who is representing one of the people accused of visiting the bulletin board. Fieman added that the government “has lost its moral compass and is willing to ignore the rules and even break the law to extend its reach.”
“It is impossible to reconcile the Playpen operation with the government’s own view of the harm caused by the distribution of child pornography,” Fieman wrote in court documents. “The DOJ routinely emphasizes … that possessing and circulating pornographic images re-victimizes the children depicted in them.”
Mike Rumold, an attorney at the Electronic Frontier Foundation, called the FBI’s action “easily the largest domestic use of hacking by law enforcement in U.S. history.”
“I will not be surprised at all if we wind up before the U.S. Supreme Court,” Rumold said.
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