FBI Child Porn Stings: The Illegal Way The Honey Trap Is Set

porn

In the world of American jurisprudence sometimes the discovery method is just as unsavory as the madness.  In the case of the FBI taking down the child pornography (porn) website Playpen, the way law enforcement went about finding out who the USERS of the site were really is hard to swallow.  They went to a federal magistrate judge in Virginia and got permission to get into Playpen, a site hidden on the dark web via a system known as Tor, and use it for a bit (13 days) to plant malware on subscribers’ computers.  The malware in question sends identification data and computer addresses then to law enforcement.

That worked so well, the boys in blue went to ANOTHER magistrate in Maryland and got control of at least 20 more sites according to documents obtained by the American Civil Liberties Union.

In the normal course of the operation of a web site, a user sends “request data” to the web site in order to access that site. While Websites 1-23 operate at a government facility, such request data associated with a user’s actions on Websites 1-23 will be collected. That data collection is not a function of the NIT. Such request data can be paired with data collected by the NIT, however, in order to attempt to identify a particular user and to determine that particular user’s actions on Websites 1-23.

There was just one problem with that method of catching not just the producers of child porn, but the consumers.  It’s an eensy weensy little bit illegal.

Of the more than 100 Playpen-related child pornography cases that have been prosecuted, federal judges in Iowa, Massachusetts, and Oklahoma have ruled that such a search violated current laws of federal procedure and was in fact so egregious that the evidence collected as a result should be tossed. Other judges have rebuked prosecutors for unlawful searches, but they have not gone so far as to suppress evidence.

As abhorrent as consumption of child porn is, entrapment is plain and simply against the law.  And planting malware on an unsuspecting perpetrator’s computer who was unknown to investigators before the investigation began is a form of entrapment, even if the consumer was into something illegal.  He or she didn’t know they were being scooped up in a net.  Furthermore, the scooping was not done in public as legal undercover videos are, but via planting malware on personal property where an individual should have a reasonable expectation of privacy.

This is all allowed thanks to something called Rule 41, a provision for senior judges to issue out of jurisdiction warrants.

Under one part of the current rules of federal jurisprudence, known as Rule 41, only more senior federal judges, known as district judges, have the authority to issue out-of-district warrants. However, a change in this rule set to take effect on December 1, 2016 will expand this power to magistrate judges, absent Congressional action.

This example highlights a portion of the law that is inadequate for fighting cybercrime of all sorts. The unfortunate aspect of it is that the crime in question is consumption to the point of ownership of child pornography.  It is one of the few times one would think that the letter of the law could be relaxed given the gravity of the crime.  Unfortunately, no.  It puts too many civil rights for all Americans on tenuous footing.next-page

And then there is the matter of the FBI running up to 23 child porn sites.  Chew on that for a while.



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About the Author

Cultural Limits

A resident of Flyover Country, Cultural Limits is a rare creature in American Conservatism – committed to not just small government, Christianity and traditional social roles, but non-profits and high arts and culture. Watching politics, observing human behavior and writing are all long-time interests.

In her other life, CL writes romance novels under her nom de plume, Patricia Holden (@PatriciaHoldenAuthor on Facebook), and crochets like a mad woman (designs can be found on Facebook @BohemianFlairCrochet and on Pinterest on the Bohemian Flair Crochet board).

In religion, CL is Catholic; in work, the jill of all trades when it comes to fundraising software manipulation and event planning; in play, a classically trained soprano and proud citizen of Cardinal Nation, although, during hockey season, Bleeds Blue. She lives in the Mid-Mississippi River Valley with family and two cute and charming tyrants…make that toy dogs.

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