Child Pornography: Defending Against Overreaching Investigations Using the Internet

Here in Texas, specific teams of law enforcement are dedicated to investigating, arresting, and prosecuting child pornography laws.  Their focus is solely on building cases against individuals violating either state or federal child porn statutes.   That’s fine.  Task forces have been around for years.

Overreaching Child Porn Investigations Violate the Law

The problem today is how these investigations are being done, given the latest technological advances.  Sure, the government argues that things like the internet have made it easy for child porn to be sold and transmitted.  However, the web has also made it much easier for the government to snoop into private lives under the banner of a criminal investigation.

Sometimes, snooping is legal.  That’s the purview of search and seizure law, the realm of constitutional due process.

Problem is, from a criminal defense perspective, child porn investigations may cross that line.  Sometimes, snooping is illegal and unconstitutional. 

That’s when criminal defense lawyers have to fight to exclude evidence, maybe get the entire case dismissed as being based upon illegal investigative tactics.

Texas Attorney General Child Exploitation Unit

The State of Texas has its own statewide investigative team working to track down child pornographers.  It is an endeavor overseen by the Office of the Attorney General for the State of Texas.

And they are hard at work.  Just last week, for example, Ken Paxton’s office issued a news release, where the Child Exploitation Unit (CEU) had arrested a man over in Lockhart on 5 counts of Possession of Child Pornography.   According to the release, they got a tip from the National Center for Missing and Exploited Children’s CyberTipline.

NCMIC CyberTipline

What’s this CyberTipline?  It’s a means for someone to report “… instances of online enticement of children for sexual acts, extra-familial child sexual molestation, child pornography, child sex tourism, child sex trafficking, unsolicited obscene materials sent to a child, misleading domain names, and misleading words or digital images on the Internet. “

The NCMEC checks into the tips and decides whether or not to forward them to law enforcement; and if so, to which agency.

Tips?  Using tips as the basis of an investigation and arrest brings with it all sorts of arguments regarding probable cause, reasonable suspicion, and due process.

Federal Bureau of Investigation Child Pornography Operations

The Federal Bureau of Investigation (FBI) handles criminal investigations into violations of child porn laws at the federal level.  These are done as specific operations.  The operations have names, like “Operation Playpen” and “Operation Pacifier.”

FBI Operation Playpen: 2014 – 2016

The federal investigation “Operation Playpen” began after the FBI got a tip from an overseas agency.  The tip: there was an internet site hosting child pornography on the “dark web” and the IP address for this site was in the United States.  Apparently, the physical location for the site owners and operators was within the FBI’s jurisdiction.

Single Search Warrant

That tip came into the FBI in December 2014.  The FBI went to a judge and got a search warrant based on the tip.

The FBI ended up tracking down and arresting the administrator of the dark web bulletin board down in North Carolina.  Using that search warrant, they also took possession of the server hosting the child porn site.

The name of that closed-down Tor bulletin board:  The Playpen.   Some might think that’s the end of the case, right?  Nope.

FBI Operation Pacifier

The FBI kept that site open and operating for around two weeks after it got ahold of the server.  Now, it’s Operation Pacifier.

It’s a sting operation.

By operating the Tor bulletin board for another two weeks, the FBI got to snoop around on activity on the site, watching who was accessing the site and who was downloading the child porn images.

It also allowed the FBI to send out malware via the site to those who accessed it.  This is a big, big deal.

FBI Malware Secretly Searches and Seizes Off Private Computers

Why use the malware?  Because it would boomerang the identities of those computer users back to the FBI offices.  And it would enable the FBI to grab data off that computer without the user being aware of it.

This malware allowed the FBI to search literally thousands of computers all over the world.  And take stuff off of those computers.

All of this was done secretly.

Of course, this stuff was sent over to the Office of the U.S. Attorney General for prosecution.  And there were hundreds of cases where people were arrested and charged with violating child porn laws because of evidence originating from that malware source.

Defense Challenge to Operation Playpen and Operation Pacifier

Defense attorneys have challenged this FBI activity on several bases.  In some cases, judges have already ruled on defense motions and suppressed the evidence obtained by the FBI in this sting operation.

• First, it exceeded the scope of that single search warrant. By a long shot.
• Second, the DOJ needed to reveal how that malware worked – how did it grab that stuff? How did it learn the identities of those charged?
• Third, wasn’t the FBI itself violating the very laws it is supposed to uphold during that two week period? Wasn’t the sting operation effectively distributing child pornography?
• Fourth, how is it acceptable and constitutional for a federal agency to use those children whose images are contained on the bulletin board in its sting operations? How can that be ethical?

For more info here, read the article written by Stephanie LaCambra and published on November 2, 2016 by the Electronic Frontier Foundation (EFF), “Why the Government Must Disclose Its Exploit to the Defense in the Playpen Cases.”

Government Ability to Snoop On Computers in Criminal Investigations

The key issue here for many is not the defense of those arrested and charged with violation of child pornography laws.  That’s a critical defense issue but it’s not the only one.

The bigger issue here is the precedent this sets for criminal investigations into computers – as well as overall privacy rights for anyone who owns a computer in the United States. Or elsewhere, really: Operation Pacifier was an international application of the FBI malware.

Federal Rule 41

In December 2016, Rule 41 of the Federal Rules of Criminal Procedure changed.  Now, the FBI can go ahead and use one, single search warrant to search for lots of suspects secretly.   Any question in the past of that one search warrant having such a snowball effect has been legally answered by amended the federal procedural requirements.

There are still other legal questions regarding Operation Pacifier, but Rule 41 just made things lots easier for the FBI.  See, FBI’s New Global Hacking Rule: Amended Federal Rule 41 Danger To Your Privacy.

So, is the federal government snooping around on your computer? How would you know?

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For more on the laws and prosecution of possessing child pornography in the State of Texas, read our web resources, check out Michael Lowe’s Case Results, and read these earlier posts:

Loss of Privacy and Arrest in Texas: Hurting Your Job, Your Relationships, Your Life

Sex Crimes in Texas: How Soon Do You Need to Call a Criminal Defense Lawyer?

Child Pornography Arrests: Lessons from the Ex-Subway Pitchman’s Sentencing

Expect More People to Face Child Pornography Charges as Online Investigation into E-Mail and Search Queries Expand in 2014