The court wanted to know how the FBI located a child porn suspect, and federal prosecutors responded by dropping all charges against a man accused of accessing Playpen, a notorious and now-shuttered website.
The case 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 case be dismissed.
Annette Hayes, a federal prosecutor, wrote in a court filing that the government had to choose between disclosure of classified information and dismissal of its indictment.
“Disclosure is not currently an option. Dismissal without prejudice leaves open the possibility that the government could bring new charges should there comes a time within the statute of limitations when and the government be able to provide the requested discovery.”
The Department of Justice is currently prosecuting over 135 people nationwide whom they believe accessed the illegal website.
To find those them, federal authorities seized and operated the site for 13 days before closing it down. During that period, the FBI deployed a Tor exploit that allowed them to find out those users’ real IP addresses.
The DOJ has called this exploit a “network investigative technique,” (NIT) while many security experts have dubbed it as “malware.” Defense attorneys want the NIT’s source code as part of the criminal discovery process.
Last year, US District Judge Robert Bryan ordered the government to hand over the NIT’s source code in Michaud. Since that May 2016 order, the government has classified the source code itself, thwarting efforts for criminal discovery in more than 100 Playpen-related cases that remain pending.
On the plus side many of the Playpen defendants have pleaded guilty, and only a few have had charges dropped altogether.