Prosecutors have abandoned charges against a Vancouver school worker accused of child pornography offenses after the FBI took over a “darknet” site.
Public defenders representing Jay Michaud, a Vancouver school worker accused in July 2015 of sharing child pornography through a Tor site, successfully fought to force the FBI to release details of the “hack” that exposed hundreds of child pornography collectors around the United States. The FBI refused to do so, prompting a federal judge in Tacoma to block prosecutors from using evidence against Michaud that was collected in the operation.
On Friday, prosecutors moved to dismiss the charges against Michaud. Assistant Federal Public Defender Colin Fieman said Monday that he had received the dismissal order and informed Michaud that charges have been dropped.
“Mr. Michaud maintained his innocence from the outset, and the dismissal is a result of the FBI’s overreaching and misuse of its computer hacking capabilities, including its operation of the world’s largest child pornography web site and attacks on computers in over 120 countries,” Fieman said by email.
“We are relieved and grateful that Mr. Michaud’s case is done, but there are still many unanswered questions. … It remains to be seen whether the FBI will ever be held fully accountable for those aspects of its investigation that put core privacy rights at risk and violated common standards of decency when it comes to how law enforcement agencies do their job.”
Writing the court, Assistant U.S. Attorney Matthew Hampton said a May order suppressing evidence collected through a “network intrusion technique” – the hack deployed by the FBI after agents seized the Playpen site hosted on the Tor network – left prosecutors unable to prove the case against Michaud beyond a reasonable doubt.
“The government must now choose between disclosure of classified information and dismissal of its indictment,” Hampton said in a motion to the court. “Disclosure is not currently an option. Dismissal without prejudice leaves open the possibility that the government could bring new charges should there come a time within the statute of limitations when and the government be in a position to provide the requested discovery.”
In moving for dismissal without prejudice, though, prosecutors could conceivably restart the prosecution if the FBI agrees to share details of the hack. But Fieman, the public defender, said “the case is effectively over.”
Michaud’s public defenders and privacy activists faulted the FBI for hacking the computers of Playpen members after agents seized the site in February 2015. The FBI then ran the site, allowing child pornography traders to continue about their business while agents installed tracking software on their computers.
Fieman previously described the operation as “outrageous.”
“The unprecedented nature and scope of the government’s distribution of contraband in connection with this case has no legal justification or excuse and offends common standards of decency,” Fieman and public defender Linda Sullivan said in a memo filed in Michaud’s case.
The investigation into the Playpen site began when the site was launched in August 2014. Writing the court, and FBI supervising special agent said he was aware of the site when it appeared on the Tor network.
The special agent, based at FBI headquarters in Virginia, said he had been involved in the investigation of the Playpen site “since it came online.” Agents monitored the site until February 2015, when they took control of the network’s server in North Carolina.
Writing the court, Hampton said agents considers simply shutting down Playpen. They contended that doing so would’ve prevented them from identifying the site’s users or rescuing children exploited there.
“It was the judgment of law enforcement that the seizure and continued operation of (the site), for a limited period of time … was necessary and appropriate in order to identity (the site’s) users,” Hampton said in court papers.
FBI agents used what they describe as a network investigative technique to install tracking software on the computers of Playpen visitors. A federal judge in Virginia approved the operation, which identified the IP addresses of more than 1,000 users.
Investigators contended Michaud was accessing the site under the name “Pewter.” He was alleged to have traded images showing the sexual exploitation of very young children.
Michaud, who’d worked in Vancouver-area schools for more than a decade, was accused of downloading videos showing children as young as 7 being raped. Investigators who searched his home claimed they found more than 2,400 images of child rape as well as a guide on titled in part “How to Have Sex With Very Young Girls … Safely.”
The FBI operation targeting Playpen was large, as was the site’s audience. More than 200,000 users visited Playpen during the eight months it was live, logging 7 million hours before the FBI shut it down on March 4, 2015.
A similar operation in 2012 first publicized on seattlepi.com targeted the “Pedoboard” and two other child pornography exchanges based in Nebraska.
That investigation sprang from a Dutch national police operation targeting the Tor network. Accessed through specialized browsing programs, Tor is an anonymizing network users believe will obscure their activities from law enforcement or other eavesdroppers.
Dutch agents ran a program searching for hidden sites ending in .onion – Tor stands for The Onion Router, and sites often end with that suffix – and then manually examined for child pornography. The IP address for one child pornography site tracked back to Bellevue, Nebraska.
The Nebraska operation saw FBI agents operate that website as well. Investigators identified more than 5,000 users, and federal prosecutors indicted at least 26 individuals.