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This is how the government is catching people who use child porn sites
The FBI is using hacking techniques to target criminals. (Andrew Harrer/Bloomberg)
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Ellen Nakashima Ellen Nakashima is a national security reporter with The Washington Post. She was a member of two Pulitzer Prize-winning teams, in 2018 for coverage of Russia's interference in the 2016 election, and in 2014 and for reporting on the hidden scope of government surveillance. Follow
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The user’s online handle was “Pewter,” and while logged on at a website called Playpen, he allegedly downloaded images of young girls being sexually molested.
Pewter had carefully covered his tracks. To reach the site, he first had to install free software called Tor, the world’s most widely used tool for giving users anonymity online.
In order to uncover Pewter’s true identity and location, the FBI quietly turned to a technique more typically used by hackers. The agency, with a warrant, surreptitiously placed computer code, or malware, on all computers that logged into the Playpen site. When Pewter connected, the malware exploited a flaw in his browser, forcing his computer to reveal its true Internet protocol address. From there, a subpoena to Comcast yielded his real name and address.
Pewter was unmasked last year as Jay Michaud, a 62-year-old public schools administrator in Vancouver, Wash. With a second warrant, agents searched the suspect’s home and found a thumb drive that allegedly contained multiple images of children engaged in sex acts. Last July, Michaud was arrested and charged with possession of child pornography.
Michaud’s is the lead case in a sweeping national investigation into child porn on what is known as the dark Web, a universe of sites that are off Google’s radar where users can operate with anonymity.
As criminals become more savvy about using technology such as Tor to hide their tracks, investigators are turning to hacking tools to thwart them. In some cases, members of law enforcement agencies are placing malware on sites that might have thousands of users. Some privacy advocates and analysts worry that in doing so, investigators may also wind up hacking and identifying the computers of law-abiding people who are seeking to remain anonymous, people who can also include political dissidents and journalists.
“As the hacking techniques become more ambitious, failure in execution can lead to large-scale privacy and civil liberties abuses at home and abroad,” said Ahmed Ghappour, a professor at the University of California’s Hastings College of the Law. “It’s imperative that Congress step in to regulate exactly who and how law enforcement may hack.”
But Justice Department officials said that the government investigates crimes based on evidence of illegal activities. “When we obtain a warrant, it’s because we have convinced a judge that there is probable cause that we’ll be able to find evidence in a particular location,” said a senior department official, who spoke on the condition of anonymity under ground rules set by the department.
In the Playpen case, the government activated malware on a site with 215,000 members, as of last February, and obtained Internet protocol addresses of 1,300 computers. Out of that group, the government said it has charged 137 people.
“It’s a lot of people,” said Colin Fieman, a public defender in Tacoma, Wash., who is representing Michaud. “There never has been any warrant I’ve seen that allows searches on that scale. It is unprecedented.”
Michaud is arguing to have his charges dismissed on grounds that the government’s use of the tool violated the Fourth Amendment. Fieman argues that some people might have gone to the site seeking to express fantasies that, while repugnant, are legal. The site, he said, does not clearly advertise itself as devoted to child pornography.
He likened the government’s warrant to a “general warrant,” referring to the British practice during the Colonial era of allowing government searches without any individualized suspicion.
The judge in Michaud’s case is scheduled Friday to hear several motions that could result in the dismissal of charges against him.
“This is a gray area in the law,” said Thomas Brown, a former federal prosecutor in the Southern District of New York who has handled cases involving the use of hacking techniques. “It’s another instance where you’ve got technology outstripping the law.”
Fieman also said that rules established by the federal courts, grounded in constitutional principles, require that a warrant be deployed in the district in which it is issued — in this case, the Eastern District of Virginia. Michaud’s computer was in Vancouver.
But prosecutors argue that the technique is lawful and that, in general, a warrant may be issued even when the location to be searched is unknown, as long as there is probable cause that the search will turn up evidence of a crime.
“The Supreme Court has made clear that the Fourth Amendment . . . does not preclude use of warrants where the purpose of the search is to discover the location of the place to be searched,” said David Bitkower, then a deputy assistant attorney general, in a December 2014 letter to a fed­eral courts committee weighing changes to the rule that governs how search warrants are issued.
In the Playpen case, the government argued that it had probable cause to search the computers of anyone who navigated to the site — whether one person or 10,000 people — on the grounds that the site was devoted to child porn and anybody who knew how to get to it probably did so with the intent to view the content. The site cannot be found through a Google search and can be reached only by users who know its exact, algorithm-generated Web ad dress and are using special software that connects to the Tor network.
In such a case, “we have an obligation to investigate all 10,000 [people], not just one,” prosecutor Keith Becker told Judge Robert J. Bryan of the U.S. District Court for the Western District of Washington in December at a hearing in Tacoma.
The FBI seized Playpen last year, and after operating it for two weeks, shut it down. During those two weeks, according to court documents, it deployed what it obliquely calls a “network investigative technique,” or NIT, to capture the Internet protocol address of anyone who logged in on the website.
“In general, the Constitution doesn’t say that we have to stop investigating just because we need to use a computer technique to identify suspects rather than opening a letter or entering a private house,” said the senior Justice official. “The law doesn’t give online pedophiles immunity from court-authorized search warrants just because they’re using modern software.”
Fieman also argued that the government itself violated the law when it seized Playpen last year, then rather than shut it down immediately or find ways to reroute visitors, continued to operate the child-porn site.
“What the government did is comparable to flooding a neighborhood with heroin in the hope of snaring an assortment of low-level drug users,” Fieman said in a motion to dismiss filed in November.
Justice spokesman Peter Carr said that “at no time in an operation like this does the FBI post any images, videos or links to images of child pornography.” Any such postings are done by website users, not the FBI, he said. Also, he said, immediately shutting down a website would prevent law enforcement from identifying the offenders and frustrate efforts to identify and rescue child victims from abuse.
Without using the hacking technique, officials said, it would be very difficult to locate pedophiles who go to great lengths to hide their tracks.
The issue, said Ghappour, the law professor, is not the use of the malware per se, but “whether hacking warrants are written narrowly enough to guarantee that only those culpable set the trigger [to launch the NIT], and consequently get hacked,” he said. “Given the scale of these operations, the smallest mistake could result in hundreds, if not thousands, of privacy violations.”
Privacy advocates concerned about the government doing mass hacks point to the case of TorMail, an anonymous email service, now shuttered. TorMail, which despite the name is not affiliated with the group behind Tor, was used by a range of people, from criminals to dissidents and journalists.
In the summer of 2013, reports surfaced of people trying to log in to TorMail and finding a “down for maintenance” message instead, then finding suspicious-looking code included in the TorMail Web page. Security researchers who analyzed the code concluded that it was likely placed there by the FBI.
At the time, the government would not confirm that the bureau was behind the hack. This week, people familiar with the investigation confirmed that the FBI had used an NIT on TorMail. But, they said, the bureau obtained a warrant that listed specific email accounts within TorMail for which there was probable cause to think that the true user was engaged in illicit child-pornography activities. In that way, the sources said, only suspects whose accounts had in some way been linked to involvement in child porn would have their computers infected.
An FBI official who spoke under a similar condition of anonymity said the bureau recognizes that the use of an NIT is “intrusive” and should only be deployed “in the most serious cases.” He said the FBI uses the tool only against offenders who are “the worst of the worst.”
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FBI ran website sharing thousands of child porn images
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WASHINGTON — For nearly two weeks last year, the FBI operated what it described as one of the Internet’s largest child pornography websites, allowing users to download thousands of illicit images and videos from a government site in the Washington suburbs.
The operation — whose details remain largely secret — was at least the third time in recent years that FBI agents took control of a child pornography site but left it online in an attempt to catch users who officials said would otherwise remain hidden behind an encrypted and anonymous computer network. In each case, the FBI infected the sites with software that punctured that security, allowing agents to identify hundreds of users.
The Justice Department acknowledged in court filings that the FBI operated the site, known as Playpen, from Feb. 20 to March 4, 2015. At the time, the site had more than 215,000 registered users and included links to more than 23,000 sexually explicit images and videos of children, including more than 9,000 files that users could download directly from the FBI. Some of the images described in court filings involved children barely old enough for kindergarten.
That approach is a significant departure from the government’s past tactics for battling online child porn, in which agents were instructed that they should not allow images of children being sexually assaulted to become public. The Justice Department has said that children depicted in such images are harmed each time they are viewed, and once those images leave the government’s control, agents have no way to prevent them from being copied and re-copied to other parts of the internet.
Officials acknowledged those risks, but said they had no other way to identify the people accessing the sites.
“We had a window of opportunity to get into one of the darkest places on Earth, and not a lot of other options except to not do it,” said Ron Hosko, a former senior FBI official who was involved in planning one of the agency’s first efforts to take over a child porn site. “There was no other way we could identify as many players.”
Lawyers for child pornography victims expressed surprise that the FBI would agree to such tactics – in part because agents had rejected them in the past – but nonetheless said they approved. “These are places where people know exactly what they’re getting when they arrive,” said James Marsh, who represents some of the children depicted in some of the most widely-circulated images. “It’s not like they’re blasting it out to the world.”
The FBI hacks have drawn repeated – though so far unsuccessful – legal challenges, largely centered on the search warrants agents obtained before agents cracked the computer network.
But they have also prompted a backlash of a different kind. In a court filing, a lawyer for one of the men arrested after the FBI sting charged that “what the government did in this case is comparable to flooding a neighborhood with heroin in the hope of snatching an assortment of low-level drug users.” The defense lawyer, Colin Fieman, asked a federal judge to throw out child pornography charges against his client, former middle school teacher Jay Michaud. A federal judge is scheduled to hear arguments on that request Friday.
Federal agents first noticed Playpen not long after it went online in August, 2014. The site was buried in what is often called the “dark web,” a part of the internet that is accessible to the public only through Tor, network software that bounces users’ internet traffic from one computer to another to make it largely untraceable.
By March of last year, the FBI said, Playpen had grown to become “the largest remaining known child pornography hidden service in the world,” the Justice Department said in a court filing. FBI agents tracked the site to computer servers in North Carolina, and in February seized the site and quietly moved it to its own facility in Newington, Va.
The FBI kept Playpen online for 13 days. During that time, federal prosecutors told defense lawyers that the site included more than 23,000 sexually explicit images and videos of children. Some of those could be downloaded directly from the government’s computers; others were available through links to other hard-to-find locations on the web, Fieman said.
One section of the site was labeled “toddlers,” according to court records. And prosecutors said that some of the images users accessed during the time Playpen was under the government’s control included “prepubescent female” having sexual intercourse with adults.
Fieman said more than 100,000 Playpen registered users visited the site while it was under the FBI’s control. The Justice Department said in court filings that agents had found “true” computer addresses for more than 1,300 of them, and has told defense lawyers that 137 have been charged with a crime, though it has so far declined to publicly identify those cases.
Law enforcement has long complained that online services like Tor create a type of safe haven for criminals because they hide the unique network addresses from which people connect to sites on the internet. Officials said the only way for the government to crack that network was to take over the site and infect it with malware that would trick users’ web browsers into revealing their real internet addresses, which agents could then trace back to the people who were using them.
“The government always considers seizing an illegal child pornography site and removing it from existence immediately and permanently,” Justice Department spokesman Peter Carr said. “While doing so would end the trafficking of child pornography taking place on that one website, it would do nothing to prevent those same users from disseminating child pornography through other means.”
Still, he said, “The decision whether to simply shut down a website or to allow it to continue operating for a brief period for a law enforcement purpose is a difficult one.”
Justice officials said they were unable to discuss details of the investigation because much of it remains under seal, at their request.
The Justice Department said in court filings that agents did not post any child pornography to the site themselves. But it did not dispute that the agents allowed images that were already on the site to remain there, and that it did not block the site’s users from uploading new ones while it was under the government’s control. And the FBI has not said it had any ability to prevent users from circulating the material they downloaded onto other sites.
“At some point, the government investigation becomes indistinguishable from the crime, and we should ask whether that’s OK,” said Elizabeth Joh, a University of California Davis law professor who has studied undercover investigations. “What’s crazy about it is who’s making the cost/benefit analysis on this? Who decides that this is the best method of identifying these people?”
The FBI was first known to have o
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