If there were any DA with integrity they'd drag the agents involved in this to a grand jury to get the evidence and code, then indict them put them on trial as the criminals they are.
But it won't happen because no DA would ever go prosecute anyone from the FBI unless the orders came from some politically powerful source. Too much risk to their career and of backlash.
You could also argue that if the DA had ethics they would let the FBI catch these disgusting child porn criminals. It really goes both ways. And while the FBI might be criminals, who would you rather see behind jail? The people who track adults without warrants or the ones who track naked children?
This is much worse in my opinion. Doing it to catch "disgusting child porn criminals" shows they know it is wrong, but they think they can get away with it because "the ends justify the means". First they came for the child porn criminals, etc.
Essentially this means they're willing to let all 135 defendants walk rather than reveal the source code. (IANAL, but I'm pretty sure that when one of them goes free because of this, it sets a precedent that all defendants can use.)
This seems really fishy. The only way it makes sense is if the FBI is doing something massively illegal in that source code, and I can't even fathom what that would be. Perhaps there is no source code, and they're using NSA tools or other illegal wiretapping methods instead.
The way the prosecution is dismissing these cases at the appellate level means no binding precedent will attach. There's another legal notion, though, called "persuasive precedent", which, while not binding, does often tend to guide the judgement of peer courts.
I'm not sure if the demands from trial and appellate judges to release the code, and the dismissals the State resorts to in order to avoid that outcome can properly be taken as precedential, however, persuasive or otherwise.
They can still prosecute anyone they caught by independent means. It's just a matter of having some other way to search their computers, which is just a formality in most prosecutions. It's exceedingly easy to get a warrant against anyone these days; that's why they have parallel construction.
The problem appears to be that they didn't doso, and they took over the site for ~2w before shutting it down, so they no longer _could_ doso if they wanted to.
I'm entertained that they're going to such lengths essentially to conceal their 0days. Did they assume the judges were just going to let them skirt by without verifying how they identified people? You'd think they'd have learned from the days of IDing piracy by IP address that it's generally not going to fly any more.
Giving up cases only if a competent public defender wants proof of guilt, including technology used, is a longstanding practice. [0] Then you underfund the PDs and live content that criminals rich enough to have a lawyer will often go free.
> This seems really fishy. The only way it makes sense is if the FBI is doing something massively illegal in that source code
Nope, it also makes sense if the Tor browser exploit still works, and is expected to be useful in way more interesting cases than putting away people for possession of pixels.
I don't believe that's the case here. However, the order given by the Judge in Michaud's case predates the classification of the source code. That gives the prosecutors three choices:
1) Produce the source code. They clearly don't want to do that.
2) Ask the judge to reconsider. While that seems sensible on the face of it, it's not without risk. It's pretty obvious that they've classified the code to prevent it being requested, and judges don't like it when you undermine their authority in such a blatant way.
3) Quietly drop the charges and back away. They can do this with Michaud without impacting other cases, because no other judge can order them to produce the source code.
1. Reveal code which will explain the exploit. This would take down the existing ring, but also allow other child-pornographers to patch their systems (probably the politically worst thing possible). It may also reveal publicly controversial investigative methods of the FBI.
2. Keep code private and potentially see the existing perps walk. This would preserve the exploit (maybe) for use another day, but might also be a risk to civil liberties.
3. Be forced to admit in court that there is no source code and the defendants were identified by the NSA illegally spying, storing and analysing the internet traffic of all US citizens. The NSA hands the IP addresses to the FBI and the FBI fabricate the idea of "source code" as parallel construction in order to hide the NSA's activities.
or 4 (perhaps the most benevolent possibility): They'd rather use the fear of the unknown as a bigger deterrent against further pursuit of CP than getting a handful of convictions. People who are involved now or thinking about it may stop or never get involved at all if there's > 0% probability that the feds are holding on to a working 'sploit.
So were they actually caught with anything incriminating, or is the only thing identifying them the IP address that the FBI seemingly obtained through now classified means?
Is the TL;DR: They were caught with child porn, but that evidence is inadmissible because the warrant that let the FBI find it relied upon this "NIT", and the FBI won't reveal the NIT?
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[ 3.3 ms ] story [ 59.0 ms ] threadBut it won't happen because no DA would ever go prosecute anyone from the FBI unless the orders came from some politically powerful source. Too much risk to their career and of backlash.
This is much worse in my opinion. Doing it to catch "disgusting child porn criminals" shows they know it is wrong, but they think they can get away with it because "the ends justify the means". First they came for the child porn criminals, etc.
Victimized children don't really ever recover.
Give them both due process of law, and we will see who is guilty of what.
This seems really fishy. The only way it makes sense is if the FBI is doing something massively illegal in that source code, and I can't even fathom what that would be. Perhaps there is no source code, and they're using NSA tools or other illegal wiretapping methods instead.
I'm not sure if the demands from trial and appellate judges to release the code, and the dismissals the State resorts to in order to avoid that outcome can properly be taken as precedential, however, persuasive or otherwise.
I'm entertained that they're going to such lengths essentially to conceal their 0days. Did they assume the judges were just going to let them skirt by without verifying how they identified people? You'd think they'd have learned from the days of IDing piracy by IP address that it's generally not going to fly any more.
It's a beautiful justice system.
[0]https://en.wikipedia.org/wiki/Stingray_phone_tracker
Nope, it also makes sense if the Tor browser exploit still works, and is expected to be useful in way more interesting cases than putting away people for possession of pixels.
1) Produce the source code. They clearly don't want to do that.
2) Ask the judge to reconsider. While that seems sensible on the face of it, it's not without risk. It's pretty obvious that they've classified the code to prevent it being requested, and judges don't like it when you undermine their authority in such a blatant way.
3) Quietly drop the charges and back away. They can do this with Michaud without impacting other cases, because no other judge can order them to produce the source code.
1. Reveal code which will explain the exploit. This would take down the existing ring, but also allow other child-pornographers to patch their systems (probably the politically worst thing possible). It may also reveal publicly controversial investigative methods of the FBI.
2. Keep code private and potentially see the existing perps walk. This would preserve the exploit (maybe) for use another day, but might also be a risk to civil liberties.
What a mess.
3. Be forced to admit in court that there is no source code and the defendants were identified by the NSA illegally spying, storing and analysing the internet traffic of all US citizens. The NSA hands the IP addresses to the FBI and the FBI fabricate the idea of "source code" as parallel construction in order to hide the NSA's activities.
Is the TL;DR: They were caught with child porn, but that evidence is inadmissible because the warrant that let the FBI find it relied upon this "NIT", and the FBI won't reveal the NIT?
Makes the very solid argument the government hacks are like oilspills.