Playpen moral dilemma: Is FBI right to erode civil liberties or risk child porn suspects roaming free?

In 2015, the FBI brought down Playpen, the largest-ever child pornography website on the internet – which at its peak had almost 215,000 members.

Recent statistics released by the Centers for Disease Control and Prevention (CDC) in 2011 state that 42 million American adults have been victims of childhood sexual abuse.

The Playpen website was hidden on an unindexed part of the internet called the Dark Web, and the FBI located suspects by using a hacking tool known as a Network Investigative Technique (NIT) to discover 1,300 IP addresses they could trace back to actual individuals.

Over 1,500 cases arose from the investigation involving suspects from all over the US, who faced charges that included accessing the website, as well as intent to obtain, download and distribute child pornography. Many of the cases were heard in federal courts in 2016, but presently the US Department of Justice (DoJ) is still prosecuting 135 people involved in almost 200 cases.

A large number of the defendants have pleaded guilty to the charges, but in some cases attorneys have argued that the FBI needs to disclose how exactly it was able to hack Playpen visitors' computers, which were all protected by the Tor anonymising network.

Not all judges have agreed with this, but in the case involving suspect Jay Michaud, district Judge Robert Bryan ordered the US government to hand over the exploit's source code in May 2016. Instead of doing so, the government classified the source code, and after an eight-month-long legal battle, on 5 March Bryan decided to suppress the FBI's evidence and throw the case out.

This landmark judgement has the potential to unravel many of the other Playpen-related cases currently going through the US courts, which means that 135 people, whom are known to have accessed child pornography and may or may not be a potential risk to society, could soon walk free.

But where do you draw the line? What is more important – the risk of potential paedophiles roaming free when they are known to law enforcement, or the continued erosion of citizens' civil liberties? IBTimes UK has conducted exclusive interviews to get a sense of this key debate.

The FBI has gone too far this time

Michaud's state-appointed federal public defender Colin Fieman says there are significant issues arising from the case regarding the conduct of law enforcement that simply cannot be ignored, even when the issue involves potentially unsavoury issues.

"The FBI went so far beyond the pale of what's considered legal and appropriate, that at least in my view, remedial action by the courts is needed and necessary. As public defenders, our job is to defend the constitution and not just the rights of our individual clients, but more broadly we are an important check on executive powers. We're a frontline bulwark to protect the constitutional rights and privacy interests of the public in general," Fieman told IBTimes UK.

"While in this case we're narrowly talking about child porn allegations, the types of tactics used by the FBI have sweeping implications for privacy rights in general."

As part of "Operation Pacifier", the FBI hacked into a total of 8,000 computers located in 120 countries on a single warrant. According to the federal public defenders and the Electronic Frontier Foundation (EFF), the magistrate judge from the Eastern District Court of Virginia didn't realise the scope of the warrant he was signing. In case you're wondering, it is illegal for anyone to hack computers outside the US, even if you're a law enforcement agency. You can't take a local warrant and turn it into a global one.

"Our goal is to get a decision from as many courts that are willing to look at it, that in order to hack into a citizen's computer, law enforcement needs to get a warrant and sufficient evidence to search only that specific user's computer. It's not enough for law enforcement to say there's criminal activity on the internet and get one single warrant to search 8,000, 100,000 or a million computers," the EFF's senior staff attorney Mark Rumold tells IBTimes UK.

Despite all that is being said in court by lawyers and activists, the DoJ is standing firmly behind the FBI, so it is unlikely that any internal investigation will arise to discipline the law enforcement agency for its actions.

"Yes, there is always a risk that offenders could go free when evidence is suppressed or the government is forced to drop charges. As we've said in numerous court filings in the hundreds of cases across the country, use of the Tor exploit was lawful and proper. Moreover, it resulted in the identification of 50 children who had been sexually abused and in the identification of hundreds of criminals," DoJ spokesperson Nicole Navas told IBTimes UK.

"The Justice Department is committed to the safety and well-being of our children and has placed a high priority on protecting and combating sexual exploitation of minors and to bringing offenders to justice."

Saviour, or the world's biggest distributor of child porn?

There's also another highly contentious issue about the investigation. During Operation Pacifier, the FBI seized the computer server running the Playpen website from a web host located in Lenoir, North Carolina. But instead of shutting the website down, the FBI continued to run the child pornography image board from its own servers for another 15 days in order to catch the people who sought to access the website.

"To catch those people, the FBI operated the world's largest child porn site and by conservative estimate, distributed at least one million illegal images and videos around the world. There were at least 100,000 visitors during that period," says Fieman.

"New child porn was posted by the FBI while operating the site. Other users submitted it, but the FBI were the ones who technically placed it on the website and made it available to the general public. The FBI could have investigated the Playpen website very effectively without resorting to these methods. They've even admitted it. When do the ends no longer justify the means?"

The problem with what the FBI did is that every time the child porn is viewed, downloaded or distributed, it is essentially a revictimisation of the person who was in the image or video, so essentially it can be argued that the FBI revictimised countless victims during its operation.

Bill Murray, 63, in Los Angeles, has a background in TV and film production. He is the founder of the National Association of Adult Survivors of Child Abuse (NAASCA), a volunteer-run organisation with tens of thousands of members from all over the world who offer support and at least 30 different services to help survivors heal from child abuse both online and offline.

"The FBI running the site – that's called a sting, a tactic that is used all the time. What about the 350 days in the year that weren't covered by the sting? The Dark Web is a haven for paedophiles. They might be in America but they host their websites offshore in countries where hosting registration can be sold to people who want to look at child pornography," Murray, a former victim himself, tells IBTimes UK.

"Of course the FBI did the right thing. If the child porn suspects want their civil rights, they should come out onto the open web. You don't have a right to hide criminal activity. Everywhere in our country, it's a criminal activity. They go host these websites in countries that don't have those laws, but as soon as they're on the internet, they're accessible from all over the world. We were delighted when the site was taken down."

A severe erosion in civil liberties

Fieman says that the FBI's tactics meant that many innocent users of the Dark Web had their computers hacked even before they could recognise that the site they were visiting was a child pornography site, and this is such a big problem that it cannot be ignored by the public.

To this end, Fieman and the public defenders' office set up a national defence working group and is now actively helping private attorneys across the country to strategise and share information on pleadings on the other cases.

"The cases are complex and the government has done its best to keep information and evidence under wraps. A coordinated effort is needed to defend against such a big operation with so many people being charged across the country," he stresses.

"Child porn is a scourge – I'm a parent myself. It's important these people are monitored, treated and if necessary prosecuted, but it's really important that people are made aware of what the government is doing. So many complicated issues and competing interests get caught up in criminal cases, but if you don't have a balance of advocacy and resources between defence and prosecution, then you're on a slippery slope to a police state."

But what about the fact that potential paedophiles could be released? Murray says that sadly the FBI's work is barely chipping the tip of the iceberg.

"I'd be upset if the suspects go free, but I'm more upset that it goes on and on in our societies. They captured a thousand people, but there are literally a million people doing this that they'll never catch. Every time the FBI comes up with a clever new piece of software, the criminals figure out how to block it, and they're winning by leaps and bounds," he says.

"Fighting child pornography is like climbing Mount Everest and standing at the bottom. We're never going to end it. Maybe it just helps that we even find them. But I don't hate the lawyers. I'm a huge supporter of the concept of civil liberties, it's very important."