It goes something like this…. The FBI discovers someone they think is trading child pornography. The FBI gets a search warrant. They bust the person they think was trading. The FBI asks that person to allow the FBI to assume their identity on line. The person agrees [because it can help them get a lower sentence in some instances]. FBI agents then begin pretending they were the person who was arrested and the FBI uses this information to attempt to catch other people trading child pornography or production or enticement of a minor, etc…. The FBI always drew the line at actually trading images. They would talk with people, set up fake meetings, and do or say just about anything but they would never actually trade in CP images themselves. Until now.
USA today ran a story on January 21, 2016 exposing the fact that the FBI had run a site, Playpen. Playpen had 215,000 registered users and links to more than 23,000 illegal images – some of which were available for download from FBI servers. According to the FBI Playpen was the largest known child pornography service in the world. The FBI operated this cite for just under two weeks – during which time images were viewed and downloaded while they were in control of the FBI.The government has now stooped to committing crimes allegedly in order to catch criminals. What is the difference?
Law enforcement has been complaining that the Dark Web or Tor has been a safe haven for criminals because of the nature of Tor and the fact that network addresses are hidden. This is hardly a justification for the FBI to engage in the same conduct they claim they were trying to prevent. This is reminiscent of the ATF’s reverse stings in which Ninth Circuit Senior Judge Edward Leavy argued that the cases [and convictions] should have been thrown out for outrageous government conduct. Criminal defense attorneys in those case lamented the fact that their clients were given offers too good to be true, when clients didn’t want to risk more time in prison for the hopes of vindication in appellate courts. Hopefully lawyers will be able to persuade their clients in some of these cases to fight back against this newest version of outrageous government conduct.