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Federal Child Pornography Investigation Techniques Are Facing Scrutiny

Jan 27, 2017 by Mike McKneely in Sex Crimes

While everyone can agree that individuals who create, download, view, or distribute child pornography should be caught and punished, there are limits to how far law enforcement can go to achieve this. The Federal Bureau of Investigation (FBI) may have found that limit. The FBI has come under fire since pulling off a national child pornography sting operation that many think crossed the line of what is fair and legal. While some believe the FBI has triumphed over criminals, others consider the agency’s actions to be a violation of Internet privacy and the fourth amendment and thus unconstitutional. The many individual cases will likely end in varied results, making it clear that there is a legal gray area when it comes to fighting online crimes.

For individuals accused of committing a crime online and are discovered through technology like IP addresses, this uncertainty can be used to their advantage. Courts are looking for strong arguments to make decisions regarding what is lawful, fair, and appropriate regarding Internet crimes.

By working with an experienced Fresno criminal defense attorney from Michael McKneely, Criminal Defense Lawyer, individuals accused of any crime, including child pornography have the chance to build the strongest defense possible to minimize the consequences of these accusations. For more information contact us today at (559) 443-7442.

FBI Operation Pacifier

USA Today reported that during “Operation Pacifier,” the FBI hosted an online child pornography website, posting and sharing 48,000 images and 200 videos involving sexual abuse of children over a 2 week period. These actions led to more than 180 arrests across the country. The FBI gained control of the online site, The Playpen, after the arrest of the site’s administrator in 2014.

The FBI relocated the server obtained during this arrest to a facility in Virginia and then installed a tool known as a Network Investigative Technique (NIT), or what others know as malware. While this may sound nefarious, the FBI obtained permission to use NIT from a federal magistrate judge in the Eastern District of Virginia. Once the agency had user’s IP addresses and other identifying information, it lawfully sought the online user’s personal information from Internet providers and obtained search warrants in the proper jurisdictions around the country.

What Went Wrong?

At first glance, it may appear as the FBI did everything above board. However, the FBI’s actions following the Virginia magistrate’s ruling are questionable. The judge gave permission to use the NIT; however, this permission should only have extended to searches of computers within that jurisdiction. The magistrate judge for the Eastern District of Virginia did not have the authority to give the FBI the power to search computers in other jurisdictions. The computers the FBI obtained information from were located across the country.

This distinction has led six federal courts to rule that the FBI conducted an illegal search and violated the federal rules of criminal procedure. This does not mean all of the judges have thrown out the evidence or the cases, though. At least one judge allowed the evidence because that judge felt the FBI’s actions fell under the federal good faith exception for evidence, which states that if officers had the reasonable, good faith belief that they were acting under legal authority and relied on search warrants that were later found defective, the technically illegal evidence is still admissible. Other judges have disagreed.

What Does This Mean for the Future?

Many civil rights and Internet anonymity activists argue there is a broader question at play: When and how is hacking by law enforcement agencies appropriate? A number of organizations and attorneys believe the scope of Operation Pacifier and the precedent this operation sets is dangerous. It needs to be decided when and how the federal government can gain computer and personal information. For now, these questions will play out at a local instead of national level as individual cases from Operation Pacifier are decided.

Fighting Against Charges for Online Crimes

For individuals who have been accused of committing crimes online, it is important to work with an experienced criminal defense attorney who understands the nuances of jurisdiction and obtaining evidence through the Internet. For any online crime, one of the first things a capable Fresno criminal defense attorney will do is investigate how identifying information was obtained by law enforcement and whether the police or agency had the proper warrants. If anything is amiss, an attorney can seek to suppress the illegally obtained evidence.

For more information on defending against an online crime, contact Fresno criminal defense attorney Michael McKneely at (559) 443-7442.

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