The Department of Justice’s decision to drop all charges against an Operation Pacifier suspect raised questions across the country—and world for that matter. Many mainstream media outlets found it abhorrent that a would-be sex offender walked free, simply because the FBI classified “some source code.” In the meantime, they neglected the good: that even in a case where guilt was obvious, the courts upheld the law.
Time after time, the FBI refused court ordered disclosure of their Network Investigative Technique used to illegally hack 8,700 Tor users. The Bureau obtained the warrant from a Magistrate Judge in the Eastern District of Virginia. The warrant revealed that the FBI planned to hack computers—they did not mislead regarding the generalized intent.
Even the defense presumed the judge acted in good faith; she signed the warrant that permitted the planned hacking. However, a Magistrate Judge’s jurisdiction, with some exception, is limited to the district courthouse wherein he or she sits. And assuming that she acted in good faith, as other courts similarly concluded, she effectively allowed hacking within the Eastern District of Virginia.
From the evidence slowly revealed to us, she knew only of a very limited investigation and scope. We learned in United States v. Tippens 94-95 WA (Oct. 31, 2016) that the government listed 100,000 targets. Of those 100,000 potential targets, the FBI’s malware hit 8,700 Tor users. And this only provided 350 arrests and a mere 35 successful convictions—the majority of which came from guilty pleas.
As of the most recent records I have access to, Virginia was not a high-priority state. However, the cases in Virginia, so far, resulted in convictions. One of the main differences in Virginia when compared to other states is that the warrant allowed hacking within the state of Virginia. So, unlike other states, those under her jurisdiction have one less card to play. And, unfortunately for many deal-takers, details from Tippens and from United States v. Jay Michaud CR 15-5351 RJB, at (W.D. Wash. March 17, 2017) surfaced after the signing of the plea agreements.
“In short, Michaud’s argument is outrageous, untrue, and not even supported by the flimsy ‘evidence’ he offers,” an FBI agent wrote in their “Consolidated Realize and Reply.” Although the FBI’s final steps at preventing Michaud from walking grew increasingly desperate and unprofessional, the claim that the outcome of the case would not change remained majorly undisputed.
The FBI explained it well, even through the blatant attempts at undermining any evidence Michaud may or may not have possessed. The NIT, as initially explained by the FBI and verified through their experts, was shrouded in mystery—to a degree. Eventually, after court documents started washing up, we saw bits and pieces of the NIT. We then, along with Tippens et al. and Michaud, knew that the FBI kept only the most important part—the “national security risk“ part of the tool that “was not malware.”
Although Michaud all but admitted his guilt, he continued fighting the FBI and finally won. On March 17, 2017, the Honorable Robert J. Bryan dismissed Michaud. “The government must now choose between disclosure of classified information and dismissal of its indictment,” he wrote. “Disclosure is not currently an option.”
Despite the extremity of Michaud’s crimes, the Honorable Robert J. Bryan made the right decision. If he made any other choice that took action against Michaud for any of the Playpen related crimes, Judge Bryan would be setting a dangerous precedent. The FBI, after the Rule 41 changes, can legally hack any target with a Magistrate Judge’s warrant. If they could hack someone and convict said someone without displaying evidence, internet use would be far more threatening.
With that said, avoid the assumption that this is glorifying that a would-be sex offender is now free. And in fairness, remaining free until the statute of limitations expires, with the FBI breathing down his neck, is there real challenge. This is an example of a judge who looked at guilty Tor user—surrounded by proof of his crimes—yet dismissed him because the FBI chose to hide their illegal NIT’s source code.
A final thought from a DeepDotWeb reader on a related news article: “I think the FBI actually wants to lose the case to show the legislature how weak the FBI’s powers are.”