FBI Operated Child Porn Sites

The FBI has seized child pornography websites on Tor hidden services and operated them before, including in a recently known case that has become known as the Playpen case. There’s a lot horribly wrong with this in terms of government overreach, such as how mass general hacking warrants are unconstitutional, but defending civil liberties in cases such as these is of course not always pretty. Governments increasingly rely upon that to deprive people of their rights — as seen with how terrorism has been used for justification in many injustices, especially in the last 15 years. The exclusionary rule of the Fourth Amendment holds that evidence obtained through a violation of the U.S. Constitution can often be thrown out, and based on the opinions of many fair judges, that would apply to some extent in this case.

In December 2014, the FBI received a tip from a foreign law enforcement agency that a Tor Hidden Service site called “Playpen” was hosting child pornography and that its actual IP address was publicly visible and appeared to resolve to a location within the United States. After some additional investigation, the FBI obtained a search warrant and seized the server hosting the site.

Then, in an unprecedented investigation, instead of shutting Playpen down, the FBI continued to operate the child porn website for nearly two weeks. While the FBI was operating the site, it applied for and received a single warrant to send malware to thousands of unsuspecting visitors of the site, exploiting (what we believe was) a vulnerability in Firefox browser code bundled in the Tor Browser to install malware on their computers.

The FBI’s malware—euphemistically called a “Network Investigation Technique” or NIT by the government—searched for and copied certain identifying information from users’ computers and sent that information outside of the Tor network back to the FBI in Alexandria, Virginia. Thousands of computers, located all over the world, were searched in this way.

Did this warrant violate the Fourth Amendment?

Yes, for a number of reasons. The FBI carried out thousands of searches and seizures, in locations around the world, based on a single warrant. The particularity requirement of the Fourth Amendment was designed to prevent precisely this type of sweeping authority.