In February 2015, the FBI obtained a warrant that gave them permission to seize the Playpen website. Playpen was a child pornography website where users could download, trade, and view child pornography. The website also had discussion forums where users could discuss topics such as techniques to avoid law enforcement or how to groom children. Once the FBI got the warrant, they ran the website for two weeks. The goal was to identify the IP addresses of the users, then obtain search warrants for the residences associated with IP addresses, and to ultimately arrest those who downloaded or traded child pornography through the website.
The reason the FBI needed to run the website was because Playpen was operated on the Dark Web through the use of a Tor network. A Tor network is relatively easy to download and to use. By using the Tor software, a person can mask their IP address so it cannot be traced by law enforcement. By running the Playpen website, the FBI was able to access the Playpen users actual IP addresses and then trace the IP address to their residence leading to arrests across the country.
Running Playpen though was fraught with legal, ethical, and moral issues. In order to effectively run the website and locate user IP addresses, the FBI distributed child pornography to the website’s users. In essence, the FBI committed a crime in order to stop a crime. Once the images were distributed by the FBI through Playpen, the FBI could not control them. Whether those images were then repeatedly shared, and with how many people is anybody’s guess. There was a lot of debate about whether the FBI should have run the website or just shut it down. Ultimately, defense attorneys challenged the FBI conduct in court arguing that the FBI conduct was so outrageous, the cases should be dismissed.
The United States Court of Appeals for the First Circuit recently weighed in on whether the FBI should have operated the Playpen website in its United States v. Anzalone opinion. The defendant argued that operating the Playpen website for “two weeks amounted to outrageous government conduct that violated his right to due process.” The court quoted the defendant when he argued that by operating Playpen, the FBI distributed child pornography to hundreds of thousands of people and had zero control of how those images would be distributed to other people. The defendant argued that the FBI itself participated in the distribution of child pornography and the court cannot condone such behavior leaving dismissal of the charges the only appropriate remedy.
While the Court said the government’s conduct comes close to outrageous government conduct, it refused to dismiss the charges. Ideally, the court acknowledged, the FBI should not have had to run a child pornography website for two weeks but the court went on to reason that we do not live in an ideal world. The court recited how the FBI assessed the pros and cons of running the website versus taking it offline immediately. Recognizing that another website would just pop up 24 hours later, the FBI decided to run the website. Not only did running the website lead to numerous arrests, but also the rescue of 49 sexually exploited children. In this case, the court seemingly reasoned that the ends justified the means. That leaves the question- at what point, will the courts finally decide that the ends don’t justify the means?
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