The work I do defending people accused of child pornography crimes has led me to discover the panoply of scary ways in which the Government skirts the Fourth Amendment. In recent years, one such group of cases came to be known as the “Operation Pacifier” cases.
Essentially, the facts are as follows. The FBI was – quite correctly – looking to take down a website where there were digital exchanges of child pornography. The website misconfigured its internet protocol (IP) address, and the FBI was able to discover the location of the website in North Carolina. Rather than taking down the site and investigating the existing data, the FBI took it one step further.
The FBI ported the site to its facility in Virginia, where they continued to operate the site for two weeks. Essentially then, the FBI spent two weeks distributing child pornography.
Beyond that atrocity, the FBI used what they called a “network investigative technique” related to the IP addresses that contacted their website during Operation Pacifier. Most analysts have concluded that the vaguely worded “network investigative technique” really means that the government was placing malware on the computers of those who visited Playpen.
The Fourth Amendment to the United States Constitution still applies to the digital world. Last week, the FBI dropped an Operation Pacifier case against one of my Clients.
It is clearly important for the government to investigate child pornography offenses. However, investigations with a honey pot, like Operation Pacifier, should not be permitted. In taking this a step too far, the government spoiled the legitimate leads that they garnered when taking down Playpen.