The Electronic Frontier Foundation (EFF) which fights for the rights of Netizens has opened up an interesting debate on evidence collected during FBI’s investigation of a Child Pornography operation. (Refer Article here for details on the case)
To explain the context briefly, FBI received a tip about a site called “Playpen” hosting child pornography from the LEA of another country. During preliminary investigations, it was found that the IP address of the server could be identified due to some technical misconfiguration of the site. The IP addresses were located within the US jurisdiction. Using this information, FBI obtained a search warrant and seized the server.
However, instead of shutting down the server, FBI maintained the server under its supervision for another two weeks collecting evidences of different kinds. In the process, FBI also installed malware of its own called NIT (Network investigative technique) on the computers of the visitors to the site. This could collect the identity information of the users.
It is reported that FBI has charged and arrested hundreds of persons based on this investigation.
Naturally, this operation has given raise to a debate on the rights of the LEA s in violating the privacy of individuals during an investigation and there after.
One interesting issue that unfolds here is that in the incidents, there were offences committed before FBI took over the Playpen site and during the time when it was operating the site. There were also evidences collected before FBI took over and during the time it ran the server.
There is also illegal activities committed by the FBI itself to trap continuing users of the site and new users.
The issue is complicated and views of how the evidences would be admitted in the Court may differ. However it appears that in respect of persons who started using the site during the time FBI was in charge of the site, any evidence collected may be considered as “Collected through an illegal process” and may not be admitted by Courts.
However, if offences were committed earlier and only the identification details were collected during the investigation process by planting of the NIT, perhaps the Courts may accept the identification and the evidence of crime prior to FBI take over and continue the prosecution.
I hope new case laws will come to be recognized when the cases pertaining to this investigation are analyzed by the Courts in USA and will set a trend in interpreting evidence collected by the LEA through intelligence operations.
Naavi
