Without Code, Judge Tosses Evidence in Child Porn Case

     TACOMA, Wash. (CN) — A federal judge has thrown out evidence in a child pornography case after prosecutors refused to turn over the code used to hack the defendant’s computer.
     U.S. District Judge Robert Bryan ordered the government to provide the defense with the full code of malware used in a network investigative technique (NIT), a type of hacking that traces website viewing back to the computer used.
     The FBI used the method to trace users of the “Playpen” child pornography website. The FBI seized the site last year but continued to operate it for two weeks while using malware to trace visitors.
     When prosecutors refused to disclose technical details last week, Bryan threw out all evidence seized through the technique, but refused to dismiss the case against Jay Michaud.
     Michaud was a Vancouver, Wash., teacher who was charged after the FBI traced his visits to the Playpen site and executed a search warrant. A stash of child pornography was found on Michaud’s computer, cellphone and a thumb drive, according to prosecutors.
     Attorneys for Michaud said they were “surprised” by the government’s position, according to a transcript of a February motion hearing.
     “The government’s objections at this point are a little hard for me to grasp because the code itself is not a classified document. They are not claiming there’s any classified information in there. They are not making a national security claim. There’s no confidential informant information. There’s been no claim that disclosing the code would place agents at risk,” Michaud’s attorney Colin Fieman said at the hearing.
     Assistant U.S. Attorney Matthew Hampton responded that the prosecution provided some code and that “the defense has the tools that they need” to verify the information obtained by the government.
     But Bryan ruled that the government must produce all of the relevant NIT code for the defense.
     “Much of the details of this information is lost on me, I am afraid, the technical parts of it, but it comes down to a simple thing,” Bryan said at the hearing. “You say you caught me by the use of computer hacking, so how do you do it? How do you do it? A fair question. And the government should respond under seal and under the protective order, but the government should respond and say here’s how we did it.”
     Prosecutors refused, so Bryant tossed the evidence.
     “Evidence of the NIT, the search warrant issued based on the NIT, and the fruits of that warrant should be excluded and should not be offered in evidence at trial,” Bryan wrote in his May 25 order.

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