Backlash over FBI’s child porn site

Agency in trouble for effort to catch predators

DALLAS — When Daryl Glenn Pawlak logged into a large child pornography website and downloaded images using his work computer, he was charged with receipt and possession of child pornography.

The operator of the website that was exploiting children, however, was not arrested. That’s because it was the FBI. And federal prosecutors are defending the agency’s decision to secretly hijack and peddle child porn for two weeks as part of a sting operation.

During that time, tens of thousands of images of child pornography were uploaded to the site.

“Not only was the government the largest distributor of child pornography … it was also the largest exploiter of children,” Pawlak’s attorney said in a court filing. “This conduct is the essence of outrageousness, and a serious need for deterrence exists.”

The case has ignited debate among legal scholars and attorneys about internet privacy and the FBI’s decision to keep such a site up and running while more children were harmed.

Dozens of defense attorneys have filed motions to suppress evidence from the controversial child pornography sting, called Operation Pacifier. In some cases, federal judges have granted those motions. But most attempts to get charges thrown out have failed, legal experts say, even though some judges have ruled that the government violated the law and acted inappropriately.

Joining legal challenges nationwide, Pawlak’s attorneys are trying to get the charges dismissed, arguing that the government went too far by using a single warrant in Virginia to hack the computers of people all over the country, including his client.

The American Civil Liberties Union compared it to Operation Fast and Furious, a failed sting operation run by the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives beginning in 2009 that resulted in 2,000 firearms winding up in the hands of criminals.

In that case, ATF allowed people to illegally buy the guns to traffic to Mexico in the hopes of tracking them to Mexican drug cartel leaders. But that didn’t happen, and instead the agency lost track of the guns.

The FBI declined to comment about Operation Pacifier. The U.S. attorney’s office in Dallas said in court filings that it acted within the law and that dismissing the case would give people like Pawlak a “free pass.”

“The FBI’s process here should be encouraged, not deterred,” a prosecutor in Dallas said in a court filing.

Defense attorneys say the matter will eventually be resolved in the appellate courts, if not the U.S. Supreme Court.

Historically, the government has taken down such websites immediately.

Douglas Anderson, chair of the University of North Texas’ philosophy and religion department, said the government was conducting a costbenefit analysis, weighing damage to children against catching people who download child porn.

He said he was surprised children were used in such a calculation.

“It’s a moral conundrum for anyone who takes the view that we are committed to protecting them in all ways,” Anderson said. “They’re weighing it against these kids’ lives.”

The FBI in early 2015 seized, controlled and monitored a child pornography website on the “dark web” called Playpen for about two weeks.

Playpen began operating around August 2014 on the Tor Network, a group of volunteer-operated servers that allows users to browse the internet anonymously using free software.

A username and password were required to view the images. A foreign law enforcement agency’s tip led the FBI to Playpen’s server.

In February, the FBI obtained a search warrant from a federal judge in Virginia that allowed the agency to run Playpen for up to 30 days on a government-controlled server.

Agents hacked into the computers of people who logged into Playpen and accessed its content. Agents were not authorized to rummage through a computer’s files or search other content, court records said.

Pawlak, 39, created a Playpen account in September 2014 and accessed the website more than 300 times, prosecutors said. That led to the two child pornography charges against him. Pawlak was indicted on July 6 in Dallas and remains free on bond. A hearing on the matter is scheduled for later this month.

Several men were charged with similar offenses in federal court in Houston under the same FBI operation, including a former pediatrician at M.D. Anderson Cancer Center.

“The FBI took quick action to locate otherwise anonymous child predators and received the blessing of two federal judges to conduct the shortterm, monitored operation that was authorized by a warrant,” Assistant U.S. Attorney Jamie L. Hoxie said in court records filed in Pawlak’s case.

Pawlak works at North Texas fracking sites that drill for natural gas for his job in the energy industry, according to court documents. Prosecutors say he used his work-issued laptop computers to view and download child pornography. He accessed the images from August 2014 to May 2015, according to the indictment.

Hoxie said that while the technology the FBI used was “somewhat novel,” it was within the bounds of the law.

Steven Jumes, Pawlak’s attorney, wrote in a Dec. 28 motion to dismiss the indictment that the FBI hosted an estimated 22,000 images, videos and links of child pornography that more than 100,000 people accessed.

“The government has taken leaps and bounds over the line of acceptable investigative techniques when it exploited and re-victimized thousands of children without taking any precautions to minimize the harm to them,” Jumes said. “Congress has long recognized that each viewing of child pornography re-victimizes the child.”

The harm to victims is lifelong, he said, because it’s impossible to completely eradicate all copies of the images. “The line of what constitutes ‘going too far’ has been so offensively disregarded that such outrageous conduct can only be said to violate due process,” Jumes wrote.

The government denies its conduct was outrageous.

“The reality the FBI faced was that taking down the Playpen site, without catching its thousands of users, would not stop the child-pornography problem,” Hoxie wrote in a court filing.

But a federal judge in the state of Washington ruled in November in an Operation Pacifier case that the government’s conduct was exactly that.

U.S. District Judge Robert J. Bryan wrote that the government improved the porn website’s “technical functionality” and that it “re-victimized hundreds of children” by keeping the website online. However, the judge declined to dismiss the charges in the case.