Judge blasts FBI sting for how it ran child-porn site, but prosecution will proceed

A federal judge in Tacoma has concluded that FBI agents who secretly took over and ran a child-pornography website last year acted outrageously, but he stopped short of suppressing evidence or dismissing indictments against three Washington men caught up in the sting.

The men had argued that federal agents had broken the law and acted immorally in their attempts to identify and prosecute visitors to a dark-web child-porn bulletin board called The Playpen.

The defendants sought to have their cases thrown out.

The three, David Tippens, Gerald Lesan and Bruce Lornette, are among at least five Washington men swept up in the government’s massive sting operation known as Operation Pacifier.

All are charged with possession of child pornography for viewing and downloading explicit videos and photos of children being raped and molested. Each faces up to 20 years in prison if convicted.

More than 200 people nationwide have been charged in connection with the sting, which involved the FBI using secret software to exploit a vulnerability in the Tor Browser, which is used to anonymously navigate the dark web.

The browser encrypts and routes internet traffic through thousands of other computers to hide the identity of a user. Dark websites cannot be found by Google or by typing in a web address and typically are operated on the Tor network.

Agents seized the server hosting The Playpen site and used the software — referred to as a “Network Investigative Tool,” or NIT — to obtain identifying information from people who logged into it.

In several cases nationwide, including one in Western Washington, judges have suppressed evidence gathered during the investigation because the government refused to detail the workings of the secret software.

The three Tacoma cases will go to trial next year despite U.S. District Judge Robert Bryan’s concerns over the government’s conduct.

The U.S. Department of Justice did not respond to a request for comment.

A key allegation is that the FBI violated the law by using a single search warrant obtained in Virginia to gather information from as many as 100,000 computer users in 120 countries.

Federal statutes require search warrants be obtained from a judge in the district in which the crime allegedly occurred.

The defense argued in the Tacoma cases that evidence the FBI gathered in the sting should be suppressed or that the indictments be dismissed outright.

Bryan held a two-day evidentiary hearing on the issue in Tacoma, after which he said he had ethical and legal concerns about the investigation.

In a ruling issued Nov. 30 but unsealed Friday, Bryan agreed with the defense on many of those points, stating he found it “easy to conclude that the government acted outrageously here.”

Bryan said agents ignored a law that prevented them from sharing child pornography by operating The Playpen for nearly two weeks, during which thousands of visitors viewed, downloaded and posted child pornography.

The judge concluded that, in doing so, they “re-victimized hundreds of children” and found agents “used the child victims as bait to apprehend viewers of child pornography” without telling them or their families.

Moreover, the judge said the government’s actions “placed any lawyer involved” in ethical jeopardy.

“The only justification for the acts of the government … is that the end justifies the means,” Bryan said.

However, he said the standard for dismissing a criminal charge over government misconduct is very high, and the defense has to show the actions violates “fundamental fairness.”

This story was originally published December 14, 2016 at 1:25 PM with the headline "Judge blasts FBI sting for how it ran child-porn site, but prosecution will proceed."