Wednesday, January 22, 2020
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Ninth Circuit:
Government’s Operation of Child Pornography Site Not ‘Outrageous’
Panel Says Sting Operation Was Necessary to Learn Identities of Users
By a MetNews Staff Writer
The government did not act “outrageously” in secretly assuming operations of a child pornography website in order to ascertain the identity of users of it, the Ninth U.S. Circuit Court of Appeals held yesterday declining to block the prosecution of one of those users, charged with receipt of child pornography and possession of child pornography.
A three-judge panel, in a memorandum opinion, affirmed an order by the District Court for the Northern District of California denying defendant George Vortman’s motions to suppress evidence and to dismiss his indictment.
Vortman was allegedly a user of a child pornography website, “Playpen.” The site was a “hidden service” that could only be accessed via the Tor browser which does not connect the user directly to a website; rather, through use of a network of relays, the user’s actual identity is concealed from the website.
Tipped off by a foreign law enforcement agency, the FBI tracked down Playpen’s server in North Carolina. Rather than shutting down the operations, it obtained a warrant authorizing it to manage the site for 30 days, actually doing so for two weeks.
Overcoming Tor’s System
The warrant approved use of the Network Investigative Technique (“NIT”), sophisticated technology enabling the FBI to send a code to the computer of a user who logged onto the Playpen site with a username and password. This resulted in the user’s computer transmitting identifying information to the government. One such user called himself “childpornstar”—who, it was determined, was Vortman.
A 2015 search of Vortman’s home in San Francisco, pursuant to a warrant, revealed that there were more than 1,000 images and in excess of 150 child pornography videos on his desktop computer.
Yesterday’s opinion rejects Vortman’s assertion that the government’s “outrageous” conduct in operating a child pornography site bars his prosecution. Among favors weighing against dismissal on that ground, it says, are that “the government operated Playpen for only two weeks, acted as a mere observer, and began the enterprise only after Vortman had already accessed Playpen.”
It adds that because of the anonymity Tor affords, “other investigative procedures were likely to fail.”
Breadth of Warrant
The panel also rejected challenges to the warrant for the search of Vortman’s home, saying:
“The NIT warrant was not overbroad….It described the place to be searched (activating computers) and the information to be seized (seven pieces of identifying information) with particularity….
“Furthermore, the NIT warrant authorized only search of ‘activating’ computers—i.e., those that logged into Playpen during the time the government operated the website with a username and password. In order to use an ‘activating computer,’ a user had to first download and install software to use the anonymizing network on which Playpen operated. Next, a user could not access Playpen through the open internet, but would instead have to find and input Playpen’s exact algorithmic address (which we decline to provide here)….In order to access Playpen’s contents, the user would have to navigate past Playpen’s homepage, which depicted two minor females with their legs spread apart, and register with a username and password. Because there were multiple affirmative steps required to be an ‘activating computer,’ the warrant applied to those actively attempting to access child pornography. It did not sweep too broadly.”
Other Content
Vortman contended that probable cause for the warrant was lacking because a user was not necessarily accessing Playpen for the pornographic content, but might be seeking to read fiction stories on the website. The panel scoffed that “the overwhelming majority of Playpen’s content was patently illegal depictions of child pornography,” and there was a “fair probability” that this was what attracted the user to the site.
The case is United States v. Vortman, 18-10038.
Playpen had in excess of 215,000 users. Its founder, Steven Chase, received a 30-year prison sentence and two co-defendants were each sentenced to 20 years in prison.
There have been hundreds of prosecutions of users.
Copyright 2020, Metropolitan News Company