Another Judge Rules against Government in a Child Porn Case

Yesterday the US Federal Judge presiding over the FBI child porn case in Washington, threw out all the evidence obtained by the FBI’s NIT deployment on the Tor Network.

It seems it’s going to be hard for prosecutors to move forward in the US vs. Michaud case, because of judges continuing to push back on the FBI’s use of hacking tools.

“It’s hard to see how the government can secure a conviction without key evidence,” University law professor at the University of California Ahmed Ghappour said.

Two related cases had rulings in favor of the defendants due to the warrant being issued in Virginia. The judges in all three of these cases has seen the warrant as not having the force of law anywhere except Virginia.  None of the other judges have so far suppressed evidence.

“For the reasons stated orally on the record, evidence of the NIT, the search warrant issued based on the NIT, and the fruits of the warrant should be excluded and should not be offered in evidence at trial. The court should not now order dismissal,” Judge in the Michaud case, Robert J. Bryan wrote.

It has been two weeks since Michaud’s attorney argued that the government must provide information and access to the source code belonging to the NIT the FBI used.

“The interesting thing about the government’s setback in this case is that the suppression does not turn on technicality, and will not be fixed by a subsequent rule change. It looks like the judge decided to suppress the fruits of a hacking operation on due process grounds, reasoning the defendant’s right to a fair trial would be compromised if the evidence was used without disclosure of the source code,” Ghappour also said.

The government might have plans to appeal this though.

“We are disappointed with the ruling and considering our options,” Department of Justice spokesman Peter Carr said.

“Fieman wrote Ars, saying “it was an important decision because the judge had to balance the government’s national security claims against a defendant’s rigt to a fair trial, and in the end found the constitution must prevail. As for other cases, there are a lot of Operation Pacifier cases all over the country and they are in earlier stages of litigation for the most part, so it is soon to say I do hope that the decision will help prompt Congress to block the pending changes to federal rule of criminal procedure 41, at least until the rule is revised to require greater judicial oversight of governmental hacking and internet surveillance.”

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