The child pornography suspect busted in Washington state told the federal judge presiding over the case that the prosecutors need to put fourth some evidence or give up the fight.
Colin Fieman, Jay Michaud’s attorney, had argued that the prosecutors have to provide his client and himself access to the source code used in the FBI’s NIT. Thus far the government has denied the requests, even though they did in a previous case in Nebraska. Michaud’s attorney also stated the court must take into consideration that the actual NIT discovery isn’t classified, which goes against the defense of releasing the source code would be detrimental to the government as well as its request for a court order that would deny any kind of it’s disclosure.
If Fieman’s efforts succeed it would make it one more ruling in favor of the defendant in the overall 135 cases as a result of “Operation Pacifier”. So far two other judges have ruled to suppress evidence found using the NIT. The cases were those in Oklahoma and Massachusetts. In the same time span, Fieman has filed three different motion of discovery requests. Earlier in May, a defense attorney in a related case filed a new motion to withdraw a previously entered guilty plea due to the two other rulings in the Massachusetts and Oklahoma cases. Over all these are the only cases that result in such outcomes in 135 different prosecutions.
It was reported in early 2015 that the FBI, using the same NIT malware to infect suspects accessing child pornography websites. The related case in New York, the FBI search warrant affidavit described the types of child porn available to over 150,000 users as well as the capabilities of the malware they used. As previously reported the FBI took control of the Playpen site for around two weeks to trace and track the sites users. Infecting the computers using the NIT software aloud the FBI to see the actual IP addresses of Tor users that accessed the site. It’s reported that there were 10 times the amount of IP addresses revealed than there has been charges; which would suggest that more cases are all but guaranteed.
“The defendant also contends that the government’s disclosure of Information pertaining to a different investigative technique in another case is relevant to the inquiry in this case. It is not. The Cottom case in the District of Nebraska, No. 13-cr-108, involves a different investigation, of a different website using a different investigative technique than the one pertinent to the defendants case,” Peter Carr, a spokesperson for the Department of Justice wrote in an email to Ars.