FBI Questions Veracity Of Emails It Released To FOIA Requester While Defending Refusal To Discuss Hacking Efforts
from the 'assuming-we-even-wrote-those-words-we-wrote' dept
The FBI has entered its explanation for its declaration that it won't discuss the NIT (Network Investigative Technique) in open court or with the defense -- no matter what. Its decision to run a child porn website for two weeks while it deployed the NIT has backfired immensely, resulting in successful challenges of the warrant and the evidence obtained. For the most part, the NIT warrant used by the FBI has been declared invalid because it violates Rule 41's limitations on deployment: a warrant obtained in Virginia can't be used to search computers located in other jurisdictions.
The FBI says it will only discuss the NIT with the judge in an ex parte in camera proceeding, cutting the defense entirely out of the loop. It also argues against the defendant's portrayal of the agency as inherently untrustworthy, what with its long history of hiding information from the courts, starting with its Stingray NDAs.
While not directly related to the subject matter at hand, Jay Michaud's lawyer is buttressing his arguments against the agency's trustworthiness with a wealth of released documents showing the FBI routinely demanded law enforcement agencies hide Stingray-related information from defendants, judges -- even other prosecutors.
Michaud's defense also submitted emails obtained with a FOIA request that showed the agency even hid information on surveillance tech from other FBI agents and federal prosecutors. The choice to cut the latter out of the chain of evidence was based on a supposed trend of prosecutors examining FBI surveillance technology/methods before retiring to work as defense lawyers.
What's most hilarious about the FBI's arguments is the fact that it openly questions the legitimacy of documents it released to Brad Heath and USA Today.
The actual emails (assuming they are genuine) show no improper concealment.This is an awfully strange thing to say about documents originating from its own offices and released, presumably after a review, to a FOIA requester. If the FBI is forced to assume the emails it released are genuine, it argues that they don't actually say what they appear to say -- which is that information about FBI surveillance techniques must be hidden from damn near everybody but especially those who might be called to testify in court.
Nothing in the email suggests that anyone should be deceived or misled. Rather, the email merely urges the common-sense practice of not disseminating sensitive information unless there is a reason to do so. This concept is called “need to know.” It is familiar to anyone who has worked in the military or law enforcement, and it is an entirely proper way to protect sensitive information.The government says this shows the FBI does disseminate this info, but only on a "need to know" basis. But it says nothing as to why the "need to know" list doesn't include judges, defendants or prosecutors involved in these cases.
And its other arguments are just as terrible, but at least they don't include the FBI raising doubts as to the legitimacy of documents it generated itself. It claims -- as it has in the past -- that the restrictive NDAs it forces law enforcement to sign before using Stingray equipment aren't restrictive and don't heavily hint (if not state outright) that agencies are to let perps walk rather than introduce Stingray-related evidence in court.
[A] careful reading of this material shows no evidence that the FBI has deceived or misled courts or prosecutors.Technically true. But plenty of law enforcement agencies have. And when these omissions are challenged, they tend to excuse them by citing the FBI's NDA. So, the FBI ties up agencies with NDAs in hopes of limiting disclosures. Then it throws them under the bus when disclosures aren't made.
[T]he FBI made no false or misleading statements to courts, prosecutors, or anybody else in the Andrews investigation. The pen/trap application and related statements in Andrews were made by local law enforcement and local prosecutors.Yes, but only because they felt they needed to do so, or because they may have been explicitly told to do so after asking the FBI. The FBI cites only this case because Michaud's defense only cites this case. There are countless others where it's been made apparent evidence of Stingray use has been hidden from everyone but the agency deploying the device.
We don't know what the outcome will be yet, but it's apparent the FBI will not be discussing the details of its NIT in court -- even as it tries to make itself out as a paragon of transparency in this filing. It even says it would prefer to handle this in an adversarial fashion (in the "allow the defense to participate" sense of the word) but simply cannot because it would presumably allow any number of criminals to escape its NIT tentacles in the future.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Reader Comments
Subscribe: RSS
View by: Time | Thread
[ link to this | view in thread ]
For the love of god,
Please quit using the phrase "what with" in every article you write!
Thanks!!
[ link to this | view in thread ]
HAVE ANY OF THE CHILDREN BEEN RESCUED???
That's the FBI's job. Find and save these children who are being abused. Not run the damn site, install malware, or make end-runs around the Constitution.
[ link to this | view in thread ]
Re:
Tomorrow? Well, for some reason, I've got a hunch that the barista who forgot my extra espresso shot will turn out to be funding ISIS.
[ link to this | view in thread ]
On the sharing issue
[ link to this | view in thread ]
[ link to this | view in thread ]
"Need to know"
Need to know is not a military term either. There is specific operational data that cannot be discussed regarding current operations. We sometimes will also classify technological specifications (e.g. the flight envelope of a given aircraft) to slow the development of specified countermeasures.
Need to know is an term used in espionage agencies that engage primarily in covert operations, when operations can be compromised by even small data leaks.
We've allowed the CIA and NSA to operate with a greater amount of latitude because they engaged (once upon a time) in small operations in order to prevent circumstances from escalating into big operations. We gave them quarter for what were often illegal methods because they were rare.
Not only have the CIA and NSA taken this privilege and expanded to include large operations, but military and law enforcement are adopting the same privileges for their own quotidian protocols.
We're applying espionage policy to agencies and methods that aren't espionage. And these policies are only tolerable (and then only barely) when they're rarely used.
[ link to this | view in thread ]
Digital child porn
Computer-rendered child-porn isn't perfect and still looks like computer rendered child porn.
One of the problems with a law that accepts child-porn art is that some producers of child porn (with real children) will use post processing to make artistic renditions of their photos. One can often tell what is a real drawing vs. a computer render of a drawing based on a photographic image, but with time the technology blurs the lines.
(Of course the Russian approach has been to photograph underaged girls and claim they're eighteen years old, a method that still works.)
I suspect that once CGI children are easy to produce, the demand for child-porn made with actual children will plummet, because most people don't really want to hurt kids. Exceptions exist, but they're the exceptions.
In any case, the FBI is not interested in actual child welfare (e.g. rescuing trafficked sex slaves), they're interested in getting the bad guy, and seem to be content to reach for low-hanging fruit (e.g. the end consumer or the accidental downloader, not traffickers or producers.)
We have the same problem in the drug war.
[ link to this | view in thread ]
"The Russian approach"
As a result Russia and Ukraine developed a reputation as a source of porn (much like Sweden in the mid 20th century and California in the late 20th century -- I'm pretty sure West Hollywood is still the porn capital of the world).
In the 90s there was a crackdown of porn produced European and Asian models who were sixteen or seventeen (what was legal in their places of origin) and the solution by most magazines was to claim that the models were eighteen, an approach that was adapted when Russia's international exports of porn was burgeoning.
[ link to this | view in thread ]
Re: Re:
[ link to this | view in thread ]
Re: Re: Re:
[ link to this | view in thread ]
[ link to this | view in thread ]
Hypocrates
[ link to this | view in thread ]
[ link to this | view in thread ]
Re: Re: Re:
[ link to this | view in thread ]
Re: Digital child porn
[ link to this | view in thread ]
Re: "The Russian approach"
"How old she is havingk to be? 18? OK, voila! Zo now she is beingk 18... Hey rest ov vorld, I'm tinking you maybe over-komplicate thinks?"
(Apologies for the Boris Badenov voice.)
[ link to this | view in thread ]
What's the point?
So what's the point of collecting the evidence to begin with?
[ link to this | view in thread ]
You forgot to add the word "yet".
[ link to this | view in thread ]
Re: "The Russian approach"
Uriel, anyone who wants an unequal relationship, i.e. adult-/child, isn't all that interested in whether they are hurting them or not. The reasoning goes something like, "If you find it painful now you'll get used to it eventually, no harm done. I'm doing you a favour, really."
Basically, they rationalise the harm away. Fred and Rose West did that to their own daughter Heather. When she screamed they told her to stop making a fuss. Believe me, anyone who wants to mess with a child is a sociopath of some kind so whether or not they are doing actual harm doesn't really register. Their inability to empathise with their victims won't allow them to admit the harm they do.
Don't you ever read the testimonies of the victims after the fact? I'll take their word over anyone else's any time.
[ link to this | view in thread ]
Unequal Relationships
Given that the BDSM society has been able to break consent down to a science with particulars and spectrums, where the mainstream cannot even get a nonsexual-but-sober discussion of consent into our high-school curricula, I think they have something to teach the rest of us, whether or not we want to play around with restraint and spankings.
Yes, of course you're going to find examples of abuse, but you can't use egregious individual incidents to paint entire swaths of the population. Well, you could, but it's the same logic as most bigotry.
As for those who fetishize having sex with children, most of them know it's dangerous and potentially harmful for the child, and restrain from acting directly on their desires, even when offered by a precocious youngster (compare the massive audience of Call of Duty in contrast to those who join militaries or mercenary groups specifically to go shoot guys).
We have plenty of alternatives to actual child sexual abuse for adults so inclined, including age play. age play, and for most such people, that's plenty enough that they don't have to victimize kids.
Just as we have plenty of safe alternatives for those into indiscriminate murder.
[ link to this | view in thread ]