The FBI decision to briefly run a large dark web child pornography site was done in close consultation with the Department of Justice, and was approved by executives from both agencies, according to a court transcript reviewed by Motherboard.
Defense lawyers have claimed that in operating a child porn website, the FBI itself distributed illegal material, and critics have pointed to the ethical issues around running such an operation. That higher levels of the FBI and Department of Justice were involved in the decision to proceed with the sting may not be surprising, but the transcript shows that the FBI's move was deliberate and ultimately seen as appropriate by the agencies.
"It was done with the approval of executives in both the FBI and the Department of Justice," FBI Special Agent Daniel Alfin, who worked on the investigation dubbed Operation Pacifier, said during an evidentiary hearing late last year, according to the transcript.
The transcript relates to the FBI's investigation of Playpen, which was at one point the largest child pornography site on the dark web. In February 2015, the FBI seized the site, but instead of shutting it down, decided to run it from a government facility for 13 days.
During this time, the FBI deployed a network investigative technique (NIT)—the agency's term for a hacking tool—in an attempt to identify Playpen's users. Specifically, the NIT was comprised of a Tor Browser exploit based on a "non-public" vulnerability, and malware designed to identify a user's real IP address and grab some basic system information. In all, the FBI hacked over 8,000 computers in 120 countries, including Austria, Norway, Greece, Chile, and the UK.
When reached for comment, Department of Justice spokesperson Peter Carr pointed to the quantitative effectiveness of Operation Pacifier.
"In the U.S., over 350 arrests, 25 child pornography producers and 51 hands-on abusers prosecuted, and 55 American children who were subjected to sexual abuse successfully identified or rescued; overseas, 870 arrests and at least 259 sexually abused children identified or rescued," Carr wrote in an email to Motherboard.
Aside from legal issues concerning hacking suspects across the United States and elsewhere on a legally dubious warrant, many are unsettled by the FBI running a child porn site in the first place.
One defense lawyer has made a "conservative estimate" that the FBI distributed around one million images of child abuse while the agency ran Playpen. (According to Alfin's testimony, much of the material linked to on Playpen was actually hosted on other websites.)
Corey Rayburn Yung, a professor at the University of Kansas School of Law, previously wrote that the FBI "actively participated in the revictimization of those depicted in child pornography with no possibility of controlling distribution. Such conduct is immoral and inexcusable."
The deliberations on whether to keep Playpen running involved "several individuals and levels of management from both organizations," Alfin said. The FBI General Counsel James Baker was also aware of the operation, Alfin said.
"Without going forward with this operation, we would have had no capability to identify anyone other than the creator of the Playpen website," Alfin added.