The FBI is facing significant controversy over the tactics it used to capture viewers and distributors of child pornography.
In early 2015, the FBI took control of a website known as Playpen which was used to distribute large amounts of child pornography. For two weeks after the seizure of the site, from February 20, 2015, to March 4, 2015, the FBI continued to operate the site in order to gather more evidence against more offenders. During that time, many thousands more sexual videos and images of children were downloaded.
To be clear, the FBI, by its own admission in court filings, literally distributed child pornography in an effort to capture offenders. The New York Times recently published several experts’ opinions on the matter, including law professors and anti-abuse advocates.
Corey Rayburn Yung of the University of Kansas School of Law argued that the government’s own position appears to be that every time child pornography is distributed or viewed, the victim is further harmed. For example, the Supreme Court held in Paroline v. United States that victims could seek restitution from mere possessors — not just distributors or creators — of child pornography. Yung also points out that in contrast to stings involving guns or drugs, the FBI cannot hope to contain the contraband in this case — it can be copied without limits.
Xavier Von Erck, an anti-child-abuse advocate, argued that the FBI’s actions may have prevented any number of future crimes from occurring. He said those who possess and distribute child pornography often are actively engaged in abuse of victims in their immediate area.
Clearly, the FBI is likely to use strategies like this again in future cases. Criminals and ordinary people’s ability to hide their online activities is increasing, and in the instances where authorities gain access to a potential trove of evidence, the temptation to make more arrests even at the cost of further victimization is enormous.