The ruling was a hollow victory for the three defendants who had argued that federal agents had broken the law and acted immorally in the dark-web child-porn investigation.
A federal judge in Tacoma has concluded FBI agents who secretly took over and ran a child-pornography website last year acted outrageously, but he stopped short of suppressing evidence or dismissing indictments again three Washington men caught up in the sting.
U.S. District Judge Robert Bryan’s findings were a hollow victory for the three who had argued that federal agents had broken the law and acted immorally in their attempts to identify and prosecute visitors to a dark-web child-porn bulletin board called “The Playpen.” The defendants sought to have their cases thrown out.
The three, David Tippens, Gerald Lesan and Bruce Lorente, are among at least five Washington men swept up in the government’s massive sting operation known as “Operation Pacifier.”
All are charged with possession of child pornography for viewing and downloading explicit videos and photos of children being raped and molested. Each faces up to 20 years in prison if convicted.
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More than 200 people nationwide have been charged in connection with the sting operation, which involved the FBI using secret software to exploit a vulnerability in the Tor Browser, which is used to anonymously navigate the dark web. The browser encrypts and routes internet traffic through thousands of other computers to hide the identity of a user.
Dark websites cannot be found by Google or by typing in a web address and are typically operated on the Tor network.
Agents seized the server hosting The Playpen site and used the software — referred to as a “Network Investigative Tool,” or NIT — to obtain identifying information from people who logged into it.
In several cases nationwide, including one in Western Washington, judges have suppressed evidence gathered during the investigation due to the government’s refusal to detail the workings of the secret software.
The three Tacoma cases will go forward to trial next year despite the judge’s concerns over the government’s conduct.
Colin Fieman, a Tacoma-based federal public defender who is overseeing a national database of Operation Pacifier prosecutions, said he was disappointed in Bryan’s ruling.
Fieman said, and Bryan has agreed, that the issues raised in the case will ultimately be decided on appeal.
The Department of Justice in Washington, D.C., did not respond to a request for comment.
The revelation that agents had pierced the anonymity of the dark web has raised questions about internet privacy and sent ripples through the federal defense community.
One of the key allegations is that the FBI violated the law by using a single search warrant obtained in Virginia to gather information from as many as 100,000 computer users in 120 different countries.
Federal statutes require search warrants be obtained from a judge in the district in which the crime allegedly occurred.
The defense argued in the Tacoma cases that evidence gathered by the FBI in the sting should be suppressed or that the indictments be dismissed outright. Bryan held a two-day evidentiary hearing on the issue in Tacoma, after which he said he had ethical and legal concerns about the investigation.
In a ruling issued Nov. 30 but not unsealed until Friday, Bryan agreed with the defense on many of those points, stating he found it “easy to conclude that the government acted outrageously here.”
Bryan said agents ignored a law that prevented them from sharing child pornography by operating The Playpen for nearly two weeks, during which thousands of visitors viewed, downloaded and posted child pornography.
The judge concluded that, in doing so, they “re-victimized hundreds of children” and Bryan found agents “used the child victims as bait to apprehend viewers of child pornography” without telling them or their families.
Moreover, the judge said the government’s actions “placed any lawyer involved” in ethical jeopardy.
“The only justification for the acts of the government … is that the ends justifies the means,” the judge said.
However, Bryan said the standard for dismissing a criminal charge over government misconduct is very high, and the defense has to show the actions violates “fundamental fairness.”
Bryan has thrown out the evidence in one of the first “Operation Pacifier” prosecutions, involving a Vancouver, Wash., school employee named Jay Michaud after the FBI refused to follow his order to turn over to Michaud’s defense attorneys the details of the NIT.
The FBI still maintains that position. However, after the Michaud ruling, the Department of Justice invoked the Classified Information Procedures Act and declared the NIT secret.
Bryan — who held closed-door hearings on the matter — found there is no justification to declassify the NIT and turn it over to the defense.
Correction: The last name of Bruce Lorente, a defendant in a federal child-pornography prosecution, was misspelled in the original version of this story.