In order to probe “the dark web” and to apprehend those partaking of the pleasures of child pornography, the FBI emulated the illegal conduct of hackers, using a warrant to surreptitiously place malware on all computers that logged into a site called Playpen. When a user connected, the malware forced his computer to reveal its  Internet protocol address. Next a subpoena to the ISP  yielded his real name and address, and a another warrant allowed a subsequent search of the user’s home. Incriminating evidence, indictments and trials followed.

The problem of tracking computer related crime is far ahead of the law, and in the vacuum, ethical principles are being nicked, mashed, or ignored. Ahmed Ghappour, a professor at the University of California’s Hastings College of the Law, says, “It’s imperative that Congress step in to regulate exactly who and how law enforcement may hack.” If hacking is illegal, and wrong as an uncontested intrusion on privacy, when is it ethical, and thus legal, for law enforcement to do it?

Then there is the question of the warrants. In the Playpen case, the government used a warrant to activate  malware on a site with 215,000 members,and obtained Internet protocol addresses of 1,300 computers. Out of that group, the government says it has charged 137 people.

The Washington Post quotes Colin Fieman, a public defender in Tacoma, Washington who is representing one of those charged with child porn possession, as observing, “It’s a lot of people. There never has been any warrant I’ve seen that allows searches on that scale. It is unprecedented.” Fieman’s defense argues that the search of his client was the a “Fruit of the Poisonous Tree,” arising from an illegal warrant, one similar to the “general warrants” prohibited by the Fourth Amendment. Those who went  to the site, which does not clearly advertise itself as devoted to child pornography, to express fantasies not related to child porn nonetheless subjected themselves to the warrant’s scope. Fieman also pointed out that rules established by the federal courts require that a warrant be used only in the district in which it is issued. The warrant against his client was issued in the Eastern District of Virginia. His client’s computer was in Vancouver, Washington.

Is the FBI’s use of these tactics fair? Just? Can it be excused as a utilitarian trade-off, a minor incursion on innocent parties’ privacy to stop the demand fueling an industry that harms children? Does the Fourth Amendment so limit searches that computers can be safe zones for evil-doers?  Then what? Should courts ignore the Fourth Amendment if it is the only way to allow these methods? Should the miscreants go free? This is the tension between absolutism and utilitarianism, a never-ending ethics battle.

My position is that the FBI has to find a way to catch child porn aficionados that is consistent with Fourth Amendment principles. I have faith in their ingenuity; they can do it. They won’t even try, however, if they are allowed to ignore the Constitution.

Then there is this: after it seized Playpen last year, the FBI continued to operate it for two weeks, in order to search the computers of its users. Argues Fieman: “What the government did is comparable to flooding a neighborhood with heroin in the hope of snaring an assortment of low-level drug users.”

“We had to break the law in order to enforce it “?

That rings a bell, and the sound isn’t pleasant. The FBI’s practices raise a classic set of balancing issues and ethics conflicts: law enforcement vs. individual rights, Constitutional principles vs. protecting innocent children. What is right, and what slippery slopes do we grease if we choose the ends over the means?

Technology risks making many ethical long-accepted assumptions obsolete, and is moving so fast that it tempts hasty decision-making that we will eventually regret.

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Sources: USA Today, Washington Post