Vancouver man's child porn charges dropped as feds refuse to disclose hacking techniques

TACOMA, Wash. -- Federal prosecutors decided to drop child pornography charges against a Vancouver, Wash. teacher rather than give up classified information about the hacking techniques they used to gather evidence in the case.

The case involves a teacher named Jay Michaud who was arrested in July 2015 and accused of downloading child pornography from a website called Playpen. While users on that website, which was actually operated by the FBI, used a special web browser called Tor to protect their identities, FBI agents exploited unknown weaknesses in that browser to identify suspects.

The FBI's Playpen website ran for two weeks while it gathered evidence of illegal activity.

A judge in Michaud’s case ordered the FBI to disclose to the defense parts of their hacking process, known as a “network investigative technique.” But the government refused to give up their secrets and determined the better alternative was simply dropping the case against Michaud.

“Because the government remains unwilling to disclose certain discovery related to the FBI’s deployment of a ‘Network Investigative Technique’ (‘NIT’) as part of its investigation into the Playpen child pornography site, the government has no choice but to seek dismissal of the indictment,” U.S. Attorney Annette Hayes wrote in a court filing.

Hayes said the government faced only two options: disclose classified information or drop the case.

“Disclosure is not currently an option,” she wrote.

U.S. District Judge Robert Bryan on Monday agreed to dismiss the case without prejudice, meaning charges could be re-filed at some point in the future.

Michaud’s attorney Colin Fieman said his client always maintained his innocence and was relieved by the decision to drop charges.

He said the case also points to larger issues about the government’s hacking abilities, including using techniques found in national security investigations for domestic criminal cases.

Fieman said defendants have a right to challenge evidence in any case, even when the government uses sensitive methods to collect that evidence.

“There are fundamental rights for a defendant at stake when the government is trying to prosecute someone on what is essentially secret evidence,” Fieman said.

Fieman said it was highly unusual for a judge to force the government’s hand like this. In most cases, federal agents aren’t required to disclose classified methods used to gather this type of evidence.

“With a criminal case, the government needs to be prepared to display all the evidence against that person to ensure a fair trial,” Fieman said. “If they can’t do that, maybe it’s time for the FBI and others to start re-thinking the measures they’re using.”

This is only the second time federal prosecutors have dropped charges rather than expose secret techniques, according to Wired magazine. The magazine reports that federal investigators have exploited vulnerabilities in the Tor browser to identify suspects.

Michaud did not return a message seeking a comment for this story. He previously worked at the Vancouver School District but was placed on administrative leave when the allegations surfaced.

A school district spokeswoman said Michaud has not returned to working at the district.

© 2017 KGW-TV


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