Federal prosecutor Annette Hayes wrote in a court filing regarding the case of United States v. Jay Michaud, "The government must now choose between disclosure of classified information and dismissal of its indictment…Disclosure is not currently an option. Dismissal without prejudice leaves open the possibility that the government could bring new charges should there come a time within the statute of limitations when and [if] the government [is] in a position to provide the requested discovery."
Though the Michaud case is only the second time prosecutors have asked for a dismissal in such a case, it is only one of nearly 200 cases across the country that call government hacking in criminal cases into question.
Currently over 135 people believed to have accessed Playpen are being prosecuted by the Department of Justice. The FBI took control of the site and operated it for 13 days to ferret out suspects, before shutting it down.
To discern users’ IP addresses, the bureau used a Tor exploit that made it a simple matter to identify and locate suspects. Tor was, and is, routinely used as a "network investigative technique," (NIT) according to the DOJ. Many security experts simply consider NITs to be "malware."
As part of criminal discovery activities, defense attorneys have tried to gain access to the NIT’s source code. An FBI search warrant affidavit handed down in a related case delineated the NIT’s abilities, along with the illicit content made accessible to some 150,000 Playpen users.
The government was ordered to hand over the NIT source code relevant to the Michaud case in May 2016 by US District Judge Robert Bryan. The government made the source code classified in response, effectively preventing criminal discovery in more than 100 pending Playpen-related cases.
A few defendants have had all charges against them dropped, while many more pled guilty.
Former ACLU privacy and security expert Christopher Soghoian said in December 2016, "My concern with the economics of hacking is that if the government hacks enough people, hacking not only becomes an attractive way of surveilling but it becomes the cheapest way to spy on people," according to ARS Technica.
He added, "My concern is that when they hack enough people, surveillance becomes so cheap—hacking becomes cheaper than even a single hour of law enforcement overtime that this will become the tool of first resort…Hacking will be the first tool in the toolkit that they reach for, before they go undercover. Before they try and convince someone the old-fashioned way. My concern is that hacking is making spying far too cheap."
