We were recently contacted by several individuals who had either been arrested or had their homes searched by federal authorities based on allegations of receiving, distributing, or possessing child pornography through the Tor Network. Based on our experience, it appears that this is a massive criminal investigation by the FBI and other agencies resulting in search warrants across the United States and a number of arrests.
Our firm has defended many clients accused of federal child pornography offenses under 18 U.S.C. §§ 2251, 2252 and 2252(A). We have also defended a number of clients in sexual exploitation and enticement cases under 18 U.S.C. § 2422. Just last week, we obtained a complete dismissal of a federal criminal case for a client who was charged with multiple child pornography offenses based on his alleged use of the Gnutella and Ares networks to download and distribute images of child pornography. Based on our investigation, and with the assistance of independent computer forensic experts, we were able to convince the government that they should dismiss the case. We refused the government’s plea offer of three years in prison and were prepared to take the case to trial. Having reviewed our evidence, the government dismissed the case the week before trial was scheduled to begin.
As many people know, the Tor Network was designed to facilitate anonymous communication over the internet and protect the privacy of its users. For a long time, the federal government has wanted to identify the users of the Tor Network but agents have had very limited success. I know that the government has been able to obtain the identity of some Tor users through informants and cooperating witnesses in large-scale drug trafficking investigations. Now, it appears that the government has been able to break Tor anonymity for users suspected of receiving or distributing child pornography.
There have been allegations made by the Tor Project that the FBI paid $1 million to researchers at Carnegie Mellon University to get access to technology that allowed the government to have success at de-anonymizing users on the Tor Network. Although the FBI had acknowledged in court filings that it received assistance from a “university based research institute,” the agency denies that it paid $1 million to Carnegie Mellon for its assistance in this investigation.
Regardless of how they obtained this information, I believe the federal government will attempt to obtain additional arrests and indictments during this investigation. But that doesn’t mean the government will be successful. I anticipate there will be a lack of evidence identifying the users and proving they had any connection to the alleged unlawful conduct. I think these cases will be more difficult to prosecute because the identity of the alleged user is not nearly as clear-cut as it would be for a regular Internet Service Provider (ISP) subscriber on a peer-to-peer network.
I am not at all confident that the government’s efforts in obtaining the user identification was consistent with the constitutional rights of the people using the Tor Network. Given the allegations about the $1 million payment and a suspected use of “spyware” in obtaining Tor Network user information, I suspect the FBI may have cut some corners and perhaps pursued these cases too aggressively. I know that our firm will certainly review the allegations made against our clients to determine if there are any constitutional violations that would help us win a motion to suppress the search of our clients’ computer or other device.
