Network investigative source codes and due process

Abstract

The US federal government has developed an electronic computer tool known as the Network Investigative Technique (‘NIT’). Essentially, an NIT is a device used by law enforcement to invade an individual computer to obtain access to and obtain all types of information, including computer files, pictures, emails, and other data.

This success has led to numerous prosecutions of those receiving and sharing child pornography. However, in response, defendants are starting to raise challenges to the manner in which this technology functions. The courts are struggling with where to draw the line between a defendant’s right to a fair trial, which may be infringed upon if the defendant does not have adequate understanding of how the technology works, and the government’s interest in maintaining secrecy regarding the investigative tools that it develops. For example, criminal defence attorneys in Baltimore were largely unaware that officers with the Baltimore Police Department used cell site simulators over 4,000 times in criminal investigations.

This article addresses the use of NITs in the prosecution of a series of related child pornography cases. The first part addresses not only how the FBI began investigating the child pornography distribution ring, but also the issuance of a search warrant by a federal magistrate judge in Virginia that was central to the indictment and prosecution of each defendant around the country. In response to their indictment and prosecution, the defendants raised a number of legal challenges to the FBI’s use of the NIT. These various challenges are discussed in the second part. Most defendants did not succeed in avoiding a conviction for some kind of child pornography charge. However, the third part discusses one case that resisted this trend of convictions based on the notion that the defendant needed access to the NIT source code in order properly defend himself.

Index words: United States of America; network investigative technique; source code; due process