Dark Web Search Warrant for Child Pornography Users Upheld

By Bernie Pazanowski

Evidence obtained under a warrant allowing FBI agents to search the dark web for visitors to a child pornography website is admissible, the U.S. Court of Appeals for the Fourth Circuit said Jan. 25.

The warrant was obtained and relied on in good faith, it said in an opinion by Judge Stephanie D. Thacker.

FBI agents received a tip about Playpen, a hidden message board on the dark web offering child pornography. The dark web is a collection of encrypted networks providing privacy protections for its users. Users must download an encrypted program to access it.

The agents were granted a warrant to deploy a program called the Network Investigative Technique to locate users accessing the website.

Robert McLamb was identified by NIT; agents then obtained a separate warrant for his home computer and found over 2700 child pornography images and videos.

The key in deciding whether to suppress evidence is the culpability of the law enforcement officers, the court said.

Here, there was no evidence that the issuing magistrate abandoned his judicial role, or the affidavit lacked indicia of probable cause, the court said. Neither was the warrant facially deficient, it said.

Agents also demonstrated good faith by consulting with DOJ before seeking the warrant, the court said.

Judges Allyson K. Duncan and Max O. Cogburn, sitting by designation, joined the opinion.

The Federal Public Defender’s Office, Norfolk, Va., represented McLamb. The U.S. Attorney’s Office, Richmond, Va., represented the government.

The case is United States v. McLamb , 2018 BL 25448, 4th Cir., No. 17-4299, 1/25/18 .

To contact the reporter on this story: Bernie Pazanowski in Washington at bpazanowski@bloomberglaw.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bloomberglaw.com

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