CHARLOTTE, N.C. — A local defense attorney asked a judge this week to throw out a case because it was "outrageous" that the government continued to operate, and even improved the efficiency of, a child pornography site.
The motion filed by Peter Adolf, a public defender, asked a judge to dismiss the case against his client, Steven Chase.
Prosecutors have accused Chase of running the pornography site "Playpen" which had servers based in Lenoir, North Carolina Eyewitness News covered the arrest of Chase and Michael Fluckiger in early 2015.
The motion raises questions about undercover law enforcement tactics. The government has argued the operation of the website was important for catching more suspects and stopping abuse. A law enforcement expert contacted by Channel 9 said it was the "right thing to do."
In Adolf's motion, he writes that following Chase's arrest in February 2015 "rather than shutting down the Playpen website, the FBI took direct and exclusive control of the site." The FBI then ran the website for nearly two weeks.
Adolf claims the FBI improved the site's efficiency from an average of 11,000 weekly visitors to approximately 50,000 per week. During the two-week period "approximately 200 videos, 9,000 images and 13,000 links to child pornography were posted on the site," the motion said.
The motion calls the actions "shocking" since it's widely known that victims of child pornography are re-victimized each and every time their images are viewed online.
"Every time that image is distributed the child is continued to be victimized without choice often times and it leads to further victimization," Present Age Ministries Executive Director Hannah Arrowood said. Present Age Ministries is an organization that works to stop human trafficking and exploitation.
A judge signed off on a search warrant giving the FBI the ability to operate the website and deploy investigative software for 30 days. In its explanation to a judge, the government said it needed to apply a piece of computer code called a "Network Investigative Technique" designed to identify user IP addresses.
Despite the grant of 30 days, the government shut down the site after only two weeks because of the harm it was causing.
The government explained its decision in discovery in a case pending in Washington state.
"During the government's operation of Website A, regular meetings were held to discuss the status of the investigation and identification of site users and assess whether the site should continue to operate, based upon balancing of various factors, to include site users' continued access to child pornography, the risk of imminent harm to a child, the need to identify and apprehend perpetrators of those harms to children, and other factors such as those described above. On March 4, 2015, it was determined that the balance of those factors weight in favor of shutting down the website."
Law enforcement experts said the tactic of taking over a pornography site can be critical for locating and prosecuting pedophiles.
"This was the best, fastest means to identify these people who were abusing children," said Chris Swecker, a former assistant director of the FBI.
Swecker explained that even if the FBI immediately shut "Playpen" down, users likely would have gone elsewhere to distribute and download child porn.
"The alternative is you step back and let the pedophiles all go to some other site," he said.
Swecker said the case shows that the government followed proper processes in making the decision to operate "Playpen." He imagines an undercover committee likely would have examined the issue and made a decision. The committee, on which Swecker once sat, would be made up of lawyers and decision-makers.
The FBI also went to a judge to get a search warrant in order to run the website.
This was done under court authorization and I'm sure it went to the highest levels of the FBI for approval," Swecker said.
A Department of Justice spokesperson did not immediately respond to a request for comment Wednesday.
An attorney, familiar with the government's case involving "Playpen," said the case raises questions about how much the public should know about these investigations.
"In order to have that sort of democratic accountability, the public needs more information about what's happening," said Carissa Byrne Hessick, a law professor at the University of North Carolina School of Law. She said she understands not disclosing information during an investigation.
"However, there's a much less compelling argument for not disclosing that information once the investigation is closed," Hessick said.
A judge has not yet considered Adolf's motion to dismiss the indictment against his client.
Adolf could not be reached for comment.
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