When Daryl Glenn Pawlak logged into a large child pornography website and downloaded images using his work computer, he was charged with receipt and possession of child pornography.
The operator of the website that was exploiting children, however, was not arrested.
That’s because it was the FBI. And federal prosecutors are defending the agency’s decision to secretly hijack and peddle child porn for two weeks as part of a sting operation.
During that time, tens of thousands of images of child pornography were uploaded to the site.
“Not only was the government the largest distributor of child pornography … it was also the largest exploiter of children,” Pawlak’s attorney said in a court filing. “This conduct is the essence of outrageousness, and a serious need for deterrence exists.”
The case has ignited debate among legal scholars and defense attorneys about internet privacy and the FBI’s decision to keep such a website up and running while more children were harmed.
Dozens of defense attorneys have filed motions to suppress evidence from the controversial child pornography sting, called Operation Pacifier. In some cases, federal judges have granted those motions. But most attempts to get charges thrown out have failed, legal experts say, even though some judges have ruled that the government violated the law and acted inappropriately.
Joining legal challenges nationwide, Pawlak’s attorneys are trying to get the charges dismissed, arguing that the government went too far by using a single warrant in Virginia to hack the computers of people all over the country, including his client.
The American Civil Liberties Union compared it to Operation Fast and Furious, a failed sting operation run by the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives beginning in 2009 that resulted in 2,000 firearms winding up in the hands of criminals.
In that case, ATF allowed people to illegally buy the guns to traffic to Mexico in the hopes of tracking them to Mexican drug cartel leaders. But that didn’t happen, and instead the agency lost track of the guns, including two that were found at the scene of the 2010 murder of a U.S. Border Patrol agent.
The FBI declined to comment about Operation Pacifier. The U.S. attorney’s office in Dallas said in court filings that it acted within the law and that dismissing the case would give people like Pawlak a “free pass” for trolling the web for photos and videos of children being sexually abused.
“The FBI’s process here should be encouraged, not deterred,” a prosecutor in Dallas said in a court filing.
Defense attorneys say the matter will eventually be resolved in the appellate courts, if not the U.S. Supreme Court.
Historically, the government has taken down such websites immediately.
Douglas Anderson, chair of the University of North Texas’ philosophy and religion department, said the government was conducting a cost-benefit analysis, weighing damage to children against catching people who download child porn.
He said he was surprised children were used in such a calculation.
“It’s a moral conundrum for anyone who takes the view that we are committed to protecting them in all ways,” Anderson said. “They’re weighing it against these kids’ lives.”
World opinion says we have a basic duty to protect children, Anderson said.
“You’d have to have something pretty overwhelming to offset damaging more people,” he said. “It would have to be awfully extreme to allow even one child to be harmed.”
The trap is set
The FBI in early 2015 seized, controlled and monitored a child pornography website on the “dark web” called Playpen for about two weeks.
Playpen began operating around August 2014 on the Tor Network, a group of volunteer-operated servers that allows users to browse the internet anonymously using free software.
A username and password were required to view the images. A foreign law enforcement agency’s tip led the FBI to Playpen’s server, authorities said.
In February, the FBI obtained a search warrant from a federal judge in Virginia that allowed the agency to run Playpen for up to 30 days on a government-controlled server.
Agents hacked into the computers of people who logged into Playpen and accessed its content. Agents were not authorized to rummage through a computer’s files or search other content, court records said.
Pawlak, 39, created a Playpen account in September 2014 and accessed the website more than 300 times, prosecutors said. In less than a second, agents knew what computer the Burleson man was using. That led to the two child pornography charges against him.
FBI Headquarters in Washington, D.C. (Getty Images)
Pawlak was indicted on July 6 in Dallas and remains free on bond. A hearing on the matter is scheduled for later this month.
Several men were charged with similar offenses in federal court in Houston under the same FBI operation, including a former pediatrician at M.D. Anderson Cancer Center.
“The FBI took quick action to locate otherwise anonymous child predators and received the blessing of two federal judges to conduct the short-term, monitored operation that was authorized by a warrant,” Assistant U.S. Attorney Jamie L. Hoxie said in court records filed in Pawlak’s case.
During the operation, numerous users were identified, leading to child pornography charges against about 180 people nationwide, including those producing images, court records show. At least 49 children were rescued from abuse, authorities said.
Work computers used
Pawlak works at North Texas fracking sites that drill for natural gas for his job in the energy industry, according to court documents. Prosecutors say he used his work-issued laptop computers to view and download child pornography. He accessed the images from August 2014 to May 2015, according to the indictment.
Pawlak spoke to an FBI agent on the phone when agents searched his home in October 2015, court records show. He “made clear that his interests in children” and child pornography “go far beyond the FBI’s limited, monitored operation involving the Playpen website,” Hoxie said in a court filing.
Pawlak told agents he first viewed child pornography in 2012 when a work colleague sent it to his work email, records show.
“Thereafter, Pawlak’s interest in child pornography continued due to a perceived element of danger or excitement,” Hoxie said in a court filing. “He preferred to view child pornography depicting girls that were between 7 and 11 years old.”
The FBI found hundreds of child pornography images from his current and former work computers, records said. Pawlak is charged with receipt and possession of child pornography.
“Pawlak sought out child pornography, including images depicting young girls the same age as his own daughter being raped and sexually humiliated by grown men,” Hoxie wrote for the government.
Hoxie said that while the technology the FBI used was “somewhat novel,” it was within the bounds of the law.
“The FBI received the rare opportunity to make a dent in the otherwise impervious community of child predators using Tor to victimize children,” she wrote.
Steven Jumes, Pawlak’s attorney, wrote in a Dec. 28 motion to dismiss the indictment that the FBI hosted an estimated 22,000 images, videos and links of child pornography that more than 100,000 people accessed.
“The government has taken leaps and bounds over the line of acceptable investigative techniques when it exploited and re-victimized thousands of children without taking any precautions to minimize the harm to them,” Jumes said in the motion. “Congress has long recognized that each viewing of child pornography re-victimizes the child.”
The harm to victims is lifelong, he said, because it’s impossible to completely eradicate all copies of the images.
“The line of what constitutes ‘going too far’ has been so offensively disregarded that such outrageous conduct can only be said to violate due process,” Jumes wrote.
Jumes also said in the motion that dismissing the case against his client “admittedly puts the court in the position of rewarding an indicted wrongdoer.”
But he said he’s asking for a dismissal not to reward Pawlak but to “uphold the integrity of law enforcement action.”
Earle Cabell federal courthouse in downtown Dallas, where a legal challenge to a child pornography case will be heard.
The government denies its conduct was outrageous.
“The reality the FBI faced was that taking down the Playpen site, without catching its thousands of users, would not stop the child-pornography problem,” Hoxie wrote in a court filing.
But a federal judge in the state of Washington ruled in November in an Operation Pacifier case that the government’s conduct was exactly that.
U.S. District Judge Robert J. Bryan wrote that the government improved the child porn website’s “technical functionality” and that it “re-victimized hundreds of children” by keeping the website online.
“The government used the child victims as bait to apprehend viewers of child pornography without informing the victims and without the victims’ permission — or that of their families,” Bryan wrote in his ruling.
However, the judge declined to dismiss the charges in the case, saying the government acted in good faith and did not violate search and seizure standards.
‘Abuse of power’
Colin Fieman, a federal public defender in Tacoma, Wash., has coordinated with defense attorneys across the nation on Operation Pacifier cases. He said the difficulty is in showing that the defendant was permanently harmed by the government misconduct.
“Hopefully, someone in Washington cares about it from an ethical standpoint and maybe something good will come of it,” Fieman said.
Fieman said the FBI took no steps to block the more shocking parts of the website, like instructions on how to abuse children.
The criminal cases are still relatively new, he said, and will be resolved in the appellate courts.
“There is still a long way to go,” Fieman said.
Andrew Crocker, staff attorney with the Electronic Frontier Foundation, a San Francisco nonprofit group dealing with civil liberties in the digital world, said the government abused its power in these cases.
“They got a single warrant to hack into the computers of anyone visiting this website without any limitation,” he said.
Warrants have to say exactly who will be searched and where, he said. But this case gave the government authorization for “vast hacking operations.” Prosecutors should use a more targeted approach, seeking warrants on specific users, he said. Crocker called it unprecedented for a single warrant to give rise to this many prosecutions.
“It was as if they said, ‘We can search anywhere,'” Crocker said. “The breadth of this operation is what we are objecting to … hacking into a computer is very invasive. The government needs to meet a high standard.”
Jumes told The Dallas Morning News that the Pawlak case is a significant for all Americans because it challenges the government’s authority to hack into and search computers.
“The repercussions of what happens in the Operation Pacifier cases will shape the future of privacy expectations and the limits on government action for years to come,” he said.
Others question how authorities could otherwise have caught as many child predators who gather on hidden websites to victimize children.
“We had a window of opportunity to get into one of the darkest places on Earth, and not a lot of other options except to not do it,” Ron Hosko, a former senior FBI official told USA Today last year. “There was no other way we could identify as many players.”
More coverage on child pornography prosecutions