Dr Monique Mann, Lecturer in Criminology at Queensland University of Technology
Tuesday 4 September 2018, 12 pm – 1.30 pm
Burwood campus, Room F2.009; Waurn Ponds Campus Room JB2.107; VPN for external dial in – 52236918
Playpen is one of many clandestine networks for the online distribution of child exploitation material. As with the Silk Road illicit drug crypto-market, Playpen relied on The Onion Router (ToR) network to encrypt and anonymise the internet protocol (IP) addresses and geographic locations of site users. The challenges to conventional policing methods presented by these aspects of dark net infrastructure have prompted various enhanced investigatory and intelligence gathering strategies, such as Computer Network Operations (CNOs), to assist with detecting and investigating serious crimes with an online dimension. These forms of online surveillance, disruption and attack readily transcend multiple legal jurisdictions, and test established thresholds governing online policing activities and the admissibility of digital evidence in criminal trials. Criminological literature and judicial rulings are yet to reconcile the contradictions presented by enhanced governmental online surveillance and hacking through existing due process safeguards in both domestic and extraterritorial criminal investigations. This paper addresses this gap by examining a series of United States (US) cases scrutinising the Federal Bureau of Investigation’s (FBI’s) use of CNOs to identify and prosecute Playpen users located within and outside the US. It will be argued that the warrants authorising the FBI to seize the Playpen site tacitly authorised the deployment of CNOs to identify site users through the dark net. This generated several conflicting US judicial rulings that attempted to determine an appropriate legal scope for the domestic and extraterritorial use of CNOs. The paper explores the shifting legal geographies of such operations, and their impacts in accessing admissible digital evidence when police investigate serious online criminal conduct. These issues offer insight into current and future developments in online policing, including the due process implications of recent amendments to US Criminal Procedure (Rule 41) that authorise extraterritorial governmental hacking by US security and policing agencies.