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Evidence tossed because prosecution won't divulge hacking code

It is obvious to even the casual observer that evidence is central to nearly every criminal case. But while evidence is highly important for prosecutors to provide, it is equally important for defense attorneys to discredit. And thankfully, both sides must be given the opportunity to examine evidence and to know when and how it was obtained.

A recent case out of Washington state is a good example. It concerns the use of evidence in a child pornography case which was obtained through a law enforcement hacking method known as a network investigative technique (NIT).

Some time ago, the FBI seized control of a child pornography website but continued to keep the website active for two weeks. During that time, investigators used an NIT to essentially trace activity on the site back to individual users.

The FBI apparently gathered more than enough evidence to bring criminal charges against a Washington man, but that evidence cannot be used at trial. Because the prosecutors refused to disclose the NIT code used to hack the defendant's computer, a federal judge recently ruled that all evidence obtained using NIT must be thrown out.

Oddly, the government did not cite classified information or national security interests in their refusal to turn over the code. The defendant is still facing criminal charges, but it is unclear if he can be convicted without this crucial evidence.

The judge noted that one doesn't need to understand the technological details in order to appreciate the larger legal principle. He said: "much of the details of this information is lost on me, I am afraid - the technical parts of it. But it comes down to a simple thing. You say you caught me by the use of computer hacking, so how do you do it? How do you do it?"

It's important to remember that when the government charges any of us with a crime, it is the government's job to prove our guilt - not our job to prove our innocence. To that end, defendants must generally be given access to the evidence against them so that it can be properly scrutinized.

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