A Judicial Framework for Evaluating Network Investigative Techniques

Tags: 2010s Child Exploitation FBI Going Dark Law Enforcement NIT

Authors: Hennessey, Susan and Weaver, Nicholas

Published: July 2016

URL: https://www.lawfareblog.com/judicial-framework-evaluating-network-investigative-techniques

Abstract: This article in Lawfare by Susan Hennessey and Nicholas Weaver discusses the use of the NIT in the Playpen investigation, whether the government must disclose an NIT so that defendants may receive a fair trial, and proposes questions that courts should ask when evaluating disclosure of an NIT going forward. First, this article gives a background on the Playpen investigation, and the use of an NIT in the investigation, and background on NITs generally. Second, the article discusses the legal standard for disclosure of the NIT, creating a dilemma for prosecutors wherein they must either disclose the NIT and compromising classified material, or drop the prosecution to retain the classified material. Finally, the article proposes eight guiding questions for courts when confronting an issue of disclosure and explains them in the context of the Playpen investigation. Finally, the article contemplates potential positions defendants could take in the face of such legal questions.