25 Investigates: Local challenge to FBI use of child porn site could have national impact

BOSTON — FBI agents caught Vincent Anzalone sitting at a computer containing hundreds of images of child pornography at his home in Brighton in 2015. He later pleaded guilty to possessing and receiving child porn and is serving eight years in federal prison, but now the United States Court of Appeals for the First Circuit in Boston is poised to rule on whether to throw out Anzalone's conviction, 25 Investigates has learned.

By some estimates, the 45 year-old is one of about 250 people charged or convicted of having illegal images and videos from the child porn site, Playpen. But after Anzalone's arrest, there was no need to track down the operator of the website because that operator was the FBI.

Largest Distributor

"The FBI, itself, had become the world's largest distributor of child pornography," said Colin Fieman, senior litigator for the Federal Defender's Office for the Western District of Washington.

Fieman has consulted with other federal defense attorneys around the country who are taking on the government in court for what they call "outrageous" behavior -- operating a child porn website, with images and video of real victims, for two weeks in 2015.

"People were actively molesting children and producing new child pornography for the very purpose of sending it to Playpen," said Fieman. "And the government, at a minimum, aided and abetted that."

Court records reveal the website had 100,000 "registered users" during the time it was being controlled and monitored by the FBI.  The agency got permission from a federal judge in Virginia to deploy a type of malware or virus after users logged onto the site, allowing the FBI to hack computers in 120 countries, including Anzalone's computer in Brighton.

Children Re-victimized

In his appeal, Anzalone said "the government has never before dared to engage in such outrageous conduct."

In another case a district court judge in Washington wrote that "the government re-victimized hundreds of children by keeping (the) website online."

"That child is being victimized again and again at each viewing or each access of the image or the video," said criminologist Tom Nolan, who also supervised detectives as a lieutenant for 10 years with the Boston Police Department.

"If they had sought my guidance or approval for an operation like this, I  would never have condoned this or authorized it," said Nolan.

But others, including some judges, disagree.

A federal judge in Virginia, who originally authorized the FBI's sting wrote that "the FBI should be applauded for its actions in this case."

Abusers Prosecuted

The FBI declined 25 Investigates' request for an on camera interview, but according to previous news releases, the agency's investigation also led to the arrest of an Ohio man, Robert Steven Jones, who was eventually convicted and sentenced to life in prison for sexually exploiting minors, including an infant, a seven-year-old girl and numerous teenage girls.

“Let’s be clear. Jones was apprehended and brought to justice because the FBI, with court authorization, was able to use the same kind of advanced technology to investigate the offense that criminals use to commit their crimes or evade detection,” said US Attorney Ben Glassman in a news release from the DOJ. “When we debate the impact of law enforcement investigations on internet privacy, these are the stakes.”

The Department of Justice told 25 Investigates at least 51 alleged hands-on abusers have been prosecuted and 55 American children who were subjected to sexual abuse have been successfully identified or rescued.

A Hard Sell

Some legal experts in Boston also question whether Anzalone or others will be able to convince the court to overturn their convictions based on the FBI's conduct.

"It's not like they were enticing people onto this website. These people came on their own volition," said Victor Hansen, a professor of law at New England Law School.

Hansen called the defense arguments "interesting" and  "creative," but suggests the heinous nature of the crimes means judges will be reluctant to give those convicted of victimizing children a free pass or a second chance.

"What you're saying as a result is... good evidence -- evidence that clearly indicates criminal wrongdoing -- is  now not going to be allowed in the case... That's a hard sell to make," said Hansen.

Federal defenders, such as Fieman, have had some success in getting some charges dismissed. He insists the government could have identified abusers and child pornographers without continuing to operate the Playpen website after the original operator was arrested.

"There's a lot at stake in terms of the FBI's overreaching in this case," said Fieman. "We all have a stake in limiting the government's law enforcement powers."

Attorneys in Anzalone's appeal made oral arguments last week and are now awaiting a decision from the court.

Cox Media Group