On Tuesday, one of more than 200 suspects being prosecuted nationwide in cases stemming from the FBI’s Playpen operation – an investigation into child abuse imagery being shared via Tor – was sentenced to six months in prison.
Why such a lenient sentence?
His defense attorney says it’s because he’s a good man. David Tippens, convicted on one count of possession of child abuse imagery, is a Seattle-area veteran who served in the US Army as a combat engineer, earning a Bronze Star.
According to what Tippens’ federal public defender, Colin Fieman, told Ars Technica, the lenient sentence was a reflection of how impressed the court was with his client’s military service and cooperation during his arrest:
The Government asked for 48 months in prison but the Court was impressed with Mr. Tippens’ long and distinguished service in the Army, including combat duty in Iraq; his cooperation with the police at the time of his arrest and perfect compliance with pre-trial supervision; and the fact that he had a pornography addiction related to PTSD that would be addressed through continuing counseling.
But prosecutors most certainly didn’t sound sympathetic to Tippens in the sentencing memorandum filed in May. The memorandum was filled with stomach-churning details:
By his own admission, he spent years searching for and collecting images and videos of children being raped and tortured so he could gratify his sexual desire. His conduct is reprehensible, and his untreated sexual deviancy makes him a danger.
Playpen was a dark web site dedicated to child sex abuse, and Tippens was only one of hundreds of suspects arrested for visiting it. After finding Playpen’s original operator, the FBI infamously took over and ran the site for 13 days, from February 20 to March 4 2014. It served up illegal child abuse imagery, planting a so-called network investigative technique (NIT) – what’s also known as police malware – onto the computers of those who visited Playpen.
The NIT forced more than 8,000 computers to cough up their IP addresses, MAC addresses; open ports; lists of running programs; operating system types, versions and serial numbers; preferred browsers and versions; registered owners and registered company names; current logged-in user names; and their last-visited URL.
It was a massive haul of evidence, and it led to the arrests of nearly 900 people worldwide.
The question of whether the NIT warrant was constitutional, however, is still playing out.
In a closely watched, potentially pivotal case, a judge earlier this month said that the warrant was, in fact, unconstitutional. He recommended that reams of evidence collected under the warrant be considered inadmissible in hundreds of Playpen criminal cases.
That’s not the only case in which evidence has been tossed. Back in May 2016, a US federal judge excluded all evidence in a Playpen case.
But there are other cases in which the NIT warrant has been upheld. One of the more recent set of convictions: in October, two Playpen members and producers of abuse imagery were sentenced, one to 360 months and a lifetime of supervised release, the other to 210 months and 15 years of supervised release.
So, again, why the lenient sentence for Tippens?
It’s not that evidence was deemed inadmissible because of an unconstitutional warrant. Rather, the evidence didn’t even get that far in Tippens’ case.
The government, which admitted that it was loathe to reveal classified material (even though the trial exhibits have been released on WikiLeaks), dropped count No. 1 (receipt of child pornography) and No. 3 (transportation of child pornography).
Tippens is free on bond pending appeal of his conviction on possession of child abuse imagery. Tippens’ lawyer, Fieman, told Ars that he’s looking forward to the 9th Circuit’s review of what he called “the FBI’s ill-conceived Operation Pacifier and all of the legal issues that surround it.”