FBI agent: NIT in Playpen case not malware because it didn't act maliciously

In one of a series of criminal court proceedings involving use of the child porn site Playpen, defendant Edward Matish was unable to convince a judge to dismiss the charges against him.
In one of a series of criminal court proceedings involving use of the child porn site Playpen, defendant Edward Matish was unable to convince a judge to dismiss the charges against him.

An FBI special agent deposed in federal court said the network investigative technique (NIT) used to identify members of child pornography site Playpen should not be defined as malware because its behavior was not malicious.

“The NIT utilized in this investigation was court-authorized and made no changes to the security settings of the target computers to which it was deployed. As such, I do not believe it is appropriate to describe its operation as ‘malicious,'” special agent Daniel Alfin wrote earlier this month in a declaration to the U.S. District Court of Eastern Virginia. Later in the case, Judge Henry Coke Morgan, Jr., rejected defendant Edward Matish's motion to dismiss the case on account of an allegedly involuntary incriminating statement, according to an Ars Technica report.

Alfin also refuted the defense's contention that it needed access to the FBI's exploit, to determine if the government exceeded its warrant's scope. Alfin stated the exploit's disclosure would only "explain how the NIT was deployed to Matish's computer, not what it did once deployed."

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