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Judge says suspect has right to review code that FBI has right to keep secret

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Marc Anderson
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Eric Norris

A US federal judge in Tacoma, Washington has put himself in a Catch 22: ruling a man charged with possessing child pornography has the right to review malware source code while also acknowledging that the government has a right to keep it secret.

As Ars has reported previously, since defense lawyer Colin Fieman filed his third motion to compel discovery in January 2016, there have been two other judges overseeing related cases in different states that have ruled to suppress evidence found as a result of the NIT.

Earlier this month, a defense attorney in West Virginia filed a new motion to withdraw a guilty plea based on these other rulings.

You can t have it both ways

Brian Owsley, a former federal judge who is now a law professor at the University of North Texas, said that such a conundrum is "not that uncommon."

He pointed to a 1957 Supreme Court decision, Jencks v. United States, which involved an undercover informant and an alleged Communist who demanded government records from the investigation.

Ahmed Ghappour, a law professor at the University of California, Hastings, came to a similar conclusion.

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