A judge in a high-profile child pornography case, in which a website called Playpen was accessible only through Tor, is trying to decide whether the FBI should disclose the NIT"s source code to the defendant.
Judge Robert Bryan of the U.S. District Court for the Western District of Washington wrestled with the competing interests in a case status order he issued in the U.S. v. Michaud case this week.
"What should be done about it when, under these facts, the defense has a justifiable need for information in the hands of the government, but the government has a justifiable right not to turn the information over to the defense?"
The FBI's strategy with NIT-aided investigations appears to involve hiding its use of hacking tools, and, in some cases, pressing for guilty pleas before defendants and their lawyers question the investigative techniques, said Nathan Freed Wessler, a staff attorney with the American Civil Liberties Union.
The FBI has defended NITs, saying their use is limited.
In the Michaud case, the defendant's lawyer had agreed earlier to view the source code using FBI-approved security measures, but the FBI backed away from that compromise.