ATHOL — An Athol man accused of using a child pornography website wants a federal judge to throw out his case, saying the government distributed pornographic content when it seized the site and operated it for a couple of weeks as part of its investigation in 2015.
Arthur Cummings filed in U.S. District Court a motion to suppress and a motion to dismiss, through his lawyer, Timothy G. Watkins, on Dec. 14. The motion to suppress claims the FBI illegally installed malware on his computer and the motion to dismiss cites “outrageous government conduct” as grounds for dismissal. Cummings says the FBI distributed child pornography from the Playpen website it seized in January 2015 and controlled between Feb. 19 and March 4 of that year.
“The unprecedented nature and scope of the FBI’s distribution of contraband in connection with this case has no legal justification or excuse and offends common standards of decency,” the motion states.
Cummings faces a child pornography possession charge in federal court.
The government argues it had a judge’s authorization to install a “network investigative technique” for its investigation and it operated the website to obstruct “the use of emerging technologies to facilitate the creation, distribution and consumption of child pornography” and to identify people engaging in these activities. According to Assistant U.S. Attorney Mark J. Grady, the use of the technique had also led to the identification or rescue from abuse of 38 children as of July 2016.
Grady’s opposition to dismissal states the government had no reason to suspect Cummings of criminal behavior when it seized Playpen, but it had ample reason to believe any member of the site could be actively viewing or sharing child pornography. Cummings was part of Playpen’s membership.
Cummings’ motion to dismiss states that in companion Playpen cases, the government has admitted it made no attempt to control the redistribution of Playpen’s contraband. The defendant states child pornography on the site was located in specific subdirectories and the FBI had the technical means of allowing visitors to access those parts of the site while blocking them from downloading any of the pictures found there.
“The remedy the defense is seeking is extraordinary, but only because the government’s conduct in this case is unprecedented and would appall the average citizen,” the motion states.
Grady insists Cummings’ motion should be denied because the government played no role in creating the crime he is charged for, did not encourage his participation in the conduct and was not responsible for it. He also said the government’s activities were necessary given the use of an anonymous network by Playpen users to conceal their locations and identities.
You can reach Domenic Poli at: dpoli@recorder.com
or 413-772-0261, ext. 258.
On Twitter: @DomenicPoli