The FBI not only sent malware to site visitors, but it also ran (and possibly improved) the child porn website for two weeks while pursuing its investigation.

Michaud‘s lawyer asked the court to force the FBI to hand over information on the NIT. The FBI countered, saying it wouldn‘t turn over the information even if ordered to do so. Judge Bryan, after an in camera session with the agency, agreed with the government that there was a law enforcement need to keep the details of the tool secret. But he also made it clear the government couldn‘t have both its secrecy and its evidence. He ordered all evidence suppressed.

With all evidence deriving from the forced exposure of Michaud‘s IP address, there was nothing left for the government to work with. It could have voluntarily turned over information to Michaud‘s defense lawyer for examination, but has chosen instead [PDF] to let Michaud go free.