The Department of Justice filed a motion in Washington State federal court on Friday to dismiss its indictment against a child porn site. It wasn’t for lack of evidence; it was because the FBI didn’t want to disclose details of a hacking tool to the defense as part of discovery. Evidence in United States v. Jay Michaud hinged at least in part on information federal investigators had gathered by exploiting a vulnerability in the Tor anonymity network.

“Because the government remains unwilling to disclose certain discovery related to the FBI’s deployment of a ‘Network Investigative Technique’ (‘NIT’) as part of its investigation into the Playpen child pornography site, the government has no choice but to seek dismissal of the indictment,” federal prosecutor Annette Hayes wrote in the court filing on Friday. She noted that the DoJ’s work to resist disclosing the NIT was part of “an effort to balance the many competing interests that are at play when sensitive law enforcement technology becomes the subject of a request for criminal discovery.”

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In United States v. Jay Michaud the indictment will be dismissed without prejudice, meaning that the DoJ can pick the case up again within the statute of limitations (five years in this case) if it chooses. Federal investigators may be gambling that they can drop the case for now and pick it up again in a few years when technology has evolved, and the NIT has either been disclosed for other reasons or is no longer effective, says Riana Pfefferkorn, a cryptography fellow at the Stanford Law School Center for Internet and Society.

“It’s an interesting avenue to think about whether we might start seeing longer gaps between an alleged offense and an indictment if the government is trying to sort of run out the clock on the utility of its hacking methods.” Pfefferkorn says.

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“It does seem to provide this moral hazard that if the government believes they can get away with it, that would seem to incentivize them to push the envelope,” Pfefferkorn says. “And my sense is that the government is continually pushing the envelope in what kind of surveillance it will ask courts to authorize.”

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