Courts Pretty Much OK With FBI's Occasional Stints As Child Porn Distributors
from the the-fine-art-of-honeypottery dept
Law enforcement agencies commit criminal acts while conducting criminal investigations. It happens all the time. With the blessing of their handlers, confidential informants routinely engage in criminal activity. Investigators act as co-conspirators in the planning of terrorist attacks and the robbing of imaginary "stash houses."
But many people are taking issue with the FBI's decision to use seized servers loaded with child pornography as honeypots rather than immediately shut them down. For some, this is the one unforgivable criminal act -- the possession and distribution of child porn.
This is something the FBI has done twice (that we know of). The first time was back in 2012, when it seized a server in Bellevue, Nebraska linked to a website called "PedoBook." It ran the site for three weeks while it deployed a Network Investigative Tool to find out more info about its users.
It did it again in 2015. Joseph Cox of Motherboard was the first to cover it, detailing the FBI's two-week stint as the new hosts of "Playpen," another child porn site accessible only to users utilizing the Tor browser. Again, the FBI deployed its NIT to gather information on the site's visitors.
One of those caught in the latest sting is arguing the FBI participated in criminal activity, tainting the evidence it seized.
[T]he Government engaged in illegal conduct by aiding and abetting the distribution of child pornography; and, considering the Fourth Amendment’s core reasonableness requirements and the totality of the circumstances, it obtained an unprecedently overbroad general warrant.This is one of several arguments Jay Michaud's attorney is raising. It's also being argued that the use of the NIT violated Rule 41, which governs the use of search warrants. Michaud claims the FBI violated Rule 41's territorial limits by using its control of a server in Virginia (where the NIT warrant was issued) to access Michaud's computer in Vancouver, Washington.
The defense has never questioned the Government’s authority to seize “mere evidence,” assuming that other requirements of Rule 41 and the Constitution are complied with. Rather, this case involves the territorial limitations of Rule 41, a matter completely unaffected by the enactment of § 3103(a).The Rule 41 approach was also explored by Joshua Welch, who was swept up in the FBI's 2012 operation. It was of limited success. While the Eighth Circuit Appeals Court found the NIT warrant fell under Rule 41's time limit of notification of search warrant targets (30 days), it was not enough to offset other evidence gathered by the FBI.
Finally, it is important to note that the Government has not disputed that Rule 41 applies to the NIT warrant or argued that some other law alters or expands the Rule’s requirement. Instead, the Government has argued that the Rule is “flexible,” despite its plain language, and has proposed several novel and unpersuasive interpretations of the Rule that cannot be reconciled with that language.
In sum, nothing in either of these statutes in any way alters or undercuts the territorial limitations of Rule 41 and thus have no relevance when applied to the facts of this case.
We assume, without deciding, that Rule 41 applies to the NIT warrant. The statute authorizing the magistrate judge to delay notice is perfectly clear–the thirty day extension runs from the execution of the warrant. 18 U.S.C. § 3103a(b)(3). This occurred on November 19, 2012, meaning notice was to be provided within thirty days of that date. Moreover, the "notice" provided by the government was insufficient. The government points to a hearing Welch attended in which an agent testified about the NIT and to the entry of the residential search warrant into evidence as notice "provided during the discovery process." But under Rule 41 Welch should have been given a copy of the NIT warrant. Of course it is plainly true that if agents were required to send a copy of the warrant to the subscriber address they obtained before they could search the premises and identify the individual user, Welch would have had ample time to flee prosecution, destroy or tamper with evidence, and otherwise seriously jeopardize the investigation. But these special considerations would have allowed for the magistrate judge to either specify a later date certain, which he did not do, or for the government to return for extensions of time under § 3103a(c), which it did not do. Therefore, the notice given Welch failed to comport with Rule 41.If the FBI's use of NITs, especially in conjunction with its decision to act as interim administrators for seized child porn websites, is going to be challenged, Rule 41 seems to be the angle to take. The other route -- challenging the FBI's forays into child porn distribution -- seems far less likely to succeed. The courts have granted a lot of leeway to law enforcement agencies who engage in illegal activities during the course of investigations, as USA Today's Brad Heath has been pointing out on Twitter.
The FBI "hired a heroin-addicted prostitute" to become intimate with a suspect and get him to sell drugs. Court: OK. pic.twitter.com/0MbaBJu3xn
— Brad Heath (@bradheath) January 21, 2016The FBI "hired a heroin-addicted prostitute" to become intimate with a suspect and get him to sell drugs. Court: OK.
Federal courts have given the government wide latitude to break the law in pursuit of criminals. From a #DOJ brief: pic.twitter.com/pZ8WiNtqJm
— Brad Heath (@bradheath) January 21, 2016The footnote pictured in the tweet reads:
E.g., United States v. Esch, 832 F.2d 531 (10th Cir. 1987)The latter would seem to be even more reprehensible than simply running an existing child porn site and allowing users to upload and download child porn. In the 1987 case, the FBI actually encouraged the production of child pornography. Yet the court found no reason to question or discourage this behavior.
(holding that it was not outrageous government conduct to create a pedophilic organization, advertise for members, and encourage those members to create child pornography).
And there will always be other examples of highly-questionable activity engaged in by law enforcement during criminal investigations. An entire cottage industry of sting operations is predicated on pushing potential suspects towards committing criminal behavior and arresting them before the imaginary scheme can be carried out. In stash house robbery cases, the contents of the house to be robbed are limited only to creativity of the agents participating in the sting. Prison terms are predicated on these nonexistent items, allowing the government to send someone away for decades for almost robbing an empty house.
While it is undoubtedly true the FBI would not have been able to uncover the identities of these child porn site visitors without allowing the site to run, one has to question whether it was all worth it. In the two weeks it participated in the hosting and distribution of child porn, 100,000 visitors were logged. But so far, it has only resulted in 137 arrests and far fewer indictments. Its 2012 investigation led to far less: 25 criminal complaints -- nine of which are still only identified as "Doe."
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Filed Under: child porn, fbi, honeypots, porn
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Funny how so many self entitled "elites" never learn from history, what happens when people get fed up with unequal rights and having an unfair share taken from them.
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I really hope it's not the same guy!
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Where's the limit?
Maybe they can start pulling kids off the street and take pictures of them engaged in sex acts if there aren't enough images on the seized website to draw in pedophiles?
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I dont think the FBI connects the fact that these are real children, much like the pedos themselves.
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web bugs
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I also feel sorry for the law enforcers who have to see that shit every day. They get PTSD.
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I mean, sure, innocent people would get killed; but hey, at least they got information out of it.
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Anarchy in the alphabet agencies and the halls of justice
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Re:
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18 U.S.C. § 2259
Then at least the victims would be made whole, legally speaking.
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Re:
The ones who do it usually volunteer for the assignment. They want to do it.
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And the fact the FBI and Judge thinks it's "okay," doesn't change the fact it isn't.
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Double standard?
So we can be sentenced to long prison terms for planning to do something we couldn't have actually accomplished because it was all fake. But on the other hand, if the government fires you because it mistakenly believes you engaged in speech it disagrees with, that's no problem.
http://www.npr.org/2016/01/19/463495547/an-employee-mistakenly-steps-into-politics-can-the-g overnment-retaliate
It seems like either the intentions of the "bad actor" should be controlling, or not. If someone can be convicted for wishing he could be a terrorist even if he really wasn't, the government should also be penalized for trying to curtail constitutionally protected freedoms even though it failed to do so. Or, if the government gets a free pass because the speech it thought was happening really didn't exist, the conspirators should go free because there was no actual crime.
Am I off base on this?
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Re: Where's the limit?
What makes you think there is a limit?
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Oh, really...?
I doubt it will actually happen, but by the strict letter of law, I suspect rather a lot of important people in the US should rightly be facing extradition hearings and criminal charges in dozens of countries.
Given what they've done, I doubt too many people in the US would miss them, either.
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Re:
The ATF did pretty much that with Mexican drug cartels.
https://en.wikipedia.org/wiki/ATF_gunwalking_scandal
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Re: 18 U.S.C. § 2259
And who would be in charge of enforcing that? The DOJ, right? So, never gonna happen.
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Re: Double standard?
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anonymous
I'm very glad people are pissed off at the FBI.
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anonymous
CP is illegal because people are under the false presumption that only child molesters look at it, but even though the US prison industry propaganda says 80% of people who look at CP are contact offending pedophiles, more objective research from the government of Switzerland puts it at 1%, which is lower than the rate of contact offending pedophiles in the population of US male university students.
The entire thing is a sham, and I'm glad the FBI finally admitted to such. They would not rape children to infiltrate a sex trafficking ring, because it is actually wrong. However, they have no problem to distribute CP to catch pedophiles, because they realize people looking at CP doesn't actually cause any harm to anyone at all.
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anonymous
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disgusting
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Re: anonymous
Where did they admit that, in a court case?
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When getting a "slam dunk" win trumps the logical thought of if we do this more kids are harmed, the system needs to have someone examine their perverse motivations.
It is becoming clear that the courts no longer wish to push back against anything that might generate a bad soundbite against them, even as what they are allowing severely damages the rule of law.
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The web site raped kids?
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Thus it is with CP. At the more fundamentalist level people literally believe that every time someone looks at CP it's like the child in the image is raped all over again. This is called revictimization, and you can see people discussing it merely by searching for something like 'child porn revictimization all over again' or 'over and over'.
Then you have people who cite research from the prison industry, etc. It's really a mountain of propaganda and the spitting image of the war on drugs.
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Re: Double standard?
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Re: anonymous
Or would not create fake terrorism plots to support anti freedom laws being passed, right?
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Re: Anarchy in the alphabet agencies and the halls of justice
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Re: Re: Double standard?
The point of capitalism, a free market, a constitutional republic is to channel greed, avarice, power lust into outlets that result in a thriving of the general good.
It's just that the channels created by the Founding Fathers for funneling greed and power lust of government members into beneficial activities have eroded over time.
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Re: Oh, really...?
The US, and by extension the FBI, believes it's authority extends worldwide.
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Re: Re: Re: Double standard?
The channels you mentioned have eroded over time not because of time but because We The People took our hands off the wheel and stopped being as willing to hold these people to account as we formerly were. Result: petty partisanship and arguments and culture wars while everything else goes to hell.
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Re: Re: Oh, really...?
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Re: anonymous
As for "magical revictimisation" you're forgetting the torment of the victim finding out years after the fact that these images are STILL being distributed and people he or she knows have seen them.
I'm not seeing much compassion for the poor kids here.
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Re: anonymous
According to the article there was actual sexual activity between adults and children. There is no way you can justify CP or the people who view or make it.
I have every sympathy for anyone who seeks treatment to prevent him or herself from getting involved in such activities but none at all for anyone who actively seeks out such filth. One or two images is never enough to satisfy their vile lusts, they always want more. That's why, when they are caught, they usually have multiple images on their computers. And pictures aren't enough, they want video. And cartoons or drawings aren't enough, it's got to be real.
If paedo desires could be satisfied with drawings or something I wouldn't be bothered about it but it seems that they are not. And that's a problem. Real people are abused to create those photos and films and no amount of trivialising their suffering is going to make that go away.
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Re: Re: anonymous
The question is, is criminalizing the possession of child porn the most effective way to stop the abuse?
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Re: Re: anonymous
Look up the study by Milton Diamond on how legalizing child pornography viewing has led to decreases in contact offending in every single country that has done it. Pedophiles use CP as an alternative to contact offending, and it reduces child sex abuse rates, and this is the only thing supported by the actual statistical analysis, unlike your claims which are empty words people mindlessly repeat without any evidence supporting them.
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Re: Re: anonymous
Absolutely! Just like violent video game players progress from play killing to real killing.
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Re: Re: anonymous
Exactly. It's the same with violence too. Violent video games are nothing more than murder simulators teaching how to kill. One or two simulated shootings is never enough, they always want more.
...it's got to be real.
Yes, they eventually progress to the real thing. That's how mass murderers are made.
Ban violent video games. Ban violent movies. Stop the violence now!
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Re: Re: anonymous
For example, what if viewing a photograph of a murderer standing over a dead body were a crime? Not actually committing the murder, but just viewing or possessing it? What do you think the chances of someone reporting that image to the authorities becomes?
Pretty much zero. Child porn is awful, but it's not the image that caused the abuse, it's the offender in the image. That's the crime we should be focused on. If we encouraged people to report images rather than delete or hide them, how many more actual child abusers would we catch? I mean, come on, you have an actual image of the perpetrator (maybe not the face, but there's still identifying features), the victim, and their environment, along with any digital metadata we can extract.
In my opinion the FBI should have, at the very least, an "amnesty box" for child porn that people can submit stuff they find to (along with where they found it), and there should be programs to help people who find themselves sexually attracted to children before they become child abusers, just as we have programs for other psychiatric disorders. It's counter-productive to disincentivize criminal reporting and seeking help; that only makes it harder to find child abusers and encourages the creation of new ones.
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