The article details a supposed newly discovered technique the FBI is using to catch child pornographers. This new tactic involves "posting hyperlinks that purport to be illegal videos of minors having sex, and then raiding the homes of anyone willing to click on them." Worried the FBI is putting out its own version of porn to catch these guys? Don't worry because the supposed video files actually were gibberish and contained no illegal images. This is a technique most p2p investigators use to catch pirates.
There is legal precedence to use such tactics but it does raise some very interesting questions about entrapment and privacy. Just who did the FBI nab with this technique?
Roderick Vosburgh, a doctoral student at Temple University who also taught history at La Salle University, was raided at home in February 2007 after he allegedly clicked on the FBI's hyperlink. Federal agents knocked on the door around 7 a.m., falsely claiming they wanted to talk to Vosburgh about his car. Once he opened the door, they threw him to the ground outside his house and handcuffed him.
Vosburgh was charged with violating federal law, which criminalizes "attempts" to download child pornography with up to 10 years in prison. Last November, a jury found Vosburgh guilty on that count, and a sentencing hearing is scheduled for April 22, at which point Vosburgh could face three to four years in prison.Sounds like a cool idea right? You catch bad people who you can prove had an intent to view that material they believed to be on your site which they were led to believe would be child pornography. You get the address of your perpetrator and go arrest him/her.
Any one else see a potential problem? Well, you're not alone. A lot of people find it disturbing that all the FBI and/or any other law enforcement agency has to do is register a domain name and flaunt it through its name or hype as a safe harbor for individuals who may want to see this. The problem which lies in that is what happens to someone who say mistakenly enters the wrong URL and gets the FBI's sting site address. Not to mention how easily another person who get the address, thinks it may not be what it advertises, and "rickroll's" an adversary to that URL. For those of you unaware of "rickrolling", its when you're told in a message a link will take you to a page about flowers (which you want to see) and it then takes you to a Rick Astley video.
I know what you're thinking, "I'm legal beagle but even I can recognize this sort of law enforcement tactic is based on very thin layers of the law." So far, at least, attorneys defending the hyperlink-sting cases do not appear to have raised unlawful entrapment as a defense.
In the case mentioned previously, the prosecuotr relied on the federal child pornography law, which states the definition of "sexually explicit conduct" does not require that sex acts take place):"Claims of entrapment have been made in similar cases, but usually do not get very far," said Stephen Saltzburg, a professor at George Washington University's law school. "The individuals who chose to log into the FBI sites appear to have had no pressure put upon them by the government...It is doubtful that the individuals could claim the government made them do something they weren't predisposed to doing or that the government overreached."
The outcome may be different, Saltzburg said, if the FBI had tried to encourage people to click on the link by including misleading statements suggesting the videos were legal or approved.
The first image depicted a pre-pubescent girl, fully naked, standing on one leg while the other leg was fully extended leaning on a desk, exposing her genitalia... The other image depicted four pre-pubescent fully naked girls sitting on a couch, with their legs spread apart, exposing their genitalia. Viewing this image, the jury could reasonably conclude that the four girls were posed in unnatural positions and the focal point of this picture was on their genitalia.... And, based on all this evidence, the jury found that the images were of minors engaged in sexually explicit conduct, and certainly did not require a crystal clear resolution that defendant now claims was necessary, yet lacking.The article also states, "Harvey Silverglate, a longtime criminal defense lawyer in Cambridge, Mass. and author of a forthcoming book on the Justice Department, replied: 'Because the courts have been so narrow in their definition of 'entrapment,' and so expansive in their definition of 'probable cause,' there is nothing to stop the Feds from acting as you posit.'"
