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March 26, 2008

Clicking a Link is Probable Cause?

Eric at Classical Values is disturbed by a new strategy used by the FBI to catch people who look at child pornography. I posted this story in the headlines last week, but today it's getting more attention in the Right side of the Blogosphere owing to a link from Himself-Himself. It raises a few questions for people who spend a lot of time on the Internet, often indiscriminately clicking hyperlinks.

The FBI has recently adopted a novel investigative technique: posting hyperlinks that purport to be illegal videos of minors having sex, and then raiding the homes of anyone willing to click on them.

Undercover FBI agents used this hyperlink-enticement technique, which directed Internet users to a clandestine government server, to stage armed raids of homes in Pennsylvania, New York, and Nevada last year. The supposed video files actually were gibberish and contained no illegal images.

A CNET News.com review of legal documents shows that courts have approved of this technique, even though it raises questions about entrapment, the problems of identifying who's using an open wireless connection--and whether anyone who clicks on a FBI link that contains no child pornography should be automatically subject to a dawn raid by federal police.

Eric seems almost beside himself at this FBI behavior and writes that it makes him want to contribute to the ACLU to find a way to prevent it. But I'm not convinced that this is impermissible on legal or moral grounds.

First, it's not entrapment. The FBI is providing a temptation for these perverts, but it's not actively encouraging them in their illegal behavior. The hyperlinks were posted to a message board and were themselves provocatively titled "here is one of my favs — 4yo hc with dad (toddler, some oral, some anal) — supercute! Haven't seen her on the board before." But there wasn't any actual solicitation to break the law, nor were individuals targeted by the FBI. This would have been a different story if the link had been emailed to offenders.

Second, the real issue here is whether clicking on a link is probable cause. As Professor Kerr writes, that's a case-specific inquiry. Merely clicking on a link is not usually going to be enough to constitute probable cause for a search warrant. But there are circumstances when it might. Fortunately, those circumstances are so limited as to not worry me. For example, the link was clearly marked as leading to illegal child pornography and was posted on a message board used for distributing such illegal material. It's pretty unlikely that someone would wander into that message board with innocent purposes and then start clicking on hyperlinks with such blatantly illegal descriptions. I concede that it's possible, but it's still not likely.

So, should we get worked up about it? I don't think so. There's no indication that the FBI or the courts have departed from the usual standard for warrants: probable cause. That the FBI has a new technique for catching child pornographers is cause for celebration as far as I'm concerned.

Which brings me to one last thing. Eric writes:

The irony is that predators who go out and commit actual crimes against real children can feel a bit safer, because the more time the police devote to seekers of fake Internet kiddie porn, the less time they'll have to go after the predators in real time.

This is not to defend kiddie porn, but are there any stats on how many kiddie porn violators have ever actually touched a child? What are the priorities? I'd hate to think that the cops are devoting most of their time to going after the easier cases, but the fact is that cases based on possession are a lot easier case to make.

It seems strange that he would juxtapose real child molesters with "fake, Internet kiddie porn." He seems to be ignoring a very real problem: Internet kiddie porn that isn't fake...real monsters abusing real children often for money, trades, or accolades on the internet. The reason we criminalize the mere possession of child pornography and not just its making is because the crime is so heinous it is necessary to strangle the demand for it in order to choke the supply.

Also, child pornographers and those who possess child pornography should be pursued by the FBI even if "the stats on how many kiddie porn violators have ever actually touched a child" show that they are not likely to actually molest a child.

Laws are not optional; neither should be their enforcement. If he thinks we shouldn't have a law against mere possession of child pornography, he should come out and say so.

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posted by Gabriel Malor at 01:11 PM

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