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Posted on 03/24/2008 2:16:11 PM PDT by E. Pluribus Unum
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. . .
The implications of the FBI's hyperlink-enticement technique are sweeping. Using the same logic and legal arguments, federal agents could send unsolicited e-mail messages to millions of Americans advertising illegal narcotics or child pornography--and raid people who click on the links embedded in the spam messages. The bureau could register the "unlawfulimages.com" domain name and prosecute intentional visitors. And so on. . .
While it might seem that merely clicking on a link wouldn't be enough to justify a search warrant, courts have ruled otherwise. On March 6, U.S. District Judge Roger Hunt in Nevada agreed with a magistrate judge that the hyperlink-sting operation constituted sufficient probable cause to justify giving the FBI its search warrant. . .
The magistrate judge ruled that even the possibilities of spoofing or other users of an open Wi-Fi connection "would not have negated a substantial basis for concluding that there was probable cause to believe that evidence of child pornography would be found on the premises to be searched." Translated, that means the search warrant was valid.
Entrapment: Not a defense So far, at least, attorneys defending the hyperlink-sting cases do not appear to have raised unlawful entrapment as a defense.
"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.". . .
Civil libertarians warn that anyone who clicks on a hyperlink advertising something illegal--perhaps found while Web browsing or received through e-mail--could face the same fate.
When asked what would stop the FBI from expanding its hyperlink sting operation, 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."
Thanks Mad Dawgg. That’s pretty much my perception as well. And it should provide a massive “OUT” for any person providing there is an authority willing to listen to reason. I will say that if the FBI wants to verify a guy is really into this stuff, it should be possible for them to verify it if they were willing to spend the time to do it the right way.
I’m not against taking this sort of thing down. I do not like the idea of government setting up situtations to entrap people.
There are probably enough sites out there that are real, to allow the FBI to find out who is tapping in frequently. And those folks should be taken to task.
I have set up my computer router properly, but I agree that there are many out there who probably don’t.
Libertarian ping! To be added or removed from my ping list freepmail me or post a message here.
I agree. And I agree that you’ll never clear your name either.
I’m sure they do. And if you’re running a home business, heaven help you as you try to keep your income flowing.
The downside of this is very oppresive IMO.
So, what if you don't have any forbidden porn but there's something else of interest to the searchers? It isn't on the warrant, but who wants prying eyes all around the house. Also, do they rip out your hard disk as part of the search, taking whatever personal files (passwords, tax records, great novels) you have with them, so they can check for encrypted porn?
If there isn't significant evidence of major kiddie porn downloads (not just a clickthrough) I say its not enough for them to toss your home.
If such a thing happened to me it would nearly destroy my business. As I posted in #119, if you know the URL the FBI is monitoring you can put anyone you want on that list as long as you can get them to load a (totally innocent looking) web page. And if someone is hijacking your wireless connection, you don’t need to take any action at all to be subject to such a warrant.
gnip...
Which is why I said I was not defending the program. I was only responding to some folks who thought that if you clicked on the link you went straight to jail for attempt.
“Claims of entrapment have been made in similar cases, but usually do not get very far,”
Possibly my memory is faulty but didn’t claims of entrapment fly quite well in ABSACM?
I’m not sure how tech-savvy you are... but that’s basically what happened in this case. The guy got sent to jail for clicking on the link and for two thumbnail images that he may or may not have ever looked at. He’s probably a slimeball, but they sent him away on no evidence, nevertheless.
When they came for the Jews, I said nothing because I'm not Jewish.......
Not very.
:-(
OK then... as a professional programmer of many years, I can tell you that I could get you on the FBI’s target list if I knew the URL they were monitoring, without any action from you if you have a wireless network and I was physically nearby; or alternatively, I could get you on the list by simply enticing you to click a totally innocent link, which would load a totally innocent-looking webpage which would give you no reason to believe that you just created probable cause for a search warrant.
See my post #119 for a (non-functional but conceptually correct) version of the code. It’ll scare the crap out of you.
And stay away from fluffy bunnies!
Not true. It has the potential for abuse.
So here are a bunch of Spitzer types rummaging through your house. You don't really think they are going to stop with your computer do you???
Under the bed, in the closet, all of your photo albums...
That toy you tickle your woman with....against the law in AR, and probably several other local jurisdictions.....
Do you really believe that the feds should be digging through all of your stuff? You do have a license for that pistol your grandpa brought back from Germany in WWII don't you?
These are all things the feds have absolutely no business knowing about you. They are part of your personal life.
There is child porn and it is a wicked thing. But there are also too many “holier than Thous” who will, as they did with the woman who took pictures of her daughter, bend both the law and reason and the result will be the prosecution of ordinary good people.
This is what our Constitution is all about. You who do not realize that are giving away your freedom. They are not taking it, you are offering it to them on a silver platter.
If we do not wish to lose our freedom, we must learn to tolerate our
neighbor's right to freedom even though he might express that freedom
in a manner we consider to be eccentric.
I'm not defending the fbi here, but after reading that, I wonder if some of the story is being misreported. (How often do they botch stories concerning guns, for example.)
My guess is that he downloaded the bogus file - the "attempt" - and not simply looked at it. There had to be more than a small handful of people who clicked on the link. If there were 100's of raids, then I would think it would have made the news. That said, I agree with most on this thread. This is BS.
Innocent looking game sites are often prone to spreading viruses.
Years ago a friend of mine was hit by a guy running a stop light - her 12 year old daughter sitting in the back seat has had at least 8 operations - and is now a young adult. Ask me if I care if some jerks' life is "coarsened" by a camera - I don't.
Consider the facts of the case described in Declan's story. (Warning: The facts are graphic.) An undercover FBI logged in to a now-defunct message board hosted in Russia called "Ranchi," which the agent knew to be used for distributing images of child pornography. The agent posted a message, "here is one of my favs — 4yo hc with dad (toddler, some oral, some anal) — supercute! Haven't seen her on the board before" with links to URLS that appeared to host a file named "4yosuck". The links ended up being to an FBI computer that didn't host anything criminal, but the FBI computer collected the IP addresses of the people who clicked on the link. When the IP address resolved to an ISP in the U.S., the FBI obtained the home address associated with the account and then raided the house for the computer and any child pornography stored inside the house. Did the government's affidavit create probable cause? I would need to look at the entire affidavit to know for sure, but just based on these basic facts I would think the case for probable cause is likely to be pretty good. I assume the FBI did not in any way broadcast their IP address or host anything on that computer, and that the link came in soon after the message was posted, so it seems likely that the only incoming web traffic request would be from a link other than from the message board. And given the context, this seems like an unlikely link that someone might come across by accident. To be sure, it's possible to imagine scenarios involving innocent links or some other break in the connection between the home and the possible evidence (unsecured wireless connections, for example), but my sense is that this would still likely create probable cause (again, a call hard to make without seeing the whole affidavit, just something that is likely). Nor is there a case for entrapment at trial on these facts. For a defendant to have an entrapment defense, the government needs to pressure him to commit the crime in some way. Here there was no significant pressure; the government created and advertised the opportunity but did not excessively push the defendant to click on the link. Does this mean that the government could send you spam with apparent links to child pornography, and that if you clicked on the link the government could raid your home? No, I don't think so. In the case of spam in an inbox, a person might click on a link by mistake or out of curiosity as to what the file may be without actually knowing or expecting it to be child porn. That seems significantly less likely in the case of a link on a message board such as the one in this case. Second, a spam e-mail is unlikely to be as clearly labeled as the image in this case. What tends to make the case for probable cause in the case Declan described is the likelihood in context that a person who clicked on the link was actually looking for images of child pornography. If you change the context, you change the strength of the case for probable cause.
Here are portions of the FBI affidavit in this case. The libertines will not post all of it, because it conclusively shows that the pervs were dead wrong here, but here is a small portion of the affidavit.
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