Who Got Stung?

 

I ran across this debate regarding a Kiddie Porn Sting  conducted by the FBI, reported at the Volokh Conspiracy.  Professor Kerr was a participant in the discussion in the New York Times.  I was very disappointed in his response.  I expect better from him.

I have never conducted a kiddie porn investigation.  I have been involved in the periphery by providing grist for the mill, by providing investigative leads to rspecialized investigators. There is no telling what will be found during the execution of a narcotics search warrant.  Dope and kiddie porn share a lot of common ground.

It is illegal to possess both.  People engaged in either trade will go to great lengths to disguise their involvement.  People involved in either activity are involved in a subculture and they network.  They network to provide moral justification of people of like interests validating one another.  It is also necessary to continue and expand their access to the product they desire.  

Investigators have learned that once the veil of anonymity is pierced there is a limited opportunity to use the current subject of investigation to advance to the next stage.  This is done by exploiting information found as a result of seizures and arrest.  It is also done by “flipping” a defendant by offering him a consideration for cooperation at sentencing. It may be enough that the cooperating defendant provides a narrative identifying the who, what, why and where of his customers and suppliers.

Every once and awhile the opportunity presents itself where an undercover operation promises bigger and better results.  Undercover is an investigative technique.  Whether it is an appropriate technique is dictated by circumstances.  With the exception of ATF Arizona of “Fast and Furious fame”, it is a hard and fast rule, dope and guns “do not walk”. That means in an undercover operation with the government acting as sellers, the guns and or dope offered for sale does not leave government control. I am assuming that that rule would apply to kiddie porn.  

Simply put, the Supreme Court differentiated between adult porn and kiddie porn by observing that children portrayed in kiddie porn were by virtue of their age, incapable of giving their consent to the activities pictured. Representations of their sexual abuse was a violation of their civil rights and continued to be long after they reached adulthood.  This ongoing violation is what makes kiddie porn prohibited in every circumstance.

With guns, dope and kiddie porn in the form of physical photographs, videos and magazines, ultimately there must be a face to face meeting to exchange product for cash.  The crook’s possession of the contraband can typically be measured with an egg timer.

Digital media is an entirely different matter. Ignore for the moment the money trail left by credit card companies and PayPal, they do. With digital there is no need for a face to face exchange, everything can be done online. Does this mean that government loses control of the digital media?

Three of the commenters point out that it makes no difference whether it is pornographers satisfying their prurient interests or the government attempting to further an investigation, once again these children are victimized.  That fact alone should prohibit the government from exploiting a kiddie porn site to advance law enforcement interests.

I am not a computer geek.  I see two possible alternatives to support the FBI action.  Once the FBI gains control of the pronographer’s servers I suspect that they are able to track almost every transaction to its source.  With sufficient resources the FBI could decide in real time whether or not to allow a transaction.  An interrupted transmission may serve to identify the offender without divulging kiddie porn.  If a transmission is allowed then the information must be exploited within a preset time period.  

Another alternative is that the FBI and Customs and Immigration have a massive database of kiddie porn.  There is an ongoing effort to identify victims.  The second course is to build a database that has been vetted by FBI, Customs and Immigration, the Department of Justice and private sector entities like the Center for Missing and Exploited Children.

The unfortunate reality is that many of the children depicted in child pornography didn’t survive.  They can no longer be violated.  This database could then be substituted for the one on pornographers website.  The additional value of using a government maintained database of kiddie porn is that use of the images are controlled at a central point. This means investigative goals, policies and procedures would have to meet certain standards before the database can be used.  

I find it distasteful to suggest using pornographic images of children, identified as deceased by law enforcement.  If the ongoing victimization of the children is a defining factor in making a determination as to what constitutes kiddie porn then such a database may meet the letter of the law, if not the spirit. It is a dirty business, as any investigator can tell you.  There are things they see, that once seen cannot be unseen.

I do not know if either approach is a viable solution.  What I do know is handwringing in an ivory tower or talking about runaway trains has done nothing to address the problem.  

The only thing necessary for the triumph of evil is for good men to do nothing.

Edmund Burke