No, Chat Room Sting Operations Don't Violate Wiretap Laws

And, even if they did, it doesn't matter.

I think chat room sting operations are bad policing and bad policy. I think that the idea that they’re getting predators off the streets fundamentally misapprehends the nature of the online environment, the impact of the same on people’s psychology, and the ability of the police to leverage that with tactics that are functionally — if not legally — entrapment. My suspicion is that police prioritize these hypothetical cases of child sex abuse over actual cases of child sex abuse because (a) you don’t have to leave the comfort of your chair to “investigate” them, (b) they’re much easier to prosecute, (c) there’s lots of money in it and (d) it’s easy, good press for police. I assume that the clearance rate for these operations by police is somewhere north of 90%, whereas the clearance rate for actual reports of sex crimes is often somewhere around 30%. They tend to ensnare people with no criminal record, oftentimes people not much older than the minors police pretend to be. Even more concerning is the rise of vigilante, citizen-run operations which come with none of the Due Process or other constitutional niceties that ostensibly function as guardrails when police are the ones on the other end of the chatbox.

There’s actually quite a lot to be said about them, and I’ve been working off and on on a longer post about cultural, policy, and legal criticisms regarding them. But this isn’t about that. This is about an argument I’ve heard from four different people in the span of as many weeks that these To Catch a Predator-style operations violate federal (and perhaps state) wiretap laws.

They don’t. And it’s not a close question. And even in a hypothetical universe where I (and the courts that have considered the question) are wrong, it doesn’t matter to a hypothetical defendant because the evidence still comes in.

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The argument goes like this: federal wiretap law set out in 18 USC § 2511 prohibits the interception of oral, wire, and electronic communications. It then sets out a number of exceptions, one of which being if a person acting under color of law (i.e., a police officer) who is a party to the conversation consents to the interception.¹ Because police are adopting a persona in these conversations — that is, of an imagined minor — it is in fact not the police officer but the imagined minor who is a party to the conversation, and thus effective consent cannot be given and the recording of those communications for use in subsequent criminal proceedings is against the law.

I award this argument points for creativity, but that’s about as far as it goes. A lying police officer does not stop being a party to a communication because they are lying. They are still a party to the communication, even if we accept that their imagined persona is also a party to the communication. Thus, they can still effectively consent to the interception.

The bigger problem for this argument is this: there’s no suppression remedy. State action that violates a constitutional right, such as the Fourth Amendment — subject to many exceptions — means that evidence gets suppressed. Violation of a statute, on the other hand, often turns on whether the statute itself provides a suppression remedy. Suppression means keeping evidence out at trial, and without suppression, the evidence nonetheless comes in even if it violates 2511, and so to a defendant, it doesn’t matter either way.

The rejoinder is that there is a suppression remedy in 18 USC § 2515 which prohibits the use of unlawfully intercepted wire and oral communications in any subsequent proceeding, and since electronic communications travel along a wire, they would be suppressed. It makes intuitive sense, but unfortunately, the law is often not guided by what makes intuitive sense. There is a definitions section codified at 18 USC § 2510 that provides, in part:

As used in this chapter—

(1) “wire communication” means any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception (including the use of such connection in a switching station) furnished or operated by any person engaged in providing or operating such facilities for the transmission of interstate or foreign communications or communications affecting interstate or foreign commerce;

(2) “oral communication” means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation, but such term does not include any electronic communication;

…

(12)“electronic communication” means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system that affects interstate or foreign commerce, but does not include—

(A) any wire or oral communication;

…

(18) “aural transfer” means a transfer containing the human voice at any point between and including the point of origin and the point of reception;

The suppression remedy that Congress enacted does not include electronic communications, only wire and oral. Wire communication, as defined above, requires an aural transfer, meaning “containing the human voice.” To make the point even more clear, Congress decided to explicitly state that electronic communications are separate and distinct from wire and oral communications.

Thus, even if police are violating wiretap laws, there’s no suppression of the evidence that they obtain unless there is also a constitutional violation of some kind (i.e., Fourth Amendment, Due Process). Courts that have thus far considered these arguments have reached the same conclusions. The United States District Court for the District of Maryland in United States v. Bode does a thorough job of exploring these particular arguments related to wiretap, if you want to read further. I’m not aware of any case that has reached an opposite conclusion, but if there’s one out there I’d certainly be interested in reading it. I doubt that there is, however, because the law itself is pretty unambiguous.

But assume everything I’ve written here is wrong, that Bode and the other courts it cites got it wrong. Let’s say these stings are a violation of federal wiretap law, and let's say that there is a suppression remedy, meaning that — effectively — police are now powerless to conduct these sting operations. Great. All that needs to be done is for Congress to change the law, and given the extreme public popularity of these police operations (and the amount of money involved), how long do you think that will take for politicians to act? In order for any kind of argument to have any real staying power, it has to be grounded in a constitutional — as opposed to statutory — violation.

As stated at top, I’m not a fan of these operations for many reasons, and I think identifying good arguments for knocking them down is in the interest of criminal defense lawyers, civil rights advocates, and also in the interest of good public policy (assuming that what we want to do is prevent child sexual abuse). We only have so much time on this Earth, and our brains are finite things. To the extent we devote our energy to propping up bad arguments, we miss out on opportunities to identify better ones.

1. The law also excepts someone who is not a police officer but who is a party to the conversation, so long as the interception is not done for the purpose of committing a criminal or tortious act. Given the nature of vigilante-run operations, I think it’s arguable whether or not those operations violate federal wiretap laws. But even if so, the other problems related to suppression of evidence still apply.