Creative interpretations do not end with Joe Q. Public's assumptively uninformed view. The courts use absurd creativity all the time, whether declaring that police are party to the communication merely by manipulating a real user into a conversation, ignoring the fact that cops get no warrant and have no probable cause in the first place for being on a most intimate space where adults are acting lawfully most of the time, or when courts avoid substantive analysis of the 4th amendmennt post-Katz in the digital age, and the eroding concept of democratic policing, where the citizenry decides where police priorities ought to be, aka CCOPS model legislation , advanced by the Washington, DC ACLU. See also discussion in Barry Friedman's book, Unwarranted; policing without Permission (2017), passim, esp. pp. 21, 41-42, 115-116, 156). It is simply who has the power, or thinks they do.
As far as people finding the stings represent their interests...well, not when the other side (us) has a chance to fill them in. I have spoken to a couple of unknowing crowds and scores of small groups of 2-3; when they learn what cops REALLY do, they become much less enamoured of police activity. As long as police, prosecutors, and judges have the bully pulpit, they will continue to prey on us all.
Well police generally aren't going to need a warrant or probable cause to receive information that someone willingly provides. Despite things I've heard to the contrary, the third party doctrine is still alive and well which the Supreme Court recently noted in the narrowness of its holding in Carpenter.
As far as the bully pulpit, I agree. I think these stings are great at generating copaganda, as they speak to the still existing popularity of shows like TCAP and vigilante groups that do the same for social media likes and moving merch. Police have and will always use the spectre of hypothetical sex crimes for why they need more money and authority, all the while ignoring actual ones.
And willingly provided information...we never 'willingly' provided any info to a cop. EVer. In my case, he was so desperate to find SOME sex talk ,he impersonated someone with whom I was involved, then tried to use that unrelated case against me.
What about the 4th amendment protections? Instead, the courts make up damnable doctrines like Third Party and Absolute/Qualified Immunity which appear no where in the US Constitituon.
Also, VA law 18.2-62-68 seems to preclude cops from doing what they keep getting away with.
It turns on whether there is a "search," which turns on whether persons have a reasonable expectation of privacy in whatever location police are in. You're right that third party doctrine doesn't appear in the constitution, but it is -- for better or worse -- the law of the land.
As far as VA law, it looks like that section was repealed in 2021 so I don't know what it says, or said, but it I assume that it runs into the same problem I wrote about in the post: it's not a constitutional argument, but a statutory one. All the VA legislature would have to do to close that door, even if it were a door, is change the law, which they appear to have done. I think whether police violate the law in the course of prosecuting someone could potentially be relevant to a Due Process type argument, but only potentially, and it depends on the facts of the case.
Yes, I have noted the court has come up with all sorts of convenient ways to excuse its bad behavior, abdication of responsibility to render a useful verdict, and general fecklessness when remembering for whom the Constitution was written -- the people writ large.
It looks to me that B(2) is pretty similar to federal law, where someone is a party to the conversation, they can intercept it without violating the statute. In these operations, police officers are parties to the conversation.
The assessment that law enforcement prioritizes these cases because they are sure-wins and justify funding increases to fund swat teams that go after people in their homes chatting with hypothetical victims is on par. Follow the money: The social media companies are reaping record profits from ad revenue. They lobby Congress to leave Section 230 as it is while politicians and police look tough for going after perpetrators who look what's behind the curtain. These laws and law-enforcement strategy is not protecting children and diverts law enforcement resources from addressing the violent crimes on our streets. There's no condoning online predatory behavior, but criminalizing people who are battling addictions or who were once victims themselves by setting up sting operations is not the answer.
19.2-66(b)(1) authorizes ONLY the VA AG or Deputy AG to apply for a warrant, which, in 19.2-62, it requires in order to wiretap. Wiretapping is unauthorized use of ANY electronic communication (19.2-62(A), if they are acting "pursuant to this [code]," which means they must get a warrant for their activites. Nothing says they cannot do stings, just that they need to get a warrant. This was essentially codifed by the US Supremes in the Carpenter decision: When in doubt, get a warrant.
However, police over and over again step into the grey area (or create one) so they can do whatever they want, allegedly in the name of justice. Until a court shuts them down, as happened in a circuit court case Allen, it will continue.
Can you point out where it says in the statute it says a person who is a party to an electronic communication cannot intercept the same without a warrant? I'm not seeing it. My read of the other statute you're referring to is authorization for an actual wiretap (i.e., when they are not a party to the conversation).
I believe there's one reason why they don't get warrants prior to these operations. Because they'd have to reveal their sleazy, manipulative, deceptive operational tactics.
Police only need a warrant if they are conducting a "search," which within the meaning of the Fourth Amendment requires a reasonable expectation of privacy. Third party doctrine aside, my understanding is that the terms of platforms where these operations take place are sufficient to put defendants on notice that they do not have such an expectation.
The police have argued that , too, as one did just yesterday -- a police public information officer. But that is only in line with wrong-headed rulings by the courts, which have ignored (as they often do) inconvenient facts, such as we now live in a totally connected electronic world. If I take a picture of a check and send it to my bank, I have no expectation of privacy that someone, someplace, as it bounces off a satellite can view that check, or even claim it? No one would argue that. Even judges, who haughtily proclaim one has no privacy online (because some other judge also said it) when faced with embarrassing intimate text messages between he and his wife would surely move to have them suppressed -- "lack of privacy" be damned.
I responded under the wrong comment - sorry! I'll copy my response below:
Just a note re: warrants or authorizations. The AG’s Guidelines on FBI Undercover Operations state clearly that there needs to be a warrant, court authorization or supervisory authorization if UC agents will be committing any felony (defined in the guidelines as, "otherwise illegal activity...any activity that would constitute a violation of Federal, state, or local law if engaged in by a private person acting without authorization." There are a number of illegal activities that, if done by a private citizen, would be considered felonies, including 1591/1594, 373 Solicitation to commit a crime of violence, 1594 Conspiracy, 2422 Coercion and enticement (persuades, induces, entices a person to commit any sexual activity for which any person can be charged with a criminal offense), 1956 Initiating or participating in a transaction involving sex trafficking, 1349 Attempt and conspiracy of any Title 18 crime, 1028 Identity Theft (using pics of real people who are not law enforcement). (These are in addition to Bonnie's list, which you find debatable.)
What do you think "supervisory authorization" means? And if there's a violation of the AG's guidelines...okay? So what? Unless there's a suppression remedy in a statute, it's going to be difficult to convince a court that the evidence should be thrown out absent some sort of constitutional violation such as Fourth Amendment or Due Process.
And it's not that I find it debatable, I think it's wrong, and it's not a difficult question.
Is there not a standard suppression, irrespective of specific statute, similar to other doctrines on evidence, which go for any and all rules of procedure? I am probably not framing the question quite exactly, but it seems odd to me that some important rules require specificity in EACH law, and others are covered just fine under Rules of Procedure or Evidence.
I suppose, yes, supervisory authorization could be as flimsy as a nod from the SAC, but it's still required and without official documentation, then an honest prosecutor may actually hold them accountable. Perhaps no remedies are available to help the 'stung,' but it may dissuade an agent or two if they are prosecuted as a private citizen for those felonies they're committing. I also think that the public awareness of this operating outside the guidelines would apply some needed pressure.
Interesting article. I'd like to see Bonnie and yourself discuss together.
One major correction here - the QANON proactive stings are exclusively held on adult sites with profiles and ads of adults only - they are not held in 'chat rooms'. To which LE is also lying to enter these sites as the TOU's state only 18+ and LE must click that they are indeed of age and agree to all the forum rules. Its funny that that fact is belittled in court yet on a company site such action would be legally binding and indefensible. On a government site, clicking while lying can put you in jail.
We've communicated and I'm not sure what more there is to say, but I'm always happy to talk further. I like arguments about police violating a site's TOS to enter them better than the wiretap angle where the TOS say you have to be an adult to use them, because it's a piece of evidence that negates a defendant's belief that the person that they're dealing with is a minor. Even still, police are allowed to lie (to a point), and those arguments are highly specific to the facts of a particular case. But as an aside, I've routinely criticized these kinds of operations where police (or others) pose as adults because the only reason to do so is to try to catch more people who would not otherwise contact a minor. The bait-and-switch technique, coupled with the online environment, is coercive.
Edit: It just occurred to me that I would guess if a site's TOS require people to be of age, then law enforcement technically wouldn't be violating it since they *are* of age, even if they pretend not to be. I guess it would come down to what the specific TOS are, but even if there's a TOS violation, it's not clear to me immediately how that helps a defendant. Perhaps another bullet in a Due Process argument.
Thank you for the reply Guy. There are many more coercive things than the bait and switch and online environment. LE actually alter the texts used if a victim is bold enough to go to trial. Yup, we have it. You are also correct that they ignore direct orders to work reactive cases in favor of QANON stings. Yup, we have that as well. There is a LOT to this issue. Thank you for the article.
I fully believe that police routinely engage in sloppy, unethical, and coercive tactics with these kinds of operations because police and prosecutors often engage in sloppy, unethical, and coercive tactics. It's the name of the game. To the extent that individual cases have viable defenses like chain of custody, entrapment, etc I think, but they are all pretty fact specific and often turn on the willingness of the defense lawyer to roll their sleeves up and dig in.
Yet, courts have found equally uncompelling the argument that cops violate the TOS of these sites; nor do the site admin and legal depts care. They get free policing, and will apparently not file suit against the police -- until their own interests are threatened. They should be protecting the rights of their subscriber/users, instead of allowing them to fall prey to cops. Yet, Section 230 of the CDA seems to protect these sites from prosecution in this event as well.
Oh, the sticky-wicket of case law built upon weak legislators, prosecutors and judges who are too worried about elections, funding and publicity and not so much worried about statutes, constitutional rights and policy (warrants, court authorizations, etc.). Law enforcement intent on arrests and hiding behind the excuse of "operational security" and mandatory minimums have been allowed to drift into unquestionably unconstitutional territory without the public's consent or knowledge or even warrants at all. They ensnare adults seeking adults (using adult photos in ads and legal ages) as they weave their tale that this imaginary creation is a minor. They then take down men who either show up to observe or don't believe it was a minor at all.
By the way, these scenarios don't EVER 'save a child,' and they don't 'catch pedophiles' either. High conviction rates come from plea agreements to lesser charges because of the threat of 10-year mandatory minimums.
I'm all for reactive stings that are based in reality (with real tips and victims and warrants and court authorizations), but law enforcement has discovered this golden cash-cow that provides ongoing funding and glory, while rescuing no one and creating child trafficking crimes where none existed....and prosecutors and judges turn a blind eye to it. Law enforcement know their tactics are questionable because they lack warrants prior to these operations, and if they do request a warrant after the fact to secure phones, etc., their probable cause consists of one or two lines of ambiguous rationale based on their own, self-propagated arrest statistics. In the meantime, they cry poor when it comes to having the resources to investigate all the other REAL tips.
That okay? I don't think so, and I have a feeling many Americans would feel the same if they knew the truth, but when law enforcement are given carte blanche because child trafficking is a hot-button issue, then we find law enforcement operating illegally in the shadows and bad case law trampling on our constitutional rights.
You should read if you haven't already:
Manufacturing Criminals: Fourth Amendment Decay in the Electronic Age - Bonnie Burkhardt
Bonnie is a ECPA expert (probably one of the top nationally), and her expert opinion clarifies the statutes on privacy and communications (regardless of bad case law).
Bonnie and I have communicated, and I'm not convinced, but more importantly, neither are any of the courts I'm familiar with where the argument as been raised. If I thought it was a close call, it would be a different story (i.e., keep making the argument and eventually a court will side with you), but the argument misapprehends the plain text of the statute that's available for anyone to read and conflates the consequences of a statutory violation with a constitutional one.
And as I wrote, even if I'm wrong and the courts are all wrong, it is not a long term solution for anyone looking to argue against these kinds of police operations because Congress can simply amend the law to make these operations legal. Given their popularity in the public eye, the amount of money involved, and the ease at which police can translate these cases into good PR, I don't think that would take much time at all.
Since you've spoken with Bonnie, then you have probably heard the finely nuanced argument of what a legal 'person' is in this context, and legally, the undercover chatter needs to be able to convincingly appear as the person they are portraying face-to-face. Most cannot, but it is what distinguishes the stings where they have an UC female agent who can pull off the look of a minor.....BECAUSE the guy showing up actually has an "opportunity to observe" (18 USC 1591(c) highlights observation as so important it removes the government's burden to prove belief). Law enforcement have so fabricated these stings as to bookend the brief mention of being a minor with adult photos and 18+. They rely on juries believing that men read and absorb every text, and that they know whom they're going to meet (when they've probably been texting a number of other women). Then, when men show up to observe if in doubt, they are immediately arrested. How very convenient. A looming 10-year sentence in a maximum security federal prison for simply showing up to confirm, if they even believed it was a minor at all (since the photos shared are often of 18+ women).
Further, the idea that law enforcement can go trolling around in hopes of ensnaring someone who's worst crime at that point may be trying to buy sex on an adult commercial sex site is repugnant but more acceptable IF they actually have individualized probable cause and warrant or court authorization with an individual's name to do so.
Law enforcement should have to DO BETTER, especially when the punishment is 10 years minimum.
I've heard the argument, and I think it's wrong. I am aware of no legal or even logical basis from which one can conclude that a law enforcement officer is no longer a party to a conversation if they are being deceptive as to their identity, which is what would be required to violate federal wiretap statutes and, as I wrote, wouldn't matter either way. 1591 is an altogether different crime, as it requires an actual minor to be involved.
I agree that law enforcement should do better, but so should the people looking to force them into doing so if that's the goal we hope to achieve.
Just a note re: warrants or authorizations. The AG’s Guidelines on FBI Undercover Operations state clearly that there needs to be a warrant, court authorization or supervisory authorization if UC agents will be committing any felony (defined in the guidelines as, "otherwise illegal activity...any activity that would constitute a violation of Federal, state, or local law if engaged in by a private person acting without authorization." There are a number of illegal activities that, if done by a private citizen, would be considered felonies, including 1591/1594, 373 Solicitation to commit a crime of violence, 1594 Conspiracy, 2422 Coercion and enticement (persuades, induces, entices a person to commit any sexual activity for which any person can be charged with a criminal offense), 1956 Initiating or participating in a transaction involving sex trafficking, 1349 Attempt and conspiracy of any Title 18 crime, 1028 Identity Theft (using pics of real people who are not law enforcement).
Yes, you can be convicted of inchoate offenses that don't involve a real person, but the section that you were referencing in the statute which undercuts the mens era requirement requires a real person. If the DOJ is using that particular provision to negate mens element for that particular statute for an attempted offense, then I agree I think that's not correct, but that's really something that would have to get hammered out in jury instructions.
As I wrote, absent a constitutional violation, if the statute doesn't provide for a suppression remedy, it doesn't matter if police commit crimes unless it amounts to some sort of a constitutional violation. Same for any self-imposed guidelines that law enforcement have. They can all be relevant to the question of whether there is a constitutional violation, but they are not in and of themselves going to get a case dismissed or evidence suppressed.
Thank you for your response, which gives me more to research. Re: 1591, there are men right now who have been indicted under 18 USC 1591/1594 (attempted sex trafficking of a minor) after they clicked on an adult ad, on an adult commercial sex site, and were then told it was a minor, then again shown an 18+ photo, then arrested when showing up. If you have reason to believe this is illegal federally, I would certainly appreciate any information or resources.
Yes: the Fourth Amendment, and various doctrines that have evolved over time through caselaw such as fruit of the poisonous tree and the many, many exceptions to the general rule that evidence obtained in violation of a constitutional violation should not be used by the government at trial.
The only thing that would require specificity is a suppression remedy in a state or federal statute. If it isn't in there, then it doesn't get suppressed absent a constitutional violation of some kind.
You might have an expectation of privacy, but it's whether it is a "reasonable" one that makes the difference for Fourth Amendment analysis. A lot of that turns on the specific facts of the question, but generally, with respect to bank records, neither you nor I have a reasonable expectation of privacy in them. SCOTUS said as much in 1976 in US v. Miller which as far as I know hasn't been overruled.
For these kinds of cases, that often turns on an analysis of the site's terms of service. Some sites offer greater privacy protections than others, which can impact the analysis.
As long as Internet Search Engines Exist, Registries ARE THERE for all ...we are all exist on a Registry FOREVER!
It usually costs about $150K to $250K to get your info pushed down on an internet Search Engine List...but it will always exist....this includes FDLE's FLORI-DUH's ability to list your Name on the top of a search engine primarily on Google....they must pay for it...they have to.....an FOIA would have to filed to find out but I am sure the info will never be disclosed.....
...ALAS, it is what it is.....Every Convicted Person is on a List...Internet Search Engines!
I am remembering that some time ago, I had a conversation with an elderly attorney who had a novel idea. He suggested we might fight against the stings using the "fraud exception" as a means of defense. As I understand it in purely layman's terms, one claims that the police are acting fraudulently, deceiving the court (we can explain their turn-key process for entrapment) and thereby, depriving people of liberty by committing fraud on the court. Thoughts?
I'm not aware of a generalized fraud exception. Police are allowed to engage in deception when it comes to their investigations, though obviously the state has an ethical duty to behave with candor to the court and to opposing counsel.
An argument I am familiar with, but that is seldom effective except in fairly egregious cases, is a due process argument for dismissal based on police and prosecutorial misconduct.
And due process, whatever the hell that means, is among the most toothless of tigers. When they fired me from my teaching job, they had to first go through the dance of providing me "due process" -- a 'public' hearing in the far corner basement of the headquarters in a cramped conference room. They refused to advertise it for the public, but I could "invite" anyone -- not public then, right? Instead, "by invitation only," unless we are talking about the clairvoyant public. VA law only required them to prove I had been convicted of a felony -- something a precocious 5th grader could do.
Creative interpretations do not end with Joe Q. Public's assumptively uninformed view. The courts use absurd creativity all the time, whether declaring that police are party to the communication merely by manipulating a real user into a conversation, ignoring the fact that cops get no warrant and have no probable cause in the first place for being on a most intimate space where adults are acting lawfully most of the time, or when courts avoid substantive analysis of the 4th amendmennt post-Katz in the digital age, and the eroding concept of democratic policing, where the citizenry decides where police priorities ought to be, aka CCOPS model legislation , advanced by the Washington, DC ACLU. See also discussion in Barry Friedman's book, Unwarranted; policing without Permission (2017), passim, esp. pp. 21, 41-42, 115-116, 156). It is simply who has the power, or thinks they do.
As far as people finding the stings represent their interests...well, not when the other side (us) has a chance to fill them in. I have spoken to a couple of unknowing crowds and scores of small groups of 2-3; when they learn what cops REALLY do, they become much less enamoured of police activity. As long as police, prosecutors, and judges have the bully pulpit, they will continue to prey on us all.
Well police generally aren't going to need a warrant or probable cause to receive information that someone willingly provides. Despite things I've heard to the contrary, the third party doctrine is still alive and well which the Supreme Court recently noted in the narrowness of its holding in Carpenter.
As far as the bully pulpit, I agree. I think these stings are great at generating copaganda, as they speak to the still existing popularity of shows like TCAP and vigilante groups that do the same for social media likes and moving merch. Police have and will always use the spectre of hypothetical sex crimes for why they need more money and authority, all the while ignoring actual ones.
And willingly provided information...we never 'willingly' provided any info to a cop. EVer. In my case, he was so desperate to find SOME sex talk ,he impersonated someone with whom I was involved, then tried to use that unrelated case against me.
What about the 4th amendment protections? Instead, the courts make up damnable doctrines like Third Party and Absolute/Qualified Immunity which appear no where in the US Constitituon.
Also, VA law 18.2-62-68 seems to preclude cops from doing what they keep getting away with.
It turns on whether there is a "search," which turns on whether persons have a reasonable expectation of privacy in whatever location police are in. You're right that third party doctrine doesn't appear in the constitution, but it is -- for better or worse -- the law of the land.
As far as VA law, it looks like that section was repealed in 2021 so I don't know what it says, or said, but it I assume that it runs into the same problem I wrote about in the post: it's not a constitutional argument, but a statutory one. All the VA legislature would have to do to close that door, even if it were a door, is change the law, which they appear to have done. I think whether police violate the law in the course of prosecuting someone could potentially be relevant to a Due Process type argument, but only potentially, and it depends on the facts of the case.
VA code 19.2-62-68, not 18.2...sorry.
Yes, I have noted the court has come up with all sorts of convenient ways to excuse its bad behavior, abdication of responsibility to render a useful verdict, and general fecklessness when remembering for whom the Constitution was written -- the people writ large.
It looks to me that B(2) is pretty similar to federal law, where someone is a party to the conversation, they can intercept it without violating the statute. In these operations, police officers are parties to the conversation.
The assessment that law enforcement prioritizes these cases because they are sure-wins and justify funding increases to fund swat teams that go after people in their homes chatting with hypothetical victims is on par. Follow the money: The social media companies are reaping record profits from ad revenue. They lobby Congress to leave Section 230 as it is while politicians and police look tough for going after perpetrators who look what's behind the curtain. These laws and law-enforcement strategy is not protecting children and diverts law enforcement resources from addressing the violent crimes on our streets. There's no condoning online predatory behavior, but criminalizing people who are battling addictions or who were once victims themselves by setting up sting operations is not the answer.
19.2-66(b)(1) authorizes ONLY the VA AG or Deputy AG to apply for a warrant, which, in 19.2-62, it requires in order to wiretap. Wiretapping is unauthorized use of ANY electronic communication (19.2-62(A), if they are acting "pursuant to this [code]," which means they must get a warrant for their activites. Nothing says they cannot do stings, just that they need to get a warrant. This was essentially codifed by the US Supremes in the Carpenter decision: When in doubt, get a warrant.
However, police over and over again step into the grey area (or create one) so they can do whatever they want, allegedly in the name of justice. Until a court shuts them down, as happened in a circuit court case Allen, it will continue.
Can you point out where it says in the statute it says a person who is a party to an electronic communication cannot intercept the same without a warrant? I'm not seeing it. My read of the other statute you're referring to is authorization for an actual wiretap (i.e., when they are not a party to the conversation).
I believe there's one reason why they don't get warrants prior to these operations. Because they'd have to reveal their sleazy, manipulative, deceptive operational tactics.
Police only need a warrant if they are conducting a "search," which within the meaning of the Fourth Amendment requires a reasonable expectation of privacy. Third party doctrine aside, my understanding is that the terms of platforms where these operations take place are sufficient to put defendants on notice that they do not have such an expectation.
The police have argued that , too, as one did just yesterday -- a police public information officer. But that is only in line with wrong-headed rulings by the courts, which have ignored (as they often do) inconvenient facts, such as we now live in a totally connected electronic world. If I take a picture of a check and send it to my bank, I have no expectation of privacy that someone, someplace, as it bounces off a satellite can view that check, or even claim it? No one would argue that. Even judges, who haughtily proclaim one has no privacy online (because some other judge also said it) when faced with embarrassing intimate text messages between he and his wife would surely move to have them suppressed -- "lack of privacy" be damned.
I responded under the wrong comment - sorry! I'll copy my response below:
Just a note re: warrants or authorizations. The AG’s Guidelines on FBI Undercover Operations state clearly that there needs to be a warrant, court authorization or supervisory authorization if UC agents will be committing any felony (defined in the guidelines as, "otherwise illegal activity...any activity that would constitute a violation of Federal, state, or local law if engaged in by a private person acting without authorization." There are a number of illegal activities that, if done by a private citizen, would be considered felonies, including 1591/1594, 373 Solicitation to commit a crime of violence, 1594 Conspiracy, 2422 Coercion and enticement (persuades, induces, entices a person to commit any sexual activity for which any person can be charged with a criminal offense), 1956 Initiating or participating in a transaction involving sex trafficking, 1349 Attempt and conspiracy of any Title 18 crime, 1028 Identity Theft (using pics of real people who are not law enforcement). (These are in addition to Bonnie's list, which you find debatable.)
What do you think "supervisory authorization" means? And if there's a violation of the AG's guidelines...okay? So what? Unless there's a suppression remedy in a statute, it's going to be difficult to convince a court that the evidence should be thrown out absent some sort of constitutional violation such as Fourth Amendment or Due Process.
And it's not that I find it debatable, I think it's wrong, and it's not a difficult question.
Is there not a standard suppression, irrespective of specific statute, similar to other doctrines on evidence, which go for any and all rules of procedure? I am probably not framing the question quite exactly, but it seems odd to me that some important rules require specificity in EACH law, and others are covered just fine under Rules of Procedure or Evidence.
I suppose, yes, supervisory authorization could be as flimsy as a nod from the SAC, but it's still required and without official documentation, then an honest prosecutor may actually hold them accountable. Perhaps no remedies are available to help the 'stung,' but it may dissuade an agent or two if they are prosecuted as a private citizen for those felonies they're committing. I also think that the public awareness of this operating outside the guidelines would apply some needed pressure.
Yes, LE can commit felonies, and always argue they were doing so in the public trust. And how often has THAT been violated?
Interesting article. I'd like to see Bonnie and yourself discuss together.
One major correction here - the QANON proactive stings are exclusively held on adult sites with profiles and ads of adults only - they are not held in 'chat rooms'. To which LE is also lying to enter these sites as the TOU's state only 18+ and LE must click that they are indeed of age and agree to all the forum rules. Its funny that that fact is belittled in court yet on a company site such action would be legally binding and indefensible. On a government site, clicking while lying can put you in jail.
We've communicated and I'm not sure what more there is to say, but I'm always happy to talk further. I like arguments about police violating a site's TOS to enter them better than the wiretap angle where the TOS say you have to be an adult to use them, because it's a piece of evidence that negates a defendant's belief that the person that they're dealing with is a minor. Even still, police are allowed to lie (to a point), and those arguments are highly specific to the facts of a particular case. But as an aside, I've routinely criticized these kinds of operations where police (or others) pose as adults because the only reason to do so is to try to catch more people who would not otherwise contact a minor. The bait-and-switch technique, coupled with the online environment, is coercive.
Edit: It just occurred to me that I would guess if a site's TOS require people to be of age, then law enforcement technically wouldn't be violating it since they *are* of age, even if they pretend not to be. I guess it would come down to what the specific TOS are, but even if there's a TOS violation, it's not clear to me immediately how that helps a defendant. Perhaps another bullet in a Due Process argument.
Thank you for the reply Guy. There are many more coercive things than the bait and switch and online environment. LE actually alter the texts used if a victim is bold enough to go to trial. Yup, we have it. You are also correct that they ignore direct orders to work reactive cases in favor of QANON stings. Yup, we have that as well. There is a LOT to this issue. Thank you for the article.
I fully believe that police routinely engage in sloppy, unethical, and coercive tactics with these kinds of operations because police and prosecutors often engage in sloppy, unethical, and coercive tactics. It's the name of the game. To the extent that individual cases have viable defenses like chain of custody, entrapment, etc I think, but they are all pretty fact specific and often turn on the willingness of the defense lawyer to roll their sleeves up and dig in.
Yet, courts have found equally uncompelling the argument that cops violate the TOS of these sites; nor do the site admin and legal depts care. They get free policing, and will apparently not file suit against the police -- until their own interests are threatened. They should be protecting the rights of their subscriber/users, instead of allowing them to fall prey to cops. Yet, Section 230 of the CDA seems to protect these sites from prosecution in this event as well.
Oh, the sticky-wicket of case law built upon weak legislators, prosecutors and judges who are too worried about elections, funding and publicity and not so much worried about statutes, constitutional rights and policy (warrants, court authorizations, etc.). Law enforcement intent on arrests and hiding behind the excuse of "operational security" and mandatory minimums have been allowed to drift into unquestionably unconstitutional territory without the public's consent or knowledge or even warrants at all. They ensnare adults seeking adults (using adult photos in ads and legal ages) as they weave their tale that this imaginary creation is a minor. They then take down men who either show up to observe or don't believe it was a minor at all.
By the way, these scenarios don't EVER 'save a child,' and they don't 'catch pedophiles' either. High conviction rates come from plea agreements to lesser charges because of the threat of 10-year mandatory minimums.
I'm all for reactive stings that are based in reality (with real tips and victims and warrants and court authorizations), but law enforcement has discovered this golden cash-cow that provides ongoing funding and glory, while rescuing no one and creating child trafficking crimes where none existed....and prosecutors and judges turn a blind eye to it. Law enforcement know their tactics are questionable because they lack warrants prior to these operations, and if they do request a warrant after the fact to secure phones, etc., their probable cause consists of one or two lines of ambiguous rationale based on their own, self-propagated arrest statistics. In the meantime, they cry poor when it comes to having the resources to investigate all the other REAL tips.
That okay? I don't think so, and I have a feeling many Americans would feel the same if they knew the truth, but when law enforcement are given carte blanche because child trafficking is a hot-button issue, then we find law enforcement operating illegally in the shadows and bad case law trampling on our constitutional rights.
You should read if you haven't already:
Manufacturing Criminals: Fourth Amendment Decay in the Electronic Age - Bonnie Burkhardt
Bonnie is a ECPA expert (probably one of the top nationally), and her expert opinion clarifies the statutes on privacy and communications (regardless of bad case law).
Bonnie and I have communicated, and I'm not convinced, but more importantly, neither are any of the courts I'm familiar with where the argument as been raised. If I thought it was a close call, it would be a different story (i.e., keep making the argument and eventually a court will side with you), but the argument misapprehends the plain text of the statute that's available for anyone to read and conflates the consequences of a statutory violation with a constitutional one.
And as I wrote, even if I'm wrong and the courts are all wrong, it is not a long term solution for anyone looking to argue against these kinds of police operations because Congress can simply amend the law to make these operations legal. Given their popularity in the public eye, the amount of money involved, and the ease at which police can translate these cases into good PR, I don't think that would take much time at all.
Since you've spoken with Bonnie, then you have probably heard the finely nuanced argument of what a legal 'person' is in this context, and legally, the undercover chatter needs to be able to convincingly appear as the person they are portraying face-to-face. Most cannot, but it is what distinguishes the stings where they have an UC female agent who can pull off the look of a minor.....BECAUSE the guy showing up actually has an "opportunity to observe" (18 USC 1591(c) highlights observation as so important it removes the government's burden to prove belief). Law enforcement have so fabricated these stings as to bookend the brief mention of being a minor with adult photos and 18+. They rely on juries believing that men read and absorb every text, and that they know whom they're going to meet (when they've probably been texting a number of other women). Then, when men show up to observe if in doubt, they are immediately arrested. How very convenient. A looming 10-year sentence in a maximum security federal prison for simply showing up to confirm, if they even believed it was a minor at all (since the photos shared are often of 18+ women).
Further, the idea that law enforcement can go trolling around in hopes of ensnaring someone who's worst crime at that point may be trying to buy sex on an adult commercial sex site is repugnant but more acceptable IF they actually have individualized probable cause and warrant or court authorization with an individual's name to do so.
Law enforcement should have to DO BETTER, especially when the punishment is 10 years minimum.
I've heard the argument, and I think it's wrong. I am aware of no legal or even logical basis from which one can conclude that a law enforcement officer is no longer a party to a conversation if they are being deceptive as to their identity, which is what would be required to violate federal wiretap statutes and, as I wrote, wouldn't matter either way. 1591 is an altogether different crime, as it requires an actual minor to be involved.
I agree that law enforcement should do better, but so should the people looking to force them into doing so if that's the goal we hope to achieve.
Just a note re: warrants or authorizations. The AG’s Guidelines on FBI Undercover Operations state clearly that there needs to be a warrant, court authorization or supervisory authorization if UC agents will be committing any felony (defined in the guidelines as, "otherwise illegal activity...any activity that would constitute a violation of Federal, state, or local law if engaged in by a private person acting without authorization." There are a number of illegal activities that, if done by a private citizen, would be considered felonies, including 1591/1594, 373 Solicitation to commit a crime of violence, 1594 Conspiracy, 2422 Coercion and enticement (persuades, induces, entices a person to commit any sexual activity for which any person can be charged with a criminal offense), 1956 Initiating or participating in a transaction involving sex trafficking, 1349 Attempt and conspiracy of any Title 18 crime, 1028 Identity Theft (using pics of real people who are not law enforcement).
Yes, you can be convicted of inchoate offenses that don't involve a real person, but the section that you were referencing in the statute which undercuts the mens era requirement requires a real person. If the DOJ is using that particular provision to negate mens element for that particular statute for an attempted offense, then I agree I think that's not correct, but that's really something that would have to get hammered out in jury instructions.
As I wrote, absent a constitutional violation, if the statute doesn't provide for a suppression remedy, it doesn't matter if police commit crimes unless it amounts to some sort of a constitutional violation. Same for any self-imposed guidelines that law enforcement have. They can all be relevant to the question of whether there is a constitutional violation, but they are not in and of themselves going to get a case dismissed or evidence suppressed.
I see your point. I think it could point to outrageous conduct, due process, etc. Thanks for the discussion.
Thank you for your response, which gives me more to research. Re: 1591, there are men right now who have been indicted under 18 USC 1591/1594 (attempted sex trafficking of a minor) after they clicked on an adult ad, on an adult commercial sex site, and were then told it was a minor, then again shown an 18+ photo, then arrested when showing up. If you have reason to believe this is illegal federally, I would certainly appreciate any information or resources.
As Eric Janus once remarked "In heaven, the lion and the lamb lay down together. In hell, they get due process." It's a good quote.
Yes: the Fourth Amendment, and various doctrines that have evolved over time through caselaw such as fruit of the poisonous tree and the many, many exceptions to the general rule that evidence obtained in violation of a constitutional violation should not be used by the government at trial.
The only thing that would require specificity is a suppression remedy in a state or federal statute. If it isn't in there, then it doesn't get suppressed absent a constitutional violation of some kind.
You might have an expectation of privacy, but it's whether it is a "reasonable" one that makes the difference for Fourth Amendment analysis. A lot of that turns on the specific facts of the question, but generally, with respect to bank records, neither you nor I have a reasonable expectation of privacy in them. SCOTUS said as much in 1976 in US v. Miller which as far as I know hasn't been overruled.
For these kinds of cases, that often turns on an analysis of the site's terms of service. Some sites offer greater privacy protections than others, which can impact the analysis.
As long as Internet Search Engines Exist, Registries ARE THERE for all ...we are all exist on a Registry FOREVER!
It usually costs about $150K to $250K to get your info pushed down on an internet Search Engine List...but it will always exist....this includes FDLE's FLORI-DUH's ability to list your Name on the top of a search engine primarily on Google....they must pay for it...they have to.....an FOIA would have to filed to find out but I am sure the info will never be disclosed.....
...ALAS, it is what it is.....Every Convicted Person is on a List...Internet Search Engines!
-The Bad, The Good, The Evil!
Hello, guy!
I am remembering that some time ago, I had a conversation with an elderly attorney who had a novel idea. He suggested we might fight against the stings using the "fraud exception" as a means of defense. As I understand it in purely layman's terms, one claims that the police are acting fraudulently, deceiving the court (we can explain their turn-key process for entrapment) and thereby, depriving people of liberty by committing fraud on the court. Thoughts?
I'm not aware of a generalized fraud exception. Police are allowed to engage in deception when it comes to their investigations, though obviously the state has an ethical duty to behave with candor to the court and to opposing counsel.
An argument I am familiar with, but that is seldom effective except in fairly egregious cases, is a due process argument for dismissal based on police and prosecutorial misconduct.
And due process, whatever the hell that means, is among the most toothless of tigers. When they fired me from my teaching job, they had to first go through the dance of providing me "due process" -- a 'public' hearing in the far corner basement of the headquarters in a cramped conference room. They refused to advertise it for the public, but I could "invite" anyone -- not public then, right? Instead, "by invitation only," unless we are talking about the clairvoyant public. VA law only required them to prove I had been convicted of a felony -- something a precocious 5th grader could do.
It is not expressly noted, but has no exception for law enforcement either.
I agree, t he General Assembly should make this clearer.