Jul 28, 2023·edited Jul 28, 2023Liked by Guy Hamilton-Smith
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.
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.
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.
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).
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?
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.
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.
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.
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).
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?
It is not expressly noted, but has no exception for law enforcement either.
I agree, t he General Assembly should make this clearer.