I just know this is a case where ARFcom will agree with the reason, but not the result.

the cutting edge of Computer Science and LEO legal wrangling meet in a cage match.

i don't agree with the FBI running child porno sites, even if they are trying to catch them.  catch them on their own sites, don't give them one.

This is right down the line with the FBI's terrorism strategy.  

1 - Approach a motionless subject.

2 - Suggest motion.

3 - Provide illegal materials and a plan.

4 - Profit!  


I don't think it's a bad thing, but while they're setting these easy-gimme type 'sting' cases up, they're NOT investigating those persons who actually ARE in motion.  

They used to be the premier investigative body in the entire world, second only perhaps to scotland yard.  

Now they put on cheap and easy shows for arraignment judges and press headlines.

Most days, I'm amazed the FBI has someone who can turn a computer on...



 

Goes right along with the Affirmative Action presidency.

They did catch them on one of their own sites.

That's not even remotely what happened in this case.

Now if they'd only start selling guns to catch criminals.

+1

I have a hard time believing that FBI did not know this would likely be the end result of their actions.

ETA: LE has long played fast and loose with this phrase: "...particularly describing the place to be searched, and the persons or things to be seized."

"It's legal because we're the FBI."

It wasn't the FBI's site.

I asked in the other thread:

As a non-tech savvy individual....do I have it right?

I assume they got a proper warrant to seize a server that was the ?host? for a kiddy porn website.

Then, instead of shutting the server down, they let it run...and used a hacking program to 'remove disguises' from the people visiting the website and went after them.


If it was 'non technical' (i.e...similar to a physical (not digital) crime):

They got a proper warrant and raided a Drug house.

Instead of flash bangs, shoot the dogs and grandmothers, etc...that they usually do...the quietly snuck the dealers out the back and replaced the dealers with their own agents and continued to sell drugs.

Then, when the 'upscale' customers who would come in disguise to buy drugs...they'd follow them home (apparently to another state), break in quietly and find out who they were....then quietly leave and get an arrest warrant based on that info?

(I can see how the last 'break in' to get info isn't legal unless they got a search warrant from a judge in that jurisdiction)

I should have said "Entrapment is legal when we do it, because we're the FBI."

It's not really entrapment, though.  Entrapment is when they talk or trick someone into committing a crime so they can prosecute them, in this case, it's fairly obvious that whoever it was was ALREADY involved in criminal action.  The problem is that they used the warrant for the server in Virginia to justify loading software onto a computer NOT in Virginia in order to get evidence from the suspect's computer, by using the excuse that they only needed a warrant for the server in Virginia.  The court said "no" to that, they needed to get a warrant to access the suspect's computer in whichever state it was in.  



 

This. You shouldn't be allows to break the law to catch others breaking the law.

That is correct, but I believe that line gets rather blurred rather frequently, if not most of the time, and a blind eye is turned because they caught a "bad guy"..

Yep

What's going to happen when kiddie porn is made entirely with CGI, therefore not requiring the participation of any minors?  Add to that the studies which show that those with predatory predilections are calmed, not incited, by viewing that CGI created kiddie porn.

Some states have already considered that and included it within their statutory definition of what constitutes a visual depiction of child porn.

That's not what happened. Basically lets assume its a forum, not unlike this one. Where people meet to talk about child porn and trade photos/videos. Now lets assume the FBI investigates as they should and seizes the server. Now lets assume they say instead of shutting this down and prosecuting the owner, lets leave the site open and see who is coming on and is posting child pornography. Then prosecute the people who manufacturer/distribute the pornography. Basically instead of prosecuting the 1 guy who owns the site just wait and see who comes start uploading pictures/videos and locate the people that are actually manufacturing/distributing.



Does it make more sense to arrest a guy who has a website and allows people to post child porn, or to arrest the people who are victimizing children and are posting the pictures/videos of it on that site?





Our current legal system has little to do with what's right/wrong and everything to do with technicalities. Its literally nothing more then a game. Guilt or innocence is nearly irrelevant when you can get off on a small technicality either way. And it doesn't matter if you just murdered someone because you don't like them, molested a child, drove drunk, or was in possession of a joint.  


This case is a fine example of that. A lot of people here hate the FBI/law enforcement. But if your child or someone you loved was victimized by someone and whatever law enforcement authority investigated and arrested said offender, then the judge tossed out the warrant/the case on some small unforeseen loophole and said guilty offender walked, you'd probably be pretty upset/feeling like justice wasn't served.

It probably is a necessary thing, despite the very sad facts of this case.  The issue is judge-shopping.  Geography is an important check on the government's warrant power.  In most jurisdictions there is anything from less than a dozen to several dozen federal judges who can issue a warrant.  But if you let the government pick from every judge in the country, they can just go judge-shopping until they find the most anti-4th Amendment judge in the country and get him to issue warrants.  I know in this case they used the judge where the server was located, so there was some geographical connection, but the DOJ is currently pushing rules that would basically allow them to say "I don't know where the naughty computer is" and then use whichever judge they want for a warrant.  





The real interesting thing here is that if upheld, this rule would appear to kill the various stings where the FBI runs a CP server.  The FBI's methodology in such cases is to infect any computer that logs on, regardless of geography.  This ruling appears to kill that methodology.

 

Most of those "technicalities" that you refer to are based on rights protected by the BOR, the reaction to hundreds of years

of abuse of legal process by those in power.  There is one thing in the entirety of human history which has proven itself

to protect the rights of the weak against the aggression of the powerful - written standards (laws) which are strictly adhered

to even when it means bad people get away with things they shouldn't.  The alternative is government that does whatever

the hell it wants up to an including killing or imprisoning of political opponents.

If it's any consolation, it's a transgender outside consultant on a H1-B visa.

This regardless of the jurisdictional issues, the FBI was committing worse crimes running the site, then the users.

If you allegedly murdered someone, etc.

You're forgetting the whole innocent until proven guilty part, along with the entire purpose of the legal system having rules in the first place.   These aren't "unforseen loopholes", it's the agency deliberately not following the rules - either deliberately, or through sheer incompetence.

There isn't a week that goes by without news of someone or other hauled in front of a judge with a whole pile of people claiming they saw them do something, and it turns out to be bullshit based when video turns up.

Your right but in some cases making a small error on lengthy paperwork can result in a lost case. And one fine example would be in an OWI. Do about 45 minutes work of paperwork filled with legal jargon and its easy to make a small mistake. However said defendant can walk based on that. Attorney's that specialize in OWI's target the small mistakes that can be made in a lengthy investigation. Cases where there is no question as to the guilt of the defendant are made on whether or not you can find a small mistake in paperwork/procedure. And its easier said then done then just expect every investigation to be flawless.

This case is another fine example of a potentially unforeseeable loop hole. Illegal item is hosted in location A. Its Accessed through location B. Warrant is obtained for one location so judge finds investigation invalid.  If they'd have had warrant for other location judge would have likely ruled same thing. They should have had warrants for both locations. Foreseeable if you naturally assume the judge wants to toss the case. Not quite foreseeable when you think your investigating a case revolving around the abuse of children however.







This type of thing doesn't necessarily bother me as much as some because at the end of the day only three things matter. 1. I did the right thing. 2. I wasn't the victim so I literally have no skin in the game. 3. I still get paid. Find it interesting how hated LE are though when 99% of them are just trying to do the right thing.






In some cases its negligence/not caring. In most cases the errors are made through overlooking them. You investigate hundreds of cases and type thousands of reports and eventually errors will be made. Some of them can make/break the case.  There is a difference from making a mistake and deliberately being negligent. In this case I don't believe they were deliberately making this screw up. It wouldn't have been hard to get the second warrant if they'd have thought of that.  Everyone can do the job better then the man doing it until try are in the hot-box.

I think you raise a lot of good points, but so do the civil libertarians on this board.  There are no easy answers.  FBI operations such as this do a lot of practical good, but they raise real due process concerns.  Prior to computers, possession of CP meant you had a dirty magazine in your house.  It's pretty easy to steer clear of that.  Now possession of CP can mean a 17 year old texted you a dirty picture without your knowledge, or someone logged into your wifi, or even that you inadvertently clicked on a web page with 87 thumbnails of legal aged girls and one thumbnail of a 17 year old.  That's a lot of potential pitfalls out there.  



 

Those investigations happen but rarely on their own. IE if someone is screwing around with a juvenile usually the parents of said juvenile find out about it, file report, push the case, etc. Then what are you supposed to do. Its clearly written into law as being illegal. You have no choice but to charge the person and let the prosecutor/judge decide the out-come. This is almost every case where its borderline/grey area.


Chances of getting prosecuted for a misclick or accidentally viewing something is slim. It would literally take someone stumbling on it on your computer and reporting it for it to even get investigated. In most cases if its questionable investigators don't bother messing with the case. Primarily because they don't need to. There is a reason why they mainly target people who distribute or manufacturer and not just view unless its clearly excessive like hundreds/thousands of photos/videos. Reason being they don't have the time or resources to prosecute every single person who views an image, whether its intentional or not. Most of them monitor until they have evidence of manufacturing or distribution. And anyone who has a large amount is involved with sharing which is how they get caught.

I agree that for the most part the FBI has shown good judgment in deciding whom to go after.  But the FBI isn't the only LEA agency involved, and the law doesn't work by simply trusting the judgment of the government.  The law needs to set rules that apply equally to the good cop as well as the bad cop.  Requiring a geographical connection to the place or person to be searched has been an important check on state authority since the founding of the Republic.  We can't just abandon it because the FBI says "trust us."