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Using child porn to catch child porn collectors

May 30, 2013, at 8:30 PM

It's hard not to sympathize with the FBI. It's impossible to go after purveyors of child pornography one by one, and the bureau doesn't have the time or resources to full enforce the law. Where it can, it focuses on big traffickers — the owners and operators of private websites who cater to the (mostly) men who view the images and videos for sexual gratification. From there, it uses service records, including credit cards, IP addresses, and other content obtained from its seizure of a site's hard drives to identify the people who trade the porn.

Recently, some enterprising FBI agents took the next logical step. It did what the CIA regularly does with websites catering to jihadists: It secretly took it over, ran it as if nothing were amiss, and quietly collected information about its users and the way they used it. To date, there's been one prosecution arising from that operation. Others, presumably, are on the way. The FBI likes big public stings where dozens of kiddie porn collectors are arrested all at once.

If you're a victim — a kid who has been exploited — or you're a parent of kid who has been exploited, is the FBI's transient and controlled exploitation of you or your loved one worth the goal of potentially putting a larger number of collectors and traders of material in jail? In a sense, once you've been victimized, then every subsequent time someone uses an image of yours for sexual gratification, a part of your soul may be further corrupted. If whatever happened to you was controlled by the original owners of that website, and the FBI, as soon as it was able, did not erase or completely remove the media from circulation, would you feel morally betrayed somehow? Are the interests of justice served by these means?

It's a hard question. To my mind, the technique is like the "Fast and Furious" gun-running effort by the A.T.F., which (ostensibly) would track "controlled" guns as they moved from drug gang to drug gang. In this case, unless the FBI had warrants to monitor and collect the outgoing Internet traffic from every user on the site, something we know they did not have because they did not know who the users were at first, then some of the images the FBI allowed criminals to distribute probably ended up outside the confines of its net.

It's telling that the FBI is no longer employing this particular ruse. It certainly makes it easier for defense attorneys to poke holes in one of the FBI's core argument for going after people who simply collect images of kiddie porn — that the victimization is in the act of viewing and perpetuating the demand for exploitation. Apparently, the victimization wasn't that bad... or not bad enough to warrant its immediate end. If the bureau winds up arresting a thousand people for knowingly possessing kiddie porn and can prove it, maybe I'd feel better about the ends justifying the means.

What I'd like to know is whether Main Justice — that is, the Department of Justice's Criminal Division — vetted this technique before the FBI used it. At the same time, I can't blame the FBI for trying something novel. There is a sickening amount of child porn out there, and in the absence of any enforcement, potential traffickers might feel even more emboldened.

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