Full article:
The FBI has recently adopted a novel investigative technique:
posting hyperlinks that purport to be illegal videos of minors
having sex, and then raiding the homes of anyone willing to click
on them.
Undercover FBI agents used this hyperlink-enticement technique,
which directed Internet users to a clandestine government server,
to stage armed raids of homes in Pennsylvania, New York, and Nevada
last year. The supposed video files actually were gibberish and
contained no illegal images.
A CNET News.com review of legal documents shows that courts have
approved of this technique, even though it raises questions about
entrapment, the problems of identifying who's using an open
wireless connection--and whether anyone who clicks on a FBI link
that contains no child pornography should be automatically subject
to a dawn raid by federal police.
Roderick Vosburgh, a doctoral student at Temple University who
also taught history at La Salle University, was raided at home in
February 2007 after he allegedly clicked on the FBI's hyperlink.
Federal agents knocked on the door around 7 a.m., falsely claiming
they wanted to talk to Vosburgh about his car. Once he opened the
door, they threw him to the ground outside his house and handcuffed
him.
Vosburgh was charged with violating federal law, which
criminalizes "attempts" to download child pornography with up to 10
years in prison. Last November, a jury found Vosburgh guilty on
that count, and a sentencing hearing is scheduled for April 22, at
which point Vosburgh could face three to four years in prison.
The implications of the FBI's hyperlink-enticement technique are
sweeping. Using the same logic and legal arguments, federal agents
could send unsolicited e-mail messages to millions of Americans
advertising illegal narcotics or child pornography--and raid people
who click on the links embedded in the spam messages. The bureau
could register the "unlawfulimages.com" domain name and prosecute
intentional visitors. And so on.
"The evidence was insufficient for a reasonable jury to find
that Mr. Vosburgh specifically intended to download child
pornography, a necessary element of any 'attempt' offense,"
Vosburgh's attorney, Anna Durbin of Ardmore, Penn., wrote in a
court filing that is attempting to overturn the jury verdict before
her client is sentenced.
In a telephone conversation on Wednesday, Durbin added: "I
thought it was scary that they could do this. This whole idea that
the FBI can put a honeypot out there to attract people is kind of
sad. It seems to me that they've brought a lot of cases without
having to stoop to this."
Durbin did not want to be interviewed more extensively about the
case because it is still pending; she's waiting for U.S. District
Judge Timothy Savage to rule on her motion. Unless he agrees with
her and overturns the jury verdict, Vosburgh--who has no prior
criminal record--will be required to register as a sex offender for
15 years and will be effectively barred from continuing his work as
a college instructor after his prison sentence ends.
How the hyperlink sting operation worked
The government's hyperlink sting operation worked like this: FBI
Special Agent Wade Luders disseminated links to the supposedly
illicit porn on an online discussion forum called Ranchi, which
Luders believed was frequented by people who traded underage
images. One server allegedly associated with the Ranchi forum was
rangate.da.ru, which is now offline with a message attributing the
closure to "non-ethical" activity.
In October 2006, Luders posted a number of links purporting to
point to videos of child pornography, and then followed up with a
second, supposedly correct link 40 minutes later. All the links
pointed to, according to a bureau affidavit, a "covert FBI computer
in San Jose, California, and the file located therein was encrypted
and non-pornographic."
Some of the links, including the supposedly correct one,
included the hostname uploader.sytes.net. Sytes.net is hosted by
no-ip.com, which provides dynamic domain name service to customers
for $15 a year.
When anyone visited the upload.sytes.net site, the FBI recorded
the Internet Protocol address of the remote computer. There's no
evidence the referring site was recorded as well, meaning the FBI
couldn't tell if the visitor found the links through Ranchi or
another source such as an e-mail message.
With the logs revealing those allegedly incriminating IP
addresses in hand, the FBI sent administrative subpoenas to the
relevant Internet service provider to learn the identity of the
person whose name was on the account--and then obtained search
warrants for dawn raids.
The search warrants authorized FBI agents to seize and remove
any "computer-related" equipment, utility bills, telephone bills,
any "addressed correspondence" sent through the U.S. mail, video
gear, camera equipment, checkbooks, bank statements, and credit
card statements.
While it might seem that merely clicking on a link wouldn't be
enough to justify a search warrant, courts have ruled otherwise. On
March 6, U.S. District Judge Roger Hunt in Nevada agreed with a
magistrate judge that the hyperlink-sting operation constituted
sufficient probable cause to justify giving the FBI its search
warrant.
The defendant in that case, Travis Carter, suggested that any of
the neighbors could be using his wireless network. (The public
defender's office even sent out an investigator who confirmed that
dozens of homes were within Wi-Fi range.)
But the magistrate judge ruled that even the possibilities of
spoofing or other users of an open Wi-Fi connection "would not have
negated a substantial basis for concluding that there was probable
cause to believe that evidence of child pornography would be found
on the premises to be searched." Translated, that means the search
warrant was valid.
Entrapment: Not a defense
So far, at least, attorneys defending the hyperlink-sting cases
do not appear to have raised unlawful entrapment as a defense.
"Claims of entrapment have been made in similar cases, but
usually do not get very far," said Stephen Saltzburg, a professor
at George Washington University's law school. "The individuals who
chose to log into the FBI sites appear to have had no pressure put
upon them by the government...It is doubtful that the individuals
could claim the government made them do something they weren't
predisposed to doing or that the government overreached."
The outcome may be different, Saltzburg said, if the FBI had
tried to encourage people to click on the link by including
misleading statements suggesting the videos were legal or
approved.
In the case of Vosburgh, the college instructor who lived in
Media, Penn., his attorney has been left to argue that "no
reasonable jury could have found beyond a reasonable doubt that Mr.
Vosburgh himself attempted to download child pornography."
Vosburgh faced four charges: clicking on an illegal hyperlink;
knowingly destroying a hard drive and a thumb drive by physically
damaging them when the FBI agents were outside his home;
obstructing an FBI investigation by destroying the devices; and
possessing a hard drive with two grainy thumbnail images of naked
female minors (the youths weren't having sex, but their genitalia
were visible).
The judge threw out the third count and the jury found him not
guilty of the second. But Vosburgh was convicted of the first and
last counts, which included clicking on the FBI's illicit
hyperlink.
In a legal brief filed on March 6, his attorney argued that the
two thumbnails were in a hidden "thumbs.db" file automatically
created by the Windows operating system. The brief said that there
was no evidence that Vosburgh ever viewed the full-size
images--which were not found on his hard drive--and the thumbnails
could have been created by receiving an e-mail message, copying
files, or innocently visiting a Web page.
From the FBI's perspective, clicking on the illicit hyperlink
and having a thumbs.db file with illicit images are both serious
crimes. Federal prosecutors wrote: "The jury found that defendant
knew exactly what he was trying to obtain when he downloaded the
hyperlinks on Agent Luder's Ranchi post. At trial, defendant
suggested unrealistic, unlikely explanations as to how his computer
was linked to the post. The jury saw through the smokes (sic) and
mirrors, as should the court."
And, as for the two thumbnail images, prosecutors argued (note
that under federal child pornography law, the definition of
"sexually explicit conduct" does not require that sex acts take
place):
The first image depicted a pre-pubescent girl, fully naked,
standing on one leg while the other leg was fully extended leaning
on a desk, exposing her genitalia... The other image depicted four
pre-pubescent fully naked girls sitting on a couch, with their legs
spread apart, exposing their genitalia. Viewing this image, the
jury could reasonably conclude that the four girls were posed in
unnatural positions and the focal point of this picture was on
their genitalia.... And, based on all this evidence, the jury found
that the images were of minors engaged in sexually explicit
conduct, and certainly did not require a crystal clear resolution
that defendant now claims was necessary, yet lacking.
Prosecutors also highlighted the fact that Vosburgh visited the
"loli-chan" site, which has in the past featured a teenage Webcam
girl holding up provocative signs (but without any nudity).
Civil libertarians warn that anyone who clicks on a hyperlink
advertising something illegal--perhaps found while Web browsing or
received through e-mail--could face the same fate.
When asked what would stop the FBI from expanding its hyperlink
sting operation, Harvey Silverglate, a longtime criminal defense
lawyer in Cambridge, Mass. and author of a forthcoming book on the
Justice Department, replied: "Because the courts have been so
narrow in their definition of 'entrapment,' and so expansive in
their definition of 'probable cause,' there is nothing to stop the
Feds from acting as you posit."
