CSAM & Predators - Protecting On-line Undercover Investigations

By Frank Kardasz and Richard Whidden, February 5, 2008 

Introduction 

Undercover on-line activities conducted by law enforcement officers using the Internet are important towards capturing Internet sexual predators and traffickers of child pornography. Undercover investigators painstakingly labor to establish believable fictitious personas during on-line investigations. Sometimes the personas are maintained for long periods of time. Publicizing details of undercover identities and divulging undercover on-line investigative techniques can be detrimental to ongoing investigations.

Deciding whether or not information about undercover operations should be publicized is sometimes a subject of debate among law enforcement professionals. When deciding whether or not to reveal undercover Internet investigations to the media, administrators and media relations personnel should consider the following questions:

Question: Does publicity of undercover Internet activities help educate good citizens and raise public awareness regarding Internet crime?

Answer: Yes, however alternative educational activities will have the same impact without damaging law enforcement operations (1). Internet Safety seminars can be conducted without discussing discuss specific undercover tactics.

Question: Does publicizing undercover Internet activities have a deterrent effect on potential offenders?

Answer: Probably not. Some studies indicate that sexual predators are undeterred by any treatment or warning. Their sexual attractions are similar in strength to the attraction to drugs by addicts, with even less promise of eventual change and rehabilitation (2).

Example Case

An Arizona Internet predator postponed his planned sexual encounter because he had seen a media report of an arrest in a nearby jurisdiction. He never canceled the meeting, only postponed it. The media reports only protracted and delayed the investigation. The report did not prevent the crime, it only delayed and temporarily frustrated the investigation.

Media exposure is sometimes frustrating when a planned arrest is imminent, and investigators have carefully organized a safe operation only to be delayed and then required to re-organize later. When an undercover Internet operation is exposed in one jurisdiction, those who publicize it may be unwittingly impacting an ongoing investigation in another jurisdiction.

Example Case

Using e-mail, one British predator sent the actual wording from the Arizona State law to his young intended victim in Arizona . Along with the wording from the law he stated in his e-mail, "We have to be careful because I can get in trouble." His demonstrated knowledge of the law did not deter him. He traveled from the United Kingdom intending to meet the victim for sex but was arrested instead. His arrest received media attention, but undercover investigative techniques did not. And after his release from jail he again attempted to contact the victim.

Question: Does publicizing undercover Internet activities educate offenders as to law enforcement methods?

Answer: Yes, potentially making them wiser regarding law enforcement tactics, with the consequence that they, like drug offenders, continually develop new counter-tactics to thwart law enforcement. Savvy Internet predators, educated by the media, are now challenging undercover officers on-line, asking them prove that they are not cops. Predators are being further schooled each time Internet investigative techniques are revealed.

Example Case

One Arizona offender collected newspaper and Internet media reports of sex crime investigations, attempting to educate himself about law enforcement tactics. A stack of printed news releases was found among his belongings during a search warrant.

Question: The media will get the information eventually through public records requests or by listening at trial so why not give the information away now?

Answer: Perhaps the media will eventually get the information, but details do not become public record until after the investigation is complete, with an option for law enforcement to redact confidential information. Some information will come out at trial, but most reporters will not sit through the proceeding or take the time to read the transcripts later. In most cases the arrest occurs at the same time as seizure of the suspect’s computer. The computer often holds information regarding additional crimes and victims.

Widespread media coverage may hinder follow-up investigation if the case involves accomplices who cannot be identified until the computer forensics exam is completed.

Certain undercover techniques remain protected through case law. A reporter with the patience and perseverance to submit a public records request, or sit through a trial might be attentive enough to obtain some information. Instead of giving the information away and risking investigative problems, let the media work for the information.

Question: Everybody knows that the police on-line undercover work, what is wrong with publicizing it?

Answer: It is a misconception to believe that everyone knows the details of on-line undercover work. Everyone does not know, and publicizing the exact details unnecessarily reveals tactics and improperly educates the offenders.

Question: Does publicizing successful undercover Internet activities aggrandize the investigating and prosecuting agency?

Answer: Yes.

Question: Do some people and agencies require publicity and aggrandizement to motivate funding sources, further individual careers, or gain re-election?

Answer: Unfortunately, yes.

Question: What circumstances permit law enforcement to withhold information from release?

Answer: Case law permits certain details of undercover investigations to remain undisclosed during the life of the investigation. There is a qualified privilege to protect sensitive investigative techniques from disclosure (3). Courts have noted that, “disclosure depends upon the particular circumstances of each case and is determined by balancing the public's interest in non-disclosure against a defendant's interest in cross-examination and accurate fact finding” (4). Additionally, statutes may protect this information from public records disclosure. For example, under the Federal Freedom of Information Act, an exception to the public records disclosure requirements can prevent the release of records or information complied for law enforcement purposes (5). Similar protections also exist in state statutory law (6).

Protected Information

In undercover on-line Internet investigations, sensitive information might include the following: - Screen name and e-mail address of the undercover officer. - Gender of the undercover officers' fictitious persona. - Age of the undercover officers' fictitious persona. - Arrest/meeting location if the location is being used frequently and during other ongoing investigations. - Specific undercover techniques, tactics and conversations.

Conclusion 

On-line undercover officers labor to establish believable fictitious personas' and their endeavors should be protected whenever possible. Law enforcement administrators should examine policies related to the release of information and consult with legal advisors and prosecutors before revealing sensitive undercover tactics.

Notes

(1) see the following Internet crime-prevention organizations: National Law Center for Children and Families – http://www.nationallawcenter.org I Keep Safe – http://www.ikeepsafe.org Netsmartz - http://www.netsmartz.org/ ISafe - http://www.isafe.org/ Enough is Enough - http://www.enough.org/

(2) Davey, M. and Goodnough, A. (March 4, 2007). Doubts rise as states hold sex offenders. New York Times. Retrieved December 30, 2007 from http://www.nytimes.com/2007/03/04/us/04civil.html

(3) Walker , J.S. (May, 2000). The qualified privilege to protect sensitive investigative techniques from disclosure. FBI Bulletin.pp.26-31. Retrieved December

(4) See e.g. Johnson v. Maryland , 811 A.2d 898, 900 (Md. Ct. Spec. App. 2002) citing U.S. v. Green, 670 F.2d 1148 (D.C. Cir 1981).

(5) 5.5 United States Code § 552 (b)(7). As to Justice Department documents see 28 CFR §16.26(b).5. 5 United States Code.

(6) See e.g. §119.071(2), Florida Statutes.

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Frank Kardasz is Project Director for the Arizona Internet Crimes Against Children Task Force.

Richard R. Whidden, Jr. is Executive Director and Senior Counsel of the National Law Center for Children and Families.

NOTE: The preceding article is for education and informational purposes only. It does not constitute legal advice nor legal opinion on any specific matter. The information does not create, and receipt does not constitute a lawyer-client relationship between the authors and the reader. The reader should not act upon the information provided herein without consulting the readers own counsel.