Last year U.S. Attorney Loretta E. Lynch announced the federal government’s intention to investigate and prosecute cases of child pornography, regardless of the scale of individual involvement. This includes simple possession of child pornography by individuals.
Homeland Security Cracks Down
Following the arrests of 71 individuals for crimes involving sexual exploitation of children in Operation Caireen, the largest-ever crackdown by New York law enforcement on individuals who possess, produce or distribute child pornography, Lynch said this:
“The law enforcement community is committed to eliminating the horrific market for child pornography, one defendant at a time. The arrests and seizures announced [in Operation Caireen} send an unequivocal message to those who engage in trading child pornography – if you exploit our children, and their abuse, you will be investigated and prosecuted to the full extent of the law.”
Peer to Peer Networks Sharing Illegal Porn
The primary law enforcement investigation technique in child porn cases is for special agents to surreptitiously infiltrate peer-to-peer (P2P) file sharing networks, in attempt to identify individuals who seek to acquire, possess and distribute images and videos of children engaged in sexually explicit activities.
These P2P file sharing networks allow individual members of the networks to share data with each other by allowing other member to access shared files on their computers, and vice versa. While P2P networks can share everything from music, photos and movies, P2P is commonly used by those sharing pornography, including illegal child pornography. Some estimates say P2P represents upward to 70 percent of all Internet traffic. Federal and State Law enforcement now has forensic software that allows it to identify the illegal files, obtain Globally Unique Identifier (GUID) numbers that link P2Ps to a particular individual’s IP address, an address that identifies the physical location of a particular network, which in turn allows agents to locate the end user.
Dark Web Site Leads to Child Pornography Arrests
This past June the Harris County medical community was rocked after a prominent MD Anderson pediatric cancer doctor was arrested for downloading and viewing child pornography from the Internet. News media reports said the physician had one thumb driver that contained more than 8,000 files, much of which appeared to be child pornography.
That a prominent physician was ensnared in a child pornography investigation is not that surprising. Those arrested for possessing child pornography come from all part of the socio-economic spectrum, including doctors, lawyers, clergy and other professionals.
FBI Runs Child Porn Site
What is surprising is the new FBI investigation technique used in the doctor’s case which is increasingly being employed by the FBI in child pornography cases, i.e., a federal law enforcement agency running a child pornography site.
The FBI was investigating an international child pornography ring when it detected and seized a particular Dark Web child porn website. Rather than shut down the site, the agency continued to run the criminal enterprise for two months.
“When it was seized, it was operated by law enforcement,” an FBI agent said after the doctor’s arrest. “During that time, investigators were monitoring the log-ons for users on that site.”
These kinds of websites are generally found on what’s known as the Dark Web.
According to PC Advisor, the Dark Web is “a collection of websites that are publicly visible, but hide the IP addresses of the servers that run them. Thus they can be visited by any web user, but it is very difficult to work out who is behind the sites. And you cannot find these sites using search engines.”
Not Entrapment, But Shocking
Local legal analyst Brian Wice said the new FBI child pornography investigation technique passes the legal smell test, saying: “It’s not entrapment. Merely affording someone the opportunity to commit a crime is not entrapment.”
The doctor’s lawyer, Neal Davis, said he was “shocked” at the tactics used by the FBI in running a child pornography website. We agree.
While maintaining the child porn site that ensnared the doctor may not have been entrapment, it has an unsavory smell that offends us. More to the point, it seems it should offend larger U.S. Justice Department policy governing “Dark Web” child porn sites. They should be shut down immediately because each day they are up re-offends and causes greater injury to the victim.
Government Should Shut Down Sites Immediately
Last year, U.S. and European law enforcement groups shut down 400 such sites in 400 countries by figuring out how to bypass Tor—the free software designed to “encrypt, or hide, actions on the [Dark Web].”
Assistant Attorney General Leslie R. Caldwell of the Justice Department’s Criminal Division had this to say in a prepared statement following “Dark Web” shutdowns:
“It is a plain fact that criminals use advanced technology to commit their crimes and conceal evidence. But the global law enforcement community has innovated and collaborated to disrupt these ‘dark market’ websites, no matter how sophisticated or far-flung they have becomes.”
Apparently the FBI agents involved in the doctor’s investigation didn’t “get the memo.”
Just last year the Justice Department was touting not only its efforts but prowess in shutting down these dark sites. The agents in the doctor’s case, however, did not shutdown the Dark Web site the doctor was accused of visiting. They continued to operate it in order to ensnare individuals who visited the site, and while that may not technically be “entrapment,” we question the legitimacy of any law enforcement investigation that continues criminal activity against child victims in order to capture more criminals. Law enforcement is in the business of detecting and preventing crime, not participating in it.
Sentences In Child Pornography Cases Tough
Not only do these investigative techniques pose serious challenges for criminal defense attorneys, sentencing in child pornography cases also present difficult challenges.
In a 2014 Huffington Post article, sentencing expert Andrew Extein said that the sentences for child pornography have grown increasingly more severe since the 1990s. The mandatory minimum sentence for federal child porn charges has increased by 500% in the last 15 years.
“The federal mandatory minimum is five years for receipt, distribution, possession with intent to distribute or sell, transportation, or production of child pornography – per image,” Extein says.
This child porn sentencing situation has become so extreme that individuals convicted for viewing this content often face harsher sentences than those who commit real-life sexual abuse of children. Even innocent individuals who accidently download the pornography through file sharing can see their lives, careers and families destroyed by a child pornography arrest and conviction.
Sex Registration for Life
And, the personal destruction doesn’t end when a sex offender is released from prison. Once the prison sentence is over, offenders enter another kind of prison—life on the sex offender registry. Registered sex offenders often remain social pariahs for life. They’re frequently unable to find gainful employment or housing after leaving prison, and offenders and their families are often victims of harassment and violence.
If you have been arrested or believe you may be under investigation for child pornography, you should contact a skilled federal defense attorney who is familiar with the technology involved in these complicated cases as soon as possible. Your very future – and that of your family – could be on the line.