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Porn Police & Entrapment

Judge Discards FBI Evidence in Internet Case of Child Smut

Judge Denny ChinA federal judge in Manhattan has thrown out the government's evidence in an Internet child pornography case involving a Bronx man, Harvey Perez, in a ruling that could imperil scores of related prosecutions around the country.

The judge, Denny Chin of Federal District Court, ruled that the FBI agents who had prepared a crucial affidavit had acted with reckless disregard for the truth. The ruling, dated Wednesday, was released yesterday, the same day that a federal judge in St. Louis, Catherine D. Perry, ordered evidence suppressed in a related case. Judge Perry, too, cited false statements in the affidavit.

The FBI affidavit claimed that anyone who had signed up to join the Internet group at the center of the investigation automatically received child pornography from other members through an e-mail list.

This claim was used to obtain search warrants for the homes and computers of people who had joined the group, known as Candyman. The bureau later conceded that people who had signed up for the group - which also included chat sites, surveys and file sharing - could opt out of the mailing list and did not automatically receive pornography.

As a result, Judge denny Chin ruled, investigators would not have been justified in searching the home and computer of the Bronx man, Harvey Perez, who had signed up for the Candyman group but did not send or receive e-mail messages containing images.

In the context of this case, a finding of probable cause would not be reasonable, Judge denny Chin wrote. Most subscribers to the group - part of a larger site known as eGroups - elected to receive no e-mail, Judge Chin said. The eGroups site, which was acquired by Yahoo, and the Candyman group are no longer in operation.

Operation Candyman was announced with great fanfare a year ago by Attorney General John Ashcroft.

Thus far, more than 1,800 people have been investigated, and more than 100 arrested, an FBI spokeswoman said. There have been around 60 convictions, many as a result of guilty pleas, she added. Some defendants have admitted to molesting children, officials have said.

A Justice Department spokeswoman, Casey Stavropoulos, said yesterday that the two court rulings were being reviewed. The department remains committed, she said, to vigorously investigating and prosecuting the purveyors and distributors of child pornography.

Defense lawyers in the cases praised the rulings. Nicole Armenta, who represents Mr. Perez, said: The fact that someone visited a Web site, and you don't know if they did anything wrong, can't be a reason to go into their home and seize their computer.

Daniel A. Juengel, a lawyer for Gregory Strauser, the defendant in the St. Louis case, called the rulings a major victory for the Fourth Amendment, which protects against illegal searches and seizures. Mr. Juengel said he believed the decisions would significantly change how the Justice Department handled search warrants involving Internet crime, and how judges looked at affidavits in such cases.

The FBI spokeswoman had no comment on the rulings, or on the agents' actions, and said that the agents would also have no comment. One agent, Geoffrey Binney, has left the FBI, and did not return a message left at his office seeking comment.

It could not be learned yesterday how many Candyman prosecutions have relied on the affidavit in question, but it appears that there could be many challenges.

Judge Chin noted that 700 copies of a draft version of the affidavit were sent to FBI offices around the country for use in the investigation. In New York, federal prosecutors in Manhattan and Brooklyn announced last July that 10 people, including Mr. Perez, were being charged in the Candyman investigation.

Without the false statement in the affidavit, Judge Denny Chin said, all that remained was the allegation that Mr. Perez had subscribed to a Web site where unlawful images of child pornography could be downloaded.

If the government is correct in its position that membership in the Candyman group alone was sufficient to support a finding of probable cause, then probable cause existed to intrude into the homes of several thousand people, merely because their e-mail addresses were entered into the Web site, Judge Chin wrote.

Here, the intrusion is potentially enormous, the judge added. Thousands of individuals would be subject to search, their homes invaded and their property seized, in one fell swoop, even though their only activity consisted of entering an e-mail address into a Web site from a computer located in the confines of their own homes.


Two federal judges attack core of cases in child porn crackdown

NEW YORK -- Two federal judges have levied a potentially crippling blow to a nationwide Internet child pornography crackdown, saying the FBI recklessly misled judges to get search warrants that were used in making more than 100 arrests.

Constitutional safeguards cannot be relaxed just because the crimes are repugnant, warned U.S. District Judge Denny Chin in New York as he dismissed evidence obtained against one defendant. Chin's ruling, dated Wednesday, was released publicly on Thursday.

U.S. District Judge Catherine D. Perry in St. Louis, throwing out evidence against another defendant on Thursday, said false information was recklessly included in the search warrant application.

The judges each cited Constitutional flaws in the investigation, dubbed Operation Candyman, and they noted that the FBI and prosecutors have acknowledged making errors.

The rulings could affect dozens of defendants in the crackdown announced with great fanfare by Attorney General John Ashcroft last year. Police officers, clergy members and an Army sergeant were among those arrested.

Defense lawyers said both judges considered new evidence that demonstrates the FBI recklessly used erroneous information in its search warrant applications. Nearly identical applications were used in cases all across the country.

It's significant, St. Louis lawyer Daniel Juengel said of the rulings, including one dismissing evidence against his client. The government can't just come in and search your house based on something you may have inadvertently clicked on in your computer.

Michael Kulstad, a spokesman for federal prosecutors in Manhattan, said Chin's ruling was being reviewed and prosecutors had not decided whether to appeal. An FBI spokesman did not immediately return a call seeking comment. Attorney Nicole P. Armenta, who represented the defendant in the New York case, credited Juengel with first challenging the search warrants on grounds that the FBI misled judges to believe that people who tapped into a Candyman Web site automatically received child pornography.

A lot of what went on in the Candyman site was constitutionally protected, she said, after both judges agreed that those entering the Web site could choose not to receive the e-mails containing photographs.

Both judges criticized a former FBI agent who once led the probe, saying he misrepresented the true workings of the Web site when he insisted that everyone who joined would receive child pornography.

Here there was more than a mere failure to investigate or an innocent or negligent mistake, Chin wrote.

The vast majority of subscribers to the site between December 2000 and Feb. 6, 2001 elected to receive no e-mails, Chin said. The site is no longer in operation.

Chin said the danger of unreasonable intrusions into the home - the chief concern of the Constitutional protection against unreasonable searches and seizures - is great when law enforcement gathers information on the Internet.

In a 59-page decision, Chin acknowledged that law enforcement needs some latitude to catch those who break child pornography laws on the Internet and sexually exploit and abuse children.

But he added, Just as there is no higher standard of probable cause when First Amendment values are implicated ... there is no lower standard when the crimes are repugnant and the suspects frustratingly difficult to detect.

He called the intrusion of privacy by the government potentially enormous.

Thousands of individuals would be subject to search, their homes invaded and their property seized, in one fell swoop, even though their only activity consisted of entering an e-mail address into a Web site from a computer located in the confines of their own homes, he said.

In her ruling, Perry said the government's argument that subscribing to the Candyman Web site established probable cause of possessing child pornography was like saying if someone subscribes to a drug legalization organization or newsletter, then there is probable cause to believe that person possesses drugs.


US District Judge Rejects Fox Injunction to Block Liars Publication

In a major blow to Fox News Channel's lawsuit to stop publication of Al Franken's book, Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right, US District Court Judge Denny Chin denied Fox's request for an injunction that would have blocked the books publication. In a strongly worded ruling, Judge Chin rejected Fox's claim that Franken's use of the trademarked phrase Fair and Balanced would have caused confusion for consumers, saying that not only was the claim wholly without merit, both factually and legally, but that the trademark itself was weak. Judge Denny Chin also said of the ruling, which pitted the News Corporation's commercial interest in protecting its trademark against the First Amendment's protection of satirical speech, There are hard cases and there are easy cases. This is an easy case.

Al Franken, in a phone interview with the Associated Press, indicated his belief that the quality of Fox News Channel's legal filing impacted the eventual outcome of the request for an injunction. In addition to thanking my own lawyers, Franken said, I'd like to thank Fox's lawyers for filing one of the stupidest briefs I've ever seen in my life. The suit stated that Franken is not a well-respected voice in American politics; rather, he appears to be shrill and unstable and that His views lack any serious depth or insight.

The legal battle surrounding the Fox v. Franken lawsuit has generated a considerable amount of backlash. In ironic confirmation of the adage, Any publicity is good publicity, Lies and the Lying Liars who Tell Them has moved from being a relative unknown to occupy the #2 slot on Amazon.com's bestseller list as of Friday. Penguin Group, the book's publisher, has ordered an extra 50,000 copies to the original run of 270,000. Additionally, various Internet sites have picked up on the controversy. Neal Pollack, musician, author and erstwhile candidate for Governor of California, declared Friday, August 13th Fair and Balanced Day. The Web Logging (blogging) community responded with a plethora of blogs sporting the Fox trademarked slogan, some going so far as to dare the News Corporation company to sue them as well. The backlash appears to be driven by a desire to protect the First Amendment guarantee of freedom of speech. Judge Denny Chin's seemed to echo this perception, saying that It is ironic that a media company, which should be protecting the First Amendment, is seeking to undermine it. Chin continued, saying, Parody is a form of artistic expression protected by the First Amendment. The keystone to parody is imitation. Mr. Franken is clearly mocking Fox.

Fox News has indicated that it will reserve the right to appeal the injunction and continue with the lawsuit against Franken.


Law to Bar Web Porn To Children Overruled

PHILADELPHIA -- A federal appeals court has ruled that a law meant to safeguard children against Internet pornography is riddled with problems that make it constitutionally infirm.

A three-judge panel of the U.S. Court of Appeals for the 3rd Circuit ruled Thursday that the Child Online Protection Act restricted free speech by barring Web page operators from posting information inappropriate for minors unless they limited the site to adults. The ruling upheld an injunction blocking the government from enforcing the law.

The court said that the law made it too difficult for adults to view material protected by the First Amendment, including many non-pornographic sites.

Signed by President Bill Clinton and endorsed by President Bush, the law is one of several on Internet decency that courts have struck down.

The American Civil Liberties Union initiated the legal challenge. The Justice Department, which had argued in favor of the law, may ask the 3rd Circuit to rehear the case or appeal to the U.S. Supreme Court.

Previously, the 3rd Circuit had ruled the law unconstitutional on the ground that it allowed the legality of Internet content to be judged by contemporary community standards. On appeal, the Supreme Court said that evaluation standard alone did not make the law unconstitutional and sent the case back to the 3rd Circuit for further evaluation.

In Thursday's opinion, the appeals court said that in seeking to define material harmful to minors, the law made no distinction between material inappropriate for a 5-year-old and material harmful to someone in his or her early teens.

The judges also said that while the law sought to get around free-speech arguments by making the restrictions apply only to Web operators who posted material for commercial purposes, it did not address what level of profitability was required.

In addition, the court said screening methods suggested by the government, including requiring Web page viewers to give a credit card number, would unfairly require adults to identify themselves before viewing constitutionally protected material, such as medical sites' sex advice.