| Dr. Frank Kardasz, revised March 17, 2008 CYBERVIGILANTES Well-intentioned citizens and media organizations who participate in pseudo-undercover cybervigilante operations present interesting challenges for law enforcement personnel. When citizens pose as minors online and negotiate meetings with Internet sexual predators many interesting and unusual things can happen. Sometimes the meeting between the cybervigilante and the offender occurs without sufficient advanced notification to local law enforcement. If the police are notified, it is sometimes at the last minute. Upon arrival, the accused predator may be confronted by either police officers or news cameras or both. A last-minute notification means that police must scramble to sort out the details and to conduct a follow-up investigation. In one incident, a cybervigilante posing as a child on the Internet participated in chat conversations with a predator and negotiated a meeting for sex. The cybervigilante then invited the Internet sexual predator to her personal residence and provided her address. She called and informed the police of her investigation and said that the predator would be arriving in 30 minutes. In some cases where partnerships have developed between cybervigilante groups, reporters and law enforcement personnel there have been allegations of misconduct and ethics violations. ISSUES TO CONSIDER The following information describes some of the concerns that law enforcement personnel have regarding private citizens acting as cybervigilantes. 1. Suspect Identification Most police undercover Internet luring cases involve a series of careful investigative steps resulting in positive identification of the suspect prior to arrest. This prevents police from confronting and arresting the wrong person. Many cyber-vigilantes will not have done this preliminary research, creating the possibility of mistaken-identity. 2. Safety of Civilians Confronting an unknown felony sexual predator represents a safety hazard for the cyber- vigilante. In past incidents some sexual predators have arrived at meetings armed with weapons. 3. Safety of the Law Enforcement Officers When a cyber-vigilante notifies police at the last minute that a meeting with a sexual predator is imminent, police are left with limited time to plan for a safe arrest. Law enforcement officers do not take such meetings lightly and plan ahead for safety. A last-minute notification may result in a disorganized and unsafe response, jeopardizing everyone. 4. Safety of the Suspect / Civil Liability of Accusers Media exposure of an accused Internet sexual predator during a televised cyber-vigilante sting may present a later safety issue for the hapless accused dope. If his picture is splashed across the television during his "trial-by-media", his reputation will likely be ruined and he may be in physical jeopardy from viewers who want to take justice into their own hands. If the cyber- vigilantes coax uninformed officers in at the last minute for an arrest, police will be named in the plaintiffs later slander and false-arrest lawsuits. 5. Trial Witnesses The cyber-vigilante would be subpoenaed to appear in court to testify as a witness. If he or she has a criminal record, that information will likely be brought out in court in an attempt to discredit the witness. 6. Trial Witness Credibility The motives of cyber-vigilantes will be closely scrutinized by both the prosecution and the defense. In any event, motives and credibility will be attacked by the defense at trial. If a media cyber-vigilante organized the incident to occur during "sweeps-week" the defense will likely bring this up at trial in an attempt to discredit the case as a sensationalized publicity stunt. If the citizen-cybervigilante is a past victim of a sex crime, the defense may try to bring this up in court to discredit the witness. The witness may have to re-live their past victimization during courtroom testimony. 7. Trial Evidence The cyber-vigilante's computer hard-drive may be evidence. Chat or e-mail conversations between the cyber-vigilante and the sexual predator will be required at trial. Such conversations are usually retained within the computer. If the computer is not released voluntarily, law enforcement may attempt to seize it using a search warrant. The media cyber- vigilante will likely refuse to release the computer, claiming a publishers privilege under the Privacy Protection Act. At trial, the defense will cite the evidentiary dispute between law enforcement and the media to infer that evidence was manipulated and withheld thus confusing the jury into believing that a reasonable doubt exists as to the predators guilt. 8. Unlawful Images In some cases sexual predators send unlawful images of child pornography to children they chat with on-line. They do this to "groom" their intended victims. If a cyber-vigilante receives child pornography the computer becomes the harbor of felony contraband evidence. 9. Jury Appeal Although citizen cyber-vigilantes are unrestrained by the rules of entrapment governing police undercover operations, juries will not look favorably upon cyber-vigilantes who suggest or encourage sex acts. Most cyber-vigilantes do not have the training or experience to make an entrapment-free case. 10. Vetting & Training Vetting is the process of submitting to an examination or evaluation. Sworn investigators from law enforcement agencies typically undergo an evaluation, selection and training process. Depending on the agency, the process may include background investigation, psychological exam, polygraph testing, and periodic drug screening. Many agencies also require training in evidence collection, officer safety, courtroom testimony, report writing etc. After hiring and training, investigators undergo probationary review periods, are subject to policies governing their activities, and have their work reviewed by a supervisor. Most cyber-vigilantes will not have undergone this vetting and training process. 11. The "I was doing my own investigation!" Defense Persons arrested for luring/enticing minors sometimes use the defense that they were conducting their own investigations and try to argue that they were only going to meet with a minor for the purpose of warning the minor not to engage in wrongful conduct. An actual Internet predator may someday pretend to be a cyber-vigilante as a subterfuge. 12. Compensated Mercenaries Some cyber-vigilantes are purportedly compensated financially for their work. In an on-line article at www.radaronline.com writer John Cook reported that the cybervigilante group, Perverted Justice received $100,000 per episode when working with NBC Dateline to expose Internet sexual predators. Financial compensation moves the group from cyber-vigilante to mercenary. Defense attorneys will surely bring up the payments during cross-examination in order to attempt to show that the cybervigilantes/mercenaries are interested only in money and discredit their testimony. 13. Eavesdropping and Telecommunications Privacy Laws If a cyber-vigilante communicates online from Arizona (a one-party consent state) with a person who is in a two-party consent state, televising and revealing their privileged communications may be a violation of law in the two-party consent state 14. Agency Agency as a legal matter refers to the relationship of a person (called the agent) who acts on behalf of law enforcement as the principal. "Agency" may arise when a law enforcement agency asks someone to perform a specific act. The basic rule is that the principal becomes responsible for the acts of the agent, and the agent's acts are like those of the principal (Latin: respondeat superior). Factual questions arise such as: was the agent in the scope of employment when he/she arranged the meeting between himself and a suspected Internet sexual predator. If an impropriety occurs, the principal, the Agency, becomes liable for the acts of the agent. Law enforcement organizations must be very careful not to imply agency upon cyber-vigilantes who might infer that they are acting at the behest of law enforcement. Sometimes an overzealous cyber-vigilante will rationalize misbehavior by claiming that he or she was "partnered" with law enforcement for the purpose of apprehending an Internet sexual predator. 15. Trial by Media Cybervigilante cases that are televised may be unfair to the suspect because the publicity could hurt the chance for a fair trial. A trial in the media may cause unnecessary public ridicule of the offender. in Texas, an offender who was exposed by a cybervigilate news team committed suicide before the case could be adjudicated. 16. Facilitation Facilitation may be an issue depending on local law. In Arizona, the facilitation law is stated as follows:
13-1004. Facilitation; classification A. A person commits facilitation if, acting with knowledge that another person is committing or intends to commit an offense, the person knowingly provides the other person with means or opportunity for the commission of the offense. 17. Solicitation Solicitation is another issue that should be considered by those contemplating acting as cyber- vigilantes. In Arizona, the solicitation law is stated as follows:
13-1002. Solicitation; classifications A. A person, other than a peace officer acting in his official capacity within the scope of his authority and in the line of duty, commits solicitation if, with the intent to promote or facilitate the commission of a felony or misdemeanor, such person commands, encourages, requests or solicits another person to engage in specific conduct which would constitute the felony or misdemeanor or which would establish the other's complicity in its commission. 18. Conspiracy Conspiracy may be an issue in cybervigilante cases. In Arizona the conspiracy law is stated as follows:
13-1003. Conspiracy; classification A. A person commits conspiracy if, with the intent to promote or aid the commission of an offense, such person agrees with one or more persons that at least one of them or another person will engage in conduct constituting the offense and one of the parties commits an overt act in furtherance of the offense, except that an overt act shall not be required if the object of the conspiracy was to commit any felony upon the person of another, or to commit an offense under section 13-1508 or 13-1704. B. If a person guilty of conspiracy, as defined in subsection A of this section, knows or has reason to know that a person with whom such person conspires to commit an offense has conspired with another person or persons to commit the same offense, such person is guilty of conspiring to commit the offense with such other person or persons, whether or not such person knows their identity. C. A person who conspires to commit a number of offenses is guilty of only one conspiracy if the multiple offenses are the object of the same agreement or relationship and the degree of the conspiracy shall be determined by the most serious offense conspired to. D. Conspiracy to commit a class 1 felony is punishable by a sentence of life imprisonment without possibility of release on any basis until the service of twenty-five years, otherwise, conspiracy is an offense of the same class as the most serious offense which is the object of or result of the conspiracy. NOTE: For stories and media reports of assorted cybervigilante incidents see: http://www.kardasz.org/Cybervigilantes2.html |
| "Cybervigilantes" - Issues to Consider ------------------------------------------------------------------------------------------------------------- |
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