| Protecting On-line Undercover Investigations -------------------------------------------------------------------------------------------------------------------------------------------------- |
Protecting On-line Undercover Investigations
Tuesday, February 5, 2008
By Frank Kardasz and Richard Whidden
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?
Question: Does publicizing undercover Internet activities have a deterrent effect on potential
offenders?
Question: Does publicizing undercover Internet activities educate offenders as to law
enforcement methods?
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?
Question: Everybody knows that the police on-line undercover work, what is wrong with
publicizing it?
Question: Does publicizing successful undercover Internet activities aggrandize the
investigating and prosecuting agency?
Question: Do some people and agencies require publicity and aggrandizement to motivate
funding sources, further individual careers, or gain re-election?
Question: What circumstances permit law enforcement to withhold information from release?
Protected Information
In undercover on-line Internet investigations, sensitive information might include the following:
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.
-----------------------------------------------------------------------
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.
Tuesday, February 5, 2008
By Frank Kardasz and Richard Whidden
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.
-----------------------------------------------------------------------
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.
| Dr. Frank Kardasz P.O. Box 45048 Phoenix, AZ 85064 e-mail: kardasz@kardasz.org blog: www.kardasz.org/blog/ resume |
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