WTF?? FBI sting arrests you for simply clicking a link that the FBI posts

[fultonCoShooter]

http://www.news.com/8301-13578_3-9899151-38.html

March 20, 2008 4:00 AM PDT
FBI posts fake hyperlinks to snare child porn suspects

Posted by Declan McCullagh | 201 comments

The FBI has recently adopted a novel investigative technique: posting hyperlinks that purport to be illegal videos of minors having sex, and then raiding the homes of anyone willing to click on them.

Undercover FBI agents used this hyperlink-enticement technique, which directed Internet users to a clandestine government server, to stage armed raids of homes in Pennsylvania, New York, and Nevada last year. The supposed video files actually were gibberish and contained no illegal images.

A CNET News.com review of legal documents shows that courts have approved of this technique, even though it raises questions about entrapment, the problems of identifying who's using an open wireless connection--and whether anyone who clicks on a FBI link that contains no child pornography should be automatically subject to a dawn raid by federal police.

Roderick Vosburgh, a doctoral student at Temple University who also taught history at La Salle University, was raided at home in February 2007 after he allegedly clicked on the FBI's hyperlink. Federal agents knocked on the door around 7 a.m., falsely claiming they wanted to talk to Vosburgh about his car. Once he opened the door, they threw him to the ground outside his house and handcuffed him.

Vosburgh was charged with violating federal law, which criminalizes "attempts" to download child pornography with up to 10 years in prison. Last November, a jury found Vosburgh guilty on that count, and a sentencing hearing is scheduled for April 22, at which point Vosburgh could face three to four years in prison.

The implications of the FBI's hyperlink-enticement technique are sweeping. Using the same logic and legal arguments, federal agents could send unsolicited e-mail messages to millions of Americans advertising illegal narcotics or child pornography--and raid people who click on the links embedded in the spam messages. The bureau could register the "unlawfulimages.com" domain name and prosecute intentional visitors. And so on.



"The evidence was insufficient for a reasonable jury to find that Mr. Vosburgh specifically intended to download child pornography, a necessary element of any 'attempt' offense," Vosburgh's attorney, Anna Durbin of Ardmore, Penn., wrote in a court filing that is attempting to overturn the jury verdict before her client is sentenced.

In a telephone conversation on Wednesday, Durbin added: "I thought it was scary that they could do this. This whole idea that the FBI can put a honeypot out there to attract people is kind of sad. It seems to me that they've brought a lot of cases without having to stoop to this."

Durbin did not want to be interviewed more extensively about the case because it is still pending; she's waiting for U.S. District Judge Timothy Savage to rule on her motion. Unless he agrees with her and overturns the jury verdict, Vosburgh--who has no prior criminal record--will be required to register as a sex offender for 15 years and will be effectively barred from continuing his work as a college instructor after his prison sentence ends.

How the hyperlink sting operation worked

The government's hyperlink sting operation worked like this: FBI Special Agent Wade Luders disseminated links to the supposedly illicit porn on an online discussion forum called Ranchi, which Luders believed was frequented by people who traded underage images. One server allegedly associated with the Ranchi forum was rangate.da.ru, which is now offline with a message attributing the closure to "non-ethical" activity.

In October 2006, Luders posted a number of links purporting to point to videos of child pornography, and then followed up with a second, supposedly correct link 40 minutes later. All the links pointed to, according to a bureau affidavit, a "covert FBI computer in San Jose, California, and the file located therein was encrypted and non-pornographic."

Excerpt from an FBI affidavit filed in the Nevada case showing how the hyperlink-sting was conducted.

Some of the links, including the supposedly correct one, included the hostname uploader.sytes.net. Sytes.net is hosted by no-ip.com, which provides dynamic domain name service to customers for $15 a year.

When anyone visited the upload.sytes.net site, the FBI recorded the Internet Protocol address of the remote computer. There's no evidence the referring site was recorded as well, meaning the FBI couldn't tell if the visitor found the links through Ranchi or another source such as an e-mail message.

With the logs revealing those allegedly incriminating IP addresses in hand, the FBI sent administrative subpoenas to the relevant Internet service provider to learn the identity of the person whose name was on the account--and then obtained search warrants for dawn raids.

Excerpt from FBI affidavit in Nevada case that shows visits to the hyperlink-sting site.

The search warrants authorized FBI agents to seize and remove any "computer-related" equipment, utility bills, telephone bills, any "addressed correspondence" sent through the U.S. mail, video gear, camera equipment, checkbooks, bank statements, and credit card statements.

While it might seem that merely clicking on a link wouldn't be enough to justify a search warrant, courts have ruled otherwise. On March 6, U.S. District Judge Roger Hunt in Nevada agreed with a magistrate judge that the hyperlink-sting operation constituted sufficient probable cause to justify giving the FBI its search warrant.

The defendant in that case, Travis Carter, suggested that any of the neighbors could be using his wireless network. (The public defender's office even sent out an investigator who confirmed that dozens of homes were within Wi-Fi range.)

But the magistrate judge ruled that even the possibilities of spoofing or other users of an open Wi-Fi connection "would not have negated a substantial basis for concluding that there was probable cause to believe that evidence of child pornography would be found on the premises to be searched." Translated, that means the search warrant was valid.

Entrapment: Not a defense

So far, at least, attorneys defending the hyperlink-sting cases do not appear to have raised unlawful entrapment as a defense.

"Claims of entrapment have been made in similar cases, but usually do not get very far," said Stephen Saltzburg, a professor at George Washington University's law school. "The individuals who chose to log into the FBI sites appear to have had no pressure put upon them by the government...It is doubtful that the individuals could claim the government made them do something they weren't predisposed to doing or that the government overreached."

The outcome may be different, Saltzburg said, if the FBI had tried to encourage people to click on the link by including misleading statements suggesting the videos were legal or approved.

In the case of Vosburgh, the college instructor who lived in Media, Penn., his attorney has been left to argue that "no reasonable jury could have found beyond a reasonable doubt that Mr. Vosburgh himself attempted to download child pornography."

Vosburgh faced four charges: clicking on an illegal hyperlink; knowingly destroying a hard drive and a thumb drive by physically damaging them when the FBI agents were outside his home; obstructing an FBI investigation by destroying the devices; and possessing a hard drive with two grainy thumbnail images of naked female minors (the youths weren't having sex, but their genitalia were visible).

The judge threw out the third count and the jury found him not guilty of the second. But Vosburgh was convicted of the first and last counts, which included clicking on the FBI's illicit hyperlink.

In a legal brief filed on March 6, his attorney argued that the two thumbnails were in a hidden "thumbs.db" file automatically created by the Windows operating system. The brief said that there was no evidence that Vosburgh ever viewed the full-size images--which were not found on his hard drive--and the thumbnails could have been created by receiving an e-mail message, copying files, or innocently visiting a Web page.

From the FBI's perspective, clicking on the illicit hyperlink and having a thumbs.db file with illicit images are both serious crimes. Federal prosecutors wrote: "The jury found that defendant knew exactly what he was trying to obtain when he downloaded the hyperlinks on Agent Luder's Ranchi post. At trial, defendant suggested unrealistic, unlikely explanations as to how his computer was linked to the post. The jury saw through the smokes (sic) and mirrors, as should the court."

And, as for the two thumbnail images, prosecutors argued (note that under federal child pornography law, the definition of "sexually explicit conduct" does not require that sex acts take place):

The first image depicted a pre-pubescent girl, fully naked, standing on one leg while the other leg was fully extended leaning on a desk, exposing her genitalia... The other image depicted four pre-pubescent fully naked girls sitting on a couch, with their legs spread apart, exposing their genitalia. Viewing this image, the jury could reasonably conclude that the four girls were posed in unnatural positions and the focal point of this picture was on their genitalia.... And, based on all this evidence, the jury found that the images were of minors engaged in sexually explicit conduct, and certainly did not require a crystal clear resolution that defendant now claims was necessary, yet lacking.

Prosecutors also highlighted the fact that Vosburgh visited the "loli-chan" site, which has in the past featured a teenage Webcam girl holding up provocative signs (but without any nudity).

Civil libertarians warn that anyone who clicks on a hyperlink advertising something illegal--perhaps found while Web browsing or received through e-mail--could face the same fate.

When asked what would stop the FBI from expanding its hyperlink sting operation, Harvey Silverglate, a longtime criminal defense lawyer in Cambridge, Mass. and author of a forthcoming book on the Justice Department, replied: "Because the courts have been so narrow in their definition of 'entrapment,' and so expansive in their definition of 'probable cause,' there is nothing to stop the Feds from acting as you posit."

[XD45]

Thats pretty f*cking retarded, and a 1st year law student could get you out of those charges. you can't tell me they couldn't have been putting those raid teams out on child rapist warrants or something like that. Although those sites are really really screwed up, thats not the way to go about cracking down on them I sure hope they have better ideas.



It'd have been better if they get a popup that says "If you click the red button you are agreeing to allow the FBI to raid your house within the next 24hrs- THIS IS NOT A JOKE!" I personally can't be trusted around buttons so I know i'd have taken that bait

[awkx]

I wonder when the ATF will join the game. "Want to learn how to convert your AR-15 to fully-automatic? Click here to get your home raided at 7_AM! We don't care whether you're just curious or whether you really intend to build a machinegun, we just love raiding homes and stealing your property by Asset Forfeiture!"

It is truly sickening how our gov't resorts to manufacturing easy-to-prosecute 'crimes' instead of actually cracking down on the real criminals.

[Garpman]

Without a doubt in my mind, the ATF already plays.

Undercover agents troll gun shows looking to sell questionable parts, etc. and off you go. It's especially easy when they have the assinine "once a machinegun always a machinegun" rule.

[larrymeyer]

As long as it's used to catch pedophiles I don't have a problem would if it was used for other things though.

Anyone who prays on the young and helpless kids should go to jail forever even if we have to turn the exercises yard into a grave yard they should never got out from behind the walls.

Anyone hurts my children and their 40,39,35 or grandchildren will never be safe even if I have to take out the sheriffs dept in the media courthouse I'll get to him

[awkx]

As long as it's used to catch pedophiles I don't have a problem would if it was used for other things though.

I must disagree with you on this point. If a law-enforcement tactic is lawful for catching pedophiles, then under our legal system, it is also lawful for enforcing other laws. If you think it would be improper for the ATF to use these kinds of tactics against gun owners, please keep this in mind.

In America, suspects are presumed innocent until proven guilty, so even persons who are suspected of sexually abusing children have certain procedural rights. In this court case, the gov't only knew that a request for a certain URL comes from the defendant's IP address. It didn't know whether the defendant actually clicked a link with the intent of downloading illegal content advertised by a specific site:

• If the defendant had an insecure wireless network, then someone else could have been using his connection.
• Another site can link to the offending material using innocent displayed text. For example, this link doesn't point to a pornographic image, but you wouldn't know that unless you followed the link.
• Malicious software can be send requests for illegal content specifically for the purpose of getting your home raided. Yes, certain hackers do indeed play games with the police and get SWAT teams sent to homes of innocent persons.

If the Fourth Amendment right to be free from unreasonable search and seizure is to be upheld at all, it must be upheld in all instances. That's how our judicial system works.

[NineseveN]

awkx said it perfectly, I really have nothing to add except a big +1 (or whatever it is).

[Pa. Patriot]

awkx said it perfectly, I really have nothing to add except a big +1 (or whatever it is).

Ditto. Folks, please consider the possible misuse and entrapment of otherwise innocent folks through such broad and indiscriminate tactics.

[doug]

What about computers which are hijacked or backdoored and are being used as a proxy?
Then it's your IP in the logs, but your computer may be part of a drone network.
Hackers rarely go online via their real IP, rather they bounce around a few of these hacked boxes.

How many people do you know whose computers are so clogged up with spyware and virii that they barely operate?

[ungawa]

Damn straight. Today child porn, but they're comin' after you next - you better be sure of that.

Look at all the mileage they got on the "sex offender" sensationalism. Some areas are making people wear GPS tracking devices for ever. Who's next? There are other dangerous people out there. All of us are going to be chipped soon enough.

Look at the Patriot Act. Catch terrorists, right? The powers have been used in an overwhelming majority of cases for investigations unrelated to terrorism or national security.