Judges decry DoJ perjury in Net-porn crackdown

FBI zeal may ruin major KP raid

Overzealous FBI agents may have ruined one of the biggest raids of Internet child porn traders by lying on affidavits to obtain search warrants against the suspects.

The FBI hounded down members of a Yahoo! perv discussion group called "Candyman" using email addresses to trace them. Unfortunately, the agents claimed that everyone who joined the group would have received KP images automatically via e-mail, and that this established a legal basis for searching all of their computers.

And it would have, if only their claim were true. Alas, this bit of prosectorial over-reaching was recently caught out by two federal judges, one in New York and one in St. Louis.

Both judges learned that group members would have to choose to receive emails containing pornographic images; they were not sent automatically to everyone who registered as the FBI falsely claimed in its sworn affidavit.

The mere fact of having joined the group is not sufficient grounds for search warrants to be issued, the judges ruled. The FBI will have to come up with actual evidence of KP trading independent of the warrants issued on the basis of its perjury.

The FBI "acted with reckless disregard for the truth" and exhibited "more than a mere failure to investigate or an innocent or negligent mistake," New York judge Denny Chin wrote. He determined that the majority of group members had not elected to receive KP images via e-mail.

St. Louis judge Catherine Perry compared the FBI's claim that subscribing to the group establishes the probability of possessing child pornography to "saying that if someone subscribes to a drug legalization organization or newsletter, then there is probable cause to believe that person possesses drugs."

US Attorney General John Ashcroft trumpeted the investigation last year on national television as a great triumph for the forces of righteousness. But now it seems that many of the roughly 1,800 people under investigation may have had their homes invaded and their property confiscated illegally, and many pending cases may have to be dropped because of it.

The willingness of FBI/DoJ personnel to lie in sworn applications for wiretap and search warrants was highlighted last year by a review court that oversees implementation of the Foreign Intelligence Surveillance Act (FISA), which lowers the bar for the Feds to investigate foreigners. The FISA court determined that at least seventy-five such applications submitted by the Reno DoJ contained false information, though warrants were issued.

The FBI has not yet indicated whether it intends to appeal the rulings in New York and St. Louis. ®