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Porn Police
Judge Discards F.B.I.
Evidence in Internet Case of Child Smut
By BENJAMIN WEISER, March
6, 2003, NY
Times
A federal judge in Manhattan
has thrown out the government's evidence in an Internet child
pornography case involving a Bronx man, in a ruling that could
imperil scores of related prosecutions around the country.
The judge, Denny Chin of Federal
District Court, ruled that the F.B.I. 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 F.B.I. 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 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 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 F.B.I.
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 F.B.I. 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 F.B.I., 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 F.B.I. 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 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
By LARRY NEUMEISTER, Associated
Press Writer, March 6, 2003
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."
Copyright © 2003, The
Associated Press
US District Judge Rejects
Fox Injunction to Block "Liars" Publication
Mark Huisman, August 22,
2003
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 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 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.
© 2000-2003 San
Francisco Bay Area Independent Media Center. Unless otherwise
stated by the author, all content is free for non-commercial
reuse, reprint, and rebroadcast, on the net and elsewhere.
Law to Bar Web Porn To
Children Overruled
Associated Press, March
8, 2003
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.
© 2003 The Washington
Post Company
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Truth can never be
told so as to be understood, and not be believ'd. William Blake, The Proverbs of Hell
