Click Fake Hyperlink, Go To Jail -- New Fed Entrapment Scam
RobV
March 20, 2008 4:00 AM PDT
FBI posts fake hyperlinks to snare child porn suspects
Posted by Declan McCullagh | 25 comments
Screen snapshot: This now-defunct site is reportedly where an FBI
undercover agent posted hyperlinks purporting to be illegal videos.
Clicking the links brought a raid from the Feds.
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 upload.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 about 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."
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