Protecting On-line Undercover Investigations

Tuesday, February 5, 2008

By Frank Kardasz and Richard R. Whidden Jr.

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.

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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(at)kardasz.org
blog :www.kardasz.org/blog/
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Internet Crimes Against Children
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