![]() |
U.S. District Court judges this week threw out warrants used
in the FBI's breakup of the Candyman online child-porn group, saying that the
agency misled magistrates to obtain the right to search homes.
In a
Thursday ruling in the Eastern District of Missouri, Judge Catherine D. Perry
found that recent evidence had shown that "false information was recklessly
included in the search warrant application," leading her to overturn a previous
decision and throw out the evidence the government gained from the search.
A New York judge ruled similarly.
"The law enforcement agents
acted recklessly in submitting an affidavit that contained the false information
that all Candyman members automatically received all e-mails, including e-mails
that forwarded images of child pornography, for the agents had serious doubt as
to the truth of the statements," concluded Judge Denny Chin for the Southern
District of New York.
The rulings could unravel U.S. law enforcement's
most celebrated case against child pornography by leading to renewed appeals.
Moreover, the judges underscored the danger of casting too wide a net and
searching overzealously for crimes. If standards were lowered for "repugnant"
crimes, many more Americans could become victims of law enforcement tactics.
"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 home," wrote Judge Chin in his ruling.
Operation Candyman, announced by the FBI a year ago, led to charges
against almost 90 people in more than 20 states, according to a U.S. Department
of Justice press release issued at the time.
The operation appeared to
be a tech-savvy use of the Internet to capture criminals. Agents lurking on the
Candyman electronic group, consisting of a Web site and mailing list, allegedly
found evidence that the members of the list were either collecting or
distributing child pornography.
Yet the evidence--that members of the
group received many individual e-mail messages containing child
pornography--hinged on the FBI's assertion that all members received the
messages. However, the two judges found that FBI agents knew that most members
didn't receive e-mail at all, including the New York defendant Harvey Perez and
the St. Louis defendant Gregory Strauser.
"The vast majority of
subscribers, including Perez, elected to receive no e-mail," said Judge Chin in
his ruling on the New York case. He added: "The (FBI's) affidavit noted that the
Web site offered protected and legal activities: text-based messaging, answering
survey questions, posting links to other sites, and chatting."
Despite
the fact that the FBI agent who had conducted the investigation had been given a
choice of whether to receive all e-mail, a daily digest or no e-mail, the agent
maintained in several court statements that he had been given no choice. Thus,
concluding that all members of the Candyman e-group received the 498
e-mails--including 100 images--sent by others in the group during the
investigation, the agents conducted more than 266 searches.
In reality,
Yahoo, which had hosted the group until the service shut it down for illegal
conduct, presented logs showing that only 413 members of a total of 3,213
members had opted to receive all e-mails.
The U.S. Department of Justice
wouldn't comment on the rulings, releasing a terse statement instead: "The
Department of Justice is reviewing the recent court decisions in connection with
Operation Candyman. The Department remains committed to vigorously investigating
and prosecuting the purveyors and distributors of child pornography."