March 7, 2003 4:08 PM PST

Judges: FBI's child-porn search illegal

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."

 

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