The Witch Hunt for Child Porn

witch.jpgHistorically, witch hunts have not been a good thing. Innocent people have suffered extreme temperature conditions. Now, the witch hunt has shifted its focus away from non-traditional religious practices, and into something everybody can agree is perverted–the possession of child pornography.

The current state of the law is scary. Simply viewing child porn is illegal in Florida. Pretty soon, just thinking about viewing child porn will be illegal. Can you think of anything else that is illegal to see?

I understand the logic here–if you cut of the demand (the viewers), the supply of child porn will decrease as well. But that’s not how child porn works. Sure, if you cut down cocaine users, the supply of cocaine will decrease, but that’s economics 101. Child porn is not an economically driven activity–there’s no money changing hands. Let’s face it, the production of child porn is some sort of perversion. So, it doesn’t take a rocket scientist to figure out that the massive prison terms child porn possession cases has not made a dent in its production.

Here’s my concern for today. The government’s quest to find child pornography is diminishing our constitutional rights, by setting the bar so low to issue a home search warrant. The level of proof to enter a suspected grow house, or to enter a home suspected of containing drugs, is far greater than the proof required to enter a home suspected of containing child pornography. The case that will prove this to you is State v. Woldridge, 958 So. 2d 455 (Fla. 2d DCA 2007).

Woldridge was charged with possession of child pornography, based upon a search of Woldridge’s home. Naturally, this search began as an Affidavit in Support of a Search Warrant. Typically, law enforcement must produce quite a bit of evidence to a judge (in the form of a sworn affidavit) to get into somebody’s house. The constitution requires probable cause that there will actually be evidence of a crime in a house before violating the sanctity of a citizen’s home. In Woldridge’s case, a judge let the police into his home because the police received a tip that child porn could be found in the home. So the question is, who gave the police this “tip”, and how reliable was this “tip?”

Tips can be a sketchy business. Not all tips are created equal. I’ve seen plenty of jealous wives and husbands give bogus tips to the police, just to thwart a new relationship. I’ve seen plenty of bogus tips given to the police just because a business owner wants to knock out the competition. And sometimes, folks are simply prejudice and assume that someone is up to no good because they drive too nice of a car. You get the point. Cops have to be careful, and make sure the tips they receive are reliable and can be substantiated before asking a judge to enter a home.

In Woldridge, the tip came from the National Center for Missing and Exploited Children (NCMEC), and they received their info from America Online (AOL). AOL had reported to NCMEC that one of their users attempted to email child porn files. Now, in case you didn’t know, our Federal government actually requires internet providers to report to NCMEC any child pornography they come across. AOL was simply following the law. Law enforcement then obtained this information, put it into a warrant application, and a judge signed this warrant. A search was done of Woldridge’s house, and you know the rest of the story. The problem boils down to this–do we really know how reliable these internet tips are? No human being seemed to touch this tip, it was just an automated email of sorts sent to NCMEC. How many automated emails to you get in a day that aren’t all they’re cracked up to be? How many times have major companies sent you an email in error?

No, we don’t know how reliable AOL is. We don’t know how reliable NCMEC is, they’re just a pass through organization that does no independent analysis of the tips they receive. You could have some webmaster out of Russia sending tips to NCMEC, and some judge will sign the warrant, unfortunately. And, that’s the problem. Some judges see the term “child porn” and ask “where do I sign?” The constitution requires a neutral magistrate to sign home search warrants, and we’re not seeing much neutrality in these cases.

There’s no verification of the NCMEC internet tips. if it comes from a website, it must be valid. Do any of you out there believe everything you read on the internet? Do you believe everything you see on the internet? Well, the cops do, and the judges do–and that should scare you.

Back to Woldridge. Let’s oversimplify things a bit and say that when a tip is considered reliable, there is probable cause to enter a home. If a tip is anonymous, it is generally not reliable, and a judge will not sign a search warrant to permit entry into a home unless the tip’s reliability can be established in other ways. A tip from NCMEC is not necessarily anonymous, nor is a tip from AOL. But, is this tip as reliable as a citizen informant, like “Kathy Jones who lives at 1234 Main Street, phone number 407-,Kathy says that the suspect did XYZ”?

Federal law compelled AOL to report the child pornography in Woldridge. Does that make the reliable? However, what about this reporting requirement makes the content of their tip any more or less reliable? Information provided by the internet is often unreliable, it is often tainted, and it is often misleading. Unfortunately, the court in Woldridge didn’t really care much about the wild west landscape of the internet, opting to support the witch hunt in any way they can.

Bottom line: local law enforcement has gone beyond Woldridge, and now uses tips from non-ISP internet providers. Yep, just plain old website tips are good enough. That’s scary. I have a website, you probably have a website. Any of us can submit a tip to NCMEC, that tip will be forwarded to law enforcement and some judge may just be dumb enough to sign the warrant. Notice the distinction here, Woldridge dealt with an ISP like AOL, another case dealt with Yahoo. But the bar has been lowered to include any website that reports child porn, even though they’re not an ISP.

So, the Woldridge court trusted an ISP as a reliable informant, but stated that “we certify the following question as one of great public importance:

WHETHER INFORMATION PROVIDED TO LAW ENFORCEMENT BY AN INTERNET SERVICE PROVIDER PURSUANT TO THE PROVIDER’S STATUTORY OBLIGATION . . . IS ACCORDED A PRESUMPTION OF RELIABILITY AKIN TO THAT OF A CITIZEN INFORMANT SUCH THAT NO INFORMATION CONCERNING THE RELIABILITY OF THE “TIPSTER” IS NECESSARY TO PROVIDE PROBABLE CAUSE FOR THE ISSUANCE OF A SEARCH WARRANT” id. at 460
Yes, this is an issue of great public importance, at least they got that right.