How the FBI Is Ignoring and Mishandling a Major Child-Pornography Investigation
For three years now, the Federal Bureau of Investigation has been running an undercover operation called “Innocent Images” that targets people who use computers to traffic in child pornography — and the results have been oddly reassuring. Innocent Images has nabbed over 70 people so far, from time to time generating headlines about the arrest of a truly vile perpetrator. But given the explosive growth in online services and Internet use — some put the number of users at 20 to 30 million — the number seems very small. And that, in turn, seems to vindicate those who argue that the problem of online smut has been overstated.
Kiddie porn is more than just smut. Its very existence has been deemed a crime by Congress; its possession and dissemination are both point-blank illegal. It is a crime to distribute it — an act defined by law as the exchange of even a single image, regardless of whether money is involved — and to own it. A first offense can draw a maximum sentence of 15 years; a second offense, 30. The law allows the justice system to come down with full force on those who find it stimulating to look at pictures of children having sex with other children, performing sex acts on adults, engaged in sex acts with animals, depicted in scenes of bondage and sadomasochism, and the like. The material in question is so disturbing that even such First Amendment stalwarts as officials of the American Civil Liberties Union routinely call for vigorous prosecution of traffickers in kiddie porn.
At congressional hearings and elsewhere, FBI officials proudly recount their efforts to bring kiddie-porn perpetrators to justice through Innocent Images. From the start of Innocent Images in 1994 through mid-March of this year, the bureau has had 183 search warrants executed that have led to 88 arrests and over 70 convictions.
But that’s not the real story of Innocent Images. In truth, the FBI has nothing to brag about. Rather, it should be hanging its head in shame, because its conduct in the Innocent Images investigation has been nothing short of a scandal, a gross dereliction of duty deserving of congressional hearings and mass firings. For it turns out the FBI has caught a lot more than 70 kiddie-porn traffickers in its net, and is allowing them to slip through. According to congressional and other sources, FBI personnel have acknowledged that, in fact, the bureau has so far compiled a database of 4, 000 names from Innocent Images. In every one of these 4,000 cases, the bureau has solid evidence of distribution of child pornography online.
Data from the U.S. Customs Service offer a telling contrast. Customs, too, runs undercover kiddie-porn investigations involving online services and the Internet because it has authority to investigate the use of any foreign-made products for illegal purposes. Since October 1, 1996, Customs has managed 55 convictions — more than 75 percent of the FBI’s total in less than a third of the time.
What are the nation’s top law enforcers — the FBI itself, the Justice Department in Washington, the 94 U.S. Attorney’s offices throughout the country — doing about these 4,000 people, each of whom, if convicted, would almost certainly face serious prison time? Well, nothing much — and on purpose.
Here’s how Innocent Images works, according to sources present at a closed- door briefing the FBI gave congressional staff on February 13. An agent goes online via a service provider (America Online especially) and seeks out “chat rooms” where kiddie porn appears to be a topic of discussion. The agent makes known an interest in the subject and asks for others with similar interests to send electronic files of images to an e-mail address the agent is using as a drop box. Then it’s just a matter of checking the e-mail to see what comes in and from whom. (FBI personnel did exactly this at the February briefing, showing congressional staff a couple of new kiddie-porn pictures that had just been received as part of Innocent Images at the FBI’s electronic mailbox. ) Upon receipt of an image, which comes with the “username” of the person sending it, the FBI presents a subpoena to America Online seeking the real name and address of the sender. “AOL keeps records of credit card numbers, names and addresses,” according to the written notes of a source who attended the briefing. “The FBI then only has to issue subpoenas for records.” Thus, a database is born. To take the matter farther, as in the case of those actually prosecuted, investigators can use the information they have gathered thus far to seek a search warrant. When they get it, they can search the suspect’s home and seize the computer to conduct a forensic examination of its contents.
The FBI is careful to stay away from entrapment — and to avoid falling into the distribution of child pornography itself. In some instances, for example, persons with whom the FBI makes contact will respond to a request for kiddie porn images by saying, in effect, show me yours and then I’ll show you mine. The FBI won’t do it, and thus won’t pursue that individual further. The implication, therefore, is that the FBI’s 4,000-name database constitutes only the least subtle and most eager segment of the kiddie porn universe: those willing to hand over an image to a total stranger, apparently in the mistaken belief that the online world actually offers genuine anonymity.
How many more people are sufficiently cautious to avoid the FBI by waiting to receive an image from another user before they send one? And how many more still have realized that AOL and the other online service providers are particularly porous to lawenforcement authorities with subpoenas? As the FBI briefers explained, “There are many more Internet providers [but with them,] [identifying] the predator and serving a search warrant becomes much more difficult. For example, [Company X], an Internet server, gives a user a new identification number for every sign-on. It is therefore impossible to track the system for distributors.”
The federal prosecutions stemming from Innocent Images to date “have been of white men around the age of 40,” according to the notes. “Many of the people convicted under the investigation are first time offenders. . . . 98% of those individuals pled guilty. There have been two suicides. These people have been lawyers, police officers, principals. Generally, they are well educated and employed.”
In addition, those selected for prosecution would seem to be only the most egregious and conspicuous of kiddie-porn offenders. The bureau’s investigation “targets forwarders and redistributors of child pornography.”
This, of course, begs the question: What about the rest? The real starting point in trying to figure out how many kiddie-porn aficionados are out there and doing something about them ought to be the 4,000-name database — and even that is only a beginning. Unfortunately, the FBI, for whatever reasons, seems to have decided to take the 4,000 names and cull for the most blatant cases (the ones easiest to make, perhaps?) instead of using the 4,000 names as a point of departure for an investigation that could potentially net many more offenders.
This is no accident. Sources describe the FBI protocols governing Innocent Images cases as designed apparently with very different goals in mind. The initial protocols called for evidence of 10 separate instances of distribution by a particular individual before the FBI would seek to prosecute. Sources say the number is now three — though, by law, one is enough. It may be that investigators are looking for “jury appeal” — evidence that will hit jurors over the head like a two-by-four. But, as it happens, most of these cases end in plea bargains, anyway. Another problem area is that some U.S. Attorneys are more receptive toward cases of this kind than others; some are overly cautious, whether as a result of the disagreeableness of the evidence in these cases, unfamiliarity with the law, or for other reasons.
The most startling fact of all may be this: To handle these 4,000 potential cases, the FBI has . . . three agents working full-time. Until recently, there was only one. The bureau has 81 people working in congressional relations and public affairs.
The agents themselves deserve praise, obviously, for generating enough material to build 4,000 separate cases against perpetrators most of whom were hitherto unknown to law enforcement. But the FBI and the Justice Department and the Clinton administration seem utterly uninterested in doing anything about it.
What they mainly seem interested in doing now, however, is denying the massive scope of the evidence they have amassed and are sitting on — in an effort to avoid embarrassment over the inaction. Charles Grassley, Iowa Republican and chairman of a Senate Judiciary subcommittee, sent a letter March 27 to FBI director Louis Freeh asking specifically for “the precise number of names in this database; how those names came to be included in the database; why the names included in the database are not being further investigated; [and] any ‘threshold’ requirements to launch an investigation for sending computerized child pornography.” Grassley was asking Freeh to provide, in writing, what FBI briefers had already told congressional staff. One can only imagine the scramble within the FBI and the office of the deputy attorney general, to whom the FBI director reports, as Grassley’s April 3 deadline for reply came and went. Freeh finally replied late the next day. His letter, replete with FBI procedural boilerplate, pointedly answered none of Grassley’s questions.
It’s time to get back to basics. Trafficking in kiddie porn is a serious crime. Nor is this a matter for some neat distinction between “mere” images and the act of child molestation. What we are talking about is photographs of real acts of molestation. They have been recorded on film for use by those whose demand for this material can only lead to more instances of molestation in the effort to meet that demand. And law-enforcement authorities know of at least 4,000 people willing to distribute these images for the asking.
Notwithstanding certain fringe views on the subject, most Americans react to child pornography with visceral repulsion. And with fear — for their own children and grandchildren, for the children of their friends and loved ones, and even on behalf of the anonymous children on whom unspeakable horrors are being inflicted for the purpose of feeding the appetite out there for material of this, the worst, sort.
Four thousand names. Is the real problem with this database, then, its very success? Is it just too many people? Too many to assimilate, internalize, deal with, process, let alone act upon? Are people running smack into this mountain of data and saying, “Oh, so many, we had better concentrate on the really bad ones,” when, in fact, they are all really bad ones? Are we now going to define deviancy down, in Sen. Daniel Patrick Moynihan’s famous phrase, to allow trafficking in child pornography so long as it is not done to excess?
Or is somebody going to do something about the 4,000? It’s hard to imagine how the reaction from ordinary Americans to such an initiative would be anything other than a resounding cheer. Indeed, given what we know about offenders of this kind, it’s hard to imagine you wouldn’t have more than 3, 000 guilty pleas within 24 hours of the 4,000 arrests. And the cooperation that would ensue from the plea bargainers would probably yield a list of some thousands of hitherto unknown others with similar appetites. This is not symbolic; on the contrary, it would be devastating to the trade in child pornography.
To be sure, resources are tight. But that’s an excuse. Mainly what we have is a lack of resolve at the highest levels of law enforcement. People who, when they open the gate to the devil’s playground and see that his name is Legion — that he has 4,000 demons, not a more manageable 400 or 40 or 4 close the gate quickly and walk away before someone sees them.