Fake Hyperlinks by Feds to snare "Attemped" possession of kiddie porn

The FBI recently began posting hyperlinks that purport to be illegal videos of minors having sex, and then raiding the homes of anyone willing to click on them. So far this hyperlink-enticement technique has lead to raids of homes in Pennsylvania, New York, and Nevada in 2007. The supposed video files actually were gibberish and contained no illegal images. This technique involves problems with identifying who's using an open wireless connection--and whether anyone who clicks on a link that contains no child pornography should be automatically subject to a dawn raid by federal police. Further, people are being prosecuted for "attempts" to possess even when the computers used show no evidence of "collecting" or downloading kiddie porn. Take the case of Roderick Vosburgh.

Roderick Vosburgh, a doctoral student at Temple University who also taught history at La Salle University, was raided at home in February 2007 after he allegedly clicked on the FBI's hyperlink. Federal agents knocked on the door around 7 a.m., falsely claiming they wanted to talk to Vosburgh about his car. Once he opened the door, they threw him to the ground outside his house and handcuffed him.

Vosburgh was charged with violating federal law, which criminalizes "attempts" to download child pornography with up to 10 years in prison. The jury found Vosburgh guilty on that count, and a the judge sentenced him to 15 months in prison, followed by three years of supervised release.

While it might seem that merely clicking on a link wouldn't be enough to justify a search warrant, courts have ruled otherwise. The district judge in Nevada agreed with a magistrate judge that the hyperlink-sting operation constituted sufficient probable cause to justify giving the FBI its search warrant. The defendant in that case, Travis Carter, suggested that any of the neighbors could be using his wireless network. (The public defender's office even sent out an investigator who confirmed that dozens of homes were within Wi-Fi range.) But the magistrate judge ruled that even the possibilities of spoofing or other users of an open Wi-Fi connection "would not have negated a substantial basis for concluding that there was probable cause to believe that evidence of child pornography would be found on the premises to be searched." Translated, that means the search warrant was valid.

As for Vosburgh, the issues of unsecured Wi-FI, spoofing and Zombie computers were raised at trial and appeal, with no success in persuading the jury or judge as to his innocence. From his appeal:

"At trial, Dr. Rebecca Mercuri "was Vosburgh's forensic computer expert, and her testimony formed the bulk of Vosburgh's defense … Mercuri offered her own theory about how the thumbs.db file containing the pornographic images could have gotten onto Vosburgh's hard drive without the corresponding .jpegs for those pictures doing the same." And "Mercuri offered several theories as to how Vosburgh's IP address could appear to have attempted to access the Link without Vosburgh himself knowingly doing so. Mercuri speculated that an unknown user could have "spoofed" Vosburgh's IP address, or that Vosburgh's computer could have been infected with malicious software that turned it into a "zombie."

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Mercuri testified that "spoofing is a way of making it appear as though the IP address is from one user when in fact it is coming from another." She explained that "people are instructed if they are going to download illicit materials, . . . not to use their own IP address, they have to use some other IP address." She further testified that a computer becomes a "zombie" when it is remotely and surreptitiously hijacked by another user and used to do things that the owner does not know that it is doing. Hackers may use computers that have been turned into zombies to send spam emails, or as a place to store files they do not want to store on their own computers. The malicious programs used to perform these activities can be planted on the computer through websites, through email, or even through an idle Internet connection. "

Here's the full link to opinion.

602 F.3d 512

It's a Brave New World out there when you can be prosecuted for an "attempt" crime that the Government can't even guarantee that you did. Be careful with unsecured Wi-Fi.

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