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Entrapment in Cyberspace Jennifer Gregg Hastings Communications and Entertainment Law Journal Volume 19 | Number 1 Article 6 1-1-1996 Caught in the Web: Entrapment in Cyberspace Jennifer Gregg Follow this and additional works at: https://repository.uchastings.edu/ hastings_comm_ent_law_journal Part of the Communications Law Commons, Entertainment, Arts, and Sports Law Commons, and the Intellectual Property Law Commons Recommended Citation Jennifer Gregg, Caught in the Web: Entrapment in Cyberspace, 19 Hastings Comm. & Ent. L.J. 157 (1996). Available at: https://repository.uchastings.edu/hastings_comm_ent_law_journal/vol19/iss1/6 This Note is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Communications and Entertainment Law Journal by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact [email protected]. Caught in the Web: Entrapment in Cyberspace by JENNIFER GREGG* Table of Contents I. Online Child Pornography and the Current Response of Law Enforcem ent ................................................................ 161 II. Overview of Cyberspace ...................................................... 166 A. Levels of Interaction: Terms and Definitions ............ 166 1. Electronic M ail ........................................................ 167 2. Bulletin Board Systems (BBSs) ............... 167 3. FTP & the World Wide Web ................................ 169 B. Unique Attributes of Cyberspace ................ 169 III. History of Entrapment Law ................................................ 170 A. Origin and Underlying Goals ................... 170 B. Subjective Versus Objective Debate ............. 172 1. The Subjective Test ................................................ 172 2. Procedural Summary ............................................... 178 3. The O bjective Test .................................................. 180 C . C riticism s .........................................................................183 IV. Potential Application of Existing Entrapment Law to Child Porn Stings in Cyberspace .................... 186 A. Predisposition in Cyberspace ................... 186 1. Legal Standards ....................................................... i86 2. Evidentiary Issues .................................................... 188 3. Privacy Issues ........................................................... 189 4. Community Standards ............................................ 190 B. Police Inducement Standards ........................................ 191 1. Sliding Scale of Deception .................. 191 2. Privacy Expectations ............................................... 192 * J.D. expected University of California, Hastings College of the Law, 1997; B.A., University of California, Berkeley, 1992. The author would like to thank and acknowledge Scott Bonagofsky and Kristy Wheeler for their contributions in writing this Note. 158 HASTINGS COMM/ENT LJ. [VOL. 19:157 3. Efficient Allocation of Police Resources .............. 192 V. Alternatives Considered ...................................................... 193 A. Private/Non-legislative Solutions ................. 193 1. Parental Supervision ................................................ 193 2. User Awareness ....................................................... 194 3. Sysop Censorship/Monitoring ............... 194 B. Legislative/Public Solutions .................... 195 1. Civil Penalties .......................................................... 195 2. Criminal Penalties .................................................... 195 3. Police Procedure Legislation ................................ 195 V I. Conclusion ............................................................................. 196 19961 CAUGHT IN THE WEB Introduction In September 1995, the Federal Bureau of Investigation made its first nationwide sweep to catch pedophiles who misuse computer networks to solicit sex from minors and transmit illegal pornographic material.' Conducted with search warrants and the permission of America Online (AOL), the two year investigation resulted in 15 arrests and the seizure of 125 suspects' computers and diskettes.2 Agents gathered evidence undercover by posing while "on-line" as underage potential victims and pedophiles,' by monitoring private e- mail and private "chats," or conversations, using AOL services.4 Encouraged by the success of this operation, federal law enforcement authorities have indicated plans to use similar surveillance techniques to fight other computer-related crimes including consumer fraud, money laundering, and stolen credit card rings.5 Since the 1970's, undercover investigations have resulted in an increase in prosecutions in the area of child pornography at both the state and federal levels.6 Law enforcement has used extremely creative methods, putting the government in the position of seemingly being one of the major marketing forces of child pornography in the United 1. Michele Quinn, FBI Raids Hit Child Cyberporn, S.F. CHRON., Sept. 14, 1995, at Al. America Online has 3.5 million subscribers nationwide and was America's largest computer network in 1995. Id. Federal and local law enforcement agencies had been using similar techniques since 1993 to conduct investigations on amateur electronic bulletin boards where computer criminals traffic in stolen information, child pornography, poison recipes, and bomb making instructions. Ralph Blumenthal, Cyber Cop Patrols Computer Underworld, S.F. CHRON., Feb. 7, 1993, at 4. Previously, in 1993, a federal investigation, "Operation Long Arm," targeted child-porn rings on amateur bulletin boards. For a description of bulletin board services, see infra Part II.A.2. 40 Computerized Child Porn Locations Raided, One in County, SAN DIEGO UNION- TRIB., Mar. 5, 1993, at A8. 2. Rajiv Chandrasekaran, Undercover on the Dark Side of Cyberspace; Online FBI Agents Troll for those Who Prey on Children but Cybercops Tactics Chill Critics, WASH. POST, Jan. 2, 1996, at D1. AOL was first alerted to the online distribution of child pornography by subscribers who forwarded examples of the distributed material to the company. After determining the material was illegal, AOL sent out warnings to users and contacted law enforcement. Quinn, supra note 1, at Al. 3. In the context of this Note, the term "pedophile" refers to individuals in search of either child pornography or minors to recruit for sex. 4. Bruce Selcraig, Chasing Computer Perverts,PENTHOUSE, Feb. 1996, at 47, 48. 5. Steven Labaton, As PornographyArrests Grow, So Do Plans for Computer Stings, N.Y. TIMES, Sept. 16, 1995, at Al. A discussion of other consensual and conspiratorial computer- related crimes is beyond the scope of this Note. For further information regarding computer- related crimes, see generally Adam Ciongoli, Computer Related Crimes, 31 AM. CRIM. L. REV. 425 (1994); Scott Charney, Computer Crime, 41 FED. B. NEWS &J. 489 (1994). 6. Jack B. Harrison, Case Note, The Government as Pornographer: Government Sting Operationsand Entrapment,61 U. CIN. L. REV. 1067, 1068 (1993). HASTINGS COMM/ENT L.J. [VOL. 19:157 States. 7 The undercover policing of child pornography distribution and related crimes in "cyberspace" 8 creates the potential for new levels of police deception and creativity, and heightens the potential for abuse. This Note focuses on the difficulties of applying existing entrapment doctrine, currently the chief limitation on police deception, to computer sting operations. The following analysis suggests that different settings for undercover police operations merit different levels of protection. Specifically, the unique characteristics of cyberspace warrant greater protection and vigilance against abuse than other "real world" settings. This Note concludes that either the legislature or the appropriate law enforcement agencies must create guidelines for controlling undercover policing in this new forum, rather than continuing to rely on the judicially created entrapment doctrine. Part I introduces the problem of online child pornography distribution and child sex solicitation, and details of how law enforcement agencies have responded to these problems. Part II provides an overview of the terms and definitions of the various levels of interaction in cyberspace. This section also examines the unique attributes making crime detection difficult in this setting. Part III summarizes the decisional developments of entrapment law at the federal and state levels, examining tensions between the various purported goals and underlying policies of the entrapment tests. In addition, Part III describes the existing legal standards for a viable entrapment defense. Part IV analyzes the potential application of existing entrapment doctrine to undercover investigations in cyberspace, and the potential consequences of such an application. Part V explores and critiques alternative methods which have been proposed for detecting and preventing crime in cyberspace. In conclusion, Part VI recommends possible solutions for modifying current entrapment law to accomodate the unique conditions of cyberspace. Additionally, Part VI recommends that legislation is needed which recognizes cyberspace 7. Id. at 1068 (citing Lawrence Stanley, The Child Porn Myth, 7 CARDozo ARTS &ENT. L.J. 269, 321-25 (1989)(describing efforts such as "creating phony businesses, newsletters, and personae in order to encourage the purchase, sale and exchange of child
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