Author: Digital stings have ruined countless American lives

FPI / June 13, 2024

Law enforcement officers are routinely violating the Fourth Amendment rights of American citizens who in turn often have their lives torn to shreds, said Bonnie Burkhardt, author of the book "Manufacturing Criminals 2nd Edition: Fourth Amendment Decay in the Electronic Age".

"It is a felony and a federal crime to impersonate someone else and intercept private communications intended for them, 18 U.S. Code § 2511. There is no exception for police, and no exception if written permission is obtained," Burkhardt wrote in an April 25 op-ed for The Opinion Pages. "Yet impersonating others online is the basis for police sting operations across the country. Law enforcement must be able to investigate criminal activity, but they cannot commit their own crimes while doing so. It is now customary for officers to violate Fourth Amendment law, and it is happening more frequently."

Male police officers, without a warrant or report of a crime, create fake profiles on adult-only dating sites using photos of attractive ladies (or young men). Men often see a profile and begin a conversation.

"During the chat, the officer claims to be an underage 14-year-old girl/boy, even if it is obviously an adult pictured. The officer uses entrapment to lure the man to meet," Burkhardt noted. "The officer’s goal is to catch someone who might solicit a minor. Why not use a Disney site instead of an adult-only dating app? Since role playing is common online, most men believe they are talking to an adult. They agree to meet in a public place to confirm the person pictured is of legal age."

Impersonation differs from an officer wearing a disguise, which is legal.

In her book, Burkhardt, a software engineer and expert witness who holds a top-secret clearance, details how authorities use tools over the Internet to secretly break into private computers and search them without a warrant. Authorities also unmask the identity of users and geolocate them without a warrant.

When law enforcement creates a persona online, it is a “realistic cartoon,” and “a cartoon is not a human with a birth certificate, it cannot be a person party to a conversation,” according to Burkhardt. Nor can this fictional entity give consent for anyone to record a conversation. This is why a robo-caller must obtain consent from the person it called in order to even listen to the person’s responses. It is a participant, not a “person” party to a conversation.

Burkhardt notes that an officer pretending to be a child can participate in a conversation with a person, but they cannot be a party to the conversation because they are not the recipient of the communications as intended by their target, and only an “intended recipient” is legally party to the conversation. Va. Code § 19.2-62(C); see United States v. Szymuszkiewicz, 622 F.3d 701 (7th Cir. 2010) (conviction upheld where defendant received emails intended for his boss).

"It is federal identity theft to use someone else’s means of identification (a photo) to commit a crime, like interception, 18 U.S.C. § 1028," she writes.  "Disclosing or using illegally intercepted communications are additional crimes under Interception Law."

Recently, the Court of Appeals of Virginia upheld a denial of a defendant’s suppression motion though the defendant’s attorney made arguments based on Burkhardt’s analysis. Pick v. Commonwealth, 852 S.E.2d 479 (Va. Ct. App. 2021). While the court upheld the denial, its opinion ignored the distinction between being a “party” and a “participant,” and it wholly ignored the statutory prohibition on “procur[ing] any other person to intercept or endeavor to intercept, any wire, electronic or oral communication” under Va. Code § 19.2-62(A) and 18 U.S.C. § 2511(1)(a).

Lending credence to Burkhardt’s argument are her assertions that “there [are] no federal cases where an FBI agent created an imaginary person to intercept communications or impersonate some other human being online without court authorization” and that “[o]ne friend called the [Stafford County, Virginia Sheriff’s] office and was told that they shut down those [online undercover] operations” after she confronted an officer about the legality of such actions.

In the book, Burkhardt also details how police will often show up with a warrant to search computers at an address where child sex abuse images have been downloaded. She asks, what about all the warrants they needed to intercept the private communications leading up to this determination, as well as the pen register/trap-and-trace warrants required to obtain information about a user’s identity before presenting a magistrate with sufficient details to justify a search of a person’s home?

She also goes into brief detail about how police use Dropbox access, photo metadata, and computer viruses as pen register tools, almost exclusively without authorization to do so.

Burkhardt writes that her research has revealed that 20% of Virginia prisoners are incarcerated as a result of online enticement stings like those described in her book. She further calculates the total cost to society nationwide is approximately $180 billion per year for such prosecutions, which are done “to save imaginary children from imaginary crimes.”

Unknown is the impact of such practices on the prosecutions of real crimes against real children and whether such tactics have been employed for partisan political purposes.

"I have spoken to many Members of Congress about this issue," she wrote.

Sting operations she detailed are typical of Internet Crimes Against Children (ICAC) Task Force Program. "Thousands of men nationwide have been arrested, prosecuted, and had their lives ruined by such stings," Burkhardt writes. "Their only crime was wanting to go on a date with an adult."

"We all can agree that protecting children is of paramount importance," she continued. While officer may have "noble intentions when using these tactics, they cannot infringe on citizens’ Fourth Amendment rights protecting against illegal searches and seizures."

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