Witness for the Scumbag
Police say Disney executive Patrick Naughton arrived in Santa Monica on Sept. 16 expecting to meet a 13-year-old girl he'd been corresponding with over the Internet.
Instead, the 34-year-old Seattle resident, who was responsible for Disney's network of Web sites, was met by an undercover female detective, taken into custody and charged with intent to solicit sex from a minor. The "13-year-old girl" was actually FBI agent Bruce Applin, using a tactic police are increasingly employing to track down pedophiles online.
However irrational the reasons, pedophiles have always been one of the Internet's great bugaboos. Statistics show kids are in much greater danger from Uncle Fred or other family members than they are from "online predators." As Mike Godwin of the Electronic Frontier Foundation put it dryly, "After all, even the most determined child predator can't reach through the screen and grab my little girl."
But the fear persists. So when a story like Naughton's comes around—or that of El Toro High School wrestling coach Enoch Jerry Jarrett, arrested almost simultaneously in Los Angeles—most people heave a sigh of relief, perhaps without considering the consequences.
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Naughton was once considered one of the Internet's rising stars. He was part of the legendary team at Sun Microsystems that created the Java programming language. He later joined Sunnyvale-based Infoseek, a search-engine company controlled by Disney, and was eventually appointed to oversee Disney's Go Network, a collection of sites touted as a safe Internet haven for kids—an irony that did not escape the media's attention following Naughton's arrest.
According to the SoCal-based Sexual Assault Felony Enforcement (SAFE) team, a multiagency task force that includes the OC Sheriff's Department, Applin and Naughton exchanged numerous messages beginning in March over an Internet-relay chat channel on the Internet. Naughton, going by the name of HotSeattle, allegedly made a number of sexual comments and ultimately arranged to meet the "girl" in Los Angeles. After his arrest, Infoseek announced that Naughton was no longer employed by them.
The tactics used in Naughton's case—cop pretends to be kid; cop gets into conversations with guy online; guy proposes sex; guy gets arrested—are fairly typical of online sting operations designed to catch child predators. A number of task forces like SAFE have been set up around the country. Colorado's Crimes Against Children unit in Jefferson County has earned a reputation for nailing pedophiles online. In 1993, the FBI set up an operation called Innocent Images that targeted men on America Online. Huntington Beach police officer Daryk Rowland earned such a reputation for going after pedophiles on the Internet that he was invited to testify before Congress on the problem.
Though the media tends to exaggerate the problem, there's no question that there are men online who target kids for sex. There have been cases of children running away from home with or being raped or murdered by men they met online. Certainly, law enforcement's goal of getting these men off the streets is a laudable one.
It's just that sometimes the methods they use can leave one a tad queasy.
On July 24, 1998, San Francisco journalist Bruce Mirken arrived in a Sacramento park. He was there to meet a gay teenager whom he'd been corresponding with over the Internet. Instead, he was taken into custody; the kid turned out to be a Sacramento police officer.
At the time of his arrest, Mirken was known as a passionate advocate for gay teenagers. Mirken, himself gay, has written numerous articles about the struggles gay teens face and was known for corresponding with them online. Sacramento police had asked him to bring a condom and a hotel key to the park rendezvous; according to Mirken's lawyer, he brought neither.
Mirken's attorney also claimed that all talk of sex had been initiated by police and pointed out that meeting a teenager in a park is not a criminal act. But the attitude of the police seemed to be that sex could be the only possible reason an older gay man would be interested in a teenager.
A judge disagreed. In July, Judge Rudolph R. Loncke dismissed the charges against Mirken on the second day of his trial, ruling that the prosecution had failed to show Mirken had any intention of performing a "lewd and lascivious" act on the kid he thought he was meeting.
Mirken's case is extreme. (Can you imagine a journalist getting arrested for interviewing a drug dealer on the presumption that he must have been trying to buy drugs?) But it illustrates some of the reasons civil-liberties activists view law enforcement's activities online with suspicion.
One nagging issue is the question of the imaginary victim. Take Naughton's case. He's been charged with interstate travel with the intent of soliciting sex from a minor. The one problem with that, of course, is that there was no minor from whom he could solicit sex. Talk about your victimless crimes.
Boston attorney Jeffrey Denner, who has handled a number of cases involving computer crimes, said that from a legal standpoint, at least, the cops are in the clear on that issue.
"It's the intent that matters," he said. "If you think you're going to have sex with a 14-year-old girl, you can be punished for the attempt. It's the same with drugs. If we're talking on the phone, and I say I want to buy 10 kilos of cocaine, and you bring me borax, I can still be charged with trafficking. The government wants to punish that kind of behavior."
But it still leaves one feeling ethically dicey. It's one thing to step in if a real child is in danger; there have been cases in which children who have been contacted by pedophiles online have been replaced by cops at the keyboard. But it's another thing entirely to create a child out of whole cloth and dangle them enticingly online to troll for predators. In essence, the police are manufacturing a crime, and that's where the issue of entrapment comes in.
Legally speaking, entrapment depends on whether the accused was predisposed to commit the crime. In other words, if a cop posing as a child simply shows up in a chat room and is immediately glommed onto by a user who starts asking all sorts of personal questions about sex, that would be a clear indication of predisposition—the guy was positively panting to contact a child online for nefarious purposes. But if the cop lists "sex" as one of his main preoccupations in his user profile, asks the target to e-mail him some child pornography, and suggests that they meet and get it on, then we have a problem.
Take the FBI's Innocent Images operation. Agents posing as children used suggestive screen names such as "horny15bi," listed sexual preferences in their user profiles such as "dreaming of kinky sex," and often responded to overtures from other users with sexually explicit messages. In a situation like this, one could easily argue that law enforcement is essentially creating a crime where none existed before—or would have existed, without their intervention.
It's hard to whip up much indignation in defense of alleged pedophiles. Child predators are universally deplored as monsters (except by the members of NAMBLA, and to hell with them). But it's important that we not let our instinctive disgust and our societal fear of the untamed beast known as the Internet lead us into trampling constitutional boundaries. What if law enforcement, flushed and giddy with the success of their pedophile stings, turns its attention on others?
"For the FBI to go in and entice people, masquerading in this game playing, this is likely to extend into other areas. I could see it very easily with the militia movement," David Sobel, legal counsel for the Electronic Privacy Information Center, told Knight-Ridder newspapers.
So remember: we may consider child predators as the dung beneath our shoes, but there are folks out there who feel the same way about pornographers. Or atheists. Or (in OC) liberals. Even scumbags deserve our careful, vigilant defense.
Because who knows when someone else will decide you're a scumbag?
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