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“FBI'S RECENT FAILURES IN CHILD PORNOGRAPHY ENFORCEMENT” mentioning the U.S. Dept. of Justice was published in the Senate section on pages S3496-S3497 on March 11, 2003.
The publication is reproduced in full below:
FBI'S RECENT FAILURES IN CHILD PORNOGRAPHY ENFORCEMENT
Mr. LEAHY. Mr. President, I rise to speak about an unfortunate string of events that may set back the Department of Justice in fighting child pornography. Unfortunately, it appears that recklessness by DOJ prosecutors and FBI investigators may result in child pornographers being set free all over the Nation. We cannot afford such mistakes in our efforts to protect our children.
The fight against child pornography is an important and laudable goal. Child pornography victimizes real children and scars them for life. That is why I joined Senator Hatch in introducing the PROTECT Act, S.151, which passed the Senate this month by a vote of 84-0 and now awaits action in the House. I urge the House to pass this bill swiftly as we wrote it and as it unanimously passed the Senate. That way we can quickly get prosecutors the tools they need to win these cases.
The scars of the children who are victimized by child pornography can be that much longer in healing when the power of the internet is misused to spread their images to a worldwide audience with the click of a mouse. The internet also provides child pornographers with greater anonymity, allowing them to exploit children from the perceived safety of their bedrooms and basements. It is crucial to pierce this veil of safety to deter child pornography. Those who victimize our children must be made to understand that they will be held accountable when they are caught.
With that accountability comes deterrence, and only through deterrence will our children actually be safer. By the same token, the failure to make a conviction stick when the FBI does catch a child pornographer emboldens all child pornographers in carrying out their criminal activity. Whenever child pornographers see one of their own
``beat the rap,'' their perception that they can victimize the innocent with impunity is reinforced.
Last March, the Attorney General and FBI Director announced with great fanfare the ``Operation Candyman'' initiative. This investigation was billed as one of the most extensive child pornography stings in history. According to the FBI's March 18, 2002 press release, it involved all 56 FBI Field offices, nearly every U.S. Attorney's Office across the country, and the DOJ's Criminal Division. A major part of the investigation was accomplished by the FBI's completion and dissemination of a centralized search warrant affidavit that was slightly adapted and used in numerous jurisdictions to search the residences of suspects in the case. Thus, most all the Operation Candyman searches--and the admissibility of the evidence obtained through them--depend on the validity and accuracy of this centralized FBI affidavit.
Many arrests resulted from these searches. As the Attorney General said at the time he announced the operation, he wished this case to serve as an example ``to others that we will find and prosecute those who target and endanger our children.''
Unfortunately, this case may set the wrong kind of example. The DOJ has now admitted that its key affidavit--the one that it sent all over the country to conduct searches and gather evidence--contained false information. Two judges so far, one in Missouri and one in New York, have thrown out the evidence obtained from searches in this case. Because of the DOJ's admitted false statements, more cases are in peril within Operation Candyman. More importantly, as the Attorney General acknowledged at the time he announced the operation, other child pornographers may well take their cue from the FBI's failures in this case.
We all want to stop child pornography, but we must do so within the bounds of the Constitution. Otherwise, dangerous predators end up back on the street and our children are still at risk. In this case, two separate judges have found that the FBI acted recklessly and DOJ admitted that it provided false information in its nationally circulated affidavit.
It is all well and good to have press conferences and give catchy names to investigative efforts, but public relations is not enough. Press releases must be accompanied by an effective law enforcement campaign. Otherwise, instead of trumpeting success, we highlight failure. If we concentrate on the fundamentals and bring successful cases, there will be enough credit for everyone. That course alone will make our children safer.
Mr. President, I ask unanimous consent that a copy of a New York Times article discussing this matter be printed in the Record.
There being no objection, the material was ordered to be printed in the Record, as follows: Judge Discards F.B.I. Evidence in Internet Case of Child Smut
(By Benjamin Weiser)
A federal judge in Manhattan has thrown out the government's evidence in an Internet child pornography case involving a Bronx man, in a ruling that could imperil scores of related prosecutions around the country.
The judge, Denny Chin of Federal District Court, ruled that the F.B.I. agents who had prepared a crucial affidavit had
``acted with reckless disregard for the truth.'' The ruling, dated Wednesday, was released yesterday, the same day that a federal judge in St. Louis, Catherine D. Perry, ordered evidence suppressed in a related case. Judge Perry, too, cited false statements in the affidavit.
The F.B.I. affidavit claimed that anyone who had signed up to join the Internet group at the center of the investigation automatically received child pornography from other members through an e-mail list.
This claim was used to obtain search warrants for the homes and computers of people who had joined the group, known as Candyman. The bureau later conceded that people who had signed up for the group--which also included chat sites, surveys and file sharing--could opt out of the mailing list and did not automatically receive pornography.
As a result, Judge Chin ruled, investigators would not have been justified in searching the home and computer of the Bronx man, Harvey Perez, who had signed up for the Candyman group but did not send or receive e-mail messages containing images.
``In the context of this case, a finding of probable cause would not be reasonable,'' Judge Chin wrote. Most subscribers to the group--part of a larger site known as eGroups--elected to receive no e-mail, Judge Chin said. The eGroups site, which was acquired by Yahoo, and the Candyman group are no longer in operation.
Operation Candyman was announced with great fanfare a year ago by Attorney General John Ashcroft.
Thus far, more than 1,800 people have been investigated, and more than 100 arrested, an F.B.I. spokeswoman said. There have been around 60 convictions, many as a result of guilty pleas, she added. Some defendants have admitted to molesting children, officials have said.
A Justice Department spokeswoman, Casey Stavropoulos, said yesterday that the two court rulings were being reviewed.
``The department remains committed,'' she said, ``to vigorously investigating and prosecuting the purveyors and distributors of child pornography.''
Defense lawyers in the cases praised the rulings. Nicole Armenta, who represents Mr. Perez, said: ``The fact that someone visited a Web site, and you don't know if they did anything wrong, can't be a reason to go into their home and seize their computer.''
Daniel A. Juengel, a lawyer for Gregory Strauser, the defendant in the St. Louis case, called the rulings ``a major victory for the Fourth Amendment,'' which protects against illegal searches and seizures. Mr. Juengel said he believed the decisions would significantly change how the Justice Department handled search warrants involving Internet crime, and how judges looked at affidavits in such cases.
The F.B.I. spokeswoman had no comment on the rulings, or on the agents' actions, and said that the agents would also have no comment. One agent, Geoffrey Binney, has left the F.B.I., and did not return a message left at his office seeking comment.
It could not be learned yesterday how many Candyman prosecutions have relied on the affidavit in question, but it appears that there could be many challenges.
Judge Chin noted that 700 copies of a draft version of the affidavit were sent to F.B.I. offices around the country for use in the investigation. In New York, federal prosecutors in Manhattan and Brooklyn announced last July that 10 people, including Mr. Perez, were being charged in the Candyman investigation.
Without the false statement in the affidavit, Judge Chin said, all that remained was the allegation that Mr. Perez had subscribed to a Web site where unlawful images of child pornography could be downloaded.
``If the government is correct in its position that membership in the Candyman group alone was sufficient to support a finding of probable cause, then probable cause existed to intrude into the homes'' of several thousand people, merely because their e-mail addresses were entered into the Web site, Jude Chin wrote.
``Here, the intrusion is potentially enormous,'' the judge added. ``Thousands of individuals would be subject to search, their homes invaded and their property seized, in one fell swoop, even though their only activity consisted of entering an e-mail address into a Web site from a computer located in the confines of their own homes.''
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