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FBI Net porn stings contested

FBI agents have arrested more than 700 people on charges of using the Internet to traffic porn or to lure minors across state lines for sexual encounters, but activists are challenging some convictions on constitutional grounds.

    When a star executive at the helm of Walt Disney's Web sites was charged last week with soliciting sex from a 13-year-old girl he met on the Internet, the arrest was shocking--but not unprecedented.

    By trolling the Net disguised as young girls and boys, FBI agents have arrested more than 700 people on charges of trafficking in child pornography or luring minors across state lines for sexual encounters, according to the bureau. Moreover, the FBI's Innocent Images program, which focuses on these crimes, has received $10 million in funding in the last two years, and new investigative teams are being formed across the country.

    But as these local and federal Net stings proliferate, civil liberties groups and defense attorneys are closely monitoring the operations, and some convictions are being challenged on constitutional grounds.

    One case under appeal involves an award-winning journalist who was sentenced to 18 months in prison for possessing child porn, after his defense--that he was doing research for an article--was rejected by the court.

    "We have been watching these cases. The potential problems range from entrapment to illegal search and seizures," said American Civil Liberties Union staff attorney Ann Beeson.

    The former Infoseek exec
    Most of the arrests resemble the widely publicized apprehension of Infoseek executive vice president Patrick Naughton, 34, who oversaw Disney's Go Network. Infoseek, which is part-owned by Disney, says Naughton is no longer an employee.

    Naughton was taken into custody last Thursday in California. According to the FBI, Naughton agreed to meet a teenage girl for the purpose of having sex after he encountered her online. The teen turned out to be an undercover agent.

    "We have no shortage of targets," said special agent Peter Gulotta, an FBI spokesman in Baltimore, where the Innocent Images program was started. "Just as a kid doesn't know who they are talking to, pedophiles don't know who they are talking to either."

    None of the FBI's Innocent Images convictions has been overturned, agent Gulotta said.

    Naughton was charged with interstate travel with the intention of having sex with a minor. Aside from the possible claim of entrapment, which is extremely difficult to prove, the arrest doesn't raise a host of constitutional issues, according to legal experts.

    "The principle behind entrapment is that the government may not try to persuade someone to commit a crime who wouldn't otherwise do it," said Eugene Volokh, a law professor at the University of California at Los Angeles.

    Barring dirty talk
    But other suspects who have been arrested in California also have been charged under a state penal code that targets sexually explicit communication with minors over the Net. The statute, which does bring up constitutional questions, prohibits using email or the Net to "knowingly" expose minors to any "harmful" matter with the intent of seducing, arousing, or sexually gratifying them.

    The California law firm of Clancy, Weisinger & Associates is defending a handful of clients charged under the act. The firm's attorneys argue that the law is unconstitutional because it is impossible to establish the age of a Net user. In addition, the attorneys said that fear of prosecution stifles the speech of online users who are simply role playing or speaking within their First Amendment rights.

    "The Net is a masquerade ball: Everyone is great at sex, everyone is handsome, women can be men, men can be women, and cops can be little girls," said John Forsyth, an attorney at the firm. "There is no way you can tell the age of anyone on the Net, so it's impossible to enforce this law."

    In a hearing set for October, the firm will try to overturn charges against a man from Alameda County, California, who was arrested after setting up a meeting while online with a person identified as a 14-year-old girl who was really a local police officer. The nature of the meeting was not sexual, which is why police didn't charge the man with attempted child molestation, Forsyth said.

    "My client expected [to meet] a 33-year-old bored housewife," Forsyth contended.

    In his brief challenging the California law, Forsyth cites the Supreme Court's 1997 decision to throw out portions of the federal Communications Decency Act, which made it a felony to display or transmit "indecent" Net content that could be exposed to minors. The court's majority opinion stated that the statute chilled free speech and that "there is no effective way to determine the identity or the age of a user who is accessing material through email...newsgroups, or chat rooms."

    But UCLA's Volokh says that if a Net user states that he or she is a minor, it could be hard for Forsyth to use this age-verification argument to absolve a client.

    "If indeed he was just having a discussion with someone he thought was 40 and she turned out to be 13, then he would have a strong constitutional defense," Volokh said. "But if the person said she was 13, and he expressed belief that she was 13, then he doesn't have that defense."

    To help prove suspects' intent, the FBI keeps detailed records of online conversations held by those charged with sexual solicitation of minors.

    "They have to have the intent to travel with the intent to have sex with someone they perceive to be a minor--just talking about it is not a federal crime," Volokh said.