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Judges Attack Online Child Porn Crackdown
By LARRY NEUMEISTER
The Associated Press
Thursday, March 6, 2003; 6:58 PM
Two federal judges have dealt a potentially crippling blow to a nationwide Internet child pornography crackdown, saying the FBI recklessly misled judges to get search warrants that were used in making more than 100 arrests.
Constitutional safeguards cannot be relaxed just because "the crimes are repugnant," said U.S. District Judge Denny Chin in New York as he dismissed evidence obtained against one defendant. Chin's ruling, dated Wednesday, was released publicly Thursday.
U.S. District Judge Catherine Perry in St. Louis, throwing out evidence against another defendant Thursday, said "false information was recklessly included in the search warrant application."
The judges each cited constitutional flaws in the investigation, dubbed "Operation Candyman," and they noted that the FBI and prosecutors have acknowledged making errors.
The rulings could affect dozens of defendants in the crackdown announced by Attorney General John Ashcroft a year ago. Police officers, clergy members and an Army sergeant were among those arrested.
Chin called the intrusion of privacy by the government "potentially enormous."
"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," he wrote.
Defense lawyers said both judges considered new evidence that demonstrates the FBI recklessly used erroneous information in its search warrant applications. Nearly identical applications were used in cases across the country.
"It's significant," St. Louis lawyer Daniel Juengel said of the rulings, including one dismissing evidence against his client. "The government can't just come in and search your house based on something you may have inadvertently clicked on in your computer."
Michael Kulstad, a spokesman for federal prosecutors in New York, said Chin's ruling was being reviewed and prosecutors had not decided whether to appeal. An FBI spokesman did not immediately return a call seeking comment.
The FBI effort targeted members of Internet discussion groups on Yahoo! Inc.'s Web site, including one called "Candyman." Authorities used e-mail addresses to track down users.
Attorney Nicole P. Armenta, who represented the defendant in the New York case, credited Juengel with first challenging the warrants on grounds that the FBI misled judges to believe that people who tapped into the "Candyman" site automatically received child pornography.
"A lot of what went on in the Candyman site was constitutionally protected," she said. The site is no longer in operation.
Both judges agreed those entering the Web site could choose not to receive e-mails containing pornographic photographs. And both criticized a former FBI agent who once led the probe, saying he misrepresented the true workings of the Web site when he insisted that everyone who joined would receive child porn.
"Here there was more than a mere failure to investigate or an innocent or negligent mistake," Chin wrote.
The vast majority of subscribers to the site between December 2000 and Feb. 6, 2001 elected to receive no e-mails, Chin said.
Chin said the danger of unreasonable intrusions into the home "is great" when law enforcement gathers information on the Internet.
In a 59-page decision, Chin acknowledged that law enforcement needs some latitude to catch those who break child pornography laws on the Internet and sexually exploit and abuse children.
But he added, "Just as there is no higher standard of probable cause when First Amendment values are implicated ... there is no lower standard when the crimes are repugnant and the suspects frustratingly difficult to detect."
In her ruling, Perry said the government's argument that subscribing to the "Candyman" Web site established probable cause of possessing child pornography was like "saying if someone subscribes to a drug legalization organization or newsletter, then there is probable cause to believe that person possesses drugs."
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