Here's how it works: Undercover FBI agents visit message boards suspected of harboring child-porn traders and post a link that purports to offer child porn. At first the link doesn't work, but later the agents replace the link with a working URL.
As soon as someone follows the link, the FBI will usually hit the person’s house with a search warrant in hand.
Does this investigative technique amount to entrapment? So far, the courts say it isn't, and criminal defense attorney Jeffrey Douglas agrees, though he told XBIZ he would like to see a less narrow legal definition of entrapment.
"As of now, to prove entrapment, the burden is on the defendant to prove that, but for overwhelming government action or misrepresentation, the crime would have never happened," said Douglas, who also serves as the chairman of the board for the Free Speech Coalition. "The defendant also has to prove that they had no prior inclination to commit the crime."
Defense attorney Anna Durbin of Ardmore, Pa., lamented this new practice.
"I thought it was scary that they could do this," Durbin said. "This whole idea that the FBI can put a honey pot out there to attract people is kind of sad. It seems to me that they've brought a lot of cases without having to stoop to this."
Would this new practice endanger an organization like ASACP, which reports child pornography to law-enforcement officials? It’s unlikely to affect ASACP, a representative of the group told XBIZ, because ASACP employs one person who visually confirms the existence of child pornography on suspected sites, and does so with the full knowledge of the American and Canadian authorities.
The implications for this new FBI practice don't end at entrapment, however. Suppose the FBI posted a phony hyperlink that promised the surfer "illegal content" from a prominent adult company – could a click on that link open someone up to a copyright infringement charge as well?
Douglas said he doesn’t think that clicking such a link would open an end-user to a copyright infringement action — he doesn't foresee many prosecutions along those lines, either.
"That case would be closer to entrapment because of the huge amount of stolen, copyrighted content out there that's not being prosecuted," he said. "But the day the government goes out of its way to protect the intellectual property rights of the adult industry – well, that would be a very different world."