[Congressional Record Volume 149, Number 39 (Tuesday, March 11, 2003)]
[Senate]
[Pages S3496-S3497]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




         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:

                [From the New York Times, Mar. 7, 2003]

     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.

[[Page S3497]]

     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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