When James Barrows arrived at the Tamagua Fishing Station in Gerristen Beach, Brooklyn, on the morning of December 23, 1996, the last thing he expected was to find Deputy Inspector Robert Hayes waiting for him on the boat named "Alert."[1] James Barrows had been expecting to find a thirteen-year-old girl named Tori, whom he had met in a chat room several months before.[2] Between October 14, 1996 and December 23, 1996, James Barrows and "Tori" had engaged in many sexually explicit conversations in private chat rooms on the internet, through electronic mail, and on the telephone and had finally decided to meet and engage in sexual intercourse.[3] Once James admitted that he had come to Brooklyn to meet the girl, he was arrested and eventually convicted of one count of promoting an obscene sexual performance by a child and two counts of attempted dissemination of indecent material to minors in the first degree.[4]

The story of James Barrows is significant not only because he attempted to seduce a child and engage in sex with her, but also because it is just one of many recent convictions where the defendant used internet services and cyberspace chat rooms to communicate with his child victim. Some believe that these cases are problematic and that law-enforcement officials are abusing their power by overzealously pursuing such criminals in cyberspace.[5] It has been argued that by initiating contact with these individuals and "playing along" with their fantasies of pedophilic behavior, law enforcement may be encouraging criminal behavior by people who would not consider it otherwise. As a result of these kinds of arguments, it is important to explore whether the entrapment defense is a feasible means of protecting such individuals in cyberspace.

This comment argues that the application of traditional entrapment doctrines to police conduct in cyberspace is appropriate and will protect the actions of individuals who are innocent and who would not commit these crimes without police persuasion. The first section of the comment will outline the relevant elements of the entrapment defense and the social policies behind the defense. The second part of the comment will explain how cyberspace differs from traditional environments of criminal activity and law enforcement. The third section will explore the arguments for a reasonable suspicion requirement and then explain why such a standard is neither necessary nor feasible to govern sting operations in cyberspace. The note concludes that although the crime of pedophilia is a crime unlike others and requires greater police involvement generally, outrageous or shocking conduct on behalf of investigators should constitute entrapment.
 

Law enforcement officers often use encouragement techniques to catch criminals that participate in offenses committed in private between consenting individuals.[6] These techniques create an opportunity for the suspect to commit the crime, and may consist of the police agent acting like a victim and either actively engaging or expressly encouraging the suspect to engage in criminal activity.[7] To establish trust between the agent and the suspect, the agent sometimes must form a relationship or repeatedly communicate with the suspect.[8]

Although such strategies may be effective, they may also encourage an otherwise law-abiding person to commit a crime. The entrapment defense was established primarily to address this concern.[9] In Sorrells v. United States, Justice Roberts first defined entrapment as "the conception and planning of an offense by an officer, and his procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion, or fraud of the officer."[10]

The two current approaches to the entrapment defense are the subjective approach and the objective approach.[11] The subjective approach, adopted by federal courts and the majority of state courts, consists of a two-tiered test of whether the offense was influenced by a government agent and whether the defendant had a predisposition to commit the crime in question.[12] The social policy behind the predisposition requirement is to protect innocent individuals who would not normally engage in the criminal activity, and do so only because of continual harassment by government agents.[13] The test for predisposition ascertains whether the defendant was "ready and willing" to commit the crime whenever he or she was given the opportunity to do so.[14] The government may provide evidence of prior convictions and arrests in addition to testimony regarding his or her reputation and character to prove the predisposition of the defendant.[15] Courts also look at how readily the defendant agreed to commit the crime, his or her confessions about prior crimes of a similar nature, and his or her "expert" knowledge of the crime in question.[16]

In contrast, the objective approach does not focus on the defendant's conduct or predisposition, but on the type of inducements made by the law enforcement agents.[17] Using this test, entrapment is established when the agents employ "methods of persuasion or inducement which create a substantial risk that such an offense will be committed by persons other than those who are ready to commit it."[18] The social policy behind the objective test is to prohibit government conduct whenever it is unreasonable, whether or not the individual otherwise would have committed the crime.[19] Since this test looks to the conduct of the officers, each case must be considered in light of its own specific facts; police conduct that is "outrageous" or "shocking" in a particular context might be perfectly reasonable in another.[20]

In sum, the social policies behind the entrapment defense consist of two major concerns: (1) that encouragement techniques might induce otherwise law-abiding citizens to engage in criminal activity, and (2) that government agents are likely to abuse their power by engaging in undercover operations which employ shocking or outrageous tactics to entice either innocent or predisposed people to commit crimes.
 

Since law enforcement officials are catching criminals in cyberspace with greater frequency, it is necessary to examine the feasibility of applying traditional entrapment laws to convictions arising out of these online stings.[21] The cyberspace environment differs from that of traditional undercover operations in two significant respects: it is easier to simulate the opportunity to commit a crime, and communications between parties are essentially instantaneous.

Concerns regarding online undercover operations and entrapment are predicated upon the unique characteristics of cyberspace; law enforcement agents simply do not face the same types of limitations in cyberspace as they would in other undercover operations.[22] An agent can assume a false identity and personality much more easily in cyberspace than in a face-to-face encounter.[23] An agent opens up an internet account with an online provider using a fictitious name and false personal information, and then submits a personal profile with false information regarding gender and age.[24] Also, an agent often will choose an online user name that is sexually explicit and conveys to other users that the user is a minor.[25] To simulate realistic thoughts and feelings of young women and pre-teen boys in conversation, officers admit that they often ask advice from female co-workers, family members, and their own children.[26]

In addition, the internet provides instantaneous communication between users. Individuals in chat rooms can type messages to one another in a public chat room where the messages are visible by everyone in the room, or in a private chat rooms that is not accessible to anyone else.[27] Users can also send private messages to any user in the large chat room, which go directly to the screen of that individual within a matter of seconds.[28] Once an individual has entered a chat room, his or her personal profile (which may include the individual's e-mail address and other information) is available to other users in the chat room.[29] Electronic mail allows users to send messages to individuals who are not online in one of the chat rooms. These methods of communication allow agents to establish relationships with suspects faster than they could through mail correspondence, and these relationships are much more easily maintained. Once the technology itself is acquired, such methods of communication are relatively inexpensive when compared to traditional methods using mail and phone correspondence.[30]

Additionally, cyberspace provides law-enforcement officials with considerable information about internet users.[31] The government generates extensive lists of individual users that spend inordinate amounts of time in certain web sites, engage in conversations about exchanging child pornography, or who have violated pornography laws in the past.[32] In a jurisdiction that uses the subjective approach to entrapment claims, the government could use this information to satisfy the predisposition requirement.[33]
 
 

The conclusion most often reached is that the entrapment defense should be replaced or supplemented with a reasonable suspicion of criminal activity requirement.[38] This notion was first outlined in Justice O'Connor's dissent in Jacobson v. United States, where the defendant's conviction was overturned by the Supreme Court because the state failed to prove that the defendant had a predisposition to commit the crime without government persuasion.[39] Justice O'Connor stated that the majority had imposed a reasonable suspicion requirement for undercover operations.[40] This would force agents to "prove a reasonable suspicion that the target of an undercover operation has engaged in or is likely to engage in criminal activity . . ." and that the "undercover operation is related to the suspected illegal activity of the target and that the scope of their operation is limited to its object."[41] Government agents would then be forced to detail why they chose a certain individual as a target and how they planned on inducing that person to commit a crime.[42] In short, the police would have to seek judicial approval of the entire operation prior to its implementation.[43] For proponents of this requirement, the reasonable suspicion standard solves the dilemma of the subjective and objective test failings by focusing each operation only on those who are likely to commit crimes and by determining the appropriateness of police conduct before it occurs.[44]

While the cyberspace environment does present some unique advantages for law-enforcement officers, entrapment law should not be altered to account for these advantages because the subjective approach still functions to protect innocent citizens in cyberspace. The argument for a reasonable suspicion requirement is that the subjective test fails to protect the innocent in cyberspace. However, that does not appear to be the case. Individuals who are often caught in these police operations illustrate the requisite predisposition by their willingness to engage in sexually explicit conversations with minors as soon as they are given the opportunity.[45]

In Barrows, the sexual content of the conversation began just minutes after the two of them met in the chat room.[46] In fact, moments after the fictitious "Tori" told "Captain Jake" (James Barrows' user name) that she was only thirteen years old, he stated, "[n]o, I am not kidding. There are a number of cops online that want to arrest people who like younger girls. I have to go. I would love to get an email from you and we can make plans...sorry, have to go. Can't wait send e-mail. I am real. We can have fun together. Please respond."[47] Their next conversation consisted of a private chat in which Barrows graphically described various sex acts that he wanted to perform with the girl.[48] In the next exchange, which took place over the phone, Tori confirmed her age for the defendant and he told her his desire to meet in person and have sex with her.[49]

There is absolutely no way in which the defendant's conduct can be mistaken for that of an innocent person due to his willingness to meet with the girl and have sexual intercourse. It has been asserted that "[t]he standard is whether one would be predisposed to commit the crime before the investigation. If a person agrees to engage in sex with a minor as soon as the 'minor' suggests it, that is probably a demonstrable predisposition."[50] A person with no pedophilic predisposition would never cross that line, even with the most insistent and continual police prodding.

Unfortunately, due to the nature of the crime and the environment itself, predisposition may be something that only can be determined shortly after police have begun communicating with the individual. However, this alone cannot support the proposition that innocent people will be induced into criminal behavior. If James Barrows had no intent to break the law, he would have either terminated the conversation as soon as he knew Tori was only thirteen, or refused to engage in sexual conversations with her. Certainly no innocent person would have made arrangements to meet her in person and bring with them pornographic magazines and lubricant.[51] Also, the likelihood that police will target innocent users who access unfamiliar sites accidentally is exceedingly small. Most individuals that have been caught engaging in this type of criminal activity have between 1,000 to 40,000 pornographic images of adults and children saved on their computer systems.[52]

The notion that James Barrows had a predisposition is even further supported by his own admissions that he knew it would be a crime if they met and had sexual intercourse. In the first conversation he asks, "are you a cop?...(t)here are a number of cops online that want to arrest people who like younger girls."[53] Additionally, in later conversations he states, "I want to do you, but I can go to jail for having sex with a minor..." and "[i]t must be our secret or I will go to jail."[54] There can be no doubt that James Barrows knew he would be breaking the law if they met, yet he still made arrangements for them to have sex. As stated previously, it is almost preposterous to assert that innocent people might be manipulated or coerced into engaging in sexual relations with children. To say otherwise is logically inconsistent and insulting to notions of common sense.

As illustrated, the argument for a reasonable-suspicion standard ultimately fails because the subjective test still functions to protect the innocent. However, this is not the only reason for rejecting such a standard. It simply is not feasible for law-enforcement officials to seek judicial authorization for every cyberspace operation that they conduct. The time and energy required from both agents and judges would be unbearable. The courts would be back-logged with hearings for undercover operations, and the officers would spend significant amounts of time simply trying to gather information and prepare the case for the judge to hear. Simply put, a reasonable-suspicion requirement is unrealistic in practice and will lead to incredible burdens on the judicial system as a whole.

The last reason for not adopting a reasonable suspicion of criminal activity standard to pedophilia and child pornography cases deals with the heinous nature of the crime of pedophilia itself, and the intense vulnerability of its victims.
 
 

Although entrapment law addresses valid social concerns, the crimes of pedophilia and child pornography are so inherently heinous and uniquely damaging to victims that police units should be given some discretion regarding the appropriateness of their behavior. Thus, a reasonable suspicion of criminal activity standard should not be used to supplement traditional entrapment doctrines.

Children across the country are being preyed upon by pedophiles. James McLaughlin, a detective in New Hampshire, began investigating crimes against children in cyberspace in 1997.[55] He found, for example, a man in South Carolina who was offering free airfare to children that wanted to run away from home, and a man in Georgia who gave out images over electronic mail of his own children being sexually assaulted.[56] Don Daufenbach, a senior agent for the U.S. Customs Service, posed as a porn purchaser and found a man willing to sell him child pornography films.[57] The man then told him that he would be able to supply the purchaser with "better stuff" after he babysat the following week.[58] After the defendant was arrested it was revealed that he in fact had been offering parents to babysit their children free of charge.[59] Leonel Buenoavila kidnapped a 13-year-old girl from Ohio and brought her back to his apartment in East Hartford after meeting her in cyberspace.[60] Although they are disturbing, these stories are not uncommon.

Police estimate that less than five percent of child molesters are ever caught, and by the time they are apprehended, most have assaulted between 150 and 200 children.[61] Those who prey on children online are men of varying socioeconomic status (roughly 15% computer professionals, 18% blue-collar workers, and 14% white-collar workers), some are married, and roughly 28% of them are in college or high school.[62]

Many who argue on behalf of the defendants' rights forget that the mere existence of child porn material automatically means that a crime has occurred and a child has been the victim. Unlike adult pornography, the children depicted in the images are helpless and unable to consent to their exploitation. Additionally, children who are sent pornography by pedophiles are also the victims of a crime. Children's vulnerability stems from their willingness to trust people that they do not know. Cyberspace provides pedophiles with virtually unlimited access to trusting children. The technology "...offers a good hunting ground for pedophiles who use the anonymity of the Internet to woo children, elicit their trust and ultimately arrange a meeting."[63] Because of this, police should be given some discretion in using the cyberspace environment to their advantage to catch such criminals.

However, allowing discretion in police conduct does not mean that "anything goes" in cyberspace operations. Since there is little case law on the subject, it may be easier to ascertain what does not constitute "outrageous" conduct rather than what does. So far the courts have held that going into chat rooms under a false identity and initiating conversations with others in the room or posing as buyers of child pornography does not constitute outrageous or unreasonable police behavior.

But even James McLaughlin, a police officer who specializes in hunting pedophiles in cyberspace, recognizes that there should be some limits to what police can and cannot do. "We don't want to lull people into doing something they wouldn't normally do. We're not finding people on the flower channel or the baking channel. Affording someone the opportunity to do something criminal is not entrapment."[64] As applied to online sting operations, if an undercover police officer engaged in sexual conversations despite a person's protests, bombarded that person with sexual messages over email, persistently harassed the individual, and then made all of the arrangements to meet, a court would likely find such tactics outrageous. In such circumstances it is very likely that the objective approach to entrapment would find that the police had acted unreasonably and essentially coerced the individual into maintaining the relationship with the officer through harassment.

There may be less extreme circumstances that constitute entrapment. One major concern is that police often use past convictions to choose targets for undercover operations. If an individual had been convicted for pedophilia and had already served his sentence, the police might look to see whether that person still has criminal tendencies. Certainly, society should not condone officials who harass those who are honestly trying to steer clear of temptations by sending them e-mail from a bogus child pen-pal or a fictitious distributor of child pornography. Cases such as this illustrate that entrapment laws should strike a balance between social good and the right of individuals to be free from harassment. However, it is likely that the objective approach would characterize such behavior as "shocking" or "outrageous." Although the line in these cases is rather blurred, some sort of limitations should be established to avoid such extreme tactics.