Participating in the distribution of child pornography is a federal crime. But that’s exactly what the F.B.I. did in this case. In order to identify more than 1,000 people suspected of trading in child pornography, the F.B.I. operated a child pornography website for nearly two weeks. During that period, more than 23,000 images of child pornography were available for viewing, downloading and endless reproduction in ways completely beyond the F.B.I.’s control. In short: The government has criminalized an activity and acted to further the commission of just that crime.
Some crimes are nearly impossible for the government to investigate unless it engages in an undercover operation. So it’s no surprise that the F.B.I. tried to identify the users of child pornography online by covert means. What is alarming, however, was that the F.B.I.’s particular tactic in this investigation enabled the very harms it was trying to stop.
Undercover operations of this type — ones in which the government actually participates in the crime under investigation — are common. But this tactic raises serious ethical questions with practical importance. Should the government, in trying to identify criminals, be complicit in distributing contraband, whether that be drugs, counterfeit money, illegal guns, bogus stock trades or child pornography?
If the government is going to break the law in order to enforce it, it must justify how any resulting benefits outweigh any harms. When the government participates in the distribution of contraband, it has little control over who will use those illegal guns, drugs or child pornography, and little ability to protect victims from these harms.
In the Playpen investigation, the harm is an entirely foreseeable result of the government’s own acts. And if the F.B.I. could have predicted its actions would cause harm, we should ask how such decisions are made, whether less harmful alternatives existed, and how often such techniques are used. The truth is we don’t know, and the F.B.I. isn’t eager to tell us.
In cases like this one, official government participation in crime amounts to a low visibility, high discretion policing tactic with tangible harms. That’s the antithesis of policing in a democratic society.
The distribution of child pornography is a serious crime. But that alone doesn’t justify the government’s participation in the crime itself.
Cross-posted from The New York Times.