The FBI Distributes Child Pornography to Catch People Who Look at It

As part of a recent child pornography investigation disconcertingly known as Operation Pacifier, the FBI ran a website that distributed photographs and videos of sexual abuse. Last year, the Seattle Times reports, “after arresting the North Carolina administrator of The Playpen, a ‘dark web’ child-pornography internet bulletin board, agents seized the site’s server and moved it to an FBI warehouse in Virginia.” The FBI used the website to run “a sting and computer-hacking operation of unparalleled scope that has thus far led to criminal charges against 186 people,” mostly for receiving or possessing child pornography. In other words, the FBI became a major distributor of child pornography to catch people who look at it, thereby committing a more serious crime than the people it arrested.

Operation Pacifier is reminiscent of reverse drug stings in which cops pose as dealers to catch retail buyers, except that in this case the FBI actually disseminated contraband. It did not merely pose as a distributor of child pornography; it was a distributor of child pornography. During the two weeks the FBI was running The Playpen, about 100,000 people visited the site, accessing at least 48,000 photos, 200 videos, and 13,000 links. In fact, the FBI seems to have made The Playpen a lot more popular by making it faster and more accessible. The FBI’s version attracted some 50,000 visitors per week, up from 11,000 before the government takeover.

As attorneys representing the people busted by the FBI have pointed out, those actions are deeply problematic in light of the government’s position that children are revictimized every time images of their sexual abuse are viewed or transferred. That argument is one of the main rationales for punishing mere possession of child pornography, which under federal law and the laws of some states can be treated more harshly than violent crimes—more harshly even than actual abuse of children. That penalty structure is obviously irrational unless you believe that serious harm is inflicted every time someone looks at the image of a child’s sexual abuse. In that case, a large enough collection of images could equal or even surpass the harm done by a single child rape, so that it could make sense to impose a life sentence on someone who has done nothing but look at pictures.

Yeah, I don’t buy that either. But federal prosecutors supposedly do, and here they are bringing cases that, by their own lights, required the FBI to victimize children thousands of times. Each time the FBI “distributed” an image, it committed a federal crime that is punishable by a mandatory minimum sentence of five years and a maximum sentence of 20 years. So did the person who “received” the image, which in the Internet context is the same as looking at it. If such actions merit criminal punishment because they are inherently harmful, there is no logical reason why the agents who ran The Playpen should escape the penalties they want to impose on the people who visited the site.

In a 2002 New York University Law Review article, Howard Anglin argued that victims of child pornographers have legal grounds to sue FBI agents who mail images of them to targets of undercover investigations. “If, as courts have held, the children depicted in child pornography are victimized anew each time it changes hands, this practice inflicts further injuries on the children portrayed in the images,” Anglin wrote. “The practice of distributing child pornography in undercover operations exposes federal agents to potential civil liability and undermines the integrity of the criminal justice system.”