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Cybervigilantes - Issues to Consider

Dr. Frank Kardasz, revised March 17, 2008

Well-intentioned citizens and media organizations who participate in pseudo-undercover
cybervigilante operations present interesting challenges for law enforcement personnel. When
citizens pose as minors online and negotiate meetings with Internet sexual predators many
interesting and unusual things can happen.

Sometimes the meeting between the cybervigilante and the offender occurs without sufficient
advanced notification to local law  enforcement.  If the police are notified, it is sometimes at the
last minute. Upon arrival, the accused predator may be  confronted by either police officers or
news cameras or both. A last-minute notification means that police must scramble to sort out
the details and to conduct a follow-up investigation.

In one incident, a cybervigilante posing as a child on the Internet participated in chat
conversations with a predator and negotiated a meeting for sex. The cybervigilante then invited
the Internet sexual predator to her personal residence and provided her address. She called
and informed the police of her investigation and said that the predator would be arriving in 30
minutes.

In some cases where partnerships have developed between cybervigilante groups, reporters
and law enforcement personnel there have been allegations of misconduct and ethics
violations.

ISSUES TO  CONSIDER

The following information describes some of the concerns that law enforcement personnel
have regarding private citizens acting as cybervigilantes.

1. Suspect Identification
Most police undercover Internet luring cases involve a series of careful investigative steps
resulting in positive identification of the suspect prior to arrest. This prevents police from
confronting and arresting the wrong person. Many cyber-vigilantes will not have done this
preliminary research, creating the possibility of mistaken-identity.

2. Safety of Civilians
Confronting an unknown felony sexual predator represents a safety hazard for the cyber-
vigilante. In past incidents some sexual predators have arrived at meetings armed with
weapons.

3. Safety of the Law Enforcement Officers
When a cyber-vigilante notifies police at the last minute that a meeting with a sexual predator
is imminent, police are left with limited time to plan for a safe arrest. Law enforcement officers
do not take such meetings lightly and plan ahead for safety. A last-minute notification may
result in a disorganized and unsafe response, jeopardizing everyone.

4. Safety of the Suspect / Civil Liability of Accusers
Media exposure of an accused Internet sexual predator during a televised cyber-vigilante sting
may present a later safety issue for the hapless accused dope. If his picture is splashed
across the television during his "trial-by-media", his reputation will likely be ruined and he may
be in physical jeopardy from viewers who want to take justice into their own hands. If the cyber-
vigilantes coax uninformed officers in at the last minute for an arrest, police will be named in
the plaintiffs later slander and false-arrest lawsuits.

5. Trial Witnesses
The cyber-vigilante would be subpoenaed to appear in court to testify as a witness. If he or she
has a criminal record, that information will likely be brought out in court in an attempt to
discredit the witness.

6. Trial Witness Credibility
The motives of cyber-vigilantes will be closely scrutinized by both the prosecution and the
defense. In any event, motives and credibility will be attacked by the defense at trial. If a media
cyber-vigilante organized the incident to occur during "sweeps-week" the defense will likely
bring this up at trial in an attempt to discredit the case as a sensationalized publicity stunt. If
the citizen-cybervigilante is a past victim of a sex crime, the defense may try to bring this up in
court to discredit the witness. The witness may have to re-live their past victimization during
courtroom testimony.

7. Trial Evidence
The cyber-vigilante's computer hard-drive may be evidence. Chat or e-mail conversations
between the cyber-vigilante and the sexual predator will be required at trial. Such
conversations are usually retained within the computer. If the computer is not released
voluntarily, law enforcement may attempt to seize it using a search warrant. The media cyber-
vigilante will likely refuse to release the computer, claiming a publishers privilege under the
Privacy Protection Act. At trial, the defense will cite the evidentiary dispute between law
enforcement and the media to infer that evidence was manipulated and withheld thus
confusing the jury into believing that a reasonable doubt exists as to the predators guilt.

8. Unlawful Images
In some cases sexual predators send unlawful images of child pornography to children they
chat with on-line. They do this to "groom" their intended victims. If a cyber-vigilante receives
child pornography the computer becomes the harbor of felony contraband evidence.

9. Jury Appeal
Although citizen cyber-vigilantes are unrestrained by the rules of entrapment governing police
undercover operations, juries will not look favorably upon cyber-vigilantes who suggest or
encourage sex acts. Most cyber-vigilantes do not have the training or experience to make an
entrapment-free case.

10. Vetting &  Training
Vetting is the process of submitting to an examination or evaluation. Sworn investigators from
law enforcement agencies typically undergo an evaluation, selection and training process.
Depending on the agency, the process may include background investigation, psychological
exam, polygraph testing, and periodic drug screening. Many agencies also require training in
evidence collection, officer safety, courtroom testimony, report writing etc. After hiring and
training, investigators undergo probationary review periods, are subject to policies governing
their activities, and have their work reviewed by a supervisor. Most cyber-vigilantes will not have
undergone this vetting and training process.

11. The "I was doing my own investigation!" Defense
Persons arrested for luring/enticing minors sometimes use the defense that they were
conducting their own investigations and try to argue that they were only going to meet with a
minor for the purpose of warning the minor not to engage in wrongful conduct. An actual
Internet predator may someday pretend to be a cyber-vigilante as a subterfuge.

12. Compensated Mercenaries
Some cyber-vigilantes are purportedly compensated financially for their work. In an on-line
article at www.radaronline.com writer John Cook reported that the cybervigilante group,
Perverted Justice received $100,000 per episode when working with NBC Dateline to expose
Internet sexual predators. Financial compensation moves the group from cyber-vigilante to
mercenary. Defense attorneys will surely bring up the payments during cross-examination in
order to attempt to show that the cybervigilantes/mercenaries are interested only in money and
discredit their testimony.

13. Eavesdropping and Telecommunications Privacy Laws
If a cyber-vigilante communicates online from Arizona (a one-party consent state) with a
person who is in a two-party consent state, televising and revealing their privileged
communications may be a violation of law in the two-party consent state

14. Agency
Agency as a legal matter refers to the relationship of a person (called the agent) who acts on
behalf of law enforcement as the principal. "Agency" may arise when a law enforcement
agency asks someone to perform a specific act. The basic rule is that the principal becomes
responsible for the acts of the agent, and the agent's acts are like those of the principal (Latin:
respondeat superior). Factual questions arise such as: was the agent in the scope of
employment when he/she arranged the meeting between himself and a suspected Internet
sexual predator. If an impropriety occurs, the principal, the Agency, becomes liable for the acts
of the agent. Law enforcement organizations must be very careful not to imply agency upon
cyber-vigilantes who might infer that they are acting at the behest of law enforcement.
Sometimes an overzealous cyber-vigilante will rationalize misbehavior by claiming that he or
she was "partnered" with law enforcement for the purpose of apprehending an Internet sexual
predator.

15. Trial by Media
Cybervigilante cases that are televised may be unfair to the suspect because the publicity could hurt
the chance for a fair trial. A trial in the media may cause unnecessary public ridicule of the offender.
in Texas, an offender who was exposed by a cybervigilate news team committed suicide before the
case could be adjudicated.

16. Facilitation
Facilitation may be an issue depending on local law. In Arizona, the facilitation law is stated as
follows:

         Arizona Revised Statutes, Title 13, Criminal Code.
         13-1004. Facilitation; classification

         A. A person commits facilitation if, acting with knowledge that another person is
         committing or intends to commit an offense, the person knowingly provides the other
         person with means or opportunity for the commission of the offense.

17. Solicitation
Solicitation is another issue that should be considered by those contemplating acting as cyber-
vigilantes. In Arizona, the solicitation law is stated as follows:

         Arizona Revised Statutes, Title 13, Criminal Code.
         13-1002. Solicitation; classifications

         A. A person, other than a peace officer acting in his official capacity within the scope of
         his authority and in the line of duty, commits solicitation if, with the intent to promote or
         facilitate the commission of a felony or misdemeanor, such person commands,
         encourages, requests or solicits another person to engage in specific conduct which
         would constitute the felony or misdemeanor or which would establish the other's
         complicity in its commission.

18. Conspiracy
Conspiracy may be an issue in cybervigilante cases. In Arizona the conspiracy law is stated as
follows:

         Arizona Revised Statutes, Title 13, Criminal Code
         13-1003. Conspiracy; classification

         A. A person commits conspiracy if, with the intent to promote or aid the commission of
         an offense, such person agrees with one or more persons that at least one of them or
         another person will engage in conduct constituting the offense and one of the parties
         commits an overt act in furtherance of the offense, except that an overt act shall not be
         required if the object of the conspiracy was to commit any felony upon the person of
         another, or to commit an offense under section 13-1508 or 13-1704.

         B. If a person guilty of conspiracy, as defined in subsection A of this section, knows or
         has reason to know that a person with whom such person conspires to commit an
         offense has conspired with another person or persons to commit the same offense,
         such person is guilty of conspiring to commit the offense with such other person or
         persons, whether or not such person knows their identity.

         C. A person who conspires to commit a number of offenses is guilty of only one
         conspiracy if the multiple offenses are the object of the same agreement or
         relationship and the degree of the conspiracy shall be determined by the most serious
         offense conspired to.

         D. Conspiracy to commit a class 1 felony is punishable by a sentence of life
         imprisonment without possibility of release on any basis until the service of twenty-five
         years, otherwise, conspiracy is an offense of the same class as the most serious
         offense which is the object of or result of the conspiracy.

Victim Impact Statement
az icac
Internet Crimes Against Children