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Book Review: Manufacturing Criminals: Fourth Amendment Decay in the Electronic Age

by Anthony W. Accurso

Bonnie Burkhardt was your average tech-oriented government employee who happened to stumble across a network of law enforcement officers who regularly violate federal and Virginia state laws to enrich themselves. If this sounds like the plot of a John Grisham novel, you’ll be surprised to learn that it’s the backdrop for the nonfiction book she wrote.

It all started with a chance encounter with a man at her local church. A churchgoer began talking about the conviction of a man for online enticement of a minor, and the details of the story seemed incongruous to Burkhardt. She holds a top-secret clearance and has worked for the Department of Defense for over 35 years, intercepting and analyzing signals. The training she has received with regards to wiretapping laws and warrant requirements gave her a unique basis for understanding how this man’s enticement investigation unfolded, and this led her down the path of becoming a full-time activist agitating against the Internet Crimes Against Children (“ICAC”) Task Force.

Burkhardt’s book is about this journey from exposure to activism, but it is also more than that. It reads as a legally annotated and argued exposé of law breaking by law-enforcement officials. It also has whole chapters on police mishandling of evidence and the impact these failures have on society.

The allegations of misconduct by police can be summarized largely under three headings, explained more fully below.

ICAC Officers Illegally
Impersonate Children to
Intercept Communications

It has become standard practice for law-enforcement agents to impersonate children on the internet, and some vigilante groups also do this to enrich themselves off of donations or self-serving “protect children” campaigns. Burkhardt alleges the motivation for ICAC officers in doing so is to obtain grant money, so they can inflate statistics on arrests and prosecutions by, as the title of the book suggests, manufacturing criminals.

How this practice violates wiretapping laws has to do with the definition of a “person party to a conversation.”

Federal and Virginia law prohibits interception or recording “of any wire, electronic or oral communication” through “the use of any electronic, mechanical or other device.” 18 U.S.C. § 2511; Va. Code § 19.2-62. Interception or disclosure of intercepted communications is a Class 6 Felony in Virginia, and prohibited by federal law such that “the person who engages in such conduct shall be subject to suit by the federal government in a court of competent jurisdiction.”

However, there are various exceptions to these rules, though the one that police claim is applicable in the situations at issue is “where such a person is a party to the communication or one of the parties to the communication has given prior consent to such interception.”

Burkhardt writes that “a distinction must be made between being a participant in a communication, and lawfully being a person party to a conversation.”

A persona created by law enforcement is a “realistic cartoon,” and “a cartoon is not a human with a birth certificate, it cannot be a person party to a conversation, ” according to Burkhardt. Nor can this fictional entity give consent for anyone to record a conversation. This is why a robo-caller must obtain consent from the person it called in order to even listen to the person’s responses. It is a participant, not a “person” party to a conversation.

An officer pretending to be a child can participate in a conversation with a person, but they cannot be a party to the conversation because they are not the recipient of the communications as intended by their target, and only an “intended recipient” is legally party to the conversation. Va. Code § 19.2-62(C); see United States v. Szymuszkiewicz, 622 F.3d 701 (7th Cir. 2010) (conviction upheld where defendant received emails intended for his boss).

Recently, the Court of Appeals of Virginia upheld a denial of a defendant’s suppression motion though the defendant’s attorney made arguments based on Burkhardt’s analysis. Pick v. Commonwealth, 852 S.E.2d 479 (Va. Ct. App. 2021). While the court upheld the denial, its opinion ignored the distinction between being a “party” and a “participant,” and it wholly ignored the statutory prohibition on “procur[ing] any other person to intercept or endeavor to intercept, any wire, electronic or oral communication” under Va. Code § 19.2-62(A) and 18 U.S.C. § 2511(1)(a).

Lending credence to Burkhardt’s argument are her assertions that “there [are] no federal cases where an FBI agent created an imaginary person to intercept communications or impersonate some other human being online without court authorization” and that “[o]ne friend called the [Stafford County Sheriff’s] office and was told that they shut down those [online undercover] operations” after she confronted an officer about the legality of such actions.

Police Use Secret Tools Over the Internet to Secretly Break Into Private Computers and Search Them Without a Warrant

Burkhardt’s book mostly focuses on undercover sting operations where police impersonate fictional children. But she devotes roughly 40 pages to how law enforcement agents have purchased specialty software to surveil file-sharing networks, and they use this software to conduct searches of people’s computers without a warrant.

She notes that police often defend this behavior by arguing that protocols like BitTorrent (which underpin most file sharing apps nowadays) are publicly available and, thus, not “private” and entitled to Fourth Amendment protections.

But the book details their use of proprietary tools to access data from these protocols that the public does not normally have access to. Police use this access to intercept hash codes, which are themselves protected communications under the federal Electronic Communications Privacy Act. The ICAC also maintains the Child Online Protection System (“COPS”) database, which maintains records of all such hashes, including troves of illegally obtained metadata. Regarding the latter, Burkhardt writes that bulk metadata collection by the NSA is prohibited absent a warrant being issued by the Foreign Intelligence Surveillance Court. She asks, “[h]ow is it that the ICAC can maintain a database of metadata inventorying what citizens have downloaded from the Internet, when the NSA cannot?”

Officers Unmask the Identity
of Users and Geolocate Them Without a Warrant

The book also talks about how police will often show up with a warrant to search computers at an address where child sex abuse images have been downloaded. She asks, what about all the warrants they needed to intercept the private communications leading up to this determination, as well as the pen register/trap-and-trace warrants required to obtain information about a user’s identity before presenting a magistrate with sufficient details to justify a search of a person’s home?

She also goes into brief detail about how police use Dropbox access, photo metadata, and computer viruses as pen register tools, almost exclusively without authorization to do so.

Burkhardt’s research has revealed that 20% of Virginia prisoners are incarcerated as a result of online enticement stings like those described in her book. She further calculates the total cost to society nationwide is approximately $180 billion per year for such prosecutions, which are done “to save imaginary children from imaginary crimes.”

The only drawback to this book is its overall lack of polish. It could have benefited from better editing and more professional design and layout. It has the feel of an ebook because it was intended to be one. Further, it was Burkhardt’s first such book, and she should be forgiven for not nailing the aesthetics.

Don’t let this facet of an otherwise gem take away from what is an invaluable resource to anyone who has been, or is being, prosecuted for an internet-based sex offense. Defense attorneys too can profit from a better understanding of wiretapping laws and how they should be applied in online sex offense cases to protect their clients.

To quote Justice Blackmun, “[I]t is monstrous that courts should aid or abet the law-breaking police officer. It is an abiding truth that nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence.” Oregon v. Hass, 420 US 714 (1975). 

Sources: Manufacturing Criminals: Fourth Amendment Decay in the Electronic Age, by Bonnie Burkhardt

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