It is a felony and a federal crime to impersonate someone else and intercept private communications intended for them, 18 U.S. Code § 2511.  There is no exception for police, and no exception if written permission is obtained.  Yet impersonating others online is the basis for police sting operations across the country.  Law enforcement must be able to investigate criminal activity, but they cannot commit their own crimes while doing so.  It is now customary for officers to violate Fourth Amendment law, and it is happening more frequently.

Without a warrant or report of a crime, male officers create fake profiles on adult-only dating sites using photos of attractive ladies (or young men).  Men often see a profile and begin a conversation.

During the chat, the officer claims to be an underage 14-year-old girl/boy, even if it is obviously an adult pictured.  The officer uses entrapment to lure the man to meet.  The officer’s goal is to catch someone who might solicit a minor.  Why not use a Disney site instead of an adult-only dating app?  Since role playing is common online, most men believe they are talking to an adult.  They agree to meet in a public place to confirm the person pictured is of legal age.

Impersonation differs from an officer wearing a disguise, which is legal.  Executive Order 12333 clarifies the difference in its definition of electronic surveillance.  If an officer can pull off a similar conversation while visibly present, the officer can be a lawful party to an electronic conversation.  This definition formed the intent of the Electronic Communications and Privacy Act of 1986.  It prevents cartoons, deepfakes, AI, or impostors from intercepting private communications.  Interception Law requires that “such person is a party to the communication,” 18 U.S. Code § 2511.  New York eavesdropping statutes require that only the sender or intended receiver obtain electronic communications, otherwise it is a felony, NY PEN § 250.00.

In the case of New York v. St. Pierre, a male officer created a profile for an 18-years-old woman.  The officer fully intended to impersonate the female pictured and intercept communication of anyone replying to the dating ad.  This officer was endeavoring to intercept using impersonation, which is a crime by itself, 18 U.S. Code § 2511.  Impersonation also violates the Terms of Use for dating apps, and thereby violates the Federal Computer Fraud and Abuse Act, 18 U.S. Code § 1030.

Interception began with the word “Hi.”  What crime has been committed by a stranger saying “Hi”?  In Mr. St. Pierre’s case, the officer chatted that it was the stepdaughter pictured, so “she” was pimping the underage stepdaughter.  Mr. St. Pierre demanded a phone call to confirm this horrid situation.  The male officer then procured two women to be voice actors for the stepmom and the girl on recorded phone calls.  Mr. St. Pierre fully expected the girl to ask him to call 911 when they spoke.  Instead, he heard giggles.

As a father of twin daughters who are just a few years younger than the girl, he was very concerned about the safety of this child.  He had used dating sites for years, but never encountered this scenario.  No father or honorable man could stand by when a child is being trafficked.  He agreed to meet them in a KFC parking lot in broad daylight to determine if this woman was actually pimping her stepdaughter.  There he was arrested.

This is a damsel-in-distress type of entrapment, which is strictly prohibited.  In a similar case, the Ninth Circuit overturned the conviction of Poehlman because the agent’s conduct constituted entrapment, U.S. v. Poehlman (9th Cir. 2000).

A cadre of three people animating a fourth is not a legal person, but a realistic cartoon.   A cartoon is a thing and does not qualify as a person with rights.   Things, like wiretap devices and cartoons, cannot be used to intercept private communications without a warrant.  Allowing this means anyone can post pictures of any adult or child and impersonate them.

The meaning of person must be consistent across statutes.  Mr. St. Pierre was charged with attempted rape of a minor.  How does one rape a cartoon? Or attempt to rape a cartoon?  Which of the four adults behind the cartoon was the minor?

It is federal identity theft to use someone else’s means of identification (a photo) to commit a crime, like interception, 18 U.S.C. § 1028.  Disclosing or using illegally intercepted communications are additional crimes under Interception Law.

Several officers testified multiple times about the intercepted chats with Mr. St. Pierre.   My analysis found officials may have committed 51 federal crimes plus some felonies against Mr. St. Pierre to manufacture his one crime.  I requested the Court’s permission to file my analysis showing 51 possible crimes.  The Court refused.  St. Pierre was threatened with years in prison unless he signed a plea deal.  The Court accepted his plea deal, knowing my allegations of illegal police tactics.

This sting operation is typical of Internet Crimes Against Children, ICAC.  Thousands of men nationwide have been arrested, prosecuted, and had their lives ruined by such stings.  Their only crime was wanting to go on a date with an adult.

I have spoken to many Members of Congress about this issue.  We all can agree that protecting children is of paramount importance.  Even though officers have noble intentions when using these tactics, they cannot infringe on citizens’ Fourth Amendment rights protecting against illegal searches and seizures.

From: https://theopinionpages.com/2024/04/officers-cannot-violate-fourth-amendment-law/

Author: Bonnie Burkhardt is a software engineer, expert witness, and author of “Manufacturing Criminals, 2nd Edition – Wiretapping and Planting Evidence”. She has lobbied Congress on fourth amendment issues and supported legal counsel through special exhibits, and her work has been utilized in key court proceedings. She is an expert on data privacy and a leading national advocate on fourth amendment constitutional issues.