Monday, February 12, 2007

Law on the Books vs. Law on the Street

From the Washington Post,

"WiFI Turns Internet Into Hideout for Criminals":

Detectives arrived last summer at a high-rise apartment building in Arlington County, warrant in hand, to nab a suspected pedophile who had traded child pornography online. It was to be a routine, mostly effortless arrest.

But when they pounded on the door, detectives found an elderly woman who, they quickly concluded, had nothing to do with the crime. The real problem was her computer's wireless router, a device sending a signal through her 10-story building and allowing savvy neighbors a free path to the Internet from the privacy of their homes.

With nearly 46,000 public access points across the country -- many of them free -- hundreds of thousands of computer users are logging on every day to wireless networks at cafes, hotels, airports and even while sitting on park benches. And although the majority of those people are simply checking their e-mail and surfing the Web, authorities said an increasing number of criminals are taking advantage of the anonymity offered by the wireless signals to commit a raft of serious crimes -- from identity theft to the sexual solicitation of children.

"It's frustrating for officers," said Todd Shipley, director of training services at the National Consortium for Justice Information and Statistics. "If a suspect is going from coffee shop to coffee shop and using free signals to commit crimes, the police probably aren't going to catch him. That's the reality."

Across the nation, 46 multi-jurisdictional Internet Crimes Against Children task forces have been created to carry out online sting operations aimed at ensnaring sex offenders because a man tapping away on a computer in Rockville might very well be soliciting a child in California. Every week, federal and local authorities cast their nets.

And although most sex crimes against underage boys and girls involve victims and suspects who know each other, an increasing number involve online interactions between strangers. Online solicitations -- in which pedophiles cultivate relationships with children and then arrange to meet them in public places -- are becoming more common, federal authorities said.

Those assigned to the task forces patrol the virtual streets for pedophiles and others who want to commit crimes against children. Using software and other tracking devices, the officers trace a suspect's IP address. But as technology improves, so too do the tactics of criminals. Closing cases is more difficult if the IP address originated from a wireless signal because it often leads back to the owner of the network instead of the criminal.

This is quite disturbing to say the least. I'm currently writing about the federal regulation of child pornography. I'm working at the macro-theory level of whether there is the power to regulate an illicit, fungible commodity for which there is an interstate market and whether the "materials in commerce" requirement is a sufficient jurisdictional hook. Thus, I often forget about the real-life, technical issues about the efficacy of regulatory authorities even if you assume there is such a constitutional power. Law on the books vs. law on the streets: you (or rather, I) watch Law and Order and Criminal Minds and watch them back-hack their way to IP addresses, triangulating cell phone towers, and figuring out how to unscramble anonymizing software that obscure IP and MAC addresses. It seems so easy for the not-really-geeky tech guy on TV. Of course, I have a layperson's understanding of the technology. But obviously, the law on the books finds rough translation to the enforcement of the law on the streets.

Even if the law is very broad, the feasibility of monitoring "private" behavior inhibit the reach and power of regulatory authority. The relevant law is Title 18, Section 2251 and Title 18, Section 2252(a).

The statutes are quite broad, so long as you solicit children through the channels of interstate commerce (which the internet very obviously is) or produce sexually exploitative images of children using materials that have moved in commerce or have been made with components that moved in commerce (camera, film, paper, etc) that is enough of a jurisdictional hook to trigger the federal regulation under the commerce clause. We think of child pornography as criminal behavior, and indeed there are federal criminal statutes--but there is no general federal police power. Such a power is reserved to the states and many states have their own laws (a lot of replication, which is why jurisdiction is a fun issue)--but what about child exploitation that transacts between a resident of one state to a child located in another? How can an individual state monitor and have jurisdictional authority over interstate crime? And this is where the federal goverment steps in. But how can the federal government reach this criminal activity that very often occurs in the private home? The commerce clause. And this, my friends, is why federalism matters to you and your family (and there are many other reasons, e.g. VAWA, the private, personal use of medicinal marijuana).

I am pro-regulation of child pornography--I believe in the interactive, mutually constitutive relationship between the states and federal government to achieve important public policy ends. I have nine nephews and nieces of my own, and I can't conceive of some pedophile in another state contacting any one of them without extreme pain. So while the connection between interstate commerce and child pornography appears to be very attenuated, I am pro-regulation. Made with materials that have moved in commerce? A fungible commodity for which there exists an interstate market? Taken to the extreme (the slippery slope!) the federal government would almost have the power to regulate everything and the very idea federalism would be a myth. Which I kind of think it is. There should be a role for states and there is definitely a relatively centralized federal government. But it's not a zero sum game, especially with the rise of the administrative state, in which lines separating the powers of the three branches of government and between powers traditionally reserved to the states or preemptively cornered by the federal government are increasingly blurred.

We may argue back and forth about federalism, the encroachment of federal criminal law, and states rights. But at the end of the day, the law on the books or in the realm of theory has serious mis-match with the law on the streets. I may be writing an article about governmental powers--but the real-life powers of the agents of the government seem very limited. Even if by lex fiat the government declares its agents to have this power to regulate, whether the agents actually can regulate effectively is quite another matter. Put simply, there is a great divide between saying "we have the power to get the bad guys" and actually being able to get them.

Altogether sobering. A definite reality check for this theory head.