Online Stings: High Tech Entrapment or Innovative Law Enforcement?

Jeffrey D. Weinstock


Pornography in Cyberspace

As the internet and online services gain popularity, 1 so does the media coverage focusing on the potential for high tech misuse. 2 The most sensational topics 3 such as obscenity, child pornography, and pedophiles lurking in chat rooms tricking unsuspecting children into real life meetings, garner most of the attention from the mainstream media.4 With this added attention from the media comes public pressure on police and politicians to clean up the internet. What some may not realize, however, is that the vastness, international flavor, and complexity of the internet may render it relatively immune from such efforts. Online services,however, such as America Online, Compuserve and Prodigy are easier to police.5 The ease of patrolling these systems brings easy, and high profile, targets.


This paper explores the question of whether law enforcement officers that pose online as children in order to set up meetings with pedophiles or encourage the transmission of child pornography are actually entrapping their targets. The first section examines the framework under which the crimes are being committed online. Section II discusses some examples of actual arrests of online service users for crimes by law enforcement officers posing as children. Section III explores the law of entrapment as decided by United States Supreme Court cases. Section IV analyzes the law of entrapment as it may relate to the examples from section II. Finally, there will be a prediction as to whether the entrapment defense may be successfully asserted in situation similar to one of the examples cited.


To understand how the police go about their investigations, one must first understand how criminals function online. Pedophiles or traders of child pornography can go about their business without alerting other users who may be online at the same time or even the system operators.


Child pornography, along with any legitimate message or picture, may be transmitted through private electronic mail.6 If one willing sender sends an image to a willing receiver, the transaction is virtually undetectable in light of the systems policy of privacy of communications.7 How then, are the abusers brought to the attention of the authorities? To understand this process requires one to approach the interface between possessors of child pornography and pedophiles which seek to meet and engage in illegal sexual relations with children.


A technique used by pedophiles in pursuit of underage victims is to locate children online8 and to pose sexually explicit questions to the underage user. Next, the pedophiles may send child pornography to the children via e-mail.9 After this process takes place, the offenders can be discovered by authorities in a number of ways. First, the child, or his or her parent, may bring the e-mail and photograph to the attention of the police, or to the system operator who then reports the offense to the authorities.10


More recently, and more controversially, the pedophile may have been surprised to find out that the 14 year boy to whom he sent child pornography and arranged a liaison, could actually have been a 33 year old police officer sitting in his office pretending to be an underage child.11 This technique of federal and local officials, while effective, draws criticism from civil libertarians.12


The FBI reports that they hear of multiple instances of the aforementioned abuses daily,13 but law enforcement officials still feel the need to actively go online and seek out criminals or potential criminals.14 The problem with these techniques, according to some civil libertarian groups, is that many of these offenders might not have committed the crimes for which they were charged were they not approached online by the authorities masquerading as children.15 In other words, the groups say that federal agents are entrapping otherwise innocent people into committing crimes which they would not commit if not for the actions of the agents.

II. Examples


This paper confines itself to the largest and most widely publicized example of cyberspace policing, the FBI's Operation Innocent Images.16 This crackdown concentrated only on America Online (AOL) which is the largest online service with over 3.5 million members.17 Operation Innocent Images led the FBI to search and seize computers materials from over 125 homes and offices in the fall of 1995.18 Several of the arrests resulting from the operation have been profiled in newspapers across the county.19 Now a summary of the factual backgrounds giving rise to some of the arrests.

A.Eric Zemke


Eric Zemke logged onto AOL from his home computer in March of 1995 and entered a chat room.20 While Zemke was in the chat room using the screen name of "ANL15" another user with a screen name of "MIKEY1L" sent an apparently unsolicited message to Zemke.21 The transcript of their conversation is as follows:
"I am new and looking for some young pictures," messaged MIKEY1L.
"What do you like?" wrote back Zemke,using his computer name "ANL15."
"Anything young," responded MIKEY1L.
"OK, here are a couple," Zemke replied.22
Zemke then e-mailed five pictures of preteen boys performing sexual acts to MIKEY1L.23 Unbeknownst to Zemke, MIKEY1L was actually an undercover FBI agent in Maryland.24 Zemke pled guilty to a felony count of distributing child pornography in federal court and faces two years in prison.25

B. The Landover Squad


The techniques used by FBI agents in Operation Innocent Images, while criticized by some, can boast impressive results.26 FBI agent Doris Helper is one of the agents who goes online to catch cyber-criminals.27 One instance found Helper posing as a 13 year old girl named Tiffany who listed in her user profile that her favorite quote was "If it feels good, DO IT."28 The username that Helper chose for Tiffany, which the FBI would not reveal because of the pending investigation,stated that Tiffany enjoyed trading pictures of young children.29 Helper proclaimed that her mission was "to enter the community, strike upbawdy conversation and get propositioned by older men."(Emphasis added)30 By saying that she wanted to strike up the conversations herself, Helper presumably is saying that she intended to approach users who may not have otherwise contacted her.


Not all of the incidents begin with FBI agents initiating the contact in the chat rooms. A Virginia patent attorney approached an agent who chose the screen name "One4fun4u."31 Even though the agent in this case did not initiate the conversation, he still wrote that "she had been with an older man before and that 'it was a lot of fun.'"32 The two then set up a meeting33 and federal agents arrested the lawyer upon his arrival.34 In the above instance, the perpetrator initiated the contact, but the sparse details of their encounter do not give enough information to determine conclusively whether the crime would have been committed without undo police encouragement.


Another AOL user, William B. Bomar, was also arrested and charged with crossing state lines for the purpose of engaging in sexual activity with a minor.35 Bomar also initiated verbal contact with the agents after he searched user profiles for the word "sex."36 While Bomar may have initiated contact, he received responses from the "girls"that were sexually both explicit and suggestive.37


The"girls" with whom Bomar corresponded used screen names including"Horny15bi" and "Sexcollctr" and listed in their profiles hobbies such as "dreaming of kinky sex" and "sex with men."38 One of the users, "Horny15bi" had a quote in her profile expounding"Vice is nice but incest is best."39


The agents sent a message to Bomar stating"Please tell us exactly what you will do to us if we both like you and we agree to have sex."40 "Sexcollctr" also wrote "We have lots of ideas where we could do it."41


Although an initial view of the examples listed above may not seem like entrapment, the actions of the agents surely encouraged the suspects to continue their propositions when the agents used sexually provocative language, listed sexually explicit hobbies in their user profiles,and used sexually oriented user names. Kevin Stafford, the agent in charge of the Landover squad, maintains that his squad's actions do not constitute entrapment.42 Stafford says, "We don't go surfing the 'Net looking for this stuff"43 Stafford, however, does not deny allowing his squad to use the sexually suggestive names and profiles, nor does he deny that agents sometimes initiate the conversations.44

III. The law of Entrapment


The law of entrapment "represents an ongoing attempt to strike a balance between criminal predisposition and overzealous law enforcement practices."45 The primary rational for having a defense like entrapment in our justice system is to mitigate the possibility that an otherwise law abiding citizen could be encouraged to engage in illegal conduct.46 Starting with the landmark case of Sorrells v. United States47 in 1932, the development of the law of entrapment became primarily a federally developed right, and state legislatures largely adopted the federally proscribed doctrines.48


Justice Roberts in Sorrellsgave us the standard definition of entrapment, stating that "entrapment is the conception and planning of an offense by an officer, and his procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion, or fraud of the officers."49 Sorrellsdecided that the defendant therein was illegally entrapped, but the decision added some confusion by creating a subjective standard under the majority and an objective standard in the concurrence.50

A.The Subjective Approach


The subjective approach is a two-prong test. The first prong focuses on inducement and the second focuses on predisposition.51 The inducement prong looks at whether the law enforcement official induced the defendant to engage in the offense in question. The predisposition prong focuses on whether the defendant was predisposed to commit offense in question and would have committed such crimes whenever he got the chance.


The purpose of the predisposition test is to draw a line"between the trap for the unwary innocent and the trap for the unwary criminal."52 The main pitfall that the Sorrells court tries to avoid is the commission of a crime by an otherwise innocent person because of the actions of law enforcement.53


Although the two-prong test of Sorrells is more manageable than previous law, there is no denying the difficulty of assessing predisposition to commit a crime. In United States v. Navarro,54the court noted that "there is no infallible means of divining a defendant's predisposition to commit a crime after the fact, because predisposition is, by definition, the defendant's state of mind and inclination beforehis initial exposure to government agents."55 (emphasis added) Under the subjective test, if the defendant is found to be predisposed, then the defense of entrapment may not be available.56

B. The Objective Approach


While the subjective test is used in the majority of jurisdictions, both federal and state, there is also an objective test that a minority of states have adopted.57 As one commentator said: "the policy behind the objective test differs greatly from that of the subjective test. The courts review governmental conduct, not the defendant's state of mind."58


The objective approach is the one favored by the ALI's Model Penal Code, which says that there is entrapment if the crime was induced or encouraged by "employing methods of persuasion or inducement which create a substantial risk that such an offense will be committed by persons other than those who are ready to commit it."59 The rationale for the objective approach,as stated by the concurrence in Sherman is that "the courts refuse to convict an entrapped defendant, not because his conduct falls outside the proscription of the statute, but because, even if his guilt be admitted,the methods employed on behalf of the Government to bring about conviction cannot be countenanced."60


The main difference between the subjective and the objective approaches is the focus on the defendant's state of mind. If, under the subjective approach, the defendant was predisposed to commit the crime, then there is no entrapment. The objective approach, on the other hand focuses on the actions of the Government.


Under the objective approach there is only entrapment if the police stepped over the line, regardless of whether the defendant is predisposed to commit the crime. The objective approach is more favorable to the defense because it is more forgiving, and would allow even a predisposed defendant to use the defense if the Government's conduct approached a certain level.


The subjective approach is embraced by the Government. This approach is more pro-state because it gives the state more leeway in their investigations and even if they approach the line, the subjective approach disallows the defense if the defendant is predisposed to commit the crime. Some states have adopted a combination of the two approaches.61 In light of the diverging approaches,what is the preferred approach of the current Supreme Court?

C. Application of the Subjective and Objective Approaches after Sorrells.


InSherman v. United States,62 the majority reaffirmed the Sorrells subjective standard by holding 5-4 that the defendant had been entrapped and that the predisposition test was satisfied.63 While the majority in Sherman embraced the subjective test, the concurring justices opted for the objective approach.64


The subjective approach was later reaffirmed in United States v. Russell.65 Russellconcerned a police officer who offered to, and supplied to a defendant a chemical used to make methamphetamine.66 The Russell court ruled that"only when the Government's deception actually implants the criminal design in the mind of the defendant" is the defense of entrapment available.67 The majority referred to the Sherman standard stating that the defendant was "not an 'unwary innocent' but an 'unwary criminal.'"68

D. Jacobson v.United States


The most applicable, and most recent, Supreme Court decision on entrapment is Jacobson v. United States.69 Defendant Jacobson was arrested for receiving child pornography through the mail in 1987.70 Jacobson's conviction was overturned by the Supreme Court which, relying on Sherman,held that "the government overstepped the line between setting a trap for the 'unwary innocent' and the 'unwary criminal,' ... and as a matter of law failed to establish that petitioner was independently predisposed to commit the crime for which he was arrested."71 By relying on Sherman,the Supreme Court reaffirmed their preference for the subjective test.72


The factual background to Jacobson, began in February 1984 when Jacobson legally ordered73 two magazines which contained photographs of nude teenage and pre-teenage boys.74 Three months subsequent to this incident, Congress changed the law with respect to such publications and made it illegal to receive any publication with sexually explicit photographs of children.75


Immediately after the new law went into effect, postal inspectors found Jacobson's name on a mailing list at the adult book store where Jacobson placed the orders in February.76 In January of 1985, two Government agencies77, through five fictitious organizations and a nonexistent pen pal, began to contact Jacobson to find out if he would break the new child pornography laws.78 The tactics of the Government were to use the names of fictitious organizations like the American Hedonist Society to contact Jacobson so he would fill out their sexual surveys.79


After receiving Jacobson's answers to the surveys, the Government's prohibited mail specialist began writing letters to Jacobson under a false name80 Jacobson responded to the letters twice indicating that he was interested in "male-male items."81 Up to that point, Jacobson responded to letters and a survey, but the Government had no evidence that he ever possessed or had ever been exposed to child pornography.82 Next, Jacobson received a catalog from a fictitious Canadian company which claimed that it could supply Jacobson with a publication called "Boys who love Boys" without risk that the U.S. Government would find out.83 Jacobson placed an order for the publication and was arrested.84


The Supreme Court held that the Government entrapped Jacobson.85 The majority ruled that the prosecutors did not fulfill their burden of proving beyond reasonable doubt that the defendant was predisposed to commit the criminal acts with which he was charged before being approached by law enforcement officers.86


It is imperative to keep in mind at this point, that the magazines ordered in 1984 were legal at the time,and thus cannot show predisposition to commit a crime since ordering them was,at the time, legal.87 Stating "evidence that merely indicated a generic inclination to act within a broad range, not all of which is criminal, is of little probative value in establishing predisposition," the Supreme Court cast doubt on future cases which may be based on the type of evidence used in Jacobson.88


With regard to Jacobson's responses to the surveys, the Supreme Court determined that his desires to view pictures of preteen sex "hardly support an inference that he would commit the crime of receiving child pornography."89 The majority also did not condone the tactics of the Government relating to "waving the banner of individual rights and disparaging the legitimacy and constitutionality of efforts to restrict the availability of sexually explicit materials."90


The Supreme Court also placed great emphasis on the fact that the Government engaged in a 2 1/2 year operation in order to get Jacobson to break the law.91 The lengths that the Government had to go to in order to get Jacobson to break the law weighed heavily on the Court.92 To conclude their take on theJacobson fact pattern, the court summarized that: "When the Government's quest for convictions leads to the apprehension of an otherwise law-abiding citizen who, if left to his own devices, likely would have never run afoul of the law, the courts should interfere."93 Although the Supreme Court has not touched on the entrapment defense in a Jacobson-like capacity since their decision in Jacobson, other federal courts have commented on the implications of the Jacobson decision.94

E. Post JacobsonEntrapment Law


Standards of entrapment are unclear even today. Obviously, the facts and circumstances of the individual case in question play a large role in the evaluations of the law enforcement activity. There are no bright line rules for courts to follow. At present "neither courts nor legislatures have affirmatively developed detailed guidelines for police and their agents to follow when engaging in encouragement activity."95 This unpredictability provides an interesting backdrop for the question of whether law enforcement officers posing online as children are committing entrapment.



Having touched on the law of entrapment as the Supreme Court envisions it, how would the officers in Operation Innocent Images fare if a defendant tried to assert an entrapment defense to the charges levied? Before predictions can be made, a few precautionary notes are necessary.


Since the Supreme Court never encountered a case based on a fact pattern identical to the ones explored here, absolute predictability is impossible. Moreover, in light of the fact that there were only 15 arrests96 from Operation Innocent Images there may not be a test case in the near future. Similarly, some of the defendants in the examples here have already pleaded guilty.


Since the subjective test of entrapment is the one currently used by the Supreme Court, it will govern the current discussion. Whether or not a court will allow a defendant to use the entrapment defense depends on the crime charged. The standards for entrapment, since they look to the predisposition of the defendant to commit the crime, must not only change when facts and circumstances change, but also when the crime changes. As each of the crimes discussed herein have separate elements, the standards determining entrapment vary.


For instance, some of the defendants in Operation Innocent Images were charged with possession of child pornography. While they may not have sent the picture to an agent if they were not approached online, it would be hard to argue that if not for the agent, the defendant would not have possessed the picture. Obviously, if the person sent the picture, they must have possessed the picture, which is in itself a crime. In such a case, the entrapment defense would fail.

A. Eric Zemke


The whole point of entrapment is to determine whether the defendant would have committed the crime if not for the influence of the police officer. The case of Eric Zemke presents the best case for entrapment of any of the cases explored here. Unfortunately for Mr. Zemke,this case is probably not good enough. Zemke was charged with, and he pled guilty to, distribution of child pornography.


A factor in Zemke's favor is that he did not seek out anyone. Zemke was in a chat room97 when he was approached by the law enforcement officer. Furthermore, the agent was the one who initiated the contact. Zemke could make a good argument that if not for the agent contacting him,he never would have transmitted the child pornography to the agent. This argument,however, would not suffice to allow Zemke to use the entrapment defense. The subjective test does not consider who initiated the contact. It considers only whether or not the defendant was predisposed to commit the crime in question. Even if Zemke did not send pictures to this particular agent he most likely would eventually send them to someone else.


Was Zemke predisposed to commit the crime with which he was charged? Although the agent made the initial approach, the agent only typed a few lines of conversation before Zemke sent the pictures. Zemke could say that the agent asked for the pictures, but in reality, the agent only said that he was looking for pictures. He did not overtly ask Zemke to send pictures.


While the agent did say that he was looking for "young"pictures, he did not say "young" meant under 18 years old. Furthermore, the agent did not say that he was looking for pornographic pictures nor did he even mention he wanted pictures, containing nudity or even sex.


The court may take note of the fact that, in contrast to the 2 1/2 year instigation inJacobson, the "encouragement" of the Government in the Zemke case consisted of only a few lines of typed messages. The Government certainly did not have to twist Zemke's arm in order to get him to send the pictures. Zemke's case is also weaker than Jacobson's in that the Government never made an offer that Zemke did not accept.98


When the agent said he was looking for some pictures, Zemke simply asked him what what type of picture. The agent asked for "anything young"99 and Zemke was eager to oblige. Within moments the agent received five images of child pornography. The agent's response to Zemke was also the first opportunity which Zemke had to commit a crime. This was the only opportunity which Zemke needed. Once Zemke received an opportunity to break the law, he took the ball and ran. Zemke did not need to be encouraged to commit a crime,he only needed an opportunity, which he received. Using the very words of the majority in Jacobson, Zemke "promptly availed himself of this criminal opportunity."100 For this reason, the majority in Jacobsonwould have not allowed the entrapment instruction for Zemke.


Similarly, in contrast to Jacobson, Zemke's possession of the pictures was a crime. While he was charged with distribution and not just possession, possession is necessary before one can distribute. In Jacobson, the first step in case, ordering the magazines in 1984, was completely legal at the time. Possession of magazines which were legal does not show predisposition to break the law. But here possession of the five illegal photographs show a willingness to break the law. For these reasons the entrapment defense would not be available in a case like Zemke's.

B.The Landover Squad

The techniques used by the Landover squad are similar to those used against Zemke. The approach used by agent Helper was to use a suggestive screen name, use a profile with sexually suggestive phrases, and to approach older men online. Helper admits that her method of preference was to initiatebawdy conversation.


Although there were no transcripts available for specific incidents where Helper made arrests, her techniques could lead to a successful assertion of an entrapment defense. The fact that she was the one who approached plays a small part in the determination. More important is the fact that she initiated sexually explicit conversation.This initiation may go to establish inducement, the first prong of the subjective test. If a conversation ensued from her contact and she was the one who brought sex into the fray, then depending on the amount of resistance by the other party and the amount of effort which Helper expended to get the other person to give in, an entrapment defense could be asserted. The encouragement would have to look more like the encouragement in Jacobson than the encouragement in Zemke for the defense to work. In light of the fact that there are no specific incidents to examine to determine predisposition,any prediction in this area would be too speculative.


The case of the Virginia patent attorney is another example of police conduct which does not rise to the level of the Jacobson conduct. First of all,the attorney initiated the contact. He sought out what he thought was an underage girl and then either arranged or participated in the arrangement of a meeting with her. By taking these actions, the defendant showed that before his contact with the officers, he had a predisposition to seek out underage girls and approach them with the intention of speaking about sex. Under Navarro,101 this action beforecontact with the officers would help to establish predisposition. This instance was another one-shot surveillance and the attorney needed very little encouragement before agreeing to the meeting.


The charge, crossing state lines for the purpose of having sex with a minor,is different from transmitting child pornography. Here the defendant had to take affirmative steps before he could put himself in the position to have the sexual contact. Not only did he have to seek out and converse with the "young woman," he actually had to travel from his home state to another state for the purpose of engaging in sex with the female. In Jacobson, all the defendant had to do was agree to order an item from a catalog which he did not request.


The catalog in Jacobsonwas part of a series of items sent to the defendant from the Government.After 2 1/2 years Jacobson finally gave in. Here the defendant agreed to break the law and took significant steps to do so after a brief online meeting that probably did not last longer than 2 1/2 hours. Here, as in Zemke, theJacobson court would disallow the entrapment instruction because the defendant "promptly availed himself" of the criminal opportunity.102


During the conversation, the agent wrote that she had been with an older man before and expressed a desire to do it again. This would not reach the level of entrapment. Merely expressing a willingness to go along with an illegal act for the purpose of the investigation is not entrapment. The Government has every right to use undercover agents in order enforce the law.103


The subjective test measures a person's predisposition to commit a crime. Most adult men would not agree to have sex with a minor, even if the minor made the suggestion. The standard is whether one would be predisposed to commit the crime before the investigation. If a person agrees to engage in sex with a minor as soon as the "minor"suggests it, that is probably a demonstrable predisposition. Even if the agent brought up the idea of a meeting, the fact that the defendant agreed so readily, is another strike against him. Furthermore, the fact that the idea was the agent's idea is probably of no consequence because, the crime does not consider who's idea it was. This particular crime only looks to the activity of the adult.


UnlikeJacobson, this case involved a man looking for and finding what he thought was a minor female. The fact that the defendant sought out, found,agreed to have sex with, and then traveled a long distance to go through with the plan clearly demonstrates predisposition.


The Bomar case is almost identical to the case of the Virginia attorney. The differences between the cases would in all likelihood not affect the prospects of using the entrapment defense. The agents in Bomar's case used screen names which appear to be more sexually suggestive and their profiles clearly indicate a desire to have sex with men. The agents furthered this image by suggesting that they knew places where they could safely have sex with the defendant. This may show that Bomar was predisposed to commit the crime, but thought he could get away with it.


The factors listed above would seem to help Bomar's entrapment prospects. It may be hard, however, to convince a court that a phrase in a user profile put a criminal idea in someone's head out of the clear blue sky. This is especially the case where such a phrase induces that man to leave his state and travel to another state to go through with a meeting. The fact that Bomar searched profiles for the word sex may also count against him. Bomar could counter with the fact that "sex" in itself is not illegal. Since he later attempted to have sex with a minor, however, this argument may not succeed.



In general, the Operation Innocent Images (or OII cases) present a weaker case for entrapment than the Jacobsoncase. There are a few reasons for this conclusion. First, in the OII cases most of the defendants already possessed illegal pictures of children constituting child pornography. Second, the encouragement in the OII cases took place over a much shorter time than the 2 1/2 year period of Jacobson. In none of these cases did the amount of interaction between the officers and defendants approach that in Jacobson. Third, possession of the pictures in the OII cases was a crime at the time of possession, unlike Jacobson, where the initial magazines purchased were legal at the time.


That being said, now a prediction as to what would happen if the Supreme Court were today confronted with a case in which one of the OII defendants attempted to claim police entrapment. The Jacobsondecision is somewhat misleading when used as a basis for prediction of future situations, even situations very similar to those in Jacobson.


Jacobsoncan not be examined in a vacuum. As stated earlier, the internet is one of the hottest and most misunderstood new technologies. Public perception of the internet and cyberspace does not always match reality. In fact,most people probably know little more about the internet than they see on their local news. While the local news may accurately some aspects of cyberspace,it can only show one side of the picture. The result is that the public may have little or no experience with the technology but may still lobby to "clean it up" thus exerting political pressure.


Political pressure translates into attempts to regulate through legislation, and in an anti-crime political climate, attempts to reform through law enforcement. Enter the FBI and their multi-million dollar Operation Innocent Images.104 Another result of political pressure in an anti-crime environment is appointment of anti-crime judges and justices.


Jacobson was a 5-4 decision. The majority won a narrow victory over a voracious dissent. All four dissenting justices are still on the court.105 There have,however, been changes to the court subsequent to the decision. Furthermore,since there are no OII cases slated to be argued before the court currently,there may be more changes to the Supreme Court before a test case is brought up for review. It is entirely possible that if a case with the exact facts as Jacobsonwere argued before the court today that the opposite result would occur.


The facts in Jacobson present a unique and in some instances extreme situation. The sheer length of the operation, 2 1/2 years, evinces remarkable tenacity on the part of the officials involved. Logic dictates that after coming up with nothing criminal after a two year plus investigation, most agents would concede. The effort evidenced by the agents in the Jacobsoncase, in light of today's scarce Government resources, may be difficult to duplicate.


Another factor unique to Jacobson is that the defendant was arrested for doing something that he did legally only a few years prior. Mr. Jacobson may be seen as a victim of a change in the law. In contrast, all of the actions of the Operation Innocent Images defendants have been illegal for many years.


The length of the investigation in Jacobson is also evidence of an initial reluctance to break the law. Mr. Jacobson did not do anything illegal until 2 1/2 years after he came into contact with the agents. In the OII cases, most of the illegal actions took place during the first instance of interaction between the agent and the defendant and in some before.


As previously stated, the subjective approach consists of two prongs; inducement and predisposition. Since predisposition is what is in the state of mind of the defendant,each situation must be examined individually. Inducement is the more objective prong of the subjective test. Inducement must be present in order to allow use of the entrapment defense. In the OII cases, the inducement aspect is missing. The Supreme Court acknowledged in Jacobson that police are permitted to go undercover to catch criminals. There is nothing so intrinsically unique about the OII cases that would change this standard. The primary difference is that the defendant is unable to see the law enforcement agent. The agent is merely using the same technology to catch the defendant that the defendant is using to commit the crime.


Possibly the most telling of all predictions is that of law Professor Paul Marcus, author of an entrapment treatise, and a leading authority in entrapment law. Marcus opined in a recent article that the conduct in Operation Innocent Images did not seem to be entrapment.106 After learning of the police conduct in the William Bomar case and the Virginia patent attorney case mentioned earlier, Marcus commented, "sending racy messages like they did isn't against the law."107


The subjective test, based on this analysis, would not be satisfied in cases like the OII cases. Neither the requisite inducement nor the required predisposition exists in the examples above. In light of this situation, the entrapment defense would be unavailable in the OII cases. This is not to say that an entrapment defense will never work in cyberspace. If the law enforcement practices were particularly egregious or a clear cut case could be made that a defendant was not predisposed to commit the crime charged then, entrapment might be a reality. In the OII cases there were three charges; possession of child pornography, transmission of child pornography,and crossing state line to engage in sex with a minor. All three of these charges require an affirmative act on the part of the defendant. For example,someone would need to illegally possess to transmit. While it's not impossible;presently, prospects for using the entrapment defense in a situation like theOII cases only exist in the hypothetical.

VI. Endnotes

[1] America Online (AOL) is currently the world's largest online service provider and continues to grow at a pace quicker than any of its competitors. As of September, 1995 AOL passed the 3.5 million member mark with no sign of slowdown. In fact, AOL added 2 million members in the nine months preceding this count. Compuserve, a competitor of AOL,has 3.2 million members including its Japanese service. James Staten, AOL feels sharp growing pains;America Online, MACWEEK, Oct. 2, 1995 at 18. Back to the text

[2] Problems in cyberspace include such issues as; individual privacy, access, privacy without endangering the security of society, and regulation. Steven Levy, Stop Talking Dirty to Me, NEWSWEEK, Oct. 16, 1995, at 84.
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[3] For a critique of the media's tendency to concentrate on sexual issues in cyberspace in an attempt to push the "three letter hot button," See, id.
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[4] The term mainstream media is meant to distinguish popular media outlets such as television and newspapers from technology intensive publications, and is in no way meant to refer to political agendas.
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[5] Service subscribers are easier to track down because they need to provide the service with personal information such as their name, address,phone number and credit card information before the subscriber may open an account. Similarly, users of these services may be less computer literate than other internet users for reasons which are beyond the scope of this paper.
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[6] See, e.g., Cops Booting Up and Logging on; Officers Take Byte Out of Crime, THE TIMES-PICAYUNE,Dec. 10, 1995, at A25.
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[7] AOL president Steve Case claims that AOL does not monitor any private communications and that the FBI is only notified of illegal activities when examples of such activity are brought to the attention of the company. Michael Meyer and Jennifer Tanaka, The Feds in Cyberspace,NEWSWEEK, Sept. 25,1995, at 62.
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[8] Children, or other users, may be identified online in a few ways. First, they may tell another user their age via e-mail or in a chat room. Second, they may have a user name which discloses their age or identity. Finally, some users fill out a user profile which includes their age and may be accessed by other users. Other users are able to search user profiles for a keyword related to age, sex, or any other category which the user may want to search.
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[9] John C. Scheller,Note, PC Peep Show: Computers, Privacy, and Child Pornography,27 J. Marshall L.Rev. 989, (1994). The technique is to use child pornography to encourage children to engage in sexual activity. This is accomplished by showing child pornography to the children which serves to demonstrate to the child that engaging in "sexual activity is acceptable because the children in the pictures are engaged in it." Id. at 998.
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[10] See,Feds Crack Porn Ring Operating on AOL, INTERNET WEEK, Sep. 25, 1995.
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[11] See, e.g., Janet Leiser, Officer Goes Online to Catch Pedophiles, THE TAMPA TRIBUNE, Jan. 29, 1996 at 1.
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[12] David L. Sobel from the Electronic Privacy Information Center speculates that police tactics may induce people to commit crimes which they would not have committed otherwise. Rajiv Chandrasekaran, Undercover on the Dark Side of Cyberspace; On-Line FBI Agents Troll for Those Who Prey on Children, but Cybercops;Tactics Chill Critics, THE WASHINGTON POST, Jan. 2, 1996, at D1.
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[13] Id. The FBI agent in charge of an online sting says that the "FBI does not keep statistics on such crimes."
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[14] See,Leiser, Supra note 11, at 1, for an account of a Clearwater,Florida detective who entered a chat room on an online service to see for himself what type of activity went took place. The detective's online profile identified him as a police officer and the result was that everyone in the chat room signed off. The detective remedied the situation by changing his online profile to identify him as a13 year girl. He maintains this profile and currently spends about 10 hours weekly at the police station looking for adults "who use child pornography to seduce and molest children."
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[15] Chandrasekaran, supranote 12.
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[16] See, Meyer and Tanaka, supra note 7,calling Operation Innocent Images"the biggest sting ever" dealing with electronic pornography.
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[17] Id. at 62.
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[18] Peter H. Lewis, The F.B.I. sting operation on child pornography raises questions about encryption, N.Y. TIMES,Sept. 25, 1995, at D5. In spite of the large number of dwelling searched,the F.B.I. initially only made 15 arrests.
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[19] Due to the late date on which the arrests occurred, there is no case authority available as of yet which addresses the issues that arise therein.
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[20] A chat room is an area of the online service where users sharing a common interest or locality may converse with each other by typing messages and sending them to each other. It is unclear exactly which chat room Zemke was in on the day in question.
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[21] Matt O'Conner, Guilty Plea in On-Line Porn Sting, CHICAGO TRIBUNE, Nov. 21, 1995, at N3.
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[22] Id.
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[23] Id.
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[24] Id.
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[26]Id.Critics claim tactics used by online agents are overzealous, suggestive,and a waste of resources. The FBI possesses over $1 million worth of equipment for this online operation including computers, storage devices, and high speed modems. The FBI also plans to move the unit to a larger office space. Furthermore, the FBI employs eight agents in its Landover office who spend most of their time investigating online pedophiles and child pornography. Possibly the most costly aspect of the whole operation is the tremendous amount of time spend decoding encrypted files seized from pornographers. It can take FBI technicians hundreds of hours to decode encrypted files from suspects computers. For more information regarding encryption see. e.g., Lewis supra note 18.
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[27]Chandrasekaran, supra note 12.
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[29] Id.
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[30] Id.
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[31] Id.
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[32] Id.
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[33] It is unclear which party put forth the idea of meeting.
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[34] The lawyer was found guilty in federal court of one count of crossing state lines for the purpose of engaging in sex with a minor. He has yet to be sentenced.Chandrasekaran, supra note 12.
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[35] Id.
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[36] Id.
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[37] Id.
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[38] Id.
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[39] Id.
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[40] Id.
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[41] Id.
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[44] Id.
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[45] Paul Marcus, THE ENTRAPMENT DEFENSE, sec.1.01 (1989).
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[46] Wayne R. LaFave and Jerold H. Israel, CRIMINAL PROCEDURE sec. 5.1(b) (2nd. ed. 1992).
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[47] 287 U.S. 435 (1932).
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[48] LaFave and Israel, supra note 46. Before Sorrrellsthere did exist a state defense of entrapment, but the standard became more clear after the Supreme Court's treatment in Sorrells.
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[49] Sorrells,287 454 (Roberts, J., concurring).

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[50] LaFave and Israel, supra note 46, sec.5.2. The subjective approach is also referred to as the federal approach or the Sherman-Sorrells doctrine.
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[51]Scott C. Patton, The Government Made Me Do It": A Proposed Approach to Entrapment Under Jacobson v. United States, 79 Cornell L. Rev.995, 1000 (1994).
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[52] Sherman v. U.S., 356 U.S. 369, 372 (1958).
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[53]See, Sorrells,287 U.S. at 448, stating: "We are unable to conclude that it was the intention of the Congress in enacting this statute that its processes of detection and enforcement should be abused by the instigation by government officials of an act on the part of persons otherwise innocent in order to lure them to its commission and to punish them."
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[54] 737 F.2d 625 (7th Cir. 1984).
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[55]Navarro, 737 F.2d at 635.
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[56] LaFave and Israel,supra note 46, sec.5.2.
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[57]Marcus, supra note 45, sec.5.01.
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[58] Id.
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[59]Model Penal Code sec.2.13 (1985).
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[60] Sherman v. U.S.,356 U.S. 369, 380 (1958).
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[61] See, Patton, supranote 51, at 1005, listing; New jersey, Florida, Indiana, New Hampshire,and New Mexico.
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[62] 356 U.S. 369, 78 S.Ct. 819 (1958).
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[63] 356 U.S. at 373.
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[64] 356 U.S. at 379, stating: "the prevailing theory of the Sorrells case ought not to be deemed the last word. In a matter of this kind the Court should not rest on the first attempt at an explanation for what sound instinct counsels."
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[65] 411 U.S. 423 (1973)
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[66] 411 U.S. at 425.
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[67] 411 U.S. at 436.
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[68] 411 U.S. at 436.
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[69] 503 U.S. 540 (1992).
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[70] 503 U.S. at 542. Jacobson was arrested for violating the Child Protection act of 1984, Pub. L. 98-292, 98 Stat. 204, which outlawed knowing receipt of visual depictions of minors engaging in sexually explicit conduct.
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[71] 503 U.S. at 542.
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[72] 503 U.S. at 553, stating that like "Sherman,where entrapment was found as a matter of law, 'the Government may not play on the weaknesses of an innocent party and beguile him into committing crimes which he otherwise would not have attempted."
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[73] 503 U.S. at 543. These magazines were legal at the time because they did not depict any sexual activity.
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[74] In its consideration of the predisposition requirement,the Supreme Court discounted the evidence relating to the magazines, reasoning that it expressed a predisposition to view sexually oriented pictures, but that "evidence that merely indicated a generic inclination to act within a broad range, not all of which is criminal, is of little probative value in establishing predisposition." 503 U.S. at 550.
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[75] 503 U.S. at 543.
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[76] 503 U.S. at 543.
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[77]503 U.S. at 546. The two government agencies were the Customs Service and the Postal Service.
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[78] 503 U.S. at 543. The campaign to explore Jacobson's propensity to break the new law lasted over 2 1/2 years.
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[79] 503 U.S. at 544. In the survey mentioned above Jacobson indicated that he enjoyed preteen sex, but that he was opposed to pedophelia.
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[80] 503 U.S. at 545.
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[81] 503 U.S. at 545. In his second and final letter, Jacobson wrote: "As far as my likes are concerned, I like good looking young guys (in their late teens and early 20's) doing their thing together."
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[82] 503 546.
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[83] 503 U.S. at 546-547.
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[84] 503 U.S. at 547.
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[85] 503 554, stating; "we conclude that... the prosecution failed, as a matter of law, to adduce evidence to support the jury verdict that petitioner was predisposed independent of the Government's acts and beyond a reasonable doubt,to violate the law by receiving child pornography through the mails."
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[86]503 U.S. at 549.
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[87] 503 U.S. at 551.
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[88] 503 U.S. at 550.
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[89] 503 U.S. at 551.
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[90] 503 552. This view was analyzed in United States v. Gendron, 18 F.3d 955, 962 (1st Cir. 1994), where the court suggested that the Government's efforts to persuade Jacobson that he was exercising his First Amendment rights by ordering child pornography was "different from the ordinary or typical circumstances of a private inducement." But see, United States v.Hollingsworth, 27 F.3d 1196 (7th Cir. 1994), for the contrary view.
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[91] If Jacobson "promptly availed himself of this criminal opportunity," to receive child pornography"it is unlikely that his entrapment defense would have warranted a jury instruction." 503 U.S. at 550.
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[92] The majority stated that "the evidence that petitioner was ready and willing to commit the offense came only after the Government had devoted 2 1/2 years to convincing him that he had or should have the right to engage in the very behavior proscribed by law. 503 553.
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[93] 503 U.S. at 553-554.
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[94] See, e.g., U.S. v. Burt,76 F.3d 1064 (9th Cir. 1996); U.S. v. Lamarr, 75 F.3d 964 (4th Cir. 1996); U.S. v. King, 75 F.3d 1217 (7th Cir. 1996); U.S.v. Cisneros, 77 F.3d 490 (9th Cir. 1996); U.S. v.King, 73 F.3d 1564 (11th Cir. 1996); U.S. v. Tang, 76 F.3d 390 (9th Cir. 1996); U.S. v. Anderson, 76 F.3d 685 (6th Cir. 1996);Cousin v. Office of Thrift Supervision, 73 F.3d 1242 (2nd Cir. 1996); U.S. v. Miller,71 F.3d 813 (11th Cir. 1996); U.S. v. La Rizza, 72 F.3d 775,(9th Cir. 1995); U.S. v. McClelland, 72 F.3d 717, (9th Cir. 1995);U.S. v. Garcia, 76 F.3d 389 (9th Cir. 1995); U.S. v. Walls,70 F.3d 1323, (D.C.Cir., 1995); U.S. v. McKinley, 70 F.3d 1307, (D.C.Cir., 1995); U.S. v. Alzate, 70 F.3d 199 (1st Cir.1995); U.S. v. Jensen,69 F.3d 906, (8th Cir. 1995); U.S. v. Jackson, 72 F.3d 1370,(9th Cir. 1995).
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[95] LaFave and Israel, supraa note 46.
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[96] See, Lewis supra note 18.
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[97] It is unclear which chat room Zemke was inhabiting. There were some chat rooms on AOL which were geared primarily to exchanging pornographic pictures. If the room which Zemke was in was such a room, that is another strike against his claim that he was not predisposed to commit this crime.
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[98] The dissent does point out that Mr. Jacobson was only offered two opportunities to buy child pornography and he accepted both opportunities. This fact does not obviate the amount of time and effort the Government needed to spend in order to get Mr. Jacobson to place the orders. 503 554.
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[99] See, supra note 22.
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[100] 503 U.S. at 550, See,also, supra note 91.
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[101] 737 F.2d at 635.
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[102] 503 550.
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[103] See,Jacobson, 503 U.S. at 548, quoting Sorrells 287 U.S. at 441 stating; "It is well settled that the fact that officers or employees of the Government merely afford opportunities or facilities for the commission of the offense does not defeat the prosecution."
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[104] Chandrasekaran,supra note 12.
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[105] The dissenters were; O'Conner,Rehnquist; Kennedy, and Scalia.
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[106] Chandrasekaran, supra note 12.
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[107] Id.
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