Another case of hard facts making bad law

Pedophilia and child pornography are unquestionably wrongs that need righting. And, as with wire fraud, money laundering and all the other cybespace crimes, they all rely on the tacit use of, if not cooperation of, banking and other electronically facilitated financial intermediaries to further their joint enterprise. Turning to these intermediaries for forensic assistance is, then, a natural and rational response of crime fighters.

But in doing so, the tools the crime fighters use expose the private, non-criminal, confidential information that the rest of us repose in these same intermediaries. And we have no way of knowing who is looking, for what real purpose and to what end. And we have no way to ever know or control that invasion of confidence.

Consider this case.

In an operation code-named "Mikado," police in Magdeburg searched the Internet over a six-month period.... The hunt included the biggest search of credit card data in Germany, involving basically all of this country's more than 22 million cardholders.

Torsten Meyer, the operation's chief investigator at the Saxon-Anhalt state crime office, praised what he described as unprecedented cooperation from German banks and financial institutions.

"We've used an entirely new method of investigating this crime and all financial institutions here have been very forthcoming and cooperative in it," Meyer said on Tuesday. "We've been able to arrest 322 suspects in all of Germany, most of them rather affluent people who paid for the incriminating material with their credit cards."

Saxony-Anhalt's chief prosecutor, Peter Vogt, said he didn't see any data protection problems in how the investigation was conducted.

"The police didn't have access to the data from 20 million credit cards," he told the tageszeitung newspaper. "It only received the data of 322 suspects from the credit card companies. They carried out the matching of the data themselves."

German Police Smash Child Porn Ring Using Credit Card Data

The ACLU isn't the only group of namby-pamby folks concerned about the state data trawling through our private electronic diaries, histories and finances.

Lawyers' association criticizes scrutiny of credit card transactions

The German Bar Association (DAV) has voiced grave doubts about the scrutiny of credit card data that the prosecuting authorities had initiated in the course of an enforcement operation aimed at the Internet-based child pornography scene; an approach that has allowed the authorities to score a spectacular success in their fight against child pornography.

According to the German news agency dpa DAV President Hartmut Kilger told the Reutlinger General-Anzeiger: "Voluntarily handing over such data to the authorities is dubious behavior, because what it amounts to is the outsourcing of profiling-type data trawling operations to private companies." The DAV would examine closely the legal ramifications of this new approach to criminal investigation, he added.

When asked to by the investigating authorities the banks had on the basis of information provided by the authorities scanned the credit card transaction data of their customers in an attempt to ferret out those who in the summer of 2006 had transferred a particular sum of money to a certain suspicious bank account. Investigators had concentrated their efforts on finding German customers of a website apparently operated abroad that offered child pornography material.

Bloggers in the USofA are jumping for joy at this sort of surveilance. Well, not all bloggers, but some, like this one:

What God says about child pornography by C.J. Kelly:

I read this article by John Blau and was glad someone wrote about this: Germany checks 22 million cards for child porn payments.

Germany has strict privacy laws, so I wondered how in the world the German police could check citizens' credit cards for payments to child porn sites. Apparently, according to the article, the credit card companies performed the search using highly defined search criteria and provided the results to German police. Okay, that helps me understand how the search was handled. And the searches had to be related to a case under investigation, so it all sounds legal.

I thought to myself, "wow.... if this could be done in the United States, a ton of people will go to jail and that would be a very good thing". There aren't too many things more despicable in life than harming an innocent child. As the Bible says in Matthew 18:6 "But whoso shall offend one of these little ones which believe in me, it were better for him that a millstone were hanged about his neck, and that he were drowned in the depth of the sea."

I wonder, if in the United States, we would be willing to give up our freedoms enough to track down the child pornographers and throw them into the depths of the sea.

What does this have to do with security? Plenty. There is a battle underway in the United States. We want our freedom and privacy, and yet we want our security. You can't have one thing without the other. You can't protect every citizens' privacy without also protecting the privacy of child pornographers.

I have to say it and many will argue with me in an attempt to justify their positions. We have to give up some of our freedoms and privacy in order to catch the bad guys, the terrorists, and the evil people who harm children. We have to. Don't hang on to this idea that because you are an American, you can do whatever you want. Somehow the real meaning of Freedom got lost.

I know I'm on a bit of a rant, but there's nothing that makes me more angry than people who harm children and it seems like we don't care about our children in this country as much as we should. I also have experience in the workplace where some Executive was found surfing child pornography at work and he didn't get fired. We were told to keep our mouths shut. This has got to change people. There are certain things that should never be tolerated.

If you are wondering what our actual Bill of Rights say and you have forgotten - read them again. There is plenty of room in there for searching, seizing, and prosecuting criminals without violating our rights as citizens.

Of course there are some other messy parts to the Bill of Rights, like the need for warrants, due process, freedom from unreasonable searches and the like. But, hey, if the President can pick and just what he wants out of the Constitution, why can't we all?

The reasonable questions to be answered in all these cases is, is there a less intrusive means to accomplish the same goal? If this means is the only effective one, are there less intrusive measures that can be taken? And the real kicker: who decides?

See, e.g.:
Senators Want to Know Bush Wiretap Authority
The White House is defiant in defense of warrantless wiretaps.
Barron's: Investigate a possible impeachable offense