Date: 10 May 92 20:48:10 EDT
From: Gordon Meyer <
[email protected]>
Subject: File 2--The Defense of Entrapment (Reprint)
The Defense of Entrapment
As it Applies to Bulletin Board System Operators
By Randy B. Singer, Esq.
For now, it is unclear how the law applies to protect speech
communicated through electronic bulletin boards. There are hundreds,
maybe thousands, of enthusiast-run bulletin boards across the country
provided for the free use of the public to exchange ideas and publicly
distributable software. The system operators of these bulletin boards
are providing a wonderful public service, out of the goodness of their
hearts, usually for no monetary gain (in fact, often at a considerable
loss). These sysops cannot afford to fall into a gray area of the law
and find themselves having to defend an expensive criminal suit or
having to do without their computer equipment because it has been
confiscated by the police as evidence.
Running a public bulletin board can expose a system operator (sysop)
to all sorts of legal problems that have yet to be adequately defined.
For instance: What happens if one user posts slanderous/libelous
information about another user? Is the sysop liable? Is a bulletin
board more like a newspaper in this regard or is it more like a
meeting hall? What happens if a user uploads something clearly
illegal, like child pornography, which other users download before the
sysop has a chance to review the material? Is the sysop liable? What
is the liability of the sysop if he runs a bulletin board in his/her
back room and he/she almost never monitors the activity on it? Is the
sysop required to constantly monitor the goings-on on their board to
prevent illegal activity?
It is therefore understandable that sysops have tried to protect
themselves legally the best that they have known how. Unfortunately,
there has been a lot of misinformation spread about what the law is
and how it pertains to the community of bulletin board users and
operators. Hopefully this text file will clear up one of the most
common legal misconceptions that is going around.
I have often seen posts that evidence a complete misunderstanding of
what constitutes the defense of entrapment. As an attorney I would
like to explain this law and its application, especially as it
pertains to electronic bulletin board operators.
Entrapment is a complete defense to a crime that a person has been
charged with. It varies in how it is interpreted in each state, and on
the federal level, but generally it is as I have defined it here.
Entrapment only exists when the crime involved is the creative product
of the police. (That is, the idea to commit this crime came from a
police officer, or an agent of the police. The alleged criminal never
would have thought of committing this crime if it hadn't been
suggested to him by the police, or if the means to commit the crime
had not been offered to the alleged criminal by the police.) AND the
accused was not otherwise predisposed to commit the crime involved.
(That is, the accused probably wouldn't have committed this or any
other similar crime if the police had never been involved.) BOTH
elements must exist for the defense of entrapment to apply.
For instance: When John DeLorean, owner of the (then about to fail)
DeLorean Motor Company, was arrested and tried for selling cocaine, he
was found not guilty by reason of the defense of entrapment because,
the jury determined, the police took advantage of the fact that his
failing company made him a desperate individual. The police sent in an
undercover officer to offer him a bag of cocaine to sell to raise
money to save his company. The entire idea for the crime came from the
police; they provided the instrumentality (the coke); and John
DeLorean probably would never in his life have sold drugs to anybody
if the police hadn't shown up to offer him the drugs to sell at the
exact right time.
The reason for the law is obvious: we don't want the police setting up
desperate people to get busted just because those people are
unfortunate enough to find themselves in desperate situations. In
fact, we don't want the cops to set up any law abiding citizens, even
if they are not desperate. Tempting people who would not ordinarily
commit a crime is not what we want police officers to do.
Now that you have the definition of entrapment, let's talk about what
entrapment is NOT. I've read a lot of posts from people on boards who
think that entrapment exists when a police officer goes undercover and
does not reveal his true identity when asked. This is NOT covered by
the defense of entrapment per se. The defense of entrapment does NOT
require a police officer to reveal himself when asked. Going
undercover is something that the police do all the time, and there is
nothing that prohibits them from doing so.
If you are predisposed to commit a crime (e.g., you are already
engaged in illegal activity before an undercover police officer comes
on the scene), and an undercover police officer simply gathers
evidence to convict you, the defense of entrapment does not apply.
So, for instance, if an undercover police officer logs onto a bulletin
board and lies and says that he/she is not a police officer when
asked, and he/she finds illegal material or goings-on on this bulletin
board, then whatever he/she collects and produces against the system
operator as evidence towards a criminal conviction is not precluded
from being used against the sysop in court. At least it is not
excluded by the defense of entrapment, because in this instance the
defense of entrapment does not apply. The police officer is allowed to
act undercover, and the illegal acts were not the creative product of
the police.
Also remember that the defense of entrapment is a COMPLETE defense.
So it does not act to exclude evidence, but rather it acts towards one
of three things: having a grand jury find that there is not sufficient
evidence that a conviction could be obtained to proceed to a criminal
trial against the sysop; having the case dismissed before trial; or a
finding of 'not guilty' after a criminal trial.
The defense of entrapment also doesn't necessarily apply if the police
officer simply asks the system operator to do something illegal and he
does it. In this case the district attorney would argue that the sysop
was predisposed to commit the illegal act, especially if the illegal
act was already going on in one form or another on the board. For
instance, if the police officer asks the sysop to download to him some
commercial software, the defense of entrapment will not apply if there
is already commercial software available in the files section of the
bulletin board.
What would probably be required for the defense of entrapment to apply
would be for the police officer to have enticed or misled the system
operator into doing the illegal act, and it would have had to have
been an illegal act that wasn't already going on on this bulletin
board. This MAY allow the use of the defense of entrapment. I say
"may" because it depends on the facts in each individual situation to
see how closely they meet the requirements for the defense of
entrapment to apply. You may surmise from my reticence to commit to
saying that the defense of entrapment definitely WOULD apply that the
defense of entrapment is not a defense that I recommend that you rely
on.
I've seen some bulletin boards say something to this effect in their
logon screen: "Access restricted. Police officers must identify
themselves, and are forbidden from gaining entry to this bulletin
board." This type of message not only does not protect a bulletin
board from the police (assuming that there is something that might be
interpreted as illegal going on on this board), but it actually alerts
any police officer who may casually log on to this board to
immediately suspect the worst about this board and its system
operator. There is nothing that I know of that would keep an agent of
the police from lying about his/her status and logging on as a new
user and gathering evidence to use against the sysop. In fact, I'm
not sure, but I would not be surprised to find in the current legal
climate that such a logon message is enough evidence to get a search
warrant to seize the computer equipment of the system operator of this
bulletin board to search for evidence of illegal activity!
At some future date I hope to write a file that will detail how sysops
can protect themselves from legal liability. (That is, by avoiding
participating in arguably illegal activity, and by avoiding liability
for the uncontrollable illegal acts of others. I have no interest in
telling sysops how to engage in illegal acts and not get caught.) But
for now, I hope that this file will give sysops a better understanding
of the law and how one aspect of it applies to them.
Disclaimer: The information provided in this document is not to be
considered legal advice that you can rely upon. This information is
provided solely for the purpose of making you aware of the issues and
should be utilized solely as a starting point to decide which issues
you must research to determine your particular legal status, exposure,
and requirements, and to help you to intelligently consult with an
attorney. No warrantees, express or implied, are provided in
connection with the information provided in this document. This
document is provided as is, and the reader uses the information
provided here at their own risk.
(Sorry for the necessity of covering my behind! Just remember, you get
what you pay for, so I cannot guarantee anything I have written here.
If you want legal advice that you can take to the bank, you should
hire an attorney. Besides, just like everyone these days, we need the
work!)
About the Author:
Randy B. Singer is an attorney in the San Francisco bay area. He does
business law, personal injury, computer law, and Macintosh consulting. He
also gives seminars at the Apple offices in downtown San Francisco for
attorneys and others who are interested in learning about the Macintosh
computer. He can be reached at 788-21st Avenue, San Francisco, CA 94121;
(415) 668-5445.
Copyright (C) 1992 Randy B. Singer. All rights reserved. This document
may be freely distributed as long as it is not for monetary gain or as
part of any package for sale. This work may not be modified in any way,
condensed, quoted, abstracted or incorporated into any other work, without
the author's express written permission.
This reprint taken from ST Report #8.19, used with permission
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