The argument is twofold: first, that without someone who wants to view kiddie porn, there would be no call for anyone to create kiddie porn. Second, that every time someone views child pornography, the child is again victimized.

That was the justification for not only the absurdly long sentences imposed on defendants, but the demand for the imposition of restitution in the amount of $3.4 million on each and every one of them.  They deserved it. The harm was so horrible, so awful, that every one of them deserved it.

This argument was taken so seriously that it wound up before the Supreme Court in Paroline, an opinion so vague as to leave everyone pondering why the justices got paid that day.  So Sen. Orin Hatch proposed the Amy and Vicky law, because this harm was so horrible that it demanded remediation.

Regardless of the arguments surrounding the propriety of a joint and several restitution order for the full $3.4 million on every defendant, there was never any real doubt that the underlying complaint, the harm done to children, was awful.  This is sick stuff, whether to make it or view it.

So how, one might wonder, was it entirely different when the FBI decided to get into the kiddie porn business? Via Brad Heath at USA Today:

For nearly two weeks last year, the FBI operated what it described as one of the Internet’s largest child pornography websites, allowing users to download thousands of illicit images and videos from a government site in the Washington suburbs.

The feds called it “Operation Playpen,” because they love cool names and it makes it sound entirely different when they give it a law enforcement-sounding name rather than the “FBI is distributing child porn.”

The operation — whose details remain largely secret — was at least the third time in recent years that FBI agents took control of a child pornography site but left it online in an attempt to catch users who officials said would otherwise remain hidden behind an encrypted and anonymous computer network. In each case, the FBI infected the sites with software that punctured that security, allowing agents to identify hundreds of users.

That it served a function is certainly something to be argued in its favor. That it committed the very crime for which people were arrested, prosecuted and imprisoned is, well, a problem.  If this exact same conduct is so terribly evil that it demands draconian punishment, is it not just as evil when done by the government?  Is the evil somehow rendered less so because it aids in the government’s identifying people who look at child porn?

Of course, it’s different when the government engages in the exact same conduct for which it condemns anyone else, because they do so in the name of goodness and the law.

#DOJ: “Sadly true” that to catch criminals, it must sometimes ““use methods that are neither appealing nor moral.” pic.twitter.com/dP58F3Kk64

— Brad Heath (@bradheath) January 21, 2016

The rationale that the government must get down in the gutter in its quest to ferret out crime has become a staple of criminal investigations.  The feds routinely commit crimes, whether directly via undercovers, or through their surrogates, the rats they delightfully call CIs.

And that’s on top of using lies and deception to manipulate people into false confessions, false accusations, false whatever, because it serves a critical law enforcement purpose to “use methods that are neither appealing nor moral.”

This proposition, that’s not only widely accepted, but deeply embedded in both accepted investigatory methods and judicial acquiescence, is a slippery slope for which no conceptual ledge can be found.  If an undercover needs to prove his loyalty, can he snort coke?  Sure. No biggie. What about have sex with a crack whore? Why not?

What about put a bullet in the head of a corner dime bag dealer, who is giving the big guy tsuris?  After all, on the one side, there is some drug-addled nobody who sells poison to children. On the other, there is law enforcement’s need to get the goods on a big league drug organization.  Who wins that battle?

Here, the government’s argument was that keeping this kiddie porn site up and running allowed them to figure out the users hidden behind Tor.  They wouldn’t be able to do that if they pulled down the site, or altered what it did.

The Justice Department said in court filings that agents did not post any child pornography to the site themselves. But it did not dispute that the agents allowed images that were already on the site to remain there, and that it did not block the site’s users from uploading new ones while it was under the government’s control. And the FBI has not said it had any ability to prevent users from circulating the material they downloaded onto other sites.

So, for a good law enforcement purpose, the government did exactly what they arrested others for doing.  But the feds decided their needs were sufficient to commit the crime they were trying to eradicate.

“At some point, the government investigation becomes indistinguishable from the crime, and we should ask whether that’s OK,” said Elizabeth Joh, a University of California Davis law professor who has studied undercover investigations. “What’s crazy about it is who’s making the cost/benefit analysis on this? Who decides that this is the best method of identifying these people?”

The question of who makes the call is an easy one to answer. The government does, as it’s charged with the boots on the ground decision-making of how to exercise the police power. One might say its interest, being strongly aligned with investigating and prosecuting crime, compels it to sacrifice the victims in order to nail the perps. But then, there are courts overseeing the choice, who have the authority to condemn the commission of crime for the purpose of arresting the criminals.

But when the judicial answer to crime perpetrated by the government is to blindly accept the premise that it’s acceptable for law enforcement to “use methods that are neither appealing nor moral.”  Then what limits are there on the government committing the very crime that is so awful it demands extreme punishment?  Apparently, none.