Riding Orin Kerr’s Law Enforcement Trolley

In what is nearly a complete homage to the academic perspective on reality, the New York Times Room for Debate takes up the question of whether the FBI was right to become the foremost disseminator of child porn.  Aside from one kiddie porn advocate, whose essay was an utterly pointless digression into his feelz, all others were lawprofs.*

The issue was discussed here, challenging the propriety of the court’s facile excuse for crime perpetrated by the government because it’s just an ugly necessity in the war on crime, while imposing massively draconian sentences on defendants for doing the same thing. This point was part of Elizabeth Joh’s condemnation of the FBI’s conduct.

But Orin Kerr took up the law enforcement rationale, putting it in the context of the Trolley Problem.

You probably know the dilemma of the trolley problem: A runaway trolley is barreling down the track and will kill five innocent people in the way. You can pull a switch that will direct the trolley to a different track. But another man is standing on that second track, and pulling the switch will lead to his death.

It’s an excruciating choice: Do nothing and let five die, or pull the switch to save four lives but also take responsibility for one person’s death.

The F.B.I. faces a similar dilemma when its agents seize the computer servers of a child pornography site hosted on the Internet’s “dark web.” The F.B.I. has two difficult options for when to shut it down.

This argument by analogy likely reflects a reviewing court’s thinking. It’s probably unlikely to enter into the FBI’s thinking, which never got beyond the hammer/nail problem of its mission being to find and arrest criminals, and anything it does which furthers its mission is what it should be doing. But if the Trolley Problem creates the appearance of a thoughtful justification, they’ll latch onto it as if they ever thought about it this way.

And, on its surface, it’s not a bad analogy, even though it tugs a bit too hard on the heartstrings (it’s such a hard choice, so painful, but to save the children, hard choices have to be made), and Orin’s usually better than making a flagrant appeal to emotion. But it fails to withstand scrutiny.

First, the Trolley Problem assumes that the person who is forced to decide whether to save five or kill one is alone, faced with an emergency situation, compelled to make a snap decision. Act one way or the other. Or don’t act, which is an act in itself. It creates a moral dilemma for that one individual, who defaults to a gut reaction.  That isn’t what happened with the FBI.

They had ample opportunity to decide what to do, and that decision includes a range of possibilities, not the simple binary choice presented by the Trolley Problem.  They could continue to spread kiddie porn, or not. They could replace the content they were disseminating with fake kiddie porn rather than real images that victimized children.

They could use alternative methods of identifying users, spreading a virus by other means (emails to users about passwords, for example), and nail as many as they could nail.  No doubt more knowledgeable people than me could provide other options about what could have been done by the FBI that did not involve committing the very crime they were trying to prevent.

But they didn’t.  Instead, they did the harm they claim to be preventing, for the greater good. They sacrificed one to save five, even though they might have saved everyone but don’t want to talk about that part of it.

Yet, that’s not the end of the problem with the Trolley Problem analogy.  As Carissa Byrne Hessick points out:

The country shouldn’t simply rely on the judgment of law enforcement officers as the benchmark for deciding whether the costs of the crimes committed are outweighed by the crimes prevented.

One of the arguments for giving cops wide latitude in deciding whether to kill someone is that they’re forced to make a snap judgment, and shouldn’t be penalized if, in retrospect, the choice appears wrong.  The Trolley Problem as well involves a snap decision. But here, there was nothing snap about it.

Who decides whether the need to catch bad guys is more valuable than the need to stop harming victims?  If it’s left to law enforcement, whose mission is to catch bad guys, we’re back to the hammer/nail situation. Their answer will naturally favor their mission.

What about judges, who are the putative neutrals, the guardians of the Constitution, the protectors of victims?  Well, the judicial embrace of law enforcement’s view that they are constrained to use “methods that are neither appealing nor moral” has become so ingrained and banal that most wouldn’t give it a second thought.

The FBI is so deep into doing harm to save us, and has been using that trope for so long with the approval of the courts, that it’s almost inconceivable that any judge would object. And certainly, not after the harm has been done, where it would result in the bad guy getting away. That would just add insult to injury, and that ain’t happening.

Like so many well-established judicial views, it came about under other circumstances, infiltrating the mob or drug dealing organizations, where the relative balance was very different.  The sympathies toward junkies being fed heroin don’t compare to the harm done to children forced into child porn. So the mantra, that allowing the FBI to commit crimes is a necessary law enforcement tool, transfers from one to the other without much thought.  It’s just how law enforcement operates.

The argument was callous and unprincipled at the outset, even though nobody really gave a damn because nobody, especially judges, gave a damn about the people who suffered harm at law enforcement’s hand. The practice became embedded with disfavored people, and has now become such an accepted part of law enforcement and law that nobody gives it any real thought.

But now it harms the children, not junkies or people who do business with mobsters. It was unprincipled then, but we didn’t care. So is it really acceptable for the FBI to commit crimes in the name of law enforcement? Is it really the Trolley Problem? Or is it just another facile excuse to make law enforcement’s job easier, because it would ask too much of them to not be just as bad as the criminals?

*Why does Room For Debate have a fetish with academics, almost never seeking the perspective of anyone who actually does whatever is the topic of debate? I’m told that lawyers are busy, and it’s hard to get them to crank out an essay overnight for publication.  I call bullshit.

14 thoughts on “Riding Orin Kerr’s Law Enforcement Trolley

  1. jim ryan

    From a technical standpoint, they had “ample opportunity to decide what to do” but obviously gave no thought as to what happens when we take over. The technical solutions are trivial, given time to develop them and put them in place. Not doing anything prior placed the FBI in the middle of the Trolley problem. Having a worm/virus on hand with which to “infect” users of these services would have allowed an “OOPS! we have a problem and need to re-verify your account. While this is going on, the Web Site is unavailable but will be back shortly!”

    1. SHG Post author

      There are a variety of ways in which law enforcement creates exigencies, which it then exploits or uses as a justification to do things it couldn’t otherwise do. Flawed incentives aside, this just doesn’t seem to bother a lot of judges.

  2. paul

    Spreading a virus is also an example of a crime the FBI routinely does which they have declared legal for them to do because reasons (although to be fair the laws surrounding this vary greatly between jurisdictions – but the CFAA is extremely poorly written and can be wielded basically at whim).

    I know this isn’t your point about alternatives and the trolley problem but this particular alternative is also probably illegal. There are ways to unmask anonumizers without spreading viruses. Simply controlling a majority of exit nodes does the trick (its thought in many circles that the gov already does this — but of course in no way does nsa pass info on to fbi right).

    1. SHG Post author

      I used the virus example because it was simple enough for me (and non dev readers) to grasp. No doubt my shallow alternative has much better, more sophisticated brethren that would be better suited to the task.

  3. Jack

    Or, how about just shut off the server, arrest the people running it, examine the images like they would in a traditional investigation to track down as many child rapists they could, and then comb over the logs find as many perverts as possible who had broken their anonymity by accident (it happens all the time)

    No disseminating child porn, no soliciting images from rapists, no computer viruses. Just LEOs doing their job…

  4. Keith

    First, the Trolley Problem assumes that the person who is forced to decide whether to save five or kill one is alone, faced with an emergency situation, compelled to make a snap decision

    Not that Orin Kerr hasn’t been using the Trolley Problem to justify horrible behavior for years (I still remember his spat with Glenn Greenwald over waterboarding), but his choice to use the Trolly Problem here doesn’t change the fact it’s not an abysmal way of looking at the argument here from a public policy perspective.

    Even if the FBI didn’t have a number of other options (which they clearly did), the logic fails. Sure, the trolly problem is great for a pure Benthamite Utilitarian, but for someone that has actual thoughts about morality and justice, the follow-up to the trolly problem by Judith Jarvis Thomson, poses some uncomfortable thoughts.

    Would the Feds, eyeing more nails than they can shake a hammer at be willing to hire a producer to create some kiddie porn to snag up more criminals? Would courts permit the action?

    Maybe they would, but why get them a little closer to that destination when you have the chance to stop the trolley now?

    1. SHG Post author

      Contrary to rumor, I do not have Bentham’s head in my garage. And no, you can’t search for it unless you have a warrant.

      1. Keith

        You’re just tempting fate at this point. It’s all fun and games till some cop tries to make a play for the Healey in the name of asset forfeiture.

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