Information Privacy Law
Professor Ira Rubinstein
March 28, 2017
Post 9/11, the US government has been using deceptive methods through informants and undercover agents as a law enforcement technique. But what is remarkable is that these plans are sometimes the inspiration of the federal agents, which target suspects inspired by the Islamic State.
The most recent one involved the 25-year-old Robert Lorenzo Hester Jr. from Missouri, who was arrested and charged with attempting to provide material support to an Islamic State bombing attack on a train station in Kansas City on President’s Day.
The two men who appeared to be the masterminds of the bombing plan, were actually undercover FBI agents. According to the court documents, one of the agents befriended Hester on Facebook after identifying him as a suspect through his Facebook posts, which were evident of his: “conversion to Islam, his hatred for the United States and his belief that supposed US mistreatment of Muslims had to be put to an end”.
The FBI agents asserted that they were planning something “10 times more” than the Boston Marathon bombing and Hester approved and said “it felt good to strike back at the true terrorist”.
The federal agents disclosed the details of the plan and asked Hester to buy a list of items, including 9-volt batteries, duct tape, copper wire and roofing nails, which implicitly would be used to make a number of bombs. On February 17th Hester was arrested.
This recent foil manufactured plot raises the issue of whether a privacy interest protected by the Fourth Amendment exists. The US Supreme Court established in Hoffa and Lewis that a person does not have a privacy interest in the loyalty of his/her friends. These cases deal with the situation where the undercover agent or informant uncovers an existing crime (for e.g. sale of narcotics). On the contrary, in the series of the cases discussed above, the FBI created “crime opportunities”. Nevertheless, the US courts have not dealt with similar complaints, mainly because the defendants raise the “entrapment” defense claim, which is usually rejected by the courts. A recent case that deals with privacy and Fourth Amendment violations is United States v. Mohamud, but the issue raised regards mainly the “third-party” doctrine and the disclosure of the defendant’s email communications with a third party.
Also, it is not clear whether Hoffa and Lewis could apply in theses cases, because, as a former federal prosecutor, David Raskin, explained: “There isn’t a business of terrorism in the United States. You’re not going to be able to go to a street corner and find somebody who’s already blown something up. Therefore, the usual goal is not “to find somebody who’s already engaged in terrorism but find somebody who would jump at the opportunity if a real terrorist showed up in town”.
Finally, these cases raise many concerns of justice, mainly because the FBI seems to be targeting the Muslim community. Critics say that in these fake plots, federal agents are somehow creating crimes and “making” terrorists by offering great sums of money to low-income and prone to criminal activities minorities. In many cases (in particular the highly debatable Newburgh Four case) the suspects have neither the know-how nor the materials to go through the plotted terrorist attacks, which are all provided by the undercover agents and informants. Is the FBI ignoring the real threat and allocating its sources in remote terrorist schemes?