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Monday, March 2, 2015

Defending Federal Child Pornography Cases: The Basics Reggie Aligada Assistant Federal Defender District of Minnesota January 18, 2011

55903732-Defending-Child-Porn-Cases.pdf

Pedophile on Kik app: ‘It's well known in our industry' By David Foster

Pedophile on Kik app: ‘It's well known in our industry' By David Foster

'Times' Reporter Kurt Eichenwald's Tragic Attempt to Save Child-Porn Star Justin Berry,By David France

'Times' Reporter Kurt Eichenwald's Tragic Attempt to Save Child-Porn Star Justin Berry,By David France

Left, Kurt Eichenwald, 2006. Right, Justin Berry testifying before the House Energy and Commerce Committee. 

(Photo: From left: Jimi Celeste/Patrick McMullan; Jay L. Clendenin/Polaris)


In his remarkable twenty-year career as a New York Times business journalist, Kurt Eichenwald has seen himself as a kind of crusader—shedding light on the world’s dark places, uncovering wrongdoing, bringing criminals to account. Lately, however, the pursuer feels like the pursued. “I had no idea of what I was taking on. I had no idea of the magnitude of the evil of these people,” he tells me. “This is an organized-crime business, these are people—we’re not talking about people with an affinity for Scotch—they spend their days talking and living and breathing the sexual issues of children.”

Two years ago, Eichenwald wrote a sensational front-page story in the New York Times about Justin Berry, a teenage pornography star who ran an enormously lucrative business from his room while his mother thought he was doing homework. The article resulted in congressional hearings, arrests, book-and-movie interest, and an Oprah episode. Eichenwald followed that first story with disturbing reports about illegal child-modeling Websites and self-help chat rooms where child molesters perfect their strategies. The Berry piece was impressive in its vividness. Law-enforcement agencies seized upon it as the definitive word about a sordid, teeming underworld, and parents inclined to worry about the dangers of the Internet were given reason to worry much more.

As much as the stories provided a window into a seldom-seen world, they also raised troubling questions about how they were reported—and ultimately about the man who reported them. To start with, Eichenwald made himself a character in the story about Berry—highly unusual for the New York Times. The reporter appeared as a savior, working to win Berry’s trust and finally rescuing him from the business he’d fallen into and delivering him back to his religious faith. But once Eichenwald became part of the story, others began to ask questions: Why would a Times reporter believe he should go into the rescuing business? And how had he accomplished what he’d accomplished? (Reporting on child pornography is inherently difficult, because looking at the images themselves is illegal, even for a journalist.) And behind those questions is a more fundamental one: What drives the people who fill these roles, criminal and pursuer, obsessive fan and obsessive foe?

With the country’s vexed relationship to youthful sexuality as the backdrop, Eichenwald’s stories, hectoring as they were about the evils they were uncovering, had a kind of prurient power that is undeniably related to the power of pornography. The cure and the disease are impossible to separate.

Now Eichenwald has been ensnared by his own campaign. His reporting methods are under intense scrutiny, and he’s been pilloried by other journalists, by pro-sex activists, and by people whom his investigations helped to put in jail.

As the controversy has grown, Eichenwald has bunkered himself in his Dallas home. He has family members answer his doorbell. As our talk began, he closed the doors of his home office, which is tightly shuttered against a beautiful morning, though there is no one in the house but the two of us and the family’s three-legged dog, Maggie.

The fight he’s found himself in has wreaked havoc on his life. He’s teary, volatile, largely unable to work. He left the Times, then walked away from a large contract at Portfolio. His career is in tatters. For this, he blames a campaign by the convicts he’s exposed, other child molesters he doesn’t even know, random anonymous bloggers, and journalists, specifically the advocacy journalist Debbie Nathan, who has written several long pieces questioning his reporting methods and whom he calls “the high priestess of pedophilia.” He believes they are acting in concert to destroy him, professionally and emotionally.

“I am emotionally damaged—significantly damaged,” he tells me in one of dozens of interviews over the past three months, many marked by tears and screams of rage. “The Justin thing was two years ago, and it won’t stop! What can I do to make it stop? It will never stop, you just don’t understand.”
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Eichenwald, 2000. 
(Photo: Fred R. Conrad/Broadway Books/The New York Times/Redux)


ack in early June 2005, child exploitation was the furthest thing from his mind. He was an award-winning business reporter, known for his ability to master arcane corporate puzzles and finesse uncooperative sources. He came to prominence on the ruins of Enron as well as scandals at Archer Daniels Midland and Arthur Andersen—proving himself amid America’s business crises as an unparalleled investigative reporter who could find a heart-stopping thriller in any corporate drama. His best-selling books have been snapped up by Hollywood, one set to star Leonardo DiCaprio, the other Matt Damon, with Steven Soderbergh directing. He had two George Polk awards on his shelf, and was a finalist (with Gina Kolata) for a 2000 Pulitzer.

It was entirely by accident that he turned his talents to exposing the Internet-porn business, he says. Between investigations, he was Googling for a new project. “I was looking for something international,” he has said, and something involving dirty money. So he typed in Interpol, fraud alert, and investigations. That led him to a Website called MexicoFriends.com, which sounded to Eichenwald like it might involve cross-border money laundering but turned out to be an amateurish porn operation starring Justin Berry, who was 18 at the time, and a parade of beautiful Mexican women. His eye fell on the Website’s help icon. It was illustrated with the face of a young kid—Berry at about age 14. There were disclaimers, but Eichenwald looked past them. “Nobody could look at this image knowing that it was a porn site and not conclude this is about child porn,” Eichenwald testified in a related criminal case in Michigan. “It was an image of a 14-year-old boy, somebody who was clearly underage. Somebody who, in truth, and this was a very important thing, he looked a lot like my oldest son, who was 13 at the time.”

Eichenwald, who has two other sons (then ages 7 and 10), was haunted by the comparison. He showed the picture to his wife, Theresa, a physician. “I remember him saying, ‘This could be ours, this could be our boy,’” she says.

In that moment, they both say, the boy in the picture stopped being a potential story and became a rescue operation, a mission of mercy. They decided to make contact. “A little voice was asking, ‘What if our sons were in trouble,’” Theresa Eichenwald says. “I would hope somebody would help them.”

Something kept them from thinking that they could simply alert authorities to their concerns and leave it at that. Eichenwald now says he should have e-mailed the CyberTipline, a



project of the National Center for Missing & Exploited Children. Instead, he recruited his own spiritual adviser, an Episcopalian minister named Kevin Huddleston, and spoke to their oldest son, using Justin Berry as an “object lesson” in the perils of the Internet.

With everybody onboard, over the next several days Eichenwald posed as a pervy fan and made awkward contact with the youth and his business partner and sometime sexual partner, a 37-year-old operator of a Sonic drive-in named Greg Mitchel. He won their trust in part by leading them to think he was a celebrated musician. They guessed Eichenwald might be Don Henley of the Eagles. Despite Berry’s claims to being over 18, Eichenwald says the contacts only increased his concern for the youth and his fears for the kid’s safety.

ustin Berry first went through the looking glass as a 13-year-old, when he hooked up a Webcam and began broadcasting live from his bedroom in Bakersfield, California. His distracted mother and stepfather apparently paid little notice; his biological father was long gone, having beaten charges of child abuse for knocking Berry’s head against a wall, then left for Mexico.

He thought the Webcam would give him the opportunity to meet “some girls my age,” he once said. But that’s not exactly what happened. Soon, a man invited him to remove his shirt, which he did for the promise of cash, he says. By 14, he was fielding requests to masturbate online in exchange for “gifts” his admirers would send, chosen off a “wish list” he kept on Amazon: computer equipment, toys, CDs, movies.

In this, he was clearly not alone. An indeterminable number of teenagers had stumbled into similar businesses—a number that today has no doubt ballooned thanks to perfectly legal sites like MySpace, Facebook, and especially XTube, where 43,000 people have uploaded their home sex pictures and videos. 

But Berry’s corner of the marketplace was a bit scrappier. For one thing, he was underage—federal child-pornography laws make it illegal to film, view, or sell sexualized images of anybody under 18, though age-of-consent laws are lower (in most states, 16). Berry—a lanky bottle-blond—launched JustinsCam.com when he was still 15 (one preserved Webpage announced he was on hiatus “due to homework”). He says he was soon making a six-figure income. In retrospect, he says, he was being lured into these activities by practiced predators. But a review of chat logs from that period suggests he was especially precocious. He sends school-exam questions to his fans for them to answer and sometimes brazenly stiffs subscribers after they paid for shows.

When his girlfriend confronted him, he refused to quit. “It’s a job, and I enjoy it,” he wrote.

Berry says that at 13 and again a year or so later, he was drawn into a pair of sexual encounters with adult men he met over the Internet. At 16, he fell into his sordid, on-and-off relationship with Greg Mitchel (they met in Mexico, where the age of consent can be as low as 12), which would last until he was nearly 19. “im str8,” Berry once IM-ed a friend, “but bi for money.”
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Berry also generated money in other illegal ways, including using his subscribers’ credit cards to buy unauthorized things for himself, plotting insurance scams, and even smuggling aliens over the border. In one of the most peculiar twists of his story, Berry quit high school and moved to Mexico. There, he reconciled with his father.

But the father soon found out about the son’s entrepreneurial niche—and reportedly turned it into a family business, procuring young women to co-star with the teenager on a brand-new site called MexicoFriends.com.

The two Berrys were piling in the money by the time the son turned 18, in July 2004, but by the winter, Berry had begun drifting away from the business, redirecting MexicoFriends to an Evangelical Christian link, yeajesus.com, and rededicating himself to Christ. One of the few artifacts of his past still online was a fan site Mitchel maintained on Yahoo in his honor.

Eichenwald first managed to contact Berry through an IM address he found in the MexicoFriends site archive. Berry was staying with Mitchel at his home in Virginia at the time. Eichenwald posed as an obsessed admirer, IM-ing and calling repeatedly. After initially gaining their trust, Eichenwald says he worried that Berry and Mitchel were going cold on him. That’s when the Eichenwalds, according to Theresa, decided to make several payments via PayPal. “A lure,” she called the cash, gaining his trust and keeping his attention until they could intervene. “I thought, Could we be throwing money away? And then, once again, What if it were our child? It’s a small price to pay.” That spring, Justin and Mitchel were considering refurbishing JustinsFriends, as a “twink” (young male) porn business, once again starring Justin, a prospect Eichenwald has testified he found alarming.

These aren’t the usual tactics of a reporter, but Eichenwald insisted to me that he was working on a rescue, not a newspaper story—he decided to write about it all only later.

By late June 2005, Eichenwald’s rapport with Berry was strong enough that he began angling for a meeting, but Berry was reluctant—he still thought his Internet benefactor was a gay Gary Glitter. Eichenwald pressed him repeatedly. He reminded Berry of his generosity, and talked about the promise of a movie. Eichenwald says he grew more desperate when he learned that Berry might be considering two marketing stunts in conjunction with his return: an Internet “auction,” where he would prostitute himself out to the highest bidder, and a whistle-stop tour in an RV—Eichenwald calls it “a molest-a-thon,” even though Berry was over 18—in which fans could have a private show. Desperate to stave off both events, the Eichenwalds sent along a much larger sum of money than before, this time $2,000. “You have to come meet me,” he would cajole the teenager. “I’m the $2,000 guy!”

Finally, on June 30, Berry flew to LAX and met his benefactor. Eichenwald, who had flown in from Dallas, he demanded to see Berry’s license, which proved he was weeks away from his 19th birthday, and handed over a copy of his newest book, proof he was a reporter, not a fan at all.

But these revelations didn’t stop the rescue mission. Eichenwald explains that Berry was high on drugs when he arrived, sick to his stomach, and desperately thin—109 pounds, though he was six-foot-one. That afternoon, and the next morning, Eichenwald talked to Berry about self-respect and the fragility of the soul. He extracted a promise to go cold turkey. This was an interesting moment in their developing connection to one another, both Eichenwald and Berry explain to me. Berry, in a telephone interview monitored by his attorney, said he looked at Eichenwald and thought, You know what? Enough’s enough, and agreed to quit on the spot.

Emboldened, Eichenwald told Berry to break off all connections with his fans, and implored him to find a way to make money “that wasn’t based in self-denigration.” He says he also demanded Berry return the $2,000. “We paid that money to save your soul,” he remembers saying. “That money was good money and you took it for all of the worst reasons possible. You took it and debased yourself by accepting that money. You have to give it back.”

Berry agreed to it all; he was that ready for a change. “I was a mess. I was horrible. I was speaking to thousands of pedophiles on a daily basis,” he says. “Luckily enough, Kurt, with that talk we had in L.A., knocked enough sense into me.”

Eichenwald says he then returned home hoping to see the money repaid but frankly never expecting to hear from Berry again. On July 3, he wrote the young man an encouraging e-mail, attaching a song by pop singer Chad Kroeger and an exegesis of the lyrics. “It’s the story of a man who awakes one day, distressed at what he has done to his own life, angry at himself for the things he has allowed himself to do,” he wrote. Two days later, Berry called Eichenwald around 9 p.m. “So many kids are in danger,” Eichenwald remembers him saying. “So many kids are being hurt, so many kids are ending up like me. Somebody’s got to stop this. Somebody’s got to do something.”

At that moment, Eichenwald remembers thinking, “Now this is a news story.” He called his editor in New York and got permission to fly Berry to Dallas, saying he was in danger where he was. Berry spent the next months not far from Eichenwald’s office, staying with cousins who, providentially, had experience ministering to troubled teens. It was, both Berry and Eichenwald say, a period of deprivation for the teenager. He was kept from a computer, a car, and a phone, marching through detox with little help but Eichenwald’s.
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his was apparently as grueling an experience for Eichenwald as for Berry. For Eichenwald’s story, day and night, they reviewed Berry’s many hard drives and downloaded data from the host computer and Neova, the company that handled credit-card processing for JustinsFriends. Eichenwald says Berry showed him the preview video for his Website. It featured him and a kid named “Taylor,” side by side on a bed masturbating. Taylor, Berry said, was just 14 years old.

The idea that another youngster was now sinking into a similar fate occupied Eichenwald’s mind. He worried he was legally culpable to do something but felt his options were few. He could go to the authorities himself, but journalists are loath to be seen as tools of prosecutors. At that very moment, his colleague Judith Miller sat in a federal prison for refusing to reveal a source to a special prosecutor. Eichenwald had a better idea, he says, and convinced Larry Ingrassia, the top editor of the Times business section. They would encourage Berry to go to the authorities, then chronicle the investigation from start to finish.

But they had a problem. Berry could possibly be brought up on charges himself for recruiting, filming, and distributing the Taylor video, a serious federal crime. Going to the authorities was especially troubling to Father Huddleston, who was now praying regularly with Berry. “The problem was that Justin’s age put him in a place where he was too old to be considered a victim, and the adult programs would treat him like he was the perpetrator,” Father Huddleston says.

Eichenwald called Steve Ryan, a former federal prosecutor who had been a source of his over the years, and Ryan agreed to help negotiate immunity for Berry in exchange for telling what he knew about the industry that Eichenwald was uncovering. He arranged for Berry to be interviewed by the FBI in Washington, D.C., on July 25 and 26, 2005. Eichenwald accompanied his source to D.C. (He says he was passing through on a family vacation, but Ryan says Eichenwald was on hand to greet Berry during breaks in his testimony and even offered information himself.)

But the FBI took some 50 days to confer immunity. One day in July, Eichenwald learned that Taylor was planning to travel to Boston with Greg Mitchel. Berry convinced him that Mitchel intended to molest the minor on the trip (Taylor later told the FBI he was never touched by Mitchel, whom he said he loved “like a father”). In a panic, Eichenwald called Ingrassia again, this time proposing an even more unorthodox intervention, to which he says the editor—and company lawyers—finally agreed. Eichenwald initiated an IM conversation with Taylor, impersonating Berry, the youngster’s mentor. He told Taylor to stay clear of Mitchel and to end his porn career, and Taylor apparently agreed.

“In part, I was Justin,” Eichenwald tells me, “because Justin was speaking in part through me.”

When I press Eichenwald on how, as a journalist, he could justify this charade, he explodes in angry self-defense: “Do you think I wanted to be the first journalist to go to jail for allowing a child to continue being raped because I didn’t want to violate some Star Trek–ian nonintervention rule that isn’t written down anywhere?” Eichenwald says he made additional contacts with over a dozen other minors who he believed were producing sexualized images of themselves and persuaded them to stop as well. “It’s the most noble thing I’ve ever done,” he says.

Right or wrong, these actions give an indication of the terrible weight Eichenwald felt was on his shoulders. The world that came into focus for him was a dire one and drove him to peculiar extremes, he admits. “Somebody told me yesterday, ‘You wanted to be the Catcher in the Rye.’ And I realized that’s absolutely true. I wanted—I wanted to save them.”

This hero complex drove him deeper into the rabbit hole. He began to see pedophiles and their victims everywhere—in the shadows at the local water park or massing at a neighborhood hamburger stand. His wife remembers him calling her from the garage in tears, unable to come in from his car. He often woke up screaming in the middle of the night. “He’s a casualty of war,” says Ryan, who now represents Eichenwald as well. “Kurt saw things, or imagined things based on the life that these kids lived—he imagined their lives, through the facts that they gave him. As a human being, he said, ‘What would it be like to be this 13-year-old boy who’s raped?’ ”
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“His nerves were shattering, the pressure he was under was intense,” agrees the reporter Diana B. Henriques, his closest confidante on the business desk. “I had certainly been urging him to get some help for quite some time.” Ingrassia, the editor, referred him to the Times health organization, which referred him to a therapist, Eichenwald says. But he was in too deep to recognize the personal urgency. He told friends his own health would have to wait.

As it happens, Eichenwald has had significant health problems since college, when he was diagnosed with grand-mal epilepsy. Convulsive seizures came on in a mounting wave until he was waking from multiple seizures a week, unable to recall what he’d been through.

It meant that his classmates knew a part of him that even he didn’t know—another persona, if you will. They named that person “Michael.” Anthropomorphizing his illness served a useful purpose all around. “They’d say, ‘Michael came for a visit last night,’” Eichenwald tells me. “‘I think Michael’s coming again.’ For them it was a way of talking about it, but for me it was a way of thinking about it. I didn’t want this thing to spill over into every aspect of my life.”


“In part, I was Justin,” Kurt Eichenwald tells me, “because Justin was speaking in part through me.”

After a series of adjustments to his medication, Eichenwald reports, he had his last epileptic convulsion in 1991. He still suffers the less-obvious symptoms of partial-onset seizures, including frequent mini-seizures that most laypeople wouldn’t recognize as epilepsy.

“If I have a regret, it’s that I didn’t intervene more actively,” Henriques says. “I think he knew he was under extraordinary duress, and he knew he needed to get some help dealing with it … But the nature of our work is, you’ll get the help when the story’s done—you get the story done.”

Eichenwald has always been extremely difficult to edit, but the weeks before publication were excruciating for everyone involved. Eichenwald says the story was ultimately pushed through 44 drafts by eleven editors. But he hammered back, screaming at his editors about children in danger and writing nuclear memos about his perceived mistreatment. He flew to New York to demand that the piece finally run. He cried often. On the eve of publication, his story was assigned to yet another editor, and he put his foot down one last time. That Friday, he submitted his resignation—not the first time or the last. The piece appeared the following Monday.

In retrospect, Times colleagues say Eichenwald steamrolled the piece through a leery editorial process. “This wasn’t people saying the story is three-quarters right and they don’t give a shit about the rest,” says Alex Berenson, a business reporter. “The difference is Kurt’s record, which gave them the assurance he was telling the truth, and his personality, which made it so difficult to edit him.”

he story, when published in December 2005, took readers into a knotty and unknown world on a narrative roller coaster of lurid seductions, abandoned allegiances, and spiritual conversion. Eichenwald not only delivered Berry into the hands of ministers, lawyers, and the FBI, but also was by his side as Berry’s former associates were arrested one by one. In the dramatic final scene, Berry sat in an undisclosed location, simultaneously conducting an IM conversation with Greg Mitchel and a phone call with the battalion of federal agents as they pulled into Mitchel’s driveway in Virginia.

Berry asked Mitchel whether his housemate and her children were at home, then shouted, “The kids are in the house” to warn the agents. He knew time was short. According to Eichenwald, Berry had “decided to confront the man who had hurt him for so long.”

“Do you even remember how many times you stuck your hand down my pants?” Berry typed. “You molested me. Don’t apologize for what you can’t admit.’’

Mitchel went silent at that moment—taken from the keyboard into federal custody, charged with operating a marketplace for underage porn as the mastermind of JustinsFriends.

The article was an instant sensation. Eichenwald, often with Berry at his side, made the rounds—Oprah, Larry King, Today. Meanwhile, media critics assailed the piece, which could be read as vigilante journalism, Grisham meets To Catch a Predator with a made-for-Hollywood gloss. He was referred to as “Justin,” never “Mr. Berry,” as Times style demands for adults, in a transparent bid to garner sympathy. Gay men in particular were offended by some of the language used in the article—the word “molest” was used when describing Justin’s interactions with men. With women, it was simply “sex.” To many, it seemed alarmist and overblown, an invitation to a kind of sexual witch hunt. (Although Berry and Ryan, his lawyer, forwarded records on hundreds of subscribers to prosecutors in 44 states, so far only one indictment has reportedly followed.)
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eeper issues surfaced almost immediately. The journalist Debbie Nathan (who has written for New York Magazine) became interested in Eichenwald’s Internet-sex pieces while doing research about child-pornography laws, which she believes should be amended to allow journalists and other researchers to verify the government’s impression of them. She thought that Eichenwald, whose stories seemed to imply he’d viewed lots of illegal sites, was given some sort of free pass by the Feds in part because he seemed so personally invested in promoting prosecution. Yet in an e-mail exchange, he denied viewing the sites, except by accident, which he said made it legal under certain circumstances.

Her Salon article was strident and prosecutorial, steeped in incredulity about Eichenwald’s methods. “Really? He didn’t know? Wasn’t hunting? Please!”

Eichenwald and the Times deny that Eichenwald did anything illegal in reporting the story. After the Nathan article, Eichenwald says he feared he might be arrested, or his children removed from his home based on her declaration that he illegally viewed underage porn. He instructed his personal lawyer to sue her for $10 million and publicly declared, “My wife and I have instructed our financial adviser to set aside $100,000 to finance the initial portions of this lawsuit.” So far he hasn’t sued, but in a private, seething e-mail to her, he wrote, “People like you are the maggots of journalism.” He later wrote a rambling, 2,600-word letter to Romenesko, the media blog, putting all other journalists on notice. “If you choose to rely on this conflicted woman for your reports, you do so at your own legal peril.”

Nathan has continued to battle Eichenwald with a fervor that mirrors his, writing about him for Counterpunch, and also in a short piece for this magazine’s Website. Nathan’s pro bono lawyer, the former New York corporation counsel Victor Kovner, says the whole affair left him stunned. “He flipped,” says Kovner. “It was ridiculous. But it turns out there are problems of which she was totally unaware, some of which have come to light.”

These issues have arisen from the prosecutions touched off by Eichenwald’s pieces. Records subpoenaed from PayPal and Internet service providers allege payments to Berry of several thousand dollars from Eichenwald’s accounts, under the names “Roy” or “Andrew McDonald.”

Greg Mitchel’s mother, Mary Robertson, an executive training consultant, wrote a letter about Eichenwald’s payments to the Times. Initially, Eichenwald elided the issue of whether he made payments to Berry. In an e-mail to Ingrassia dated January 6, 2006, Eichenwald wrote, “i don’t want to start heading down the path of denying every crappy lie that greg mitchel says,” he wrote.

Ultimately, Robertson encouraged her son to plead guilty to four counts of underage porn and hope for a lenient sentence; he got 150 years in a federal prison, a sentence that seems more appropriate for a mass murderer.

Another of the cases the Berry story spurred involves Tim “Casey” Richards, a 23-year-old Internet-porn star who faces 220 years in prison when he goes for sentencing in December. Berry hired him to help run JustinsFriends in return for a share of the profits. “The first thing he asked me to do was upload a preview video,” says Richards over the phone from a Tennessee jail—the video featuring Berry and Taylor side by side. Richards says he was specifically told Taylor was an adult. A bio for Taylor also stated he was “18, almost 19.”

Richards was convicted on eleven counts of child pornography, both involving his role in distributing the Taylor video and videos he had made of an ex-boyfriend when the boyfriend was underage. “There was more hysteria surrounding Tim’s case than any other federal case I’ve ever handled,” says Peter Strianse, an attorney for Richards. “I don’t know if the government was being driven by that article in the New York Times, but it’s as if they felt they had to do something and make representations to the court that Tim was one of the largest purveyors of child pornography that they have ever encountered.”

In preparation for his sentencing hearing, Richards, who maintains a blog partly dedicated to discrediting Eichenwald, was given access to read-only copies of Berry’s and Mitchel’s hard drives and computers used by the credit-card-processing company, whose owner was also arrested. In court papers, he alleges that they found cash transfers, as well as e-mails from “Andrew McDonald,” using an AOL address of Eichenwald’s. On June 6, 2005, “Andrew McDonald” wrote “the lighting sucks, washed out. still … worth 100.” On June 7, he wrote, “I have other proposals for you that would get you even more money.” A day later, Berry received a $2,000 check, drawn off Eichenwald’s Dallas bank.
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Tim Richards, 2005. 
(Photo: Courtesy of Russ Richards)


Even more mystifying than the payouts were the allegations by a computer expert hired by the defense, who analyzed hard drives and records and presented evidence that, as Berry was preparing to return to the business, Eichenwald had high-level administrative access to JustinsFriends, which would have allowed him to closely monitor the site’s business. If true, the allegation suggests many things: reportorial zeal, or a kind of journalistic sting, perhaps; not to mention personal motives that would be hard for anyone but Eichenwald to understand.

Eichenwald has yet to address this allegation specifically, but he’s denied doing anything illegal in reporting the story. His legal team moved to seal the records, but they were finally released last month. “All I can say is that there are troubling events and circumstances in advance of the launching of this site,” Strianse tells me, “involving whoever was involved in assisting Justin Berry, and then deciding to get Tim Richards involved for whatever technical support and assistance he can bring.”

Ingrassia is reportedly furious over Eichenwald’s failure to disclose the payments. “We trusted him to disclose all pertinent information,” he says in a statement. “The subsequent disclosures about pseudonyms and payments have been disturbing, and we have said so. Kurt’s behavior, and particularly his failure to be candid with his editors, violated the paper’s standards.”

Though Eichenwald’s lawyer denies he purchased photographs, Eichenwald has admitted to the $2,000 check. While not denying that he made other payments, he says he has “no independent memory” of any of the PayPal expenses. However, Theresa does remember the payments.

Eichenwald says that his epilepsy causes severe short-term-memory disruptions—it seems Michael, his anthropomorphized disease, hadn’t been dispatched after all. He produces a statement his neurologist has issued confirming the condition. Financial transactions are particularly vexing for him, he says. Eichenwald says he has covered for his lapses over the years with memory-enhancing techniques, like reading documents out loud or taking more detailed notes than others in his line of work. But in personal matters—which he insists the Berry rescue had been during the time he was sending money—he is less meticulous and therefore more forgetful. “People think I’m a scatterbrain,” he says.

“The number of coats that he’s lost,” adds his wife, sitting beside him on the family sofa one evening. “Or he comes home with one shoe.”

“One shoe in my suitcase,” he corrects her quickly. “Let’s not create images that aren’t necessary! But the flip side is, look, people in our profession, there are people who are stupid. There are people who are drunks. There are people who are lazy. I learned Enron’s accounting. People think I came into that knowing it. I didn’t know what structured finance was—that’s the basis of the entire Enron case.”

In fact, during our many interviews, he showed an astonishing command of detail (hundreds of dates, names, and events that animate the Berry story fill his head, as do chapter-and-verse citations from many other stories he’s worked on).

ow Eichenwald is in a trap at least partly of his own making, and he sees danger everywhere. “I was told these people are relentless, that they never stop,” he tells me in his Dallas office. “That they will torture you till you are destroyed or dead,” he says. “I put my son at risk! Because I chose to save somebody else’s kid! Do you have any idea how guilty I feel?” He thought about installing a panic button in the house or buying a gun. Instead, he got a second dog. “A three-legged dog was not enough protection,” he confided a few days ago. “My children are scared all the time, because they see me falling apart. My wife holds together. But that doesn’t keep her from sobbing in the middle of the night, ‘I wish to God we’d let him die.’ ” 

For legal reasons, Justin Berry’s lawyer has instructed him to break off all communication with Eichenwald until after Richards is sentenced. The young man today attends college, runs a small Web-development business, and misses the man he credits with turning his life around. “He’s a wonderful guy, and seeing him get criticized makes me sick to my stomach,” Berry says.

But Eichenwald, for whatever complex reasons, is stuck in the world Berry escaped—caught in the gravity of youthful sexuality, which distorts everything it touches.

“I didn’t do this for a news story. I didn’t do this to get people arrested. I did this because I thought this person was desperate … And now I sit here, desperate. And I don’t know how to get out of it.”

Child Pornography: To See, or Not to See? by Alia Malek

Child Pornography: To See, or Not to See?by Alia MalekDo reporters need to see child pornography to write about it?
Writing in Salon on August 24, Debbie Nathan wanted to start a conversation about child pornography. She raised the question: How can journalists report on child pornography when it is a crime to even look at such images? Nathan argued that journalists should be protected from prosecution for possession of child pornography if that possession is for legitimate reporting purposes, including, for example, testing government claims about the prevalence of child pornography.

Instead, the conversation came to a screeching halt.

According to Nathan’s article, her inquiry was rooted in her own research this summer into child porn on the Internet. In the course of her reporting, she inadvertently stumbled onto a Web site that featured illegal images. She became consumed with a fear that she would be arrested and prosecuted, recalling the prosecution and incarceration in 2000 of freelance journalist Lawrence Matthews in Washington, D.C. on charges that he had received and transmitted pornographic images of children in the course of his research on the topic. She reached out to other journalists and researchers who had looked into the subject, and heard stories of people abandoning the enterprise because of the risk of prosecution.

Then on August 20, the New York Times published a piece by Kurt Eichenwald that exposed a group of new Web sites purporting to have legal images of children but which in fact feature images that are arguably pornographic. As Eichenwald explained, courts have decided that nudity is not required for images to be deemed child pornography. The Times article was accompanied by a disclaimer that stated: “Covering this story raised legal issues. United States law makes it a crime to purchase, download, or view child pornography, unless the images are promptly reported to authorities and no images are copied or retained. The Times complied with the law, disclosing what it found to appropriate authorities.”

Eichenwald’s article, beyond just reporting on the trend, included lurid descriptions of the kinds of images found on these “child modeling” sites, though he says he relied on law enforcement and chat-room descriptions of the images rather than firsthand viewing. Nathan, however, assumed that Eichenwald had seen the images himself, and kicked off her article by provocatively saying that Eichenwald had spent time recently “look[ing] at a lot of kiddie porn.” Though she discussed Eichenwald’s tactics and opined on their legality, she ultimately was arguing that “the government prohibits reporters and other legitimate investigators from doing front-line research into child pornography,” because she believes such work requires journalists to view illegal images and risk being prosecuted.

Uncontested in Nathan’s argument is the notion that journalists have to actually see these images to test “government claims as to how prevalent child pornography really is and what makes an image pornographic.”

On the same day Nathan’s article was posted on Salon, the magazine pulled it and any letters it generated, and issued two corrections. The first correction emphasized that the law “does offer some legal protection for journalists and other researchers” and that an “affirmative defense may exist that would protect such work under certain circumstances, and the opinion asserted by Nathan that her work … would constitute a violation of the law was inaccurate.”

(An affirmative defense is one that does not deny the truth of the allegations against the defendant but gives some other reason why the defendant cannot be held liable.)

The second correction stressed that Eichenwald’s article was “not based on reviewing the content of the sites themselves” and reiterated the legal disclaimer that the Times originally ran with Eichenwald’s piece, asserting that journalists who come to possess these images inadvertently and who report them to the federal authorities are protected from prosecution.

With Salon disavowing Nathan’s entire article, the matter seemed settled. But the two questions at the heart of this episode are worth considering. First, the question Nathan addressed in her ill-fated article: Should journalists be protected from prosecution when they intentionally seek out child pornography for reporting purposes? And this one, which Eichenwald vigorously answers in the negative: Do journalists need to see these images — and therefore break the law — to adequately report on the subject?

The Times limited its interpretation of the federal statute’s provision for an affirmative defense to the case of inadvertent viewing. But a journalist like Nathan, who wants to see the images for her reporting, by definition would break the law and risk prosecution. (For a detailed review of the law as it pertains to journalists, see “Reporting on Child Pornography: A First Amendment Defense for Viewing Illegal Images?” by Clay Calvert, Kentucky Law Journal, Fall 2000/2001.)

We asked Calvert, a professor of communications and law and co-director of the Pennsylvania Center for the First Amendment at the Pennsylvania State University, to fill us in on the state of the law and any affirmative defenses as they apply to journalists:
“It is still very risky for journalists today to receive and transmit, during their investigation of a story or a report, images of child pornography. The Matthews case makes this clear in the U.S. Court of Appeals for the Fourth Circuit, and the general line of Supreme Court precedent is that journalists are not exempt from generally applicable laws that apply equally to all citizens. Clearly child pornography statutes are such laws of general applicability, so journalists take a risk today when investigating child pornography as they come across it on the Web, even with the exception spelled out in the federal statute pertaining to destruction of the images and reporting the matter to law enforcement officials. That defense under federal statute [18 U.S.C. 2252A (d)] only applies, by its terms, to the possession of ‘less than three images of child pornography.’ In other words, basically a journalist would be allowed under this defense to only possess two images, and that’s not a lot of content to look at for a full-blown investigative article.”

Nathan argues that to report on child pornography, journalists will be forced to take the government’s word about, for example, what these images are, where they are, who is involved, the extent of the problem, and how much revenue is generated. And by extension, so will the public. Her argument is that the government cannot be trusted.

Indeed, in May of this year, a piece in Legal Times tried to ascertain the source of a statistic, used by Attorney General Alberto Gonzales, on the prevalence of consumers of child porn on the Internet. As it turns out, both the media and the government were using a number — that at any given time 50,000 predators are on the Internet prowling for children — that seemed to come out of thin air. The media cited the government and the government cited the media as the source for the number.

But does contesting such a government claim require viewing the images? For Legal Times, at least, it did not.

In a heated exchange in the comments section of the blog on Open Democracy between August 25 and September 2, Eichenwald asserted that journalists don’t need to see the images to adequately report on the subject. Eichenwald quotes his own e-mail to Nathan on the blog, saying that her “apparent belief that we need to study child porn images has all the earmarks of a rubbernecking obsession on the grotesque.” He argued that journalists can trust descriptions of the images given by the courts and law enforcement officials. He reiterated these comments to CJR Daily in a phone interview.

This is tricky territory. We understand the importance of challenging government claims, especially when labels are used to stigmatize people and silence debate. For example, in the context of “terrorism,” we have more than anecdotal evidence that the government has falsely accused individuals and misled the public. But such investigations did not require journalists to engage in terrorism themselves, or to break the law in any other way, to find out the truth.

In the context of reporting on child pornography, it seems the only reason to see the images (and thereby break the law) is to determine whether or not they are actually pornographic, and we haven’t yet seen credible evidence that the press is being lied to and manipulated in this context. Some might see this as a chicken/egg problem. But the most expedient methods of accessing information are rejected by journalists all the time when those methods are illegal. Those who argue the need to see child porn to understand it too easily dismiss the fact that not only is viewing illegal, but that it also prolongs the exploitation of these children — because society has determined that merely seeing children in these poses victimizes the child. Similarly, we recognize the tension this creates with our role as the Fourth Estate.

Whether this situation necessitates a privilege analogous to what journalists seek in a federal shield law is perhaps a discussion worth having. Of course, such a discussion would require — as in the shield law debate — an examination of the question, Who is a journalist? And in a profession that requires no licensing, there is the very real danger that pedophiles could hide behind our privilege to indulge their criminality.

Reporting A Story or Breaking The Law? By Jane Kirtley

Reporting A Story or Breaking The Law? By Jane Kirtley
Reporting A Story or Breaking The Law? By Jane Kirtley