Untested Rape Kits: Who is to blame and what is the solution?

In the United States, sexual assaults occur every two minutes. After a sexual assault, if a victim goes to the hospital, medical personnel compile a rape kit. A rape kit is a type of forensic DNA evidence collected from victims after a sexual assault has taken place. The process is often invasive and can take hours to complete. Police departments and prosecutors use the evidence collected during this process to identify suspects, increase the likelihood of prosecution, and in some instances exonerate wrongly identified and prosecuted individuals. What then is the problem that law enforcement, prosecutors, and defense attorneys are running into concerning rape kits? Many are untested. 

During an investigation conducted by USA Today and a number of journalists from sister stations in summer of 2015, USA Today reported that there are at least 70,000 untested rape kits spreading across 1,000 police agencies. Although this has been one of the largest and most detailed inventories conducted on untested rape kits ever, there are still potentially hundreds of thousands of untested rape kits that have yet to be identified. The study did not reach the over 18,000 police departments nationwide during the investigation phase. To add to the number of untested rape kits, news reports state that there are still thirty-four states who have yet to count the number of untested rape kits in their possession. The problem is even greater in smaller, rural communities who are not equipped to handle rape kits appropriately. One of the hindrances to testing rape kits is that it costs approximately $1,000 per rape kit. 

Before the USA Today study, Congress attempted to address the issue when it unanimously enacted the SAFER Act in 2013. SAFER provides $45 million in resources to assist local police departments across the nation in testing rape kits by providing them with a greater percentage of the grant money to provide to each state under the Debbi Smith Act. In addition, the law establishes standards for tracking, storing, and using DNA evidence during sexual assault prosecution. 

Despite this new law, there are still potentially hundreds of thousands untested rape kits sitting in police agencies across the country waiting to be tested. Many critics are blaming the Department of Justice, stating that they have failed to provide the guidelines and funds to the states to address the issue. However, it is unclear who is to blame. Because of the confusion, some states have recently stepped up and taken actions into their own hands. For example, in New York City, the city had a backlog of approximately 17,000 untested rape kits. In response to this backlog, the city prioritized untested rape kits and developed a system to test every rape kit within their jurisdiction. As a result, the arrests for rape percentage increased significantly from 40% to 70%. 

If the SAFER Act is enforced and states are required to test all pending untested rape kits in their jurisdiction or if states begin testing themselves, it will have substantial effects on local practitioners. If untested rape kits begin to produce DNA profiles, then prosecutors must determine whether the case is prosecutable. If cities that have a backlog begin testing untested rape kits in an effort to decrease their backlog, prosecutors, the courts, and defense attorneys could see similar results to those in New York City: a significant increase in the number of rape arrests and investigations. It is estimated that approximately 50% of the untested rape kits will deliver a DNA profile, leaving a large number of potentially prosecutable cases in the hands of local prosecutors.

In the event cases associated with untested rape kits are deemed prosecutable, it will require prosecutors to reopen the case entirely by interviewing victims, obtain samples to confirm that the DNA is from the alleged perpetrator, and investigate the circumstances of the incident. Of the hundreds of thousands of untested rape kits, if even 50% of them create DNA profiles as the estimates suggest, prosecutors will see a significant increase in their caseload, especially in the cities with the deepest backlogs. In smaller, rural communities, practitioners could see their work load double. The courts as well as defense attorneys will also see a significant increase in sexual assault cases if prosecutors deem these cases prosecutable, increasing the number of cases that defense attorneys take on and the number of cases that the courts will have to hear. 

By Emma McArthur 

Senior Staffer

One Stop Shopping - Fighting Child Trafficking through Eliminating the Online Middle-men

Super Bowl XLVIII will go down in history as being one of the most boring Super Bowls since its institution.  Your humble author will remember it by turning off the TV after half time, and going to do his Property reading, that suddenly became boundlessly fascinating in comparison.  For the parents of sixteen runaway children, who had been coerced into juvenile prostitution however, February 2, 2014 will be among the most memorable days of their lives.

In a coordinated effort by over twenty law enforcement agencies throughout the country, sixteen juveniles were rescued from their assorted pimps and johns amidst the Super Bowl festivities.  This raid, however, begets questions as to how these girls, and the three to four hundred thousand trafficked children in the United States are trafficked. The brave new world of the Internet has left trolling for prostitutes on dingy street corners obsolete. Over seventy five percent of all trafficked children in America are believed to be advertised and trafficked over the Internet. This may conjure an image of a fat, sweaty man sitting in a darkened basement firing up his TOR client to head to a particularly sticky corner of the Deep-Web and paying bitcoins to an unknown trader.

This image is incorrect. The vast majority of child prostitutes in the United States can be accessed through one perfectly legitimate looking website: Backpage.com. Investigators have found that “nearly every time a child is trafficked in the United States, they have been sold on Backpage.”

Backpage maintains that it is no different than any other online It’s difficult to quantify what percentage of the ads on the Craigslist-like site are for adult services. With that having been said, a cursory look into Backpage’s adult section in my current residence in Brooklyn, New York has shown that, since I started writing this post three hours ago, over two hundred ads (Note – that link is, obviously, NSFW) have been posted in just one section of the adult division, including an ad for “recently arrived, tight young Asian girls. VERY DISCRETE.” (Note – No, I am NOT providing a link for this.) In contrast, there have been thirty postings for landlords looking to show their apartments in the past forty-eight hours.

Backpage itself has few illusions about the manner of services it provides. Cook County Sheriff Thomas Dart has recently put pressure on VISA and Mastercard to not allow them to use their cards to pay for ads for potentially trafficked persons, citing, among other things, the prevalence of child trafficking on Backpage’s ads. Visa, MasterCard, and American Express, in a rare stroke of integrity for the credit card industry have since agreed to refuse to allow their cards to be used to pay for ads for sex trafficking.

Rather than take this as a sign that human trafficking, and particularly child trafficking is something that isn’t, and never should have been accepted, Backpage doubled down on their sex trafficking ads, wrapping themselves in the cloak of the First Amendment. Recently, Backpage has removed any and all fees for placing ads on their “Adult Services” section.

Note that it requires money to place an ad to sell a couch or an apartment, but not a trafficked child. This step becomes particularly odious when Backpage sidesteps any technical difficulties related to lack of credit card verification by allowing them to enter the promo code “FREESPEECH” as a one hundred percent off coupon for any person wishing to peddle any and all sex services on Backpage.

Backpage has been sued by two girls who were trafficked on their site, emphasizing that the search terms “underage,” “fresh,” (a known euphemism for underage) and “schoolgirl” were permitted on their site.  As a result of these lawsuits, it has been found that Backpage has refused to put in any manner of analaytic tools that would allow them to curb child trafficking. Backpage claims that they employ a “triple tiered” prevention system to avoid trafficking children. Attorneys for the three girls have held that this “prevention system” doesn’t amount to much more than clicking a box to ensure that the poster is over the age of eighteen. In short, Backpage’s robust, triple-tiered prevention system is exactly as ironclad as the same methods used to keep bored teenagers from watching videos on pornhub.com. Which is to say . . . not very[1]. 

Backpage has responded by suing Sheriff Dart for infringing on their free speech rights, and costing them over nine million dollars in revenue for their Adult Services ads. That’s right, Backpage is arguing that they should have the right to sell the bodies of children, because of the First Amendment. Just as John Dickinson and Thomas Jefferson intended.

Currently, Backpage enjoys a certain indifference to complicity charges thanks to a loophole in the Communications Decency Act.  This is a loophole that could have been closed by the Stop Advertising Victims of Exploitation, or SAVE ACT, introduced in Congress last year, where it died an ignominious death in committee. It has since been reintroduced in Congress, as an amendment to the Justice for Victims of Trafficking Act, a bill that provided additional penalties for those involved in the trafficking of both adult and juvenile victims of trafficking. It would also hold websites potentially civilly or criminally responsible for any human trafficking, particularly trafficking of children that they may have engaged in, or profited off of. At this point any sort of movement would be encouraged, as Congress has not passed any laws regarding child trafficking or even human trafficking as a whole in the last thirteen years.

Now, this is not to say that the bill is perfect. Indeed, many sex workers are staunch proponents of Backpage, preferring peddling their services from the comfort of their homes and computers rather than going out to the corners. They’re not wrong. And thus, it would make sense to establish a middle ground. Let Backpage keep their erotic services section, if for no other reason than to keep sex workers, who suffer from an unconscionably high rate of assault in their jobs, safe and off the streets. Pass a law requiring Backpage and its ilk to require proof of age for their models. This doesn’t have to include addresses, social security numbers, and full birthdays. Just some manner of ID that would show the year that the worker was born in.

This would be but a small step in fighting the scourge of child trafficking. The real victories come from allocating appropriate resources and shelter to prostituted children, establishing rapport between communities and law enforcement to crack down on the pimps and the traffickers who perpetuate this trade. I’ve written about this before and I realize this is probably the last problem on Earth that has a single silver bullet. But I’m pretty sure we can all come together and say that there should be no reason people should be able to traffic children, and cloak themselves within any shroud of legitimacy, whether they be a guy on the corner, a john at the Super Bowl, or a multinational website.

Travis Nemmer

Senior Staffer

Broad-sweeping, Bulk Warrants in the Digital Age

Internet use among adults age 18 + has become the social norm. As of March 2014, 87% of the population (277,436,130) uses the internet. Many of these users access social media websites like Facebook. Facebook has quickly become the most widely used social media website in the United States. As of the 2014, 71% of American internet-users (196,979,652) say they utilize the social media website. Moreover, of the 71% of internet users in the United States, 70% report they use the website on a daily basis. In total, a whopping 137,885,756 Americans check or post on Facebook daily.

On July 23, 2013 the Supreme Court of New York ordered the execution of 381 search warrants aimed at Facebook users, the largest request in the website’s history, authorizing the District Attorney and investigators to seize information stored on Facebook’s servers. A gag order preventing Facebook from notifying any of its customers was also issued. These 381 warrants were identical in scope and were supported by a sealed ninety-three page affidavit from the District Attorney’s Office detailing a scheme by civil servants to defraud the Social Security System. The warrants required all information in twenty-four broad categories, basically covering every post or action the 381 users had taken on Facebook. In August of that same year, Facebook moved to quash the warrants on the grounds that they were a violation of the users’ Fourth Amendment rights. The court denied this motion stating that the website did not have proper standing due to its “Terms of User Agreement” delegating privacy decisions to the individual user. Facebook was compelled to comply with the warrants and gag order. It then appealed the decision. In June of 2014, the District Attorney indicted 62 of the charged individuals, leaving 319 people whose accounts were riffled through uncharged. The gag order, however, was lifted and the court proceedings were made public. On July 21 of this year, the New York Supreme Court Appellate Division upheld the lower court’s decision and denied Facebook’s motion to quash stating the social networking service had neither a constitutional nor statutory right to challenge the warrants’ legal sufficiency on behalf of its customers before the warrants were executed. 

Specifically, the New York Supreme Court Appellate Division explained that the Internet Service Provider (ISP) did not have statutory authority found in the Stored Communications Act (SCA) § 2703 to file pre-enforcement motions against warrants. The SCA allows for only subpoenas and court orders to be challenged prior to enforcement. This decision, while sound legal theory based on current statute, is cause for concern among privacy advocates for a couple of reasons. First, the broad, sweeping nature of the warrants enables irrelevant personal information to be seized. Second, the statutory ability of an ISP to contest subpoenas/court orders, but not search warrants.

The first point of concern is the broad nature of the warrants themselves. Probable cause for the warrants of each of the 381 users was provided by one, ninety-three page affidavit. While this is not immediate cause for concern, it is disconcerting when viewed in the light of the actual number of users charged as a result of the account seizures. While a New York judge found there was sufficient probable cause, the number of charged defendants from the search warrants was a mere 62. Assumedly, this means there was not sufficient evidence found in the other 319 user accounts and, consequently, these users had their personal correspondence and pictures seized in vein. Yet, based upon current precedent, this broad seizure of material is legal. As the Supreme Court of New York stated in the 2013 case, “the relevance or irrelevance of items seized within the scope of a search warrant may be unclear and require further investigatory steps.” This precedent would make sense in most contexts, but becomes dubious when the mass amount of data gathered is a user’s most personal information. Again, considering the small percentage of users charged via the warrants, a large amount of irrelevant personal information was undoubtedly seized. The court in 2015 even agreed that users “share more intimate personal info through their accounts than may be revealed through rummaging one’s home.” Moreover, according to Chris Sonderby, Facebook’s General Counsel, the warrants contained no date restrictions and allow the government to keep the seized data indefinitely.

This sets a concerning precedent for future mass “data dragnets” by the DA’s office considering the number of people utilizing social media, as well as the amount of personal information found on these websites. In the 2015 opinion, the court recognized that “Fourth Amendment protections are weaker in the digital context,” but then, within the same document, admitted that “Facebook users share more intimate personal info through their accounts than may be revealed through rummaging one’s home.” Thus, should stricter scrutiny be utilized for these broad electronic search warrants? Another facet that causes one to ask this question is that this situation is indicative of a growing trend by United States law enforcement. The U.S. leads the world in these types of Facebook seizures. Law enforcement in the United States utilizes Facebook seizures almost three times as much as the next country on the list. In fact, law enforcement in this country used 14,274 requests to seize 21,731 accounts from July 2014-December 2014 alone. This number is more than the four closest nations (France, UK, India, and Germany) on the list combined. 

A second point of concern arises from the statutory construction of the SCA itself. Currently, it leaves wide latitude for District Attorney Offices when they have a warrant because of the inability of an ISP to challenge them until the accounts are seized. The SCA gives three ways to obtain electronic information: (1) An administrative, grand jury or trial subpoena (see §2703(c) (2)); (2) A court order issued pursuant to § 2703(d); or (3) A search warrant (see § 2703(a)). Subpoenas are used in this context to obtain subscriber information like names, addresses, and credit card information. Court orders are used to gather transactional data (when the account is accessed, services used, and length of time online. Finally, warrants are utilized for stored electronic communications like Facebook accounts. 

The court explained that an ISP can only challenge court orders or subpoenas prior to execution, not warrants. This is per se reasonable because probable cause is required for a warrant, while “specific and articulable facts” that there are “reasonable grounds to believe” the information desired will be “relevant and material” are the only requirements for court orders and subpoenas. Yet, the warrants in this case are pertaining to personal information on a social media website; a website where the court admits “users share more intimate personal information through their Facebook accounts than may be revealed through rummaging about one’s home.” The probable cause standard for these warrants is a relatively strong privacy safeguard, but should the SCA allow a pre-enforcement challenge when this quantity of personal information is being collected? This contention seems reasonable when such warrants involve 381 individuals and, in the end, sufficient evidence was only found for 62 of them. Without a pre-enforcement ability, an ISP is forced to let the government vitiate the privacy of its users and can only step in once the damage is done. These ISPs must either comply and lose the trust of consumers, or not comply and face contempt charges. 

The SCA, however, is not without its positive aspects. One benevolent characteristic of the SCA that the court points out is that without it, ISPs would be governed by the outdated “Third Party Doctrine” established by Smith v. Maryland (holding limited information that people voluntarily share with third-party businesses can be accessed by law enforcement without a warrant, only subpoena and prior notice are needed)¹. This 1979 decision paved the way for the NSA’s telephone metadata collection program that Snowden exposed. Ostensibly, the SCA creates privacy protections analogous to Fourth Amendment protections for digital communications stored on the internet. Thus, the passage of the SCA is certainly a step towards cementing online privacy in a world where more personal information is found online than in one’s home; yet, in its current construction, it still has room for improvement. 

Given the current social media status quo, this litigation should serve as a warning to those divulging personal information on social media. Even more important is the warning that District Attorney Offices may seize and access your accounts for an indefinite period of time. Even in the event the District Attorney Office does not find sufficient evidence to charge you with a crime, much like the 319 individuals who were not charged after their accounts were seized, there are few limitations on their access once the social media accounts are seized. 

By Joseph Collins

CLP Senior Staffer

¹(see also Orin S. Kerr, The Case for the Third-Party Doctrine, 107 Michigan L Rev 561 [2009]).