Law complicates hunt for online paedophiles

Children looking for someone to talk to online can run into serious danger Keystone

Police face a potentially crippling legal hurdle in their hunt for paedophiles with a new law that forbids officers from posing as children in online chatrooms.

A new federal code that bans certain types of undercover investigations takes effect in 2011. When it does, police say they will have to wait until a child becomes a victim before they can act—an “absolutely unacceptable” situation.

“Paedophiles are in chatrooms all the time, that’s a fact unfortunately,” Thomas Werner, an officer with the child protection division of Zurich city police said in a phone interview.

“We go in, wait for them to contact us. We have conversations and after a few minutes they start talking about sex and all the things they would like to do with us. We are talking about a serious problem.”

Zurich lawyer Thomas Fingerhuth does not deny that. But he says changing the law to allow pre-emptive undercover policework raises serious privacy concerns.

“It’s always a question of how much security we want and how many intrusions we can tolerate,” he told swissinfo.ch. “This law protects citizens from being surveyed without suspicion.”

Nice kind man

This week Swiss television – a unit of swissinfo’s parent company, the Swiss Broadcasting Corporation – has aired a series of reports exploring the hurdle that a new federal criminal procedures code creates for police. With cameras rolling, Werner entered a chatroom called Mibbit and posed as a 13-year-old girl using the name lara_13.

Within minutes – Werner says it takes on average about three – a suspect using the name “netter_lieber_m”, German for a “nice, kind man” steered the conversation toward seedy ground. He did not hide the fact he was an adult. He asked lara_13 for sex. Her age was made clear several times.

Netter_lieber_m: I’d like to be with you.

Lara_13: Where?

Netter_lieber_m: Anywhere in the woods.

“If I have to say I’m Thomas Werner, a policeman, they would never talk to me in chatrooms,” Werner said. “I have to be undercover. It’s a necessity, yes.”

Going undercover has also been effective. So far this year Zurich police have taken nine people into custody during such stings.

“We won’t be able to continue that,” he said.

Six words

The problem lies with the new code’s language, which has been used to harmonise police procedures and codes across Switzerland’s 26 cantons.

The old code allowed for police to conduct undercover investigations when “certain facts provide reason for suspicion, especially when severe crimes have been committed or are likely to be committed”. Those last six words have now been removed from the books, effectively banning preventative undercover work.

The hurdle that creates for police has not gone unnoticed. Indeed, lawmakers pointed out the difficulties as early as 2009 and have established a working group to find solutions. But it was only after the television reports aired on the popular current affairs programme, 10vor10, that the issue gained considerable public attention.

“I call on the government to create a legal basis allowing such undercover investigations in suspicious cases to be possible again – and as soon as possible,” Lars Guggisberg, a cantonal parliamentarian from the rightwing Swiss People’s Party said. “Defenceless children are being handed over to paedophiles on the Internet.”

For its part, the government says laws governing police duties are cantonal affairs, though experts widely disagree on that. The Zurich police chief argues that cantonal legal patches would only amount to “temporary” solutions, and the new law is “absolutely unacceptable”.

Where are your children?

Fingerhuth believes there are other ways to solve it. For instance, a St Gallen public prosecutor, Thomas Hansjakob, has suggested police patrol chatrooms looking for suspicious behaviour without directly intervening – like an officer who walks a beat. “They wouldn’t be undercover then,” Fingerhuth said.

Ronja Tschümperlin, interim director of the Swiss Foundation for the Protection of Children, says the legal questions surrounding undercover work and privacy should not be taken too far. Trolling for paedophiles in a known online environment must be handled differently than, say, going on a phone tap fishing expedition.

“Society in a law-abiding state has a right to be protected, and the legal path here has to be corrected to allow these preventative measures once again within a well understood framework,” she told swissinfo.ch.

In the meantime, parents and schools need to take responsibility to keep children away from harm, she said. The first step is to simply know what children are up to.

“Chatrooms in and of themselves are neither good nor bad,” she said. “Kids need to be empowered and certain public places like chatrooms shouldn’t become a total taboo,” simply because criminals are lurking within them.

“We must take care to avoid that,” she said.

New police codes

Revisions to a federal criminal procedure law come into force on January 1, 2011.

The new law replaces Switzerland’s 26 cantonal codes at the federal level. As a result, criminal offences are better defined in a standard way within the Swiss Penal Code and allow for prosecution and judgments according to the same rules. The Federal Justice Office says this harmonisation helps prosecuting authorities tackle cross-cantonal cases as well.

Police are concerned with the removal of six words that they fear will greatly hamper their ability to catch paedophiles lurking in online chatrooms.

Police were not allowed to go undercover at random. Rather, in the past, police were able to get court-backed permission to go undercover if they had reason to believe a severe crime was “likely” to be committed. That clause has been removed, meaning police can only go undercover if there is suspicion that severe crime has been committed.