Volume 77, Number 4

October 2002

The Potential Liability of Federal Law-Enforcement Agents Engaged in Undercover Child Pornography Investigations

Howard Anglin

In the course of enforcing laws against child pornography, law enforcement agents often engage in undercover operations that involve mailing child pornography to suspected consumers. In this Note, Howard Anglin argues that Congress and the Supreme and circuit courts have clearly established that children portrayed in pornography are harmed every time the pornographic images are viewed. The current law enforcement practice of mailing child pornography therefore injures children each time it is carried out. Under the doctrine formulated in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, this injury is actionable by the children involved and may lead to monetary damage awards against the agents who choose to send pornography to criminal suspects. Thus, law enforcement agencies should alter their practices to avoid Bivens liability and adhere to Congressional admonitions not to injure the innocent in order to catch the guilty.