Operation Trojan Shield may be clever, but is it outrageous?

As digital communications have increased, so too have surveillance techniques and, correspondingly, the development of messaging platforms meant to avoid government surveillance. Individuals and organizations engaged in criminal activity have increasingly turned to digitally encrypted messaging platforms to stay ahead of prosecutors looking to obtain their illicit communications. "Anom" was created to solve this problem. It was developed for those engaged in criminal activity as a secure smartphone-based proprietary messaging App that allows the user to avoid detection. Approximately 27 million encrypted messages were sent on Anom in reliance on the feature of impenetrable encryption.

The only catch? Unbeknownst to its users, Anom was developed by the FBI in a project entitled "Operation Trojan Shield," and its agents not only received a copy of every message sent on the platform, but also shared those messages with other law enforcement agencies worldwide.

In June 2021, the Department of Justice indicted 17 individuals in the Southern District of California who were allegedly involved in distributing and operating the Anom devices and platform, charging them with conspiracy to violate RICO, "pertaining to their alleged involvement in marketing and distributing thousands of encrypted communication devices to transnational criminal organizations worldwide." This led to more than 800 arrests and, among other things, over 50 clandestine drug rings being dismantled.

Operation Trojan Shield is inarguably clever and effective, but it raises an important question: is it proper for the government to charge the 17 individuals for distributing and operating assets that the government itself created and promoted? 

The Anom program is arguably an example of a "reverse sting." It is essentially a situation where the government creates a criminal situation and then invites one or more individuals to participate while unbeknownst the government is watching closely to arrest the participants of a scheme that the government itself set in motion. It can be likened to when the automaker John DeLorean was charged with trafficking cocaine after an FBI confidential informant approached him about a "deal" knowing that DeLorean was under severe financial strain to prevent the insolvency of his company. Once DeLorean agreed and proceeded with the sale, he was arrested and charged. DeLorean, however, was acquitted after he presented a robust defense regarding the government's extensive involvement in the crime itself.

"There is no bright line dictating when law enforcement conduct crosses the line between acceptable and outrageous." United States v. Black, 733 F.3d 294 (9th Cir. 2013). Outrageous conduct occurs when the actions of law enforcement officers or informants are "so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction." U.S. v. Russell 411 U.S. 423, 431-432 (1973). The Ninth Circuit has identified a set of relevant factors to be used in assessing whether outrageous government conduct bars conviction: "(1) known criminal characteristics of the defendants; (2) individualized suspicion of the defendants; (3) the government's role in creating the crime of conviction; (4) the government's encouragement of the defendants to commit the offense conduct; (5) the nature of the government's participation in the offense conduct; and (6) the nature of the crime being pursued and necessity for the actions taken in light of the nature of the criminal enterprise at issue." United States v. Black, 733 F.3d 294 (9th Cir. 2013).

Last week, one of the 17 defendants in the Anom case lost a motion to dismiss arguing the factors set out in U.S. v. Black, stating in part that the government's role in creating the Anom scheme was "total" as the "government developed, funded, managed, and controlled the Anom devices and back-end encryption service with the specific intent to create a criminal enterprise" to encourage criminals to join a government created criminal enterprise. Nevertheless, the government prevailed on arguments that the government did not create the Anom Enterprise, the RICO crime or the predicate offense charged -- Defendants did so organically permitting the government conduct to fall outside of "outrageous."

In a seminal 1973 U.S. Supreme Court opinion denying a defense based on entrapment, Justice Rehnquist opined that "we may someday be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction." U.S. v. Russell 411 U.S. 423, 431-432 (1973). That day is not today but with technology that allows the government to create all-encompassing platforms designed to illicit illegal activity and watch while it happens, that day seems outrageously close.