The New York Times Legal Aid Society.

The New York Times Legal Aid Society.

The New York Times Legal Aid Society.

Media criticism.
Dec. 19 2005 7:08 PM

The New York Times Legal Aid Society

The newspaper helps a very young pornographer find a lawyer.

New York Times reporter Kurt Eichenwald shows his fellow journalists how to build a deeply sourced investigative story in today's (Dec. 19) "Through His Webcam, a Boy Joins a Sordid Online World." Eichenwald plays a hunch into a bigger story. He convinces an important source—a boy whom pornographers and predators victimized—to confide in him. He pores over computer files the source provided, he digs for more information, he assembles a paper trail that leads to the profiteers of Web child-pornography, and he succeeds in opening a major criminal investigation.

Who but a monster would not automatically pat the reporter on his back for coming to the aid of the boy, Justin Berry, who is only 13 years old when we meet him in the story? Well, your friendly local press critic, for one. While I admire Eichenwald's journalistic enterprise and thoroughness, I'm astonished at how he loses control of his 6,500-word investigation when he appears two-thirds through it to serve not as a reporter but as the legal advocate and protector of the now 19-year-old Berry. *

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For those who haven't read the story—and I urge everybody to do so—here's a summary: A battered and lonely kid, Berry subscribes to the EarthLink Internet service in 2000 so that he can get a bonus Webcam and use it to meet people—even "some girls my age," he says.

He registers his Webcam at a user site hoping to engage other teens. Instead, Berry hears from sexual predators, one after another, as they view him. Liking what they see, the predators give him gifts through Amazon's "Wish List." They pay him cash to take off his pants, more to drop his shorts, more for sexual performances. An online "fan" arranges for the 14-year-old Berry to attend a computer camp, where the fan molests him. Another fan helps the 15-year-old Berry rent an apartment down the block from his family's home where he can conduct his burgeoning pornographic enterprise away from mom's eyes. By 2003, the 16-year-old Berry has partnered in the porn business with his father and then with another adult. He offers four-tiered subscription rates for monthly, three-month, six-month, and annual memberships and takes "the cash to support a growing cocaine and marijuana habit," Eichenwald writes.

Suddenly, Eichenwald's detailed and specific story turns to haze. Between October 2003 and June 2005, when Eichenwald first encountered Berry online, Berry attempts to leave the life; he contemplates suicide; he re-embraces Christianity; he fills his porn sites with religious tracts. But then he backslides into the life, re-entering the Web porn business with a partner on a new site featuring himself and "other boys he helped recruit." These events, which stretch over about 20 months, consume only four paragraphs in Eichenwald's narrative. He writes:

Justin was now 18, a legal adult. He had crossed the line from under-age victim to adult perpetrator.

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As this point—June 2005—Eichenwald the reporter appears as a character in the story to intervene into the adult Berry's life. The two got together in Los Angeles shortly thereafter. He writes:

In the days that followed, Justin agreed in discussions with this reporter to abandon the drugs and his pornography business. He cut himself off from his illicit life. He destroyed his cellphone, stopped using his online screen name and fled to a part of the country where no one would find him.

As he sobered up, Justin disclosed more of what he knew about the Webcam world; within a week, he revealed the names and locations of children who were being actively molested or exploited by adults with Webcam sites. After confirming his revelations, The Times urged him to give his information to prosecutors, and he agreed.

Justin contacted Steven M. Ryan, a former federal prosecutor and partner with Manatt, Phelps & Phillips in Washington. Mr. Ryan had learned of Justin's story during an interview with The Times about a related legal question, and offered to represent him.

In other words, Eichenwald helped convince Berry to quit porn and quit drugs. He found him a lawyer. The lawyer, in turn, persuaded federal prosecutors to give Berry immunity for serving as the state's witness.

What extraordinary intervention! The analogies aren't perfect, but imagine a Times reporter encountering an 18-year-old who had been thrust into the illicit drug business at 13 as a consequence of his neglectful family and unscrupulous dealers? Would he help the young man leave the drug trade and find him a lawyer at a Washington firm who is "a former federal prosecutor," as Eichenwald did Berry? Not likely. Would a Times reporter extend similar assistance to an 18-year-old female prostitute? An 18-year-old fence? A seller of illegal guns? No way.

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To the argument that Eichenwald deserves our praise for aiding the adult Berry, who has been victimized, I offer this counterargument: Hasn't the Times put the next reporter assigned to the online pornography story into a nasty jam? Will the just-turned-18-years-old subjects expect future reporters to 1) help get them a lawyer who will 2) assist them in becoming witnesses for the prosecution, because Eichenwald helped Berry? Will online pornographers and other allied criminals now regard reporters as agents of the state? Don't be surprised if they start treating reporters as cops.

Again, there's much to admire in Eichenwald's piece. Unlike other reporters writing about the sexual exploitation of children, he doesn't overplay his findings by trumpeting wild estimates of a larger trend. He got the child-victim turned adult perpetrator to go on the record and provide compelling evidence about the heinous crimes. And many thanks go to the Berry and Eichenwald partnership for exposing part of the financial infrastructure behind child pornography and sparking the arrest of primary criminal suspects. Yet practically all of that "good" could have been accomplished by Eichenwald and the Times without rehabilitating the newspaper's adult source or coming to his legal aid: The paper could have reported what it had learned without directly pegging its findings to Justin Berry. We know from the Eichenwald sidebar, "Documenting a Crime That Thrives on Anonymity," that the paper was mindful of its legal liability. That is, great care had to be taken to report on child pornography without participating in it. ("While it was occasionally necessary to review offensive images, The Times avoided downloading child pornography or independently subscribing to sites containing such material.")

Did the story's technological wrinkle throw the Times into a tizzy? As residents of America's Gomorrah, Times editors and reporters know that child pornography, child exploitation, and child prostitution not only exist but thrive. They know about pornographic Webcams and Internet escort sites, too, and wouldn't flinch if shown such XXX material. Maybe the potential proximity of the crime to their children's home computer setups unnerved them. What exactly are Johnny and Jane doing with their Webcams late at night?

Kurt Eichenwald Replies (Dec. 19, 2005, 8 p.m.):

Hey Jack,

You missed the driving factor in our decision to persuade Justin Berry to become a federal witness. In fact, if what you portrayed as the situation was all we were considering, the idea of convincing him to go to the feds would never have entered my mind.

But, as the story makes clear, once Justin began speaking to me, he revealed the identities of specific children in specific places who he said were being molested, filmed and exploited by adult pedophiles. He knew who they were, he knew where they were. And he knew where online to find some of the evidence, which I had the great displeasure of seeing.

So, that was the position I found myself in. I was months from being ready to publish. Yet, I knew the names of specific children who, the evidence suggested, were being sexually assaulted at that very moment.

What were our choices? Printing a story that said "these kids are being assaulted, a source says, and video documentation backs him up." (Justin was not yet on the record) hardly seems feasible. We could have done nothing, and just waited to disclose it all when we published; by that point, at least one of these kids could have been dead; we had evidence suggesting that more than one of the guys with kids could be violent. What would I do? Call these people for comment before we published, giving them the chance to take or dispose of the witnesses? (Please note, one of the guys was stopped in his driveway, ready to move the kid to another location, apparently because he had figured out following the arrest of [Greg] Mitchel that something was up.)

Of course, we could have reported these crimes to the government ourselves—but I thought that crossed a line from reporter to witness. Plus, there were source confidentiality issues in play at that point—how do I reveal this, without revealing the source?

Or, we could persuade Justin to become a federal witness. Luckily, in my reporting, Steve Ryan had offered to represent the kid—all I did was tell Justin of the offer and get out of the way.

In truth, as we were doing this, we recognized that no matter what choice we made there would be people who would criticize us. But no one but us had to face this horrible decision, recognizing that children's lives rested on the choice we made. I have no doubt there are other ways that this could have been handled—but please, don't do your readers the disservice of making it seem like the answer is obvious. Our way, I can go to sleep at night knowing that kids who were in horrible situations have been saved. I'm not sure I could have handled the alternative choice of just standing back and letting it happen—and I hope you would have criticized us for that if we did.

One other thought to know. There was no way to get the information about this business if Justin was still in it. The only way to get a witness is to flip him, to have him turn on his associates. That was essential for the reporting to move forward at all. Drugs were the things that were used by his abusers to keep him inside their world. The only way this story could proceed at all was if Justin got out of the business and got off drugs. So this is one of those wonderful times when the needs of journalism and the ethical demands of being a human being coincided quite nicely.

Best,

Kurt Eichenwald

Jack Shafer replies:

Why don't more journalists appreciate the fact that no matter what choices they make, somebody will criticize them? Thanks for having thick skin and thanks for your note.

Now on to my reply: If Berry told you in June about crimes being committed at specific locations, perpetrated upon specific individuals, and you confirmed the crimes, as you write in the New York Times, I don't understand why the Times didn't publish a story about it.

Based on the sensational new information in your note, I don't see how you could avoid going to press at the earliest possible point rather than waiting to "flip" Berry. You write that "one of these kids could have been dead; we had evidence suggesting that more than of the guys with kids could be violent," something I don't see in the Times piece. Waiting for Berry to win immunity would only prolong their misery and increase the possibility of death, right? As you write in the Times, Berry's "old associates" started to remove evidence from the Web shortly after he disappeared. So what kept you from publishing?

It still seems to me that Berry gets off fairly free in your account. The way you skate over the last two years of his life makes me think something important has been left out. Also, he appears to have known enough about right and wrong to exit the child-porn trade for a year before re-entering as an adult participant on the business side. Is he really deserving of his immunity?

Kurt Eichenwald replies:

Hmmmm, not getting anywhere here. There was nothing in my note that was not also in my story, and expanded upon in the online version of the story. Nothing new. And if you think allegations against one pedophile in one location (the only link in the multiple was that Berry knew about them) is a national news story in the New York Times—sheesh. These stories were either barely mentioned or went unreported in the locales where these arrests took place. And you once again dismiss the unavoidable issue we faced that, to write such stories, I would have to call these adults, get their response—and thus put the children who were in their immediate reach in danger.

Jack, the whole issue of ethical judgments is context. Shooting someone to death with a gun? Sounds unethical. Shooting someone to death because he is pointing a loaded gun at a pregnant woman's head? Dicier ethics. You're a cop, and you make the call that the man is about to shoot the woman, so you shoot him first? Hard to call that unethical.

The point is, you keep leaving out facts to make your argument. You just say we shot someone, then ignore all of the surrounding realities. We didn't have that luxury. We had real children at risk, in the hands of people we had strong reason to believe presented actual danger.  There was no real story in "a child you don't know about is being molested by a guy you have never heard of', an anonymous source said"—if that was the standard for news, we would have a predator's section for the Times running every day.

My hope is, if you were in our position, rather than looking at it from the rear view mirror, you would have made the same call. Because there is no telling whether these children would have survived had we gone down the path you are suggesting. And I just simply cannot believe that the ethics of our profession require us to stand by and let children be abused or killed—or for us to risk even causing their deaths, by recklessly endangering them. Could we even be held criminally liable for such a death, since we made the call knowing such an outcome was likely?

However, I am glad you noted my point about there being no good decision. We had none available. Every option had a down side—but, I could not be prouder of the New York Times than in knowing that, when those tough choices had to be made, they came down on the side that meant saving children. Then, knowing that there would be those who would disagree with the tough call we made, they came down on the side of disclosing everything we did, allowing journalistic ethicists who were not in the horrible position of making this decision to criticize us for it.

Bottom line, we made a tough call, and then disclosed everything about it. I can only pray that half of the media outlets in this country would act with the integrity and courage as the New York Times did in this instance.

Jack Shafer Replies:

You're probably right about us spinning our wheels, so I'll move on.

A Slate reader pointed out an apparent paradox that I'd like you to comment on. While you were preparing a potential witness for federal prosecutors by flying him from Bakersfield to Dallas, introducing him to a doctor, getting him a place to stay, and directing him to an attorney, the publisher of the New York Times, Arthur Sulzberger Jr.,was battling another federal prosecutor in court over the subpoena of Judith Miller.

Among the many worthy arguments advanced in defense of the Times and Miller was that idea that journalists stop being journalists when they become cogs in a prosecutorial wheel. If it's wrong to force Miller to surrender her sources to a prosecutor investigating a potential felony, how can it be right for you and your editors to directly assist another prosecutor in the building his case? By prepping and investing in Berry as you did, getting him to talk to prosecutors so that the feds could break up the child porn, you stopped working the story and started working the case. While the prosecution of child pornographers is laudable, it's not our job. Our duty—and our power—is to publish, publish, publish.

This is not to say that under no circumstance should you have intervened to help Berry, but I think once you've made that sort of personal investment you can't write a news story about it.

In your last e-mail, you express an exasperated "sheesh" at the idea that "allegations against one pedophile in one location" might not be a national news story in the New York Times. Well, why the hell not? Is there a threshold number of pedophiles that constitute a Times story? I hope I misunderstand your point.

And as long as I still have your interest, let me raise another point. You write that you first stumbled upon Berry while investigating a different story—financial fraud—and messaged him. The conversations led to a meeting between the two of you in Los Angeles, and it was only then that Berry learned that you were a reporter. Is it kosher for a New York Times reporter to communicate at length with a potential source, as you apparently did, without identifying yourself as a reporter? Did you deceive him about your identity?

 —Jack

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Eichenwald elaborates on how he met Berry online in this Web-only sidebar. See also his "Where the Credit Card Trail Leads" sidebar. Send comments to slate.pressbox@gmail.com. (E-mail may be quoted by name unless the writer stipulates otherwise.)

Correction, Dec. 20, 2005: This article originally stated that Justin Berry is 18. As Eichenwald's story states, he recently turned 19. Click here  to return to the corrected sentence.