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Is it possible in the United States for a dark web site operator (or potentially anyone involved in an illegal activity) to create a contract that legally binds a law enforcement organization to grant preemptive immunity against any illegal activities that might occur?

For example, upon sign-up the site might present a EULA or similar that says something to the effect of:

"By signing in to this site, you, as a representative of any law enforcement agency, acting as a representative of and on behalf of your respective agency, do hereby grant the site operator and any affilates of this site perpetual immunity from civil or criminal prosecution for any and all activities associated with this site, including indemnification against damages for ..."

Is there any legal predent anywhere in the United States where a person has been encouraged by a law enforcement organization to commit a crime under protection of immunity, possibly in pursuit of some greater good (justification: it takes a criminal to catch a criminal)? Could such a precent be used as a defense in conjunction with this agreement ("They signed the agreement Your Honor, just like they did with Homer vs. The City of Springfield, 1985")?

If it isn't possible, what law(s) prevent it? If it is possible, what would such a contract look like (note, I won't be the one to test this, just curious...)?

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  • 1
    Frequently tried, never held up in court.
    – Mark
    Sep 17, 2015 at 1:52
  • 1
    The officer investigating does not have the authority to grant such immunity.
    – Viktor
    Sep 17, 2015 at 4:13
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    I cannot imagine a clearer case of a contract that would undoubtedly be held invalid by every court to consider it -- if for no other reasons, as being clearly against public policy and shocking to the conscience of all decent people.
    – David Schwartz
    Sep 17, 2015 at 12:19
  • 2
    It sounds like old trope - "Are you a cop? I know you have to tell me if you're a cop."
    – jqning
    Sep 17, 2015 at 20:05

1 Answer 1

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Absolutely not.

Lack of authority

Law enforcement officers do not have the authority to grant immunity from prosecution. The decision to prosecute lies with the district attorney's office. Courts have sometimes held that a promise of immunity by a police officer can make resulting statements inadmissible, but that's it -- the state is not bound by the police officer's promise to not prosecute, except in exceptional cases. They can gather other evidence and prosecute anyway.

Prospective immunity

The contract claims to provide immunity against prosecution for future crimes. Contracts against public policy are void, and I'm having trouble thinking of something which is more against public policy than a license to commit crimes. No one can offer that immunity through contract. In a recent trial of a Boston mob boss, he attempted to claim that a federal prosecutor had given him immunity for any and all future crimes for some time period; the court did not accept that, because a license to break the law is not a valid contract.

Public authority

There is a situation in which certain officers can grant authority to break certain laws: to catch bigger criminals. However, for fairly obvious reasons, there are extremely strict rules on when this is valid, both on the government procedure side and the claiming-the-defense side. The defense can only work if the defendant honestly believed the government had authorized his actions, if the government actually had authorized them, or if he followed official government legal advice. In this case, the defendant has no idea if government officials have agreed to the terms; he would have approximately no chance of convincing anyone he legitimately thought that the government approved of his actions. They certainly wouldn't be actually properly authorized, and he hasn't sought advice from the government.

Other issues

Police aren't the only people on this site. An investigation tends to involve one or more non-government agents who provide testimony in court. No contract with a private party can stop them from testifying in a criminal trial; certain relationships mean testimony isn't allowed (e.g. a lawyer can't testify about dealings with their client without client permission), but regular users could be required to testify against the site operator (possibly on the basis of actual immunity).

Sources

Public authority stuff: this Justice Department page, plus some discussion in this order.

Prospective immunity: that same order.

Lack of authority: myriad readings.

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