From: "L. Detweiler" <ld231782@longs.lance.colostate.edu>
Date: Mon, 6 Sep 93 21:46:31 PDT
To: cypherpunks@toad.com
Subject: the Warehouse-Elansky-Ionizer case (fwd from CuD)
Message-ID: <9309070441.AA20047@longs.lance.colostate.edu>
MIME-Version: 1.0
Content-Type: text/plain


This is perhaps the first mostly factual & objective account coming out
so far on this subject at this very preliminary period, but still
plenty of appended bitter ire. Gives more background on Elansky but has
a definite speculative undertone. More info in comp.org.eff.talk. It
doesn't talk about the rather emotional relation of the bail to other
bail rates (e.g., is it true that murder is $100K standard?) There's
some mushy academic rationalization on Elansky as a
product-of-society-and-environment `rebellious youth':

>There is sufficient academic literature on the rebellious subcultures
>of youth to support the claim of excessive posturing, attachment to
>symbols perceived to be anti-social and shocking, and social rituals
>establishing unity and identity among participants in youthful
>"deviant" (a sociological, not a moral label) subcultures. 

oh brother. sounds like something Mr. T.C. May would write :-P

>It appears that Mike Elansky may be less than a saintly naif.
>It also appears that he is hardly a hardcore villain. 

Jim Thomas writes on comp.org.eff.talk 8/6/93 that he talked to the
defense attorney of Elansky, and `it sounded as if the defense is in
disarray' (last Tuesday & Thursday). Attorney D. Brown (203-522-3343)
`just returned from vacation', and was unfamiliar with the case
initially, the cyberspatial angle, and EFF. Nevertheless `His first
concern was to get Elansky released.'

Hence, amazingly, it appears that mobilization and publicity of the
defendant's corner has engaged far faster in cyberspace than in his
local `real world' proximity. Perhaps this signals a turning point for
cases of this type.

Preliminary signs, such as in the document below, suggest the `raid'
was fundamentally ill-considered, and given the sheer nonexistence and
paranoia of the prosecution's case so far revealed, and despite what J.
Thomas expects, I think this will probably be a major victory for
Elansky & BBS operator rights. Of course, in cases like this, for a
clear-cut PR victory, the more innocent and upstanding the victim the
more powerful the propaganda. Steve Jackson was absolutely classic in
both respects, and it is unlikely that any case on computer seizure &
constitutionality so momentous will ever return. However, this one
could rate high up there. (As J. Thomas writes below, however, the
so-far invisible media attention is very frustrating. It is possible
there are simply no major sources or reporters aware of it.)

Following came to the newsgroup comp.org.eff.talk via C.M. Kadie,
himself a modern cyberspatial hero.

(Warehouse is the BBS, Ionizer is Elansky's pseudonym.)

===cut=here===

[From Computer underground Digest Sun Sep 5 1993 Volume 5 : Issue 69,
 ISSN  1004-042X. For a free on-line subscription, send email to
 tk0jut2@mvs.cso.niu.edu. -cmk]

Date: Sun, 5 Sep 1993 14:43:51 CDT
From: Jim thomas <tk0jut2@mvs.cso.niu.edu>
Subject:  File 1--The Ware House BBS Case Reconsidered

Until August 2, Mike Elansky was just another 21 year old student at
the University of Hartford majoring in electronics.  He also ran a BBS
affiliated with the IIRG (International Information Retrieval Guild)
called The Ware House, using "Ionizer" as his handle.

Today (Sept 5), he remains in jail unable to post his $500,000 bond.
His crime?  Judging from newspaper accounts, his family, and his
attorney, it appears to be for exercising his First Amendment rights.
According to the prosecutor's indictment, Elansky's sin involves
creating risk of injury to a minor and advocating violence against law
enforcement agents.  If convicted, he faces up to 10 years in prison.

                              BACKGROUND

The following file elaborates on the details, and there seems little
substantive disagreement over the essential facts of the case.
Elansky was considered by those who knew him as a typically normal
youth with a passion for computers and electronics.  Some have also
noted that he did have an interest in explosives, neither illegal nor
odd, and that he had previous run-ins with the law for relatively
minor, non-violent offenses. This is not unusual in a society in which
up to 25 percent of male colleges students between the ages of 17-22
could say the same thing.  However, nothing officially noted in
Elansky's past seems to provide any reasonable justification for the
current reaction to him.

According to media, the indictment, defense attorney Dick Brown, and
others close to the case, two "anarchy files" led to the indictment.
The files, similar to but not identical with, those found in countless
other similar ASCII files or books (especially The Anarchists Cookbook)
described pyrotechnics. The vocabulary used in the files might be
considered by some to be childish posturing or offensive bad taste.
The prosecutor considered them a direct threat to law enforcement
officers by claiming that they actively advocated violence against
police.  Apparently using a minor to aid them, Hartford police
allegedly downloaded files from The Ware House's file section, and one
in particular drew their attention. According to those who have read
the file and seen the BBS logs, either the file's author or the
uploader, but *not* Elansky, introduced instructions for making an
explosive device with:

      ! Note to
      Law-enforcement type people: !  !  This file is
      intended to promote    !  ! general havoc and
      *ANARCHY*, and     !  ! since your going to be the
      first     !  ! assholes up against the wall.. there
      !  ! isnt a damn thing you can do about   !  ! it,
      pigs!                            !

Silly? Sure. Immature? You bet. Offensive? Depends on your point of
view. In bad taste? Undoubtedly. But, ILLEGAL? Doubtful. Of sufficient
import, even when coupled with pyrotechnic instructions, to warrant
arrest, indictment, and an insurmountable bond?  No way. "Way," says
the prosecutor. According to Elaine Elansky, Mike's mother, the bond
was initially set at $25,000 by the judge, but the prosecutor
intervened and succeeded in raising it.  According to some inside
sources, Elansky was also denied legal representation at critical
points in the initial proceedings.

There appears to be no evidence that Elansky himself advocated or
himself was involved in any activities that advocated violence.  His
apparent interest in explosives, which, according to one informant,
included a legal demonstration of a harmless pyrotechnic display as
part of a licit highschool project, added to the suspicions and
"evidence" against him. However, judging from the indictment, the only
concrete charges and substantive evidence were the "anarchy files."

                       WHAT ARE ANARCHY FILES?

"Anarchy" files have been a common feature of many BBSes since the
emergence of the "computer underground" culture. Their common theme
emphasizes destructive "trashing" often perceived as a primitive form
of social rebellion.  The files range from silly pranks (such as "How
to fuck-up a MacDonalds," which describes "barfing techniques") to
potentially dangerous instructions for making pyrotechnical and
similar devices. Many of the files, especially those that describe
how to manufacture home-made hallucinogens or how to make "weapons"
out of strange combinations of ingredients (make explosives with soap,
vinegar, and talcum powder??), are totally ineffective. Other
instructions are not. However, even the most destructive instructions
that we have seen are simply plagiarized or slightly edited accounts
taken from licit over-the-counter literature or from other sources,
such as U.S. military manuals or highschool/college chemistry classes.
The difference is that creators of anarchy files alter the vocabulary
and rhetoric for a young audience. The new discourse tends to reflect
the social rebellion of youth rather than any serious prescription for
action. And, one is likely to learn more from watching a MacGyver
episode than from most anarchy files.

There is sufficient academic literature on the rebellious subcultures
of youth to support the claim of excessive posturing, attachment to
symbols perceived to be anti-social and shocking, and social rituals
establishing unity and identity among participants in youthful
"deviant" (a sociological, not a moral label) subcultures.  This is a
common part of the maturation process as youths pass from adolescence
to adulthood.  Whether in the form of the counter-culture of the
1960s, "punk-rock"/heavy-metal/thrash-metal" of the last 15 years,
"rap" lyrics that extol violence and misogyny, or even Satanism and
other esoteric and, for some, grossly offensive expressions of
rejection of mainstream society, youth find increasingly creative ways
to shock their elders in a cyclical game of generational freak-outs.

There are, of course, misguided youths unable to distinguish fantasy
posturing from reality.  The most appropriate responses to troubled
youth include non-punitive intervention or, in extreme cases, law
enforcement intervention *after* they violate laws. Perhaps Mike
Elansky is one for whom intervention is appropriate. Or, perhaps not.
Based on the information released to the public so far, there appears
to exist no substantial evidence supporting the indictment other than
the availability of licit, Constitutionally-protected, youth culture
documents symbolizing "wreaking havoc" on the standards of propriety
of adults and "straights," rather than a literal advocacy of physical
assault on persons or property.

                      ISSUES IN THE ELANSKY CASE

Perhaps the prosecutor will find sufficient evidence to try Mike
Elansky for something. Perhaps, even if the facts are as they seem and
evidence of wrong-doing weak, he will be found guilty. After all, the
experiences of Len Rose, Craig Neidorf, Steve Jackson Games, Sun Devil
victims, Rich Andrews, and many others remind us that "justice" is not
always served by the justice system in computer-related cases.
However, the Elansky cases raises broader issues.  Just a few include:

1. THE FIRST AMENDMENT: If, as the prosecutor contends, the files in
question are illegal and subject to felony prosecution with potential
imprisonment, and if, as the next file indicates, the information in
these files is readily accessible to the public through licit
channels, then what is the basis for targeting a BBS sysop for
prosecution while ignoring public libraries and bookstores? Does this
mean that the prosecutor rejects First Amendment protections for
BBSes? If so, the implications for electronic publishing are
staggeringly frightening: It subjects sysops and users to an arbitrary
standard of acceptability that apparently may be determined at the
discretion of individual prosecutors.  Whatever suspicions the
prosecutor may have about Elansky's activities, making the anarchy
files available is the crux of the indictment, and if successful in
his prosecution for making it available, the chilling effect on
electronic publishing will be substantial.

2. ELECTRONIC PUBLISHING: The following IIRG file notes the
availability of numerous anarchy texts and discussions on the nets and
elsewhere. If prosecution of the Elansky case is successful, a
precedent could be established that would stifle both publishing and
public discussion.  If Elansky is found guilty as charged in the
indictment, should administrators at the University of Hartford also
be held liable for making such information available to minors through
its computer facilities? Could other BBS sysops be punished? Would a
user who calls a BBS in New York and downloads the file be at risk for
a federal crime by transporting "illegal files" across state lines?

MEDIA: It appears that Mike Elansky may be less than a saintly naif.
It also appears that he is hardly a hardcore villain.  Perhaps this is
why the media doesn't find his situation worthy of front page news.
But, Mike Elansky, depressing as his situation is, and unjust as his
situation may seem given the current available facts, IS NOT THE
ISSUE.  When The Department of Treasury BBS was criticized for having
virus source code and "underground files" (that included Cu Digest)
available, the story made the front page of the Washington Post, CNN,
the AP Wires, and other media (see CuD 5.51, 5.57, 5.58). When a
poster on The Well, a public access system in California, was using
ASCII to hustle four women, some simultaneously, it made the front
page of the Washington Post, and was given prominent play in Time
Magazine, The Chicago Tribune, The San Francisco Chronicle, and
numerous other papers. On a slow news day, mundane sex and fabricated
scandal sells. Substantive stories that are slow, lack a sexy angle,
or may require thought rather than momentary titillation, are boring.
Yet, the implications of of a kid languishing in jail because he can't
post $500,000 bond for running a BBS with "anarchist" files has
implications of far more import than cyber-sex. Perhaps Mike Elansky
is the next terrorist-from-hell, using his board to plot mayhem, as
his prosecutor suggests. Or, perhaps he is just some young kid who is
being persecuted for exercising First Amendment rights in a form of
persecution that illustrates prosecutorial abuse and trampling of the
Constitution.  Either way, it is curious that those who cover
cyberspace for the major media find "cyber-Lotharios" more worthy of
investigation than a story with substance.  Something is not right in
Hartford, and therein lies the story.

                           A FINAL COMMENT

The battle over symbolic boundaries between "good" and "evil" often
reflects conflicts of clashing values and cultures. When laws are used
creatively as weapons to suppress distasteful, but licit, language and
behavior rather than to enforce the law and ensure Constitutionally
protected rights, then the government abuses the law. To recast former
U.S. Supreme Court Justice Louis Brandeis's 1928 comment, if
government abuses law, it breeds contempt for law and invites people
to become a law unto themselves--it invites anarchy.  Whatever Mike
Elansky may or may not have done, the implications of the ostensible
indictment for publishing "anarchy files" seem to overstep both the
spirit and the letter of the Constitution.  Judging from the facts
currently available, it appears that the handling of the Elansky case
may be another instance of law enforcement excess in attempting to
police cyberspace.  If so, continued attempts by law enforcement to
impose moral standards by excessive use of law cannot be ignored.

Dissemination of information, especially information that puts others
at risk, also entails responsibilities. It strikes me as far more
appropriate to discuss the implications of information made
increasingly accessible by expanding information technology rather
than attempt to establish moral boundaries by fear of prosecution.
-- 
Carl Kadie -- I do not represent any organization; this is just me.
 = kadie@cs.uiuc.edu =