From: mccoy@io.com (Jim McCoy)
Date: Mon, 5 Dec 94 15:22:51 PST
To: hkhenson@cup.portal.com
Subject: Re: AA BBS - Thomases are going to jail...
In-Reply-To: <9412051130.1.17207@cup.portal.com>
Message-ID: <199412052321.RAA04665@pentagon.io.com>
MIME-Version: 1.0
Content-Type: text/plain


> From: hkhenson@cup.portal.com
[...]
> By reaching out thousands of miles through cyberspace connections, the 
> RR is using Federal power to suppress constitutionally protected 
> activities which they find offensive. 
[...]

After having spent most of Saturday at an EFF-sponsored workshop on sysop
liability and the law I will throw in a few bits of information passed on
at this event from real lawyers (Mike Godwin gave the "porno on the net"
talk and the AA case was highlighted in it, but all of the lawyers there
had interesting things to say about this situation.)  First of all,
"obscenity" is _not_ constitutionally protected.  "Pornography" is
protected if it meets several standards established in various decisions of 
the Supreme Court, obscenity is that which does not pass these standards.
There are a lot of ways to get around the community standards part of the
test if the questionable bits have any artistic merit, instructional or
informational use, or do not simply appeal to prurient interest.  The
"community standards" bit is the last line of defense and the only one of
much interest here.

> Most of you reading these groups are familiar with the AA BBS case.  
> 
> In a nutshell, a postal inspector in Memphis called Amateur Action BBS 
> in California, downloaded a dozen files, ordered other stuff, shipped 
> the sysop some unsolicited kiddy porn, then arrested the sysop (Robert 
> Thomas) and his wife (Carleen) for kiddy porn and (by Memphis standards) 
> obscenity. 

This case is yet another example of bad fact leading to bad law.  The big
problem here is that the sysops of this BBS were mailing out video tapes to
customers; while it may not be popular to criticize the current net.martyrs
of the month, the biggest reason they got busted is because they were
stupid.   The fact that they shipped the video tapes made it much easier
for the Memphis prosecutors to claim that they were involved in
transportation of obscene material to Tennessee.  It also blew apart any
claim they could have made regarding the fact that the postal inspector
connected to the BBS and "pulled" the bits rather than having them "pushed"
(e.g. he initiated the transfer and the sysops were unaware of the
transportation...obscenity stuff does have some reliance upon knowledge of
the contents and upon the alledged perpetrator knowing that the shipment
was taking place) because they then went and shipped this video tape, an
action which could not have been done without thier knowledge and in which
the transportation was caused by the sysop's action.  It also meant they
they could not claim that they were unaware of the final destination of the
bits. Morons. 

On the upside of things relating to this case, it seems that thier counsel
was rather inept, in fact the judge in this case "spoke from the bench" and
lambasted the AA couple's lawyer and being incompetent and completely
unable to handle the case.  This will make it much easier for the couple to
appeal thier conviction, as the judge's opinion of thier counsel's
competency is now a matter of record. 

> The Memphis jury found the sysop 
> and his wife guilty of obscenity, but even they couldn't buy the kiddy 
> porn charges, and acquitted on that charge.

The reason they were acquitted on the kiddie porn charge is that the law
enforcement officials acted too quickly.  The envelope containing the
offending video tape of kiddie porn had been delivered the day of the
arrest and had not even been opened.

[...]
> Certainly *any* system which carries alt.sex.* is subject to the same 
> treatment by the Religious Right (in the guise of the Memphis Feds) as 
> AA BBS.  In fact, the very .gifs that were found obscene in Memphis 
> were made "freely distribute," by Robert and have been posted *many* 
> times to the net. 

Sorry, but "*any* system which carries alt.sex.*" is probably not providing
access to people from Tennessee, and even then the admins of such a site
can probably work thier case to be closer to the bookseller situation of
not knowing the specific contents of the aforementioned groups (the
signal-to-noise ratio on those groups actually acts in the admins favor :) 
Additionally, all of the alt.sex.* groups are primarily text, which is
almost impossible to get an obscenity conviction on.  There apparently has
not been a successfull obscenity conviction on text in over 20 years and
films are almost as hard to get a conviction on.  The real danger is in
standard images, because the law requires the proof of obscenity to be
based upon the artistic merit of _the work as a whole_ which makes text
erotica almost completely immune and film safer than pictures.

In fact, the biggest danger most sites have is not from obscenity action
regarding the contents of alt.binaries.pictures.erotica.*, but from
copyright action regarding the contents of those groups.  To nail someone
on copyright does not require them having knowledge of the copyright status
of the work (ignorance is no excuse in copyright cases.)  There has already
been one case addressing this issue (Playboy v. Frenya [I think it was
Frenya, I can't remember exactly]) and the sysop lost.

You seem to have this big paranoia regarding the RR (who are actually
cypherpunk allies on many issues) which I will avoid discussing, but the
problem here is that you seem to think that the law in some way reflects
reality.  It doesn't.  Pick up a copy of "Cyberspace and the Law" [Cavazos
and Morin, ISBN 0-262-53123-2], read it, and then pass it on to other
sysops and sysadmins so that they know how to avoid doing something stupid
like the admins in the AA case.  The best way to prevent something like
this from happening again is to make sysops and sysadmins aware of the
current law and how they can minimize thier exposure.

At the conference Mike said that he was working on a listing of the various
obscenity standards that he could find for communities across the nation,
so admins will eventually be able to limit access to certain subjects or
newsgroups based upon the location of the user.

jim