From Boardwatch Magazine, Written by Lance Rose TONY DAVIS + THE SHOWBIZ COPS OF OKLAHOMA

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From Boardwatch Magazine, Written by Lance Rose TONY DAVIS & THE SHOW-BIZ COPS OF OKLAHOMA CITY The arrest of Tony Davis was reported in last month's Boardwatch. Davis operated the Oklahoma Information Exchange BBS in Oklahoma City. On August 17, 1993, he was formally arraigned in Oklahoma state court and allowed to remain out of jail on $4500 bail. Since the first report, we looked into this affair more closely. The closer one looks, the more absurd Davis' plight gets. The police investigation of Tony Davis culminated in two purchases of allegedly obscene CD-ROMs from Davis by undercover police on June 4th and July 12th, 1993. Shortly after the second purchase, on July 19, 1993, they arrived in force at Tony Davis' office with a warrant and seized some adult CD-ROMs from the stock he maintained in operating a CD-ROM retail business. They did not stop there, however. They also grabbed his BBS computer equipment and arrested Davis. The event had little chance of passing unnoticed, as the police brought along a professional video camera and videotaped the whole affair. Afterwards they edited the tape, wrote a script, and with the help of the local ABC affiliate turned it into a weekly installment of a "reality television" program called "You're Busted". It was broadcast throughout the Oklahoma City area on July 23rd, four days after the raid. For that extra dose of reality, the episode was narrated by one of the policemen who searched Davis' place and arrested him. As the police burst in on Davis, the voiceover informed TV viewers they were witnessing the control center for Davis' "international pornographic network". Out of roughly 2,000 CD- ROMs Davis kept on hand for the CD-ROM retail business he operated, the police confiscated 57. For purposes of comparison, that's under 3% of Davis' total stock of CD-ROMs. A far smaller percentage than the amount of hardcore adult material found in typical video stores in most parts of our country. Later in the show, the cop with the video camera focused on a computer screen showing the CD-ROM activity on Davis' BBS. The names of BBS users could be seen as they downloaded files from CD-ROMs. The narrating officer knowingly explained to the TV audience that they were seeing BBS users "viewing the smut" right then and there (not to spoil the fun, but the police were mistaken; users can't read image files they are transferred to their own computers). At the end of the show, the narrator belted out the show's theme: "Tony Davis, you're busted!" Davis did not enjoy his 15 minutes of fame. According to Davis, "the ‘You're Busted' show was the most degrading thing I've seen done to anybody in my life." The newspapers were thoroughly scooped but joined in spiritedly, passing along police allegations that Tony Davis was running a "high-tech, modern-day porno house". They noted that other investigations continued, which might mean the police were investigating Davis' CD-ROM suppliers, his customers, or both. To their credit, they also gave a number of column inches to questions raised by Davis' defense attorney, William Holmes, about the legality of the police actions. Davis was charged with four obscenity-related counts at the arraignment, two based on the CD-ROM purchases by undercover officers prior to the raid. Another count charged Davis with criminal "possession" of obscenity, despite the Supreme Court's declaration in the past that mere possession of obscene material is perfectly legal. The addition of this bizarre claim indicates either that the local police do not understand the Constitutional rights of U.S. citizens, or do not care. The last count was for trafficking in obscene images. According to Davis' attorney, this statute was originally enacted in reaction to pornographic video games, and now seems to be directed at the downloading of BBS files that the cops videotaped. All charges could have a very hard time sticking if the defective search and seizure procedures used by the police are closely scrutinized in court. Those procedures do appear deeply defective. Federal protections for BBS's and sysops were apparently ignored wholesale in the Davis raid, just as in other BBS raids we've seen the past couple of years. The Electronic Communications Privacy Act ("ECPA"), protects electronic messages against government search or seizure. When the police took Davis' BBS, they prevented messages traveling through the BBS from being delivered to their ultimate addresses. About 150 messages went undelivered, according to Davis' attorney. This interception violates the ECPA, even if the police resisted the temptation to read e-mail on the seized computers back in their offices. The Privacy Protection Act ("PPA"), prohibits seizure of materials being kept or prepared for publication, unless the person holding them is suspected of a crime involving those very materials (with a few narrow exceptions). Davis' business activities included publishing the "Magnum" series of CD-ROMS, none of which were included in the titles the police thought obscene. By seizing computers containing the materials used by Davis' in publishing his CD-ROMs, the police grossly violated the PPA. Since Davis was not suspected or accused of any crime in relation to the Magnum CD- ROMs he published, any associated materials simply should not have been touched by the police. Even plain vanilla 4th and 5th Amendment warrant requirements may have been violated by the police in this case. According to sources, the Oklahoma City police typically obtain a warrant based on an informal chat with the magistrate. Afterwards, they perform the actions authorized by the warrant, and only then submit a formal affidavit to support the warrant. If the police followed this sloppy and deeply illegal procedure in Davis' case, then his due process rights were grossly violated. As a further example of official slop, neither the warrant under which the raid was conducted, nor the police request for that warrant, mentioned Davis' computer bulletin board at all. That fatal omission did not stop the cops from taking all the computer equipment anyway. Perhaps the Oklahoma City prosecutors believe the seizure was legal because it is authorized under Oklahoma's own obscenity seizure statutes. If so, they're dead wrong. Federal due process protections trump state seizure laws. There was no emergency here to justify even a temporary abridgement of Davis' full due process rights. The particular importance of the ECPA and PPA should not be underestimated by Oklahoma state attorneys or anyone else. The protections of these statutes are so important that Congress spelled them out expressly, even though in a sense they merely clarify protections already contained in the Constitution. The police cannot bat these protections out of the way every time they threaten this week's episode of "You're Busted." Davis' lawyer, himself a former local prosecutor, appears fully aware of the mess the police are making of the Davis matter. He sent them a letter a week after the raid formally notifying them they are violating the ECPA and PPA through their seizure and retention of Davis' computer equipment. In doing so, he is trying to short circuit a possible future defense by the cops that they did not know they were doing anything wrong by holding Davis' equipment. Readers of Boardwatch may recall the lawsuit won by Steve Jackson Games against the U.S. government in Austin, Texas a few months back. The federal court held that the agents' naive BBS seizure violating the ECPA and PPA could be excused, but the agents became obligated to return the wrongly seized materials as soon as they found out about their privacy and publishing aspects and the laws forbidding their seizure. The same should certainly hold true here. Despite this precedent, as of August 19th the police still did not return anything to Davis, almost a month after receiving his lawyer's notifying letter. Why did the police pick on Davis? It certainly wasn't due to their keen law enforcement instincts. Despite the screaming newspaper headlines about porno shop merchants, Davis is a well- known and respected business man. He runs a telephone goods and services company, selling equipment and special services like Centrex switching to local area businesses. He was operating Oklahoma Information Exchange, a widely reputed and very busy BBS. He was one of the founders of Fidonet, and was Region 19 coordinator for several years. In his CD-ROM business, he sold many titles (with adult titles accounting for a minute portion of his business), and produced his own Magnum CD-ROMs. Davis also had a fairly extensive age verification scheme to assure only adults were getting access to adult materials on his BBS. Memberships were which to those who had credit cards. In addition, to get access to the adult area users had to send Davis assigned letter stating they were over 21. Despite these measures, when the dust cleared Davis' standing as a businessman and his age verification procedures did nothing to slow down the police. After talking with Davis, his attorney and other local sources, the blame for his troubles should be laid on the creepy little deal the Oklahoma City police cooked up with the local ABC TV affiliate for the "You're Busted" television program. The TV station gave the police a professional video camera and the opportunity to shoot, script and narrate a TV program called "You're Busted". The payoff to the police was 15 minutes of fame on a weekly basis for individual cops, and great publicity and a high profile for police department as a whole. In return, the TV station received a TV show in hugely popular "reality television" format, an exclusive relationship with the police not enjoyed by other local stations, and, it would appear, very low production costs. A great business deal for the police and the television station, but terrible news for just about everyone else. For starters, the police end up paying less attention to protecting the community and more to show biz. On-the-scene arrests make the best TV, so the police will be more motivated to obtain search and arrest warrants and less concerned about whether the intrusion on peoples' lives is justified. In fact, the more individuals they intrude on, the better the "You're Busted" episode. The effect on the news media is just as bad. The local ABC affiliate falsely presents the police-made footage as "reality", when in fact it's been manufactured for TV just like all other TV fodder. The police may not be conversant with the finer points of constitutional law, but they're smart enough to know if they don't make a good show they'll be canned fast by the station. Further, the media, the proud "fourth estate", lets itself become no more than a flack for the local police. The public, as usual, is victimized on both ends. Its gets prosecution of the most entertaining instead of the most deserving, while the couch potatoes of Oklahoma City are served up a desperately skewed view of law enforcement and who are the criminals. Without the cop/show biz connection, Tony Davis might never have been busted. If the police had taken the trouble to investigate Davis' life a bit, they would have discovered that the adult CD-ROMs were only a small part of his business. Tony Davis is not a porn merchant, not the type of person to hold up to others as a bad example. Yet with their constant need to come up with new and exciting material on a TV production schedule, the police overlooked the reality of Davis' business. It fit their agenda better to bust Tony Davis with a bang with the whole world watching, than to quietly give Davis a word to the wise about the police department's newly formulated policies on digitized adult materials. Indeed, the police departments' failure to give Davis a little advance warning seems almost criminally negligent. According to assistant district attorney Lori Nettleton, "This is the first time that charges have been filed involving the use of computers in an obscenity case in Oklahoma County." A quick look at the laws under which Davis was charged shows they were on the Oklahoma statute books for almost ten years. Why did the police not act under them until now? One could argue the police themselves promoted the growth of the adult computer file business through their own laissez-faire attitude toward computer obscenity laws for the last ten years. Most people figure out whether something's illegal by looking to see if the police are arresting people for doing it. While this is no excuse for pursuing clearly criminal activity, Davis' acts were, at worst, in a grey area of arguable criminality. Now the police are overeager to make an example out of him, after entirely failing to give any guidance on just what counts as criminal conduct when it comes to adult materials. In the overzealous police raid and arrest of Tony Davis, everyone loses. Davis loses his freedom and his property, and he already lost much of his reputation as a business man. The users of the Oklahoma Information Exchange BBS lost. They trusted that they had rights of privacy from the government, and the Oklahoma City police betrayed that trust. The police will lose as well if they are held responsible for their gross violations of warrant procedures. If anyone decides to sue them, maybe they'll be kind enough to videotape it so we can watch it all later on TV. [Lance Rose is an attorney practicing high-tech and information law in Montclair, NJ. He can be found on the Internet at elrose@well.sf.ca.us, and on Compuserve at 72230,2044. He is also author of SysLaw, the legal guide for online service providers, available from PC Information Group at 800-321-8285. - Editor]

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