Computer underground Digest Sun Jan 09 1994 Volume 6 : Issue 04 ISSN 1004-042X Editors: Ji

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Computer underground Digest Sun Jan 09 1994 Volume 6 : Issue 04 ISSN 1004-042X Editors: Jim Thomas and Gordon Meyer (TK0JUT2@NIU.BITNET) Archivist: Brendan Kehoe (BEST WISHES, BK) Shadow-Archivists: Dan Carosone / Paul Southworth Ralph Sims / Jyrki Kuoppala Ian Dickinson Copy Relativist: Ayn Stine CONTENTS, #6.04 (Jan 09 1994) File 1--Re-cap of Tony Davis Oka Info Ex BBS Bust File 2--Brief/Motion to Dismiss in Tony Davis BBS Case File 3--Sources for more information on OIE/Tony Davis BBS File 4--Re: Ratings Servers and the Diversity of USENET (#1) File 5--Re: File 7--Anarchy Gone Awry (Re: CuD 5.91) #2 File 6--Re: Ratings Servers and the Diversity of USENET (#2) File 7--Congressperson's Gopher in Arizona Cu-Digest is a weekly electronic journal/newsletter. Subscriptions are available at no cost electronically from tk0jut2@mvs.cso.niu.edu. The editors may be contacted by voice (815-753-0303), fax (815-753-6302) or U.S. mail at: Jim Thomas, Department of Sociology, NIU, DeKalb, IL 60115. Issues of CuD can also be found in the Usenet comp.society.cu-digest news group; on CompuServe in DL0 and DL4 of the IBMBBS SIG, DL1 of LAWSIG, and DL1 of TELECOM; on GEnie in the PF*NPC RT libraries and in the VIRUS/SECURITY library; from America Online in the PC Telecom forum under "computing newsletters;" On Delphi in the General Discussion database of the Internet SIG; on the PC-EXEC BBS at (414) 789-4210; and on: Rune Stone BBS (IIRG WHQ) (203) 832-8441 NUP:Conspiracy; RIPCO BBS (312) 528-5020 CuD is also available via Fidonet File Request from 1:11/70; unlisted nodes and points welcome. EUROPE: from the ComNet in LUXEMBOURG BBS (++352) 466893; In ITALY: Bits against the Empire BBS: +39-461-980493 ANONYMOUS FTP SITES: AUSTRALIA: ftp.ee.mu.oz.au (128.250.77.2) in /pub/text/CuD. EUROPE: ftp.funet.fi in pub/doc/cud. (Finland) UNITED STATES: aql.gatech.edu (128.61.10.53) in /pub/eff/cud etext.archive.umich.edu (141.211.164.18) in /pub/CuD/cud ftp.eff.org (192.88.144.4) in /pub/Publications/CuD halcyon.com( 202.135.191.2) in mirror2/cud ftp.warwick.ac.uk in pub/cud (United Kingdom) KOREA: ftp: cair.kaist.ac.kr in /doc/eff/cud COMPUTER UNDERGROUND DIGEST is an open forum dedicated to sharing information among computerists and to the presentation and debate of diverse views. CuD material may be reprinted for non-profit as long as the source is cited. Authors hold a presumptive copyright, and they should be contacted for reprint permission. It is assumed that non-personal mail to the moderators may be reprinted unless otherwise specified. Readers are encouraged to submit reasoned articles relating to computer culture and communication. Articles are preferred to short responses. Please avoid quoting previous posts unless absolutely necessary. DISCLAIMER: The views represented herein do not necessarily represent the views of the moderators. Digest contributors assume all responsibility for ensuring that articles submitted do not violate copyright protections. ---------------------------------------------------------------------- Date: Sun, 09 Jan 1994 17:15:11 EST From: CuD Moderators Subject: File 1--Re-cap of Tony Davis Oka Info Ex BBS Bust Two files in this issue address the bust of Tony Davis, a BBS sysop in Oklahoma. Here, we reprint from CuD 5.81 an excerpt from Lance Rose's Boardwatch Column, which provides a summary of the case. The next article is the brief for a motion to dismiss in the case. The third post provides pointers for those who want more detailed information. Extracted from CuD 5.81: ================================================ >From Boardwatch Magazine / September, 1993. Under the byline of Lance Rose:"BBS BURNINGS" in the Legally Online column, p. 62 ================================================ OKLAHOMA BBS RAIDED ON PORNOGRAPHY CHARGES The legal assault on bulletin boards continues this month with a raid by Oklahoma City Police Department Vice Division on Tony Davis's OKLAHOMA INFORMATION EXCHANGE BBS and his associated Mid-America Digital Publishing Company. About 4:00 PM on July 20, four officers of the Oklahoma City Police Department arrived at the offices of Mid-America Digital Publishing with a search warrant for "pornographic CD-ROMs." Davis was arrested on suspicion of the sale and distribution of pornographic CD-ROM disks. Of the 2000 CD ROM disks available on site, they confiscated about 50 disks, and an estimated $75,000 worth of equipment Davis runs his 10-line OKLAHOMA INFORMATION EXCHANGE BBS on. The equipment including two computers with gigabyte hard drives, two Pioneer 6-disk drives, four single CD ROM drives, 10 High Speed Hayes modems, Novell network software and associated hardware, etc. Apparently, an undercover agent had contacted Mid-America Digital Publishing on two occasions and purchased CD-ROM disks containing adult material from the company. At the raid, Davis cooperated with the police showing them whatever they wanted to see, and even removing four disks from CD-ROMS on the BBS machine and showing them to the police. Curiously, these were standard off-the-shelf CD ROM collections NOT published by Davis, including "Busty Babes", "For Adults Only #2," "For Adults Only #3", and "Storm II". More curiously, the police themselves put the disks BACK into the BBS in order to video tape callers accessing the files on the disks. ...... Despite Davis' notification, none of the specific procedures required by federal law (Privacy Protection Act) when serving search warrants on publishers was followed, and no acknowledgement or even apparent cognizance of the Electronic Communications Privacy Act made when notified of the electronic mail for some 2000 BBS users available on the system. OKLAHOMA INFORMATION EXCHANGE carries some 750 FidoNet conferences, an additional 750 Usenet Newsgroups, and offers callers private FidoNet mail and Internet mail and actually hubs mail for other bulletin board systems as well. ...... All possible charges relate to Oklahoma State statutes against obscenity. Located in the heart of the Bible Belt, this could be serious. A penalty of up to $5000 and 5 years in prison per infraction is possible. If you count each file on a CD-ROM as an infraction, Mr. Davis could in theory be facing over a 100,000 years in jail and nearly a $100 million in fines - another contrast between technological reality and our legal system. From what we understand, in Oklahoma, it is technically illegal to actually BE naked at any time when not actually getting wet somehow, and some legal theorists posit that HBO and Showtime cable television channels are actually infractions under the state laws as written. ((MODERATORS' NOTE: BOARDWATCH Magazine, chalked full of information and news, can be obtained for $36/year (12 issues) from: Boardwatch Magazine / 8500 W. Bowles Ave. / Suite 210 / Littleton, CO 80123)). ------------------------------ Date: Fri, 24 Dec 93 10:11:45 PST From: Tony.Davis@f1.n147.z1.fidonet.org (Tony Davis) Subject: File 2--Brief/Motion to Dismiss in Tony Davis BBS Case IN THE DISTRICT COURT OF OKLAHOMA COUNTY STATE OF OKLAHOMA STATE OF OKLAHOMA, ex rel., ) ROBERT H. MACY, DISTRICT ) ATTORNEY OF THE SEVENTH ) PROSECUTORIAL DISTRICT, ) ) Plaintiff, ) vs. ) Case No. CJ-93-6651 ) ONE (1) PIONEER CD-ROM CHANGER, ) MDL. #DRM-600-A, SER# ML 8515021; ) ONE (1) PIONEER CD-ROM CHANGER, ) MDL. #DRM-600-A, SER# ML 8515077; ) FOUR (4) SONY CD ROM DRIVES, MDL. ) #CDU 6201-20, SER#'S 810593, 808759) 808986, & 806083; TWO (2) COMPUTER ) POWER CONTROLS, NO MODEL OR SER. ) NUMBER; ONE (1) KEYBOARD NMB TEC. ) MDL. RTL01, SER# 19257111; ONE (1) ) KEYBOARD MAXI SWITCH, MDL#2186002XX) SER #19257111; ONE (1) WOODS POWER ) STRIP MDL# 417 NO SER.#; ONE (1) ) LONALITE POWER STRIP, JDL# 417 NO ) SER.#; ONE (1) BROOKS POWER STRIP ) MD#T6-6 NO SER#; ONE (1) US ) ROBOTICS MODEM, SER # ) 0002670001732718, MDL#14400; ONE ) (1) US ROBOTICS, SER # ) 0081000000002753; ONE (1) HAYES ) MODEM MDL #5100, SER#A00351003317; ) ONE (1) ROBOTICTS 2400 MDL#UNKNOWN,) SER #0033-03068608; ONE (1) HAYES ) MODEM MDL. #5100, SER#A00351003311;) ONE (1) DGI BOARD; ONE (1) MODEM ) ROBOTICS SER# 0066-16045021020891; ) ONE(1) HAYES MODEM SER#A00151003142) ONE(1) MONITOR HELM ENG. MDL # ) CM-414E, SER #038213073; ONE ) MIMMICOR MONITOR, MDL# MM1453M1, ) SER#90405186; ONE (1) COMPUTER CUP,) W/DRIVES, NO SER# OR MDL#; ONE (1) ) COMPUTER CPU W/DRIVES, NO SER# OR ) MDOL#; ) Defendants. ) BRIEF IN SUPPORT OF MOTION TO DISMISS COMES NOW, ANTHONY A. DAVIS, the owner of the above described property, and respectfully requests this Court dismiss the above entitled forfeiture action. PROPOSITION I THE PROPERTY WAS SEIZED PURSUANT TO AN UNAUTHORIZED AND WARRANTLESS SEARCH. On July 20, 1993, the Oklahoma City Police Department entered the business office of Anthony Davis at 1501 Southeast 66th Street, Oklahoma City, Oklahoma, pursuant to a search warrant (See Exhibit "A"). By the time their search ended, they had dismantled and seized a network computer system, the pieces of which are the property listed herein. However, an examination of this search warrant and the affidavit requesting the warrant indicates that there was no mention of a computer network or computer bulletin board system. There were no exigent circumstances and no legal justification for the police officers' unilateral decision to expand the scope of the search warrant beyond that which was granted by the Judge. The Fourth Amendment of the United States Constitution tells us that warrants must particularly describe the place to be searched and the person or things to be seized. The United States Supreme Court has consistently articulated the position that a search warrant prevents the seizure of one thing under a warrant describing another. "As to what is to be taken, nothing is left to the discretion of the officer". Marron v. U.S., 48 S.Ct. 74 (1927). To allow searching and seizing items beyond which is described in the warrant would allow warrants to become impermissibly general and thus violate the Fourth Amendment. See, Warden v. Hayden, 87 S.Ct. 1642 (1967), and Andresen v. Maryland, 96 S.Ct. 2737 (1976). Oklahoma case law mirrors the U.S. Supreme Court's concern for particularity in description of items to be seized. See, Tosh v. State, 736 P.2d 527 (1987), Coffey v. State, 661 P.2d 897 (1983), and Jones v. State, 632 P.2d 1249 (1981). Case law indicates that warrantless searches are per se unreasonable, subject only to a few specifically established and well delineated exceptions. Coolidge v. New Hampshire, 91 S.Ct. 2022 (1971). If the State is to rely on one of the specific well delineated exceptions allowing warrantless search and seizure, it is the State's burden to show the Court that such reliance is lawful. Under certain fact situations, such well delineated exceptions will not justify a warrantless search. This exception to a search outside of a warrant is disallowed in situations like the case at bar, as described in Coolidge: But where the discovery is anticipated, where the police know in advance the location of the evidence and intend to seize it, the situation is altogether different. The requirement of a warrant to seize imposes no inconvenience whatever, or at least none which is constitutionally cognizable in a legal system that regards warrantless searches as 'per se unreasonable' in the absence of 'exigent circumstances'. At page 2040. But to extend the scope of such an intrusion to the seizure of objects -- not contraband or stolen or dangerous in themselves -- which the police know in advance they will find in plain view and intend to seize, will fly in the face of the basic rule that no amount of probable cause can justify a warrantless seizure. At page 2041. Testimony at the preliminary hearing from the affiant, Sergeant Anthony Gracey, revealed that Gracey was specifically told by Anthony Davis several months before the search in question that Davis owned and operated a computer network where people could dial in and access the same type of discs Davis was selling to Sergeant Gracey. At the preliminary hearing, Gracey testified that after he bought an adult CD from Davis in June 1993, that the following conversation occurred: After I purchased the CD, we were setting there talking. After I had given him the money, I remained around for a while and he (Tony Davis) said 'you know I have the same type of CDs available -- or same type of programs available on the network that I have on that disc.' He said, 'come on over here and I'll show you the computer -- you know, my computer system, or I'll show you the CD.' (Preliminary Hearing Transcript at P.29). After revealing this information, Gracey was asked the following question: Q. Now of course networks mean a lot of different things to different people. Let me make sure I understand...You said that you took that to mean that he had a network where people could access or view these matters other than just himself. Was that the way you took it? A. (Gracey) Yes, sir. (Preliminary Hearing Transcript at P.29). Gracey later testified that Davis bragged to Gracey that he had the largest network in the state. When Gracey was asked what this meant, the following exchange occurred: Q. When he said he had the largest network in the state did you take that to mean that a lot of people could call in and look at whatever CDs he had? A. (Gracey) Yeah. (Preliminary Hearing Transcript at P.31). Despite the specific knowledge that Mr. Davis had a computer network which allowed persons to view allegedly pornographic disks like Sgt. Gracey purchased, Gracey made no mention of this fact to the Judge in his affidavit for search warrant. Sergeant Mark Wenthold of the Oklahoma City Police Department Vice Division was also on the scene and actively involved in the search of Anthony Davis' business. Sergeant Wenthold explained at the preliminary hearing that he too had knowledge of Sergeant Gracey's conversation with Anthony Davis concerning this computer network that was on the premises. In describing the search Wenthold stated: (We) went in one room and there was a large computer system set up, which we had discussed that he had a network system that he had talked about with Tony (Gracey) when he was making the buys. Tony (Gracey) had never seen the system. He had talked about it, so it really didn't surprise us when we found it, but of course, we couldn't describe this system in a warrant when we hadn't seen it yet. [Emphasis added.] (Preliminary Hearing Transcript at pp.65-66). The judge who issued the search warrant in question was not told of a computer network on the premises which might be used to transmit electronically those disks which the police had claimed were pornographic. A reading of the affidavit and the search warrant itself makes it clear that the police were only authorized to search for evidence relating to the crime of selling allegedly pornographic CD disks. The computer equipment seized and listed herein in no way related to the crimes of possession or sale of pornographic CD disks upon which the warrant was issued. PROPOSITION II ITEMS TAKEN PURSUANT TO AN ILLEGAL SEARCH AND SEIZURE CANNOT BE USED IN A CIVIL FORFEITURE PROCEEDING. Oklahoma law recognizes the principal that items which would be inadmissible in a criminal court pursuant to the exclusionary rule are likewise inadmissible in civil proceedings. The Oklahoma Supreme Court in the case of Turner v. City of Lawton, 733 P.2d, 375 (Okla. 1986), held as follows: Article II, Section 30 (of the Oklahoma Constitution), must be strictly construed, and unless it can clearly be shown that the officers making the search complied with the legal prerequisites necessary to constitute a lawful search, the evidence seized by an unreasonable search must be suppressed. The absolute security granted by the Oklahoma Constitution Article II, Section 30, against unlawful search and seizure exists without reference to the guilt or innocence of the person whose property is searched and without consideration of whether the proceeding is civil or criminal in nature. Article II, Section 30 of the Oklahoma Constitution is modeled after and precisely parallels the language in the Fourth Amendment of the United States Constitution. It states: The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches or seizures shall not be violated; and no warrant shall issue but upon probable cause supported by oath or affirmation, describing as particularly as may be the place to be searched and the person or thing to be seized. Although the Turner case did not involve a civil forfeiture proceeding, the holding in Turner indicates that illegally seized items are inadmissible in all civil proceedings. Case law throughout the United States supports the holding reached by Oklahoma's courts in the Turner case. Research by this attorney found seventeen states which reached the same conclusion as the reasoning in the Turner case. (See Pitts v. State of Georgia, 428 S.E.2d 650 (1993), Richardson v. $4,543.00 United States Currency, 814 P.2d 952 (Id. 1991), Eads v. Hill, 563 N.E.2d, 625 (In., 1990), Illinois v. 1968 Cadillac Automobile, 281 N.E.2d, 776 (1972), Parish of Jefferson v. Bayou Landing Limited, Inc., 350 So.2d 158 (La., 1977), State of Maine vs. One Uzi Semi-automatic 9mm Gun, 589 A.2d 31 (1991), State of Missouri v. Goth, 682 S.W.2d 68 (1984), State of Nebraska v. One 1987 Toyota Pickup, 447 N.W.2d 243 (1989), State of New Jersey v. Jones, 438 A.2d 581 (1981), State of New Hampshire v. Young, 536 A.2d 1270, 581 N.E.2d 1104 (Ohio), City of Portland v. $4,345.00 in U.S. Currency, 845 P.2d 1301 (1993), Leogrande v. State Liquor Authority, 268 N.Y.S.2d 433 (N.Y. 1966), $2,067.00 in U.S. Currency v. State of Texas, 745 S.W.2d 109 (1988), Davis v. State of Utah, 813 P.2d 1178 (1991), Franklin v. Klundt, 746 P.2d 1228 (Wa., 1987), and State of Wyoming vs. $11,346.00 in United States Currency, 777 P.2d 65 (1989)). Iowa and Tennessee were the only two states whose case law seemed to differ in any way from the Turner case. The United States Supreme Court dealt with the issue of items seized in violation of the Fourth Amendment and whether such items were admissible in civil forfeiture proceedings in the case of One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 85 S.Ct. 1246 14 L.Ed. 2d 170 (1965). The Court held that the Fourth Amendment exclusionary rule applies not only to criminal proceedings, but also to those forfeiture proceedings which are quasi criminal in character. The Court found that a forfeiture proceeding is quasi criminal in nature if it intends to impose a penalty on the individual for violation of the criminal law. The forfeiture statute used by the State, 21 O.S. 1040.54 appears almost immediately after 21 O.S. 1040.51, the criminal trafficking statute with which Anthony Davis is charged. The wording of the forfeiture statute indicates that it is predicated on a criminal charge of trafficking. The state of Washington considered whether one of their forfeiture statutes was quasi criminal in the case of Deeter v. Smith, 721 P.2d 519 (1986). In Deeter, it was pointed out that the Washington statute concerning forfeiture is in the same title and section as the punishment statutes for drug violations. Due to the location and nature of the forfeiture statute, the court concluded that the forfeiture proceeding had as its primary purpose to penalize individuals who participated in the illegal transportation of controlled substances. The Oklahoma Forfeiture Statute in question is clearly quasi criminal in nature. PROPOSITION III BECAUSE PRIVATE ELECTRONIC MAIL AND PUBLISHING INFORMATION WERE CONTAINED WITHIN THE COMPUTERS SEIZED, A REGULAR SEARCH WARRANT WOULD NOT HAVE BEEN SUFFICIENT TO ALLOW SEARCH AND SEIZURE OF THE PROPERTY IN QUESTION. Assuming arguendo that the Court finds there was sufficient language in the warrant, or the Court considers the search justified based on an exception to the warrant requirement, neither justification is sufficient in the case at bar. Electronic information inside the computers seized contained constitutionally protected private communications and protected publishing information, and such information cannot be searched or seized without meeting heightened requirements formulated to protect the constitutional rights of the possessor. A. The Search and Seizure Was Conducted Contrary to the Electronic Communication Privacy Act Specialized Warrant Requirements and Thus Violated the Fourth Amendment Protection Against Unreasonable Search and Seizure. The Electronic Communications Privacy Act, 18 USC 2510 et seq., was originally passed by Congress to regulate wire tapping only. The law was expanded in the late 1970s to include electronic communications such as private electronic mail. Approximately 150,000 pieces of the electronic mail from throughout the world was housed within the computer equipment seized. Some of these electronic messages were private mail, viewable only by the recipient (See Exhibit "B"). Section 2518 of the Act spells out the procedure to allow a seizure of items containing electronic communications. After application for a warrant is made to a judge, specific findings must be made by the judge to approve the warrant. Subsection 3 of Section 2518 spells out some of the requirements to be included in the affidavit for this type of warrant. (3)(a) There is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in 2516 of this Act. (3)(b) There is probable cause for belief that particular communications concerning that events will be obtained through such interception. (3)(c) Normal investigative procedures have tried and have failed or reasonably appear to be unlikely to succeed if tried or if to be too dangerous. Police officers on the scene were advised by their "computer expert" Oklahoma City Police Officer, Gregory Taylor, that a bulletin board system was functioning at the search location (Preliminary Hearing Transcript at P.118). A bulletin board system, by its very nature, is a place for the sending and receiving of messages. Additionally, the police department was put on notice shortly after the seizure that private electronic mail was present within the materials seized (Exhibit "B"). The police may advance the argument that they did not read the electronic mail. This argument is irrelevant since the ECPA makes it a violation to merely "intercept" such communication. Section 2510(4) of the Act defines intercept "the aural or other acquisition of the content of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device." The police "accessed" the electronic mail in the most fundamental sense by picking it up and taking it. The seizure prevented any user including Tony Davis from authorized access to their communications stored within the system. Because the seizure was not authorized by a properly drafted warrant (or by any mention on a general warrant), the search and seizure was without authorization and in violation of the Act. B. The Search and Seizure Was Conducted Contrary to the Privacy Protection Act Requirement that the Materials Be Obtained By Subpoena and, thus, Violated Tony Davis' First Amendment Rights. Tony Davis, through his company, Mid-America Digital, published compact disks containing computer software. Records seized by the Oklahoma City Police showed that a large number of sales of "Magnum" CDs, the brand name used by Mid-America Digital. At the search location, there were approximately 2,000 compact disks with the name Mid-America Digital, and address 1501 Southeast 66th, stamped on each disk. (See Exhibit "B"). Although the police seized fifty-seven (57) compact disks that they alleged showed pornographic pictures, none of the Mid-America Digital disks were taken (Preliminary Hearing Transcript at P.75, line 23 and Exhibit "B"). This is because Tony Davis informed the police that Mid-America Digital published computer software of a non-adult nature (Preliminary Hearing Transcript at P.76, line 21-25 and Affidavit of Tony Davis). Neither Tony Davis nor Mid-America Digital were ever accused or suspected of publishing illegal or pornographic materials. Nonetheless, the Oklahoma City Police seized a hard drive within one of the computers which contained approximately 500 megabytes of software that was to be pressed into a compact disk for the next disk to be published by Mid-America Digital. In 1980, Congress enacted the Privacy Protection Act (PPA), 42 U.S.C. 2000aa, in order to require law enforcement officials to obtain evidence by subpoena or voluntary compliance, rather than by search and seizure, from innocent third persons engaged in First Amendment activities. Congress feared that "use of the warrant process in such cases will allow the government to invade the personal privacy of non-suspects in instances where a less intrusive means of obtaining the material -- either voluntary compliance or a subpoena will achieve the same goal." Senate Report No. 874 at 4, 1980 U.S. Code Cong. and Admin. News at 3950- 51. The Act reads: Notwithstanding any other law, it shall be unlawful for a government officer or employee, in connection with the investigation or prosecution of a criminal offense to search for or seize any work product materials possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication, in or affecting interstate or foreign commerce... (42 U.S.C. 2000aa(a). The computer equipment seized was plainly used "to disseminate to the public a newspaper, book, broadcast or other similar form of public communication." First, Mid-America Digital published collections of software on compact disks and sold it to other computer users. The definition of documentary materials found in 2000aa-7 indicates that the materials include electronic information recorded on disks. Secondly, the actual bulletin board system, before it was dismantled, could be read from anywhere in the world and offered articles and information to persons dialing into the system. A list of the "databases" contained within the bulletin board system for viewing by subscribers is set forth in Exhibit "B" Page 3. Subsection (b) of 2000aa indicates that there are four requirements necessary in order for the government to search and seize such publishing materials. (b)(1) There is probable cause to believe that the person possessing such material has committed or is committing the criminal offense to which the materials relate. (b)(2) There is reason to believe that the immediate seizure of such materials necessary to prevent the death of, or serious bodily injury to, a human being; (b)(3) There is reason to believe that the giving of notice pursuant to a subpoena duces tecum would result in the destruction, alteration, or concealment of such materials; or (b)(4) Such materials have not been produced in response to a court order directing compliance with a subpoena duces tecum and (a) all appellant remedies have been exhausted; or (b) there is reason to believe that the delay in an investigation or trial occasioned by further proceedings related to the subpoena would threaten the interest of justice. (c) in the event a search warrant is sought pursuant to paragraph 4b of Section b, the person possessing the material shall be afforded adequate opportunity to submit an affidavit setting forth the basis for any connection of the materials sought are not subject to seizure. There was never any evidence to indicate that the publishing efforts of Mid-America Digital were in any way related to the alleged pornography on the "adult" disks seized. In fact, the police were apparently convinced of this since they left some 2,000 compact disks behind, giving as their only reason that they were told by Tony Davis that they did not contain pornographic material (Preliminary Hearing Transcript at P.80). Additionally, the only aspect of the bulletin board system which was the subject of investigation, were four (4) allegedly pornographic compact disks which were voluntarily removed by Tony Davis prior to the dismantling of the computer network system (Preliminary hearing transcript at p.54). The police's search and seizure swept so broadly that a number of First Amendment protected items were seized in violation of the United States Constitution. WHEREFORE, premises considered, the respondent owner of the described property, Anthony A. Davis, respectfully asks this Court to dismiss the State's forfeiture action and order the return of the property seized. Respectfully submitted, _________________________________ WILLIAM R. HOLMES, ATTORNEY, P.C. OBA #11867 118 East Main Street Norman, OK 73069 (405) 329-6600 Attorney for Defendant. ------------------------------ Date: 6 Jan 94 16:27:46 GMT From: Tony.Davis@f1.n147.z1.fidonet.org (Tony Davis) Subject: File 3--Sources for more information on OIE/Tony Davis BBS The following is a list of the available text files describing the current status of the legal situation on : 1> The State of Oklahoma vs. Tony Davis (Felony Criminal Charges) 2> The State of Oklahoma vs. The Oklahoma Information Exchange BBS. (Civil Forfeiture Action) This list is updated as new files become available. The information is available by two different methods: ============================================================ INTERNET: Send an E-Mail Message To: FTPMAIL@OKINFO.MISC.UOKNOR.EDU In the body of the message GET CHARGES.TXT (A copy of the criminal charges) GET MOTION.TXT (A copy of the motion to dismiss on forfeiture action) GET PRELIM.TXT (A non-lawyer's opinion of the Preliminary Hearing) GET 092793.TXT (A Daily Oklahoman News Article) GET BWM31.TXT (The Boardwatch Article By Jack Rickard) GET BWM48.TXT (The Boardwatch Article By Lance Rose) GET FUND.TXT (Announcement of Legal Defense Fund) GET BUST.ZIP (A Zip File that includes all the above) GET ECPA.ZIP (The Electronic Communications Privacy Act) *** IMPORTANT *** My Internet FTPMAIL server works great, but has a minor limitation. It only allows one "GET" per message. If you want more than one of the files, please use multiple messages. ============================================================ FIDONET: All the following file names are also File Requestable from 1:147/1 CHARGES.TXT (A copy of the criminal charges) MOTION.TXT (A copy of the motion to dismiss on forfeiture action) PRELIM.TXT (A non-lawyer's opinion of the Preliminary Hearing) 092793.TXT (A Daily Oklahoman News Article) BWM31.TXT (The Boardwatch Article By Jack Rickard) BWM48.TXT (The Boardwatch Article By Lance Rose) FUND.TXT (Announcement of Legal Defense Fund) BUST.ZIP (A Zip File that includes all the above) ECPA.ZIP (The Electronic Communications Privacy Act) ============================================================ Tony Davis The Out-On-Bail BBS: 1-405-386-6760 uucp: uunet!m2xenix!puddle!147!1!Tony.Davis Internet: Tony.Davis@f1.n147.z1.fidonet.org ------------------------------ Date: Fri, 7 Jan 94 05:56:42 EST From: Mitchell L. Silverman Subject: File 4--Re: Ratings Servers and the Diversity of USENET (#1) (I'm mailing this to Tokind and Mr. Williams to get their comments, and to the CuD moderatorship as a possible submission. I have no real public role on the Net--just an ordinary net.citizen--but free speech, on the Net and in the physical world, is something that interests and moves me profoundly.) In CuD #6.03, File 7, Stephen Williams (sdw@MEADDATA.COM) wrote: >One senario is that teachers or organizations worldwide could >'register' to each other and share the responsibility of endorsing >messages in certain groups. If there needed to be culpability, the >endorsers could be tracked down if needed. > >This would be totally optional on an adult's account and mandatory on >a minor's account, unless proper permission was obtained. It might, >in certain situations, also reduce the signal-to-noise ratio. Another >interesting use is to change the nature of moderated groups: the group >could be unmoderated in the current sense, but users could choose >moderators who would agree to endorse messages that had good content. >You could have several 'competing' moderators in the same group, >almost like news organizations. Well done, sir! You're on to something, I think. But the possibilities inherent in your second suggestion interest me more than the first. I have a number of friends on the Net, and there are others on the Net whose opinions I trust. It's currently possible, even easy, for me to read a particular newsgroup scanning for a particular name. I could even put all the names of each person whose judgment I trusted in a sort of reverse killfile, if I so wished, I think. (Knowing *how* to do this is another story!) But what of your endorsements? If the people whose opinions I value aren't set up as these critical organizations--perhaps I'm a fan of DR. B1FF THA PSYNCE D00D, or I'm one of those SubGenius weirdos--and I'd like to see what dogma the Church's "members" are spewing today. What am I to do? When you're designing your endorsement service, can you think of a way to do it that allows for: o finding articles endorsed by people on the Net across the continent from me--and without them necessarily having to register for an endorsement key (or some such) o in some cases, more endorsement text (per message, user, etc.) than message text o different classes or "alignments" of endorsements? Readers of alt.fan.rush-limbaugh should have as much 'right' to tag someone a pinko Feminazi as I do to tag someone as terminally Pink--and to publish that assessment, that 'endorsement.' o conflicting and even competing endorsements of content and character It may well be that having each message carry all that information will prove over-burdensome. Perhaps an Internet server, something like Gopher or WWW, which *can* carry information specific to a particular message's content (pornographic, racist, ill-informed, or otherwise--I'm sure even our esteemed moderators on the CuD have their lapses when posting news), but which also have ratings for individuals, newsgroups, sites FTP and otherwise, and organizations. (And perhaps each of the regional service providers, or other backbone sites, may have copies of several ratings servers--as with netfind and some larger FTP sites, mirroring helps reduce the load in one place.) And rest assured, there will (and should be) several ratings servers--at a minimum. If I'm interested in finding a good cop show on TV, ABC's "ratings server" might tell me to watch "NYPD Blue," CBS will tell me to watch "Homicide," and the AFA will tell me to watch "Dragnet"--or "The Old Time Gospel Hour." (Well, I never agree with the AFA anyway.) In practice, of course, the networks don't seem to push their TV critics to push their own shows, but I've not looked at interlocking directorates usw.--this is just an example. I want to have some choice of opinions to listen to. But how would we on the net structure a ratings service? And who will rate the raters? Some rating services aren't going to get listened to, some are. If the EFF started a ratings server, for example, or CPSR, their ratings servers would be taken pretty seriously. But is corporate good name the only coin these ratings servers would proffer as an earnest? I should point out that I think a non-monopoly ratings server or system would be a Good Thing, especially in that it would allow middle school and high school students better and freer Net access (or rather, it would allow middle school and high school administrators--and prudish parents--to feel that their charges were safe.) But my major concern is in making sure that meeting this goal, and possibly the others Mr. Williams mentions, doesn't produce a system that cannot address the concerns I raise. Likely whatever system gets produced first--unless it's crufty and unusable software--will be the ratings system of the (foreseeable) future--and who in 1979 at Duke would have imagined where things would be by 1994? True, the netnews formats have been revamped, but not as drastically, I think, as the changes between what Mr. Williams suggests and what I think such a system needs to allow for. ------------------------------ Date: Fri, 7 Jan 1994 12:14:09 -0500 (EST) From: sdw@MEADDATA.COM(Stephen Williams) Subject: File 5--Re: File 7--Anarchy Gone Awry (Re: CuD 5.91) #2 > Response to > > Thanks for a good, thoughtful article. > > It occurs to me that the ratings service you mention would need some > kind of authentication. I'm sure that even as I type this, there are > people typing shrieks of "censorship"; some of these people are of the > mentality that they would register their protest at any kind of rating > system by reposting copies of "Cindy's Torment" in the kiddie groups, > and forging a "G" rating. (You Know Who You Are.) It absolutely should have an OPTIONAL authentication. Optional because if I'm just using it to enhance message sorting, it's not a big deal if it is forged. I would want authentication in legal liability avoidance situations. > I'd love to have an "intelligent, or, at least, amusing content" > rating. Unfortunately, given net volume, this means a huge investment > of people reading and rating the net, or advances in AI far beyond > anything that seems likely to appear this century. Especially since my > standards of "intelligent and/or amusing" won't match anyone else's. I guess I feel that people are already investing a huge amount of time reading the net and that those that really keep up on a particular group wouldn't mind pressing an extra key to approve/disapprove/type an article. Not all articles have to have a rating either. My idea was that it would only be useful in certain groups. Also, since you can 'tune in' to certain reviewers you like (just like movie reviewers), you can try to match your tastes with others. It is even conceivable that you could 'choose' reviewers implicitly by giving your own rating and having the system record who was in agreement. It would be an interesting instant/continous opinion poll on topics. > The signal-to-noise problem is the biggest one the net faces, as volume > explodes with increasing access. Few of us want to restrict access, of > course. As someone said, "I don't have a solution, but I sure admire > the problem." ------------------------------ Date: Fri, 7 Jan 1994 14:06:54 -0500 (EST) From: sdw@MEADDATA.COM(Stephen Williams) Subject: File 6--Re: Ratings Servers and the Diversity of USENET (#2) > In CuD #6.03, File 7, Stephen Williams (sdw@MEADDATA.COM) wrote: > > >One senario is that teachers or organizations worldwide could > >'register' to each other and share the responsibility of endorsing ... > Well done, sir! You're on to something, I think. Thanks. > But the possibilities inherent in your second suggestion interest me > more than the first. I have a number of friends on the Net, and there > are others on the Net whose opinions I trust. It's currently > possible, even easy, for me to read a particular newsgroup scanning > for a particular name. I could even put all the names of each person > whose judgment I trusted in a sort of reverse killfile, if I so > wished, I think. (Knowing *how* to do this is another story!) > > But what of your endorsements? If the people whose opinions I value > aren't set up as these critical organizations--perhaps I'm a fan of > DR. B1FF THA PSYNCE D00D, or I'm one of those SubGenius weirdos--and > I'd like to see what dogma the Church's "members" are spewing today. > What am I to do? Ahh... A misunderstanding. The viewpoint I was rebutting did expect that official 'servers' would be setup, but that is not my proposal. My criteria for this type of system is that it be minimalist, usable by anyone receiving netnews now, and implementable with few changes to existing software. The basis for endorsements in my scheme is just a new type of message, which is just a properly formatted, but normal, netnews message. This means that it will be propagated by current software, available in raw form to all readers, etc. That solves the problem of distribution, storage, flow, etc. No one should have a fundamental problem with endorsement messages since it is just a formal (and machine readable) way of following up with a 'yay' or 'nay' (or '???'). The only essential software changes are at the news reader to handle creation and awareness of endorsement messages. I'm a little bit worried about increasing the number of messages with overlapping endorsements from many people, so I've been thinking of what types of changes to server software (ie. INN) would make sure the method is scalable. As a performance and storage enhancement, endorsements could be added to indexes, added to messages, coalesced into bulk-endorsement messages, etc. My plan is to release a modified Tin reader and INN server. I do believe that authentication keys are needed as an Optional feature and I do keep up on PGP/Cypherpunks somewhat, but that is going to be a trailing feature. > When you're designing your endorsement service, can you think of a way > to do it that allows for: > > o finding articles endorsed by people on the Net > across the continent from me--and without them necessarily having > to register for an endorsement key (or some such) Should be doable with news scanning software. Easy within a particular group. > o in some cases, more endorsement text (per message, user, etc.) than > message text I've been thinking about simple typed endorsements, but having a whole article with editorial content refering to or possibly replacing (summaries?) articles is an interesting idea. A 'moderator' might choose to summarize a thread, but you could still 'drill down' into the original text. > o different classes or "alignments" of endorsements? > Readers of alt.fan.rush-limbaugh should have as much 'right' to tag > someone a pinko Feminazi as I do to tag someone as terminally > Pink--and to publish that assessment, that 'endorsement.' Group membership of endorsement agents is also interesting, but I'm not sure of the best method here. Possibly a paired set of personal and group id's. > o conflicting and even competing endorsements of content > and character Of course! Fundamental to my design. > > It may well be that having each message carry all that information > will prove over-burdensome. Perhaps an Internet server, something > like Gopher or WWW, which *can* carry information specific to a > particular message's content (pornographic, racist, ill-informed, or > otherwise--I'm sure even our esteemed moderators on the CuD have > their lapses when posting news), but which also have ratings for > individuals, newsgroups, sites FTP and otherwise, and organizations. > (And perhaps each of the regional service providers, or other backbone > sites, may have copies of several ratings servers--as with netfind and > some larger FTP sites, mirroring helps reduce the load in one place.) > ... > But how would we on the net structure a ratings service? And who will > rate the raters? Some rating services aren't going to get listened > to, some are. If the EFF started a ratings server, for example, or > CPSR, their ratings servers would be taken pretty seriously. But is > corporate good name the only coin these ratings servers would proffer > as an earnest? I'm still pondering the idea of a ratings server. Big problems of scalability just to have someone else 'hear' your opinion. A feed of endorsements is different however. There could even be a commercial feed of endorsements. (I've considered starting one and Barry Shein has expressed an interest in supporting one.) I do think that the format of an endorsement should be general, probably based on URL/URN's from the WWW people. I'm on the url list and I'll try to digest it later. > I should point out that I think a non-monopoly ratings server or > system would be a Good Thing, especially in that it would allow ... > 1994? True, the netnews formats have been revamped, but not as > drastically, I think, as the changes between what Mr. Williams > suggests and what I think such a system needs to allow for. Hopefully we can come up with minimal changes with minimal impact on bandwidth and maximal features. I'm pushed to implement myself (any help is appreciated :-)) mainly to make sure it is open and anti-censorship, while still being useful. As I mentioned before, the copyright license will disallow any blatant censorship. This is very clear where adults are concerned. ------------------------------ Date: Fri, 7 Jan 1994 14:03:37 CST From: Ken Furuta Government Documents Subject: File 7--Congressperson's Gopher in Arizona I went to a press conference at Arizona State University this morning. In it Representative Sam Coppersmith of the Arizona First Congressional District announced a gopher server containing his position papers and press releases (including the one I got this morning announcing the server). The gopher also has connections to other governmental servers. To see it, point your gopher to Arizona State University. Once here, select "Arizona Statewide Information" from the first menu. Next select "U.S. Rep. Sam Coppersmith." Rep. Coppersmith may be the first Congressperson to offer such a service - they checked but did not find anyone else with one. He is also one of those first 12 members testing e-mail. In addition, he has a listserv based at ASU. Both addresses are in the press release on the gopher. When asked why do it, Coppersmith said: 1) It is useful as a learning tool to try out the Internet and see what's out there and; 2) It is a way to re-connect people with the government. He talked a bit about the "Information have nots." I was glad to hear him say that Public Libraries are taking a leadership role. My feeling is that even though parts of the Federal Government developed the network, the rest are finally discovering it. Every time I look there is a new server from a different agency. It is exciting to watch the progress while hoping that additional agencies join the trend. With any luck, Rep. Coppersmith's example will spur them on. Heck, if it does I promise to actually read his mailings I get at home even if my name is not constituent. ------------------------------ End of Computer Underground Digest #6.04 ************************************

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