Computer underground Digest Sun July 31, 1994 Volume 6 : Issue 69 ISSN 1004-042X Editors:

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Computer underground Digest Sun July 31, 1994 Volume 6 : Issue 69 ISSN 1004-042X Editors: Jim Thomas and Gordon Meyer (TK0JUT2@NIU.BITNET) Archivist: Brendan Kehoe Retiring Shadow Archivist: Stanton McCandlish Shadow-Archivists: Dan Carosone / Paul Southworth Ralph Sims / Jyrki Kuoppala Ian Dickinson Copper Ionizer: Ephram Shrustleau CONTENTS, #6.69 (Sun, July 31, 1994) File 1--Memphis convicts Calif. (Am Action) BBS of "Porn" File 2--Response to AA BBS Verdict (fwd) File 3--AP bungles my AA BBS comments :) File 4--The Internet Reacts to the Am. Action BBS (fwd) File 5--Some Thoughts on the Amateur Action Verdict File 6--it's not just computer porn either Cu-Digest is a weekly electronic journal/newsletter. Subscriptions are available at no cost electronically. 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EUROPE: from the ComNet in LUXEMBOURG BBS (++352) 466893; In ITALY: Bits against the Empire BBS: +39-461-980493 UNITED STATES: ( in /pub/CuD/ ( in /pub/Publications/CuD ( in /pub/eff/cud/ in /src/wuarchive/doc/EFF/Publications/CuD/ in /pub/wuarchive/doc/EFF/Publications/CuD/ in /doc/EFF/Publications/CuD/ EUROPE: in pub/doc/cud/ (Finland) in pub/cud/ (United Kingdom) JAPAN: /mirror/ 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: Sat, 30 July, 1994 22:18:43 CDT From: CuD Moderators Subject: File 1--Memphis convicts Calif. (Am Action) BBS of "Porn" ((MODERATORS' NOTE: Robert and Carleen Thomas, operators of Amateur Action BBS in California, were tried and convicted of sending "pornography" across state lines by a Memphis jury. Relevant case documents, including the original indictment, can be found in CuDs #5.33, 5.35, and 5.53. We thank the posters who send over the following two press reports, which emphasize the sticky problem of "local standards" applied to the Net)). Source: Chicago Tribune, July 29. Sect 1, p. 6 COUPLE GUILTY IN SALE OF PORN VIA COMPUTER A husband and wife were convicted of distributing pornography via computer Thursday in a case that raised questions about how to apply federal obscenity law to the information superhighway. ((The story notes that Robert and Carleen Thomas, of Milpitas, California, were each convicted on 11 counts of transmitting obscenity over interstate phone lines on the members-only BBS. They can be sentenced to up to five years in prison on each count and a $250,000 fine)). During the weeklong trial, jurors were shown photographs carried over the Thomases' bulletin board featuring scenes of bestiality and other sexual fetishes. The images were available, for a fee, to computer users around the world. ((The story mentions that a postal inspector testified he joined the Amateur Action BBS under a fake name and received sexually explicit pictures on his Memphis computer. The defense, says the story, argued that the prosecutors "shopped around" for a place to try the case where a "conservative jury might be found")). "This case would never have gone to trial in California," said defense attorney Richard Williams, who plans an appeal. Assistant U.S. Atty. Dan Newsom said the trial was held in Memphis because pictures carried on the bulletin board were received here. In this age of international computer networks, the federal trial raised questions about a 1973 Supreme Court ruling that obscenity must be judged according to local community standards. ((The story describes the opinion as designed to let local citizens determine community standards)) "But it may not work anymore," he said from his office in Washington. Under that standard, federal juries in the most conservative parts of the country could decide what sexually explicit images and words get on the information superhighway, Bates said. Ultimately, the issue will probably wind up back at the Supreme Court. ================================================================== Wire story circulating on Usenet: MEMPHIS, Tenn -- A federal jury convicted a California couple Thursday of transmitting obscene pictures over a computer bulletin board. The case has raised questions, in this age of international computer networks, about a 1973 U.S. Supreme Court ruling that defines obscenity by local community standards. "This case would never have gone to trial in California," defense lawyer Richard Williams said. Prosecutor Dan Newsom, an assistant U.S. attorney, said the trial was the first he knows of for computer bulletin board operators charged under federal law with transmitting pornography featuring sex by adults. Robert and Carleen Thomas, both 38, of Milpitas, Calif., were convicted of transmitting sexually obscene pictures through interstate phone lines via their members-only Amateur Action Bulletin Board System. The Thomases were convicted on 11 criminal counts, each carrying maximum sentences of five years in prison and $250,000 in fines. Thomas was acquitted on a charge of accepting child pornography mailed to him by an undercover postal inspector. The Thomases refused to comment after the verdict. They remain free on $20,000 bond to await sentencing, for which no date was set. Williams said his clients will appeal, arguing the jury was wrongly instructed on how to apply the Supreme Court's standard on obscenity. The trial raised questions of how to apply First Amendment free-speech protections to "cyberspace," the emerging community of millions of Americans who use computers and modems to share pictures and words on every imaginable topic. Williams argued unsuccessfully before trial that prosecutors sought out a city for the trial where a conservative jury might be found. During the weeklong trial jurors were shown photographs carried over the Thomases' bulletin board featuring scenes of bestiality and other sexual fetishes. Williams argued this was voluntary, private communication between adults who knew what they were getting by paying $55 for six months or $99 for a year. Their conviction also covers videotapes they sent to Memphis via United Parcel Service. The videotapes were advertised over the bulletin board. ------------------------------ Date: 28 Jul 1994 22:12:20 -0500 From: karl@MCS.COM (Karl Denninger) Subject: File 2--Response to AA BBS Verdict (fwd) In article <>, H Keith Henson wrote: >CNN this noon had a report that the Thomas' were found guilty. As I >understand it, not on all charges. Will get the results and post them >as soon as I can get the data. Keith Correct. They were found guilty of 11 counts, each carrying a 10 year jail term and a $250,000 fine! That's 2.5 MILLION dollars and 110 years! Even with time off for good behavior and all, if this case stands they're both finished and, IMHO, so is much of the erotica available on the net in the US for those sites which are interstate. The *only* count which they got off on was the kiddie porn charge. This is a serious case folks. We're going to be talking to the lawyers IMMEDIATELY here, as the ramifications of this may be that we can no longer sell accounts to users across state or even local boundary lines -- or we may have to drop all the erotic material on the net! Within Chicago what is on the net wouldn't violate community standards, especially given what I can rent at the local video store (I live and work in the middle of Lakeview, which is known to some as "boys town". Draw your own conclusions.) :-) In Memphis, on the other hand....... NETCOM in particular is in bad shape on something like this, what with their presence nationally...... NOT good. Very, very not good. And some of you thought Copyright was a problem? Try *this* on for size! ------------------------------ Date: Sun, 31 Jul 1994 19:02:26 GMT From: (Lawrence Foard) Subject: File 3--AP bungles my AA BBS comments :) The AP wire finally arrived on world. I wish they would e-mail for clarification before releasing them, in one place they have me as an anonymous person from Boston, another place as a person from Brookline Ma, who runs a BBS :) I was going to be running an internet POP for someone, but decided not to because of this, I don't presently have a BBS. Unfortunitly it also failed to bring up the reason for the concerns. The reasons why this is a concern: 1) A BBS operator in any area of the country now must limit the contents of the BBS to that which is acceptable in the most backward area of the country. This makes BBS operators answerable to officials which they had no say in electing, and laws which they have no say in through the democratic process. If BBS operators are to be held to the laws of all towns and states at the very least they should be allowed to vote in all of them. (no out of state sales tax...) Its completely impractical, something which appears totally harmless one place might be illegal someplace else. Lets say that the use of an electro-ejaculator (sp?) for getting semen from bulls is discussed on a farm BBS. In another state this could be painted as sex with an animal, and a farmers story of doing this might be enough to land him in jail. 2) The operator of the BBS didn't cause pornography to cross state lines, the user in Tenn paid for the phone call and entered the commands which caused it to cross state lines. The user should be responsible. Because an electronic connection could cross several networks, there is no hope of being able to know where the end user is. Even with caller ID its possible that the person is using a local dialout from a long distance data carrier. On the internet its even more difficult since someone can easily cross several machines in many states or countries. 3) There is no precedent at this time (that I'm aware of) protecting an internet provider. Unlike a BBS operator internet providers cannot control the content of what users acquire through the net. While it can be hoped that this lack of control will provide protection, there is no guarantee that it will (Mike?). A person could download every bit of pornography available anywhere in the world, and then turn around and charge the internet provider with 1000's of counts, amounting to 1000's of years in jail. To provide internet access at this time is effectively playing russian roulette, if you lose you might as well be dead. 4) In the case of really illegal porn, kiddy porn etc. where children are exploited to make it, action should be taken against those and only those who upload/post it in the first place, it is impossible for anyone else on the internet to prevent the transmission of data. The volume of data traveling on the net is beyond the ability of any one human, or even dozens to filter through. In the case of kiddy porn the only responsibility of sysops should be to provide log file etc. to law enforcement, so that they can trace it to the source and hopefully ultimately catch those who made it. In other words internet providers should be treated the same way a long distance phone carrier is, since neither can or should regulate the content of the data they carry. 5) The standards by which something is judged to be obscene are absurd, the first amendment says nothing about making exceptions for material which some may find offensive. I think many religious broadcasts could easily be found offensive by the standards of the Castro area in SF, why can't Pat Robertson go to jail in CA for transmitting obscene material (by local standards) into the Castro? Current obscenity laws violate the freedom of speech and the freedom of/ from religion because they only consider things offensive to certain Christian sects to be obscene. Kiddy porn is wrong because children are hurt when it is made, but I can see no rational reason why any pictures/stories/info of any sort made by consenting parties should be restricted. I hope the supreme court will one day realize the absurdity of this loophole. AP reporters: Please feel free to use any of this, but if there is anything that you have the least doubt about please e-mail or post questions instead of publishing incorrect or incomplete info. ------ Call the skeptic hotline 1-900-666-5555 talk to your own personal . \ / skeptic 24 hours/day. Just say no to victimless crimes. . . \ / High quality Linux application development available. . . . \/ Violence is a lousy substitute for sex and drugs. . . . . ------------------------------ Date: Sun, 31 Jul 1994 16:12:55 PDT From: Anonymous Subject: File 4--The Internet Reacts to the Am. Action BBS (fwd) **Here's the summary of an AP wire story for CuD readers** Hours after a couple was convicted of sending images of bestiality and sexual fetishes over a computer bulletin board, the Internet was humming with warnings and protests. "If this case stands, you can bet there will be a hell of a lot more prosecutions on the same basis in extremely short order," Karl Denninger of Chicago wrote Friday on the computer network. ((The story summarizes the case)) Even an 8.0 earthquake shaking the entire U.S. would do less damage to Internet than the ruling, a Boston user wrote in an anonymous message. Many users wondered on-line about what the 1973 Supreme Court rule allowing local communities to define obscenity means in cyberspace. ((The story notes that some people say the decision is inapplicable)) "This case. . .has one community attempting to dictate standards for the whole country," wrote Mike Godwin, a lawyer for the Electronic Frontier Foundation, a think tank in Washington. One man said he planned to end the bulletin board he produces for a fee because the ruling makes it the legal equivalent of playing Russian roulette. "I'm pulling out of it as of now, and believe me I need the money. ...but it would be safer to rob a bank. I might get out of jail before I'm 140 years old," wrote Lawrence Foard from Brookline, Mass. ((The story notes that BBSes are usually small scale businesses or hobbys carried on a larger system like the internet, which is a factual error, but what the hey.)) Although most are free, some sexually oriented ones require a fee paid by credit card to attempt to screen out users under 18. ((More case summary)) The case bodes ill for any American computer system that carries any sexually related material at all, many users said. ------------------------------ Date: Sat, 30 Jul 1994 23:22:08 PDT From: Jim Thomas Subject: File 5--Some Thoughts on the Amateur Action Verdict Some readers might wonder why they should care about a decision that would seem to be simply an "open-and-shut" pornography case. We'll try to provide a few reasons. Robert and Carleen Thomas operated Amateur Action, an adult BBS in Milpitas, Calif. In Memphis, Tenn., Federal court this past week, a jury found them each guilty of transporting pornography by telephone across state lines. Robert Thomas was also charged with, but acquitted of, accepting child pornography sent to him by postal inspector David H. Dirmeyer (CuD coverage of the case can be found in CuD 6.09, 6.33, 6.35, 6.37, 6.43, 6.53, and 6.67). The handling of the case by the postal inspectors raised issues ranging from entrapment to "possible court fraud" (CuD 6.43), all worthy of discussion. However, what sets this case apart from any other is the fact that a citizen in one state was found guilty in another for actions that were not illegal in the first state. Amateur Action BBS was a members-only BBS accessible by telephone from anywhere in the world. It is a dial-in BBS, and not accessible from the Net. Callers were screened, paid a fee to join, and knowingly and willingly accessed the services of the board. By all accounts, callers were systematically screened to assure that no minors would be given access. The board specialized in providing graphic sexual images for all tastes. Some, perhaps most, people would find the extreme examples of the GIF files and other material, as well as their ASCII descriptions, repulsive. Repulsiveness, however, is not itself a crime, and in an earlier California legal dispute, the contents of the BBS were found not to be in violation of California law. Such images were, however, in violation of Tennessee law. Transportation of the images across state lines from California into Tennessee comes under Federal statutes, and the Thomases were therefore prosecuted on Federal Charges (See CuD 6.53 for the indictment). This is not simply "just another porn case," in which the alleged offenders took risks and lost. The case represents a means by which an act that does not violate the community standards in one jurisdiction can still be a criminal offense in another that has different standards. In the medium of cyberspace, this poses serious consequences. Here are a few reasons why: THE COMMUNITY CONCEPT: The U.S. Supreme Court established in Miller v. California that local communities may determine for themselves the standards by which a given work could be judged as obscene. In delivering The Court's opinion, Chief Justice Warren Burger wrote: Under a National Constitution, fundamental First Amendment limitations on the powers of the States do not vary from community to community, but this does not mean that there are, or should or can be, fixed, uniform national standards of precisely what appeals to the "prurient interest" or is "patently offensive." These are essentially questions of fact, and our Nation is simply too big and too diverse for this Court to reasonably expect that such standards could be articulated for all 50 States in a single formulation, even assuming the prerequisite consensus exists. ...... It is neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or New York City. Miller functioned in part to allow The Court to avoid the thorny issue of defining obscenity. It also made it clear that communities could decide for themselves, within reason, the definition and application of standards. By this principle, The Court provided the means by which citizens in Memphis could follow a narrower standard than, say, citizens in California. Yet, the Memphis decision seems to violate this principle by imposing the standards of Tennessee on others outside of the jurisdiction. The news accounts of the conviction are consistent, and if consistency suggests accuracy, then it appears that the convictions in this case were solely because the contents of a BBS in California, which were legal in that state, were ACCESSIBLE from Tennessee. The Thomases did not physically transport their files, either personally or through an intermediary, into Tennessee. They merely made the means available so that someone FROM Tennessee could obtain them. This seems analogous to a person in State A, in which alcohol or cigarettes were prohibited, driving into State B, where they were legal, to obtain them, and then prosecuting on Federal charges the purveyor of the commodities in State B for making them accessible to people in State A. The nature of electronic communications makes this a less than perfect analogy, but the central point holds: A Tennessee resident must physically perform the acts to access an out-state source in order to obtain commodities and return them to the state in which the commodities were illegal. By this logic, "community standards" can be extended to, and enforced upon, communities with different standards. This seems to violate both the letter and spirit of the Miller decision. CYBERSPACE AS COMMUNITY: Another complex issue emerges. The concept of "community" as used in the Miller decision, denotes a geographical entity circumscribed by physical boundaries. Electronic communication challenges this. The concept of "cyberspace" suggests a broader definition, one that can co-exist within the more limited geographic conception, while retaining separate status because of its unique characteristics. A broader conception is not without precedent, because it has long been recognized by social scientists. By now, most of us realize that "cyberspace" is not a specific geographic or spatial location. Cyberspace is a metaphor for something that happens when we communicate with others by means of a personal computer and a modem. As we sit at the computer keyboard and magically etch our ASCII or gif mark for others to see, we feel as if we leave it somewhere, and that "somewhere" is simply a conceptually metaphoric way of identifying the experience of electronic communication. Cyberspace includes a variety of computer/modem mediated communication, ranging from Bulletin Board Systems (BBSes), Internet electronic mail, public access systems where people meet, shop, fall in and out of love, or carouse, electronic discussion groups (such as Usenet or the Bitnet hotlines), and real-time interaction, such as on-line "chat/talk" or IRC (Inter-relay chat), which allows simultaneous real-time interaction between numerous people. Because of the collective and social nature of much electronic interaction, a derivative metaphor, that of community, emerges. A community is simply a collection of people self-consciously co-existing within some identifiable boundary, be it physical (such as a city or a "community of nations"), normative (such as a "community of scholars") or ideological (such as an "invisible community" of anti-flouride activists). Communities create ways for sharing sufficient cultural expectations to bind participants into a minimal culture with shared norms and and give a means of access, entry, and exist. They provide criteria that provide a minimal identity, establish entry/exit routines, and include a means for distinguishing "insiders" from "outsiders." Cyberspace does all of this and more. As a consequence, cyberspace fits the existing definition of community long used by social scientists. Therefore, it's not unreasonable to begin pushing the conception of "community" beyond the limations imposed by, for example, the U.S. Supreme Court. Alleged undesirable acts of cyber-citizens do not "pollute" a geographic area with streetwalkers, porn-shops, drive-by shootings, or other immediate manifestations of the disapproved behavior. Behaviors exist in symbolic form only, in ASCII or in visual images, and although freely accessible, they are accessible only to those who consciously choose to access the symbols. Nasty words and pictures can even be accessed by the good folk of Memphis, Tennessee. If they choose. The citizens of a community with narrow views of propriety can access electronic media as easily as they can can traverse Interstate 80. Interstate 80, paid for by taxpayers, will take those good folk directly into San Francisco's North Beach, where they can watch "nekkid girls" and purchase merchandise to satisfy the wildest prurient interests. Granted, telephone lines are a bit easier to navigate than the interstate, but the point's the same: Using an established public infrastructure, whether highways or telephone lines, it's no problem to procure commodities that are licit in one community and physically transport them or their images back home. To recognize "cyberspace" as a distinct entity satisfying the criteria of "community" is hardly a novel or radical view. As a community, cyberspace needn't be homogenous (few communities are), peaceful (few communities are), or centrally governed (many communities are not). It need only satisfy the operational definition of "community" (which it does). There are likely those who would reject the notion of "cyberspace as community," falling back on the geographical criterion. But, "geography," too, is an arbitrary criterion, and one that has historically changed as new conceptions of identity and common interests have changed. The necessity of considering "cyberspace as community" is simply this: The concept of community is as much normative and symbolic as it is physical. To limit, for example, "community standards" to a narrow geographic locale when that locale exists as part of a larger community resembles the Church's proscriptions of Galilean thinking in the face of a dramatically changing society. The laws of Tennessee may be fully appropriate for the citizens of Tennessee, but they may not be shared by those who congregate in the community of cyberspace. JURISDICTION: What counts as a community is important because it frames the extent of jurisdiction and how norms and laws will be enforced, by whom, and upon whom. If cyberspace is a community, then the question of jurisdiction becomes imperative. Should policing be done by the citizens themselves (who have done a reasonably good job so are)? Should it be done by local geographic communities with power to regulate what their local citizens may or may not access in other areas? Should it be done by a centralized national or international authority? The Memphis decision seems to indicate that at least one geographic community believes that it should have the power to police at the local level what occurs globally: If citizens can access unacceptable symbols from a remote source, then that source should be shut down. The implications are serious. Some observers have argued that they cannot be too excited about a bunch of "smut dealers" being put out of business. But, these "smut dealers" were doing nothing illegal within their own jurisdiction. The principle of the decision extends beyond "smut." If, for example, it is lawful to post "anarchy files," radical policital literature, or extreme viewpoints or criticisms in one jurisdiction but not in another, then the danger exists that what is defined as illegal any where becomes illegal everywhere if it can be accessed electronically. The Miller decision was explicit in allowing local standards to govern local enforcement. But, it seems equally explicit in permitting or tolerating materials if those materials did not violate local standards. The Memphis decision not only challenged the community concept, but seemed to turn Miller on its head by saying that the lowest common denominator could become the universal standard of exception. And this is why we judge the case of crucial importance to all who use electronic media. What is legal in California and elsewhere now is subject to criminal prosecution. WHAT'S AT STAKE: Because the Memphis decision was a jury verdict and did not result in precedent-setting legal interpretation, the immediate impact may seem limited. But, if the case outcome stands and becomes a model for prosecuting undesirable materials elsewhere, the consequences are severe. If unchallenged, the decision means that prosecutors who see their mission as moral entrepreneurs can bring criminal charges in one jurisdiction against those who violate narrow community standards. For that reason, we see this is a free speech issue. The potential chilling effect resulting from similar cases could severely limit the availability controversial materials or reduce access to forums for discussion and dissemination of ideas. Sysops and sysads cannot possibly know the laws of all jurisdictions in which users of theirs systems reside. If fear of prosecution results in the closing of BBSes, in restriction of users based on geography, in restriction of files or discussions, in elimination of controversial Usenet news groups, or otherwise stifles freedom of expression, it will not be a blow simply for the cyber community. It will be a devastating blow for Freedom of Speech in society as well. ------------------------------ Date: Sat, 16 Jul 1994 11:53:14 -0700 From: haynes@CATS.UCSC.EDU(Jim Haynes) Subject: File 6--it's not just computer porn either Item in today's paper "800 purveyor faces obscenity charge" says a California-based sex-talk purveyor is to stand trial in Alabama next week on obscenity charges. "We have taken a vigorous stance in enforcing the anti-obscenity law," said Assistant Attorney General Bruce Lieberman of Evans' special investigations division. The newspaper seems to have severely truncated the story, as "Evans" is never identified. The dateline is Montgomery, Ala. Says the defendant is Mark Carriere of Los Angeles, operator of "Mark III Entertainment" ------------------------------ End of Computer Underground Digest #6.69 ************************************


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