|
| From: MIKE SWARTZBECK              Refer#: NONE
|   To: ALL                           Recvd: NO
| Subj: Rodney King beaten AGAIN!      Conf: (160) ANEWS
| from Computer Underground Digest, 12.03.92:
| Date: 02 Dec 92 11:49:08 EST
| From: David Lehrer <71756.2116@COMPUSERVE.COM>
| Subject: File 8--Akron BBS trial update!
|
| Akron BBS trial update: Dangerous precedents in sysop prosecution
|
| You may already know about the BBS 'sting' six months ago in Munroe
| Falls, OH for "disseminating matter harmful to juveniles." Those
| charges were dropped for lack of evidence. Now a trial date of 1/4/93
| has been set after new felony charges were filed, although the
| pretrial hearing revealed no proof that *any* illegal content ever
| went out over the BBS, nor was *any* found on it.
|
| For those unfamiliar with the case, here's a brief summary to date.
| In May 1992 someone told Munroe Falls police they *thought* minors
| could have been getting access to adult materials over the AKRON
| ANOMALY BBS. Police began a 2-month investigation. They found a small
| number of adult files in the non-adult area.
|
| The sysop says he made a clerical error, causing those files to be
| overlooked. Normally adult files were moved to a limited-access area
| with proof of age required (i.e. photostat of a drivers license).
|
| Police had no proof that any minor had actually accessed those files
| so police logged onto the BBS using a fictitious account, started a
| download, and borrowed a 15-year old boy just long enough to press the
| return key. The boy had no knowledge of what was going on.
|
| Police then obtained a search warrant and seized Lehrer's BBS system.
| Eleven days later police arrested and charged sysop Mark Lehrer with
| "disseminating matter harmful to juveniles," a misdemeanor usually
| used on bookstore owners who sell the wrong book to a minor. However,
| since the case involved a computer, police added a *felony* charge of
| "possession of criminal tools" (i.e. "one computer system").
|
| Note that "criminal tool" statutes were originally intended for
| specialized tools such as burglar's tools or hacking paraphenalia used
| by criminal 'specialists'. The word "tool" implies deliberate use to
| commit a crime, whereas the evidence shows (at most) an oversight.
| This raises the Constitutional issue of equal protection under the law
| (14'th Amendment). Why should a computer hobbyist be charged  with a
| felony when anyone else would be charged with a misdemeanor?
|
| At the pretrial hearing, the judge warned the prosecutor that they'd
| need "a lot more evidence than this" to convict. However the judge
| allowed the case to be referred to a Summit County grand jury, though
| there was no proof the sysop had actually "disseminated", or even
| intended to disseminate any adult material "recklessly, with knowledge
| of its character or content", as the statute requires. Indeed, the
| sysop had a long history of *removing* such content from the non-adult
| area whenever he became aware of it. This came out at the hearing.
|
| The prosecution then went on a fishing expedition. According to the
| Cleveland Plain Dealer (7/21/92)
|
|     "[Police chief] Stahl said computer experts with the Ohio Bureau
| of Criminal Identification and Investigation are reviewing the
| hundreds of computer files seized from Lehrer's home. Stahl said it's
| possible that some of the games and movies are being accessed in
| violation of copyright laws."
|
| Obviously the police believe they have carte blanche to search
| unrelated personal files, simply by lumping all the floppies and files
| in with the computer as a "criminal tool." That raises Constitutional
| issues of whether the search and seizure was legal.  That's a
| precedent which, if not challenged, has far-reaching implications for
| *every* computer owner.
|
| Also, BBS access was *not* sold for money, as the Cleveland Plain
| Dealer reports. The BBS wasn't a business, but rather a free community
| service, running on Lehrer's own computer, although extra time on the
| system could be had for a donation to help offset some of the
| operating costs. 98% of data on the BBS consists of shareware
| programs, utilities, E-mail, etc.
|
| The police chief also stated:
|
|     "I'm not saying it's obscene because I'm not getting into that
| battle, but it's certainly not appropriate for kids, especially
| without parental permission," Stahl said.
|
| Note the police chief's admission that obscenity wasn't an issue at
| the time the warrant was issued.
|
| Here the case *radically* changes direction. The charges above were
| dropped. However, while searching the 600 floppy disks seized along
| with the BBS, police found five picture files they think *could* be
| depictions of borderline underage women; although poor picture quality
| makes it difficult to tell.
|
| The sysop had *removed* these unsolicited files from the BBS hard
| drive after a user uploaded them. However the sysop didn't think to
| destroy the floppy disk backup, which was tossed into a cardboard box
| with hundreds of others. This backup was made before he erased the
| files off the hard drive.
|
| The prosecution, lacking any other charges that would stick, is using
| these several floppy disks to charge the sysop with two new second-degree
| felonies, "Pandering Obscenity Involving A Minor", and
| "Pandering Sexually Oriented Matter Involving A Minor" (i.e. kiddie
| porn, prison sentence of up to 25 years).
|
| The prosecution produced no evidence the files were ever "pandered".
| There's no solid expert testimony that the pictures depict minors. All
| they've got is the opinion of a local pediatrician.  All five pictures
| have such poor resolution that there's no way to tell for sure to what
| extent makeup or retouching was used. A digitized image doesn't have
| the fine shadings or dot density of a photograph, which means there's
| very little detail on which to base an expert opinion. The
| digitization process also modifies and distorts the image during
| compression.
|
| The prosecutor has offered to plea-bargain these charges down to
| "possession" of child porn, a 4th degree felony sex crime punishable
| by one year in prison. The sysop refuses to plead guilty to a sex
| crime. Mark Lehrer had discarded the images for which the City of
| Munroe Falls adamantly demands a felony conviction. This means the
| first "pandering" case involving a BBS is going to trial in *one*
| month, Jan 4th.
|
| The child porn statutes named in the charges contain a special
| exemption for libraries, as does the original "dissemination to
| juveniles" statute (ORC # 2907.321 & 2). The exemption presumably
| includes public and privately owned libraries available to the public,
| and their disk collections. This protects library owners when an adult
| item is misplaced or loaned to a minor. (i.e. 8 year olds can rent
| R-rated movies from a public library).
|
| Yet although this sysop was running a file library larger than a small
| public library, he did not receive equal protection under the law, as
| guaranteed by the 14th Amendment. Neither will any other BBS, if this
| becomes precedent. The 'library  defense' was allowed for large
| systems in Cubby versus CompuServe, based on a previous obscenity case
| (Smith vs. California), in which the Supreme Court ruled it generally
| unconstitutional to hold bookstore owners liable for content, because
| that would place an undue burden on bookstores to review every book
| they carry, thereby 'chilling' the distribution of books and
| infringing the First Amendment.
|
| If the sysop beats the bogus "pandering" charge, there's still
| "possession", even though he was *totally unaware* of what was on an
| old backup floppy, unsolicited in the first place, found unused in a
| cardboard box. "Possession" does not require knowledge that the person
| depicted is underage. The law presumes anyone in possession of such
| files must be a pedophile. The framers of the law never anticipated
| sysops, or that a sysop would routinely be receiving over 10,000 files
| from over 1,000 users.
| _______________________
|
|     One comment:  If a computer is a 'criminal tool' my local
| public library and most of the schools in this area are in -BIG-
| trouble...
