Computer underground Digest Sun July 31, 2020 Volume 6 : Issue 69 ------------------------------ Date: Sat, 30 Jul 2020 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.