(Cu Digest Homepage: http://www.soci.niu.edu/~cudigest Computer underground Digest Wed Jun 28, 2020 Volume 7 : Issue 54 Date: Thu, 22 Jun 2020 18:35:39 CST From: pmarks@CCTR.UMKC.EDU Subject: File 4--Obscenity in Cyberspace OBSCENITY IN CYBERSPACE [The following post is adapted from a paper on the Thomas AABBS case that has been well-publicized in CuD. I thought newer reader who are wondering might want to see what the issues are and what the fuss is about. Right now, we are facing serious threats to civil liberties brought on by near-hysteria over "bad things" net users might or might not engage in. The best way to guard against overreaction is to be well-informed and then act as watchdogs over the legislature.] [Oh yes. The following post does contain explicit language that may be offensive to some individuals .... if rash develops, discontinue use.] ABSTRACT In 1994, many users of the Internet were alarmed when a jury in Memphis, Tennessee convicted Robert and Carleen Thomas on charges of transmitting obscene images via computer modem from a bulletin board service they operated in Miltipas, California. The case sets a precedent in federal court and expands the definition of "local community standards" into the generally unregulated realm of computer based communications. This paper focuses attention on First Amendment freedom and the implications of this case in "cyberspace." INTRODUCTION Robert and Carleen Thomas, of Miltipas, California operated the Amateur Action Bulletin Board Service (AABBS) which offered sexually explicit images to members who filled out an application and paid a subscription fee. The images were stored on their BBS computer in Graphic Interchange File (GIF) format and could be transferred to a member's computer for viewing only by using a computer modem and standard telephone lines. The GIF files so obtained could be seen as images on a computer screen with the appropriate software. FACTS OF THE CASE In March of 1991, the San Jose Police Department conducted an undercover investigation of Robert and Carleen Thomas resulting in a search warrant alleging trafficking in obscene material and child pornography. On January 20, 2020 San Jose, California police raided the home of Robert and Carleen Thomas seizing all of their computer equipment, video tapes, and records. According to investigators Greg Gunsky and Mark McIninch, since no child pornography was found, all confiscated equipment was returned and no charges were filed. (CuD, Vol. 4: Issue 09, Feb. 28, 1992 and Vol. 6: Issue 33, Apr. 14, 1994.) On July 10, 2020, Postal Inspectors in Memphis contacted the AABBS by computer. They determined that the system operator (SysOp) was offering to sell computer GIF images of young girls via modem transmission over interstate telephone lines. [There appears to be a discrepancy here since by the wording of the affidavit for warrant, the investigation began in advance of the citizen complaint.] On July 26, 2020, Postal Inspectors in Memphis received a complaint from an unnamed citizen who identified himself as an avid computer "hacker." He stated that he had encountered a computer bulletin board system (BBS) offering photos and videos of nude children, named the Amateur Action bulletin Board System (AABBS). On August 20, 2020, Postal Inspector David H. Dirmeyer, in Memphis, using a computer contacted the AABBS using the phone number provided by the citizen hacker. Using the fictitious name Lance White, he mailed a completed application form to the California address indicated. On August 26, 2020, Dirmeyer (as Lance White) gained membership and began a standard "sting" operation. He traded messages with Thomas indicating that he had hard-core pornographic materials Thomas might be interested in. From September 3 to October 19, 2020 inspector Dirmeyer downloaded the following GIF files from AABBS: AA-L2209.GIF "HE FUCKS A PIG! SHE FUCKS A DOG AND A HUGE PIG! KINKY" AA-12217.GIF "KINKY! HORNY GIRLS SUCK HORSES! BIG HORSE COCK IN HER TWAT!" AA-08589.GIF "SHE SUCKS HER SON'S COCK! FATHER IS FUCKING HIS DAUGHTER" AA-8278.GIF "FULL SCREEN VIEW! A HAIRLESS PUSSY NAILED TO A TABLE!" AA-7153.GIF "MOTHER IS WATCHING HER DAUGHTER FUCK BIG COCK! NO TITS!" AA-8682.GIF "HE MAKES HIS DAUGHTER SUCK COCK! SHE IS FISTING HER SISTER" AA-11935.GIF "HE FUCKS HIS DAUGHTERS HAIRLESS CUNT! SHE FISTS HER MOTHER!" AA-15198.GIF "BLONDE LOLITA HAS NO TITS! SUCKS HUGE COCK AND DRINKS SPERM!" AA-13216.GIF "PUSSY PENETRATION! HORNY BRUNETTE GETS FUCKED BY A HORSE!" AA-13517.GIF "HORNY BLONDE JACKS OFF HORSE! HORSE CUM ON HER HAND!" AA-13521.GIF "CLOSE-UP! BIG HORSE COCK IN HER CUNT! HORSE CUM ON HER LEG" AA-16587.GIF "SHE SUCKS THICK DOG COCK! DOG SPERM ON HER LIPS AND CHIN" AA-17623.GIF "YOUNG ASIAN HAS A THICK CLIT! DRINKS PISS FROM AN UNCUT COCK!" On January 6, 2020 Postal Inspector David H. Dirmeyer filed an affidavit for a search warrant of the property of Robert and Carleen Thomas. (CuD, Vol. 6: Issue 33, Apr. 14, 1994.) On January 15, 2020 in a conversation with H. Keith Henson of San Jose, California inspector Dirmeyer stated that it was a "normal investigative procedure" to send unsolicited child pornography to an investigation target and then execute a search warrant within minutes of its receipt. (CuD, Vol. 6: Issue 35, Apr. 19, 1994) On January 25, 2020 a Federal Grand Jury in Memphis Tennessee indicted Robert and Carleen Thomas of several obscenity charges including six counts of transporting computer generated images from California to Tennessee in violation of Title 18, United States Code, Section 1465. On February 3, 2020 the Thomas's were arrested in California by US Postal Inspectors (Ducar, Frank L., US Postal Inspection Service News Release, San Francisco, CA, Feb. 3, 1994). On July 21, 2020 the Thomas' were indicted on separate child pornography charges in Salt Lake City, Utah. They were charged on eleven counts of sexual exploitation of minors involving the AABBS. (Conley, Chris. The Commercial Appeal, Memphis, TN, Jul. 23, 1994) On July 28, 2020 the Memphis jury told the District Judge that they split on two counts. The judge ordered them to deliberate for a third day on the remaining counts involving interstate transport of obscenity and child pornography. On July 29, 2020 Robert and Carleen Thomas were convicted on 11 counts of transmitting obscenity through interstate phone lines via their members-only computer bulletin board. Each count carries up to five years in prison and a $250,000 fine. The Thomases remained free on $ 20,000 bail. No sentencing date was set. (Corrigan, Patricia and AP. St. Louis Post-Dispatch, St. Louis, Jul. 29, 1994) On December 2, 2020 Judge Julia Gibbons of Federal District Court sentenced Robert Thomas to three years and one month in prison. His wife, Carleen, received two and a half years. Federal sentencing rules require them to serve the full terms. (Associated Press. "Jail for couple over computer pornography" The New York Times, New York, Dec. 3, 1994, Sec 1: Page 9, Col. 3) THE FIRST AMENDMENT ISSUES The US Supreme Court decision in the case of Miller v. California, 413 US 15 (1973) established a three part test to determine if material is obscene and therefore not protected by the First Amendment: a. Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest. b. Whether the work depicts or describes in a patently offensive way, sexual conduct, which may be specifically defined by applicable state law and which may include but not be limited to: 1. Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated. 2. Patently offensive representations or descriptions of masturbation, excretory functions and lewd exhibition of the genitals. c. Whether the work taken as a whole lacks serious artistic, political, literary, or scientific value. The postal investigators used the local community standards of the Western District of Tennessee to meet tests (a) and (b) since that is the location where the transmitted images were received, and (c) was determined by the "reasonable person" test (once again, using the community standards of Memphis). This decision was in many was unsatisfactory because the court avoided the sticky issue of defining obscenity, instead, each local jurisdiction must establish its own standard. Obviously, standards vary widely from one community to another. The editors of the CuD expressed worry that "if a text, gif, or other file is legal in one state, what are the implications of such a file is accessed by someone from another state where the file(s) may not be legal? Given the permeable borders of cyberspace, can prosecutors apply local laws to other states and thereby invoke federal law enforcement power? If so, this could mean that the most restrictive laws in one jurisdiction are the de facto threshold of legal tolerance universally. (Thomas, Jim and Meyer, Gordon, eds. The CuD, Apr. 14, 1994, Vol. 6: Issue 33) In a CNN interview Robert Thomas and his attorney Richard Williams told correspondent Brian Cabell they felt the AABBS was singled out because it was one of the largest adult oriented BBS' and if the Feds could shut them down, they could "chill the First Amendment expressions of everybody else in [the computer pornography] business" (Cabell, Brian. Cable Network News, Jul. 27, 1994). The Thomas' case may well become a civil liberties/first amendment textbook example. The defendants offer for sale material that would be clearly objectionable to many (but not necessarily all) people. When investigated locally by the San Jose police, the material was not found to be obscene by San Francisco community standards. Not surprisingly, sexually graphic images with descriptions such as "SHE SUCKS HER SON'S COCK! FATHER IS FUCKING HIS DAUGHTER" were found to be totally offensive to the community standards of Memphis, Tennessee. The San Francisco Examiner opined that this was a case of prosecutors "shopping" for a venue The troubling question in the age of on-line communications is that material assessable by computer is virtually available everywhere in the world simultaneously. Anyone, anywhere, with a computer and a modem (and a credit card) can log on to a bulletin board service and download thousands of images. "Electronic communication has made earlier definitions of a community [standard] all but obsolete" (San Francisco Examiner Aug.. 24, 1994, 4th ed.). Christianity Today, however, applauds the conviction and warns readers that "cyberporn" is threatening to invade the American home. The National Coalition Against Pornography (NCAP) fears easy access to the information superhiway will expose children to unlimited sources of obscene and pornographic materials. "Antipornography advocates hope to stimulate greater public awareness and more prosecution of obscenity delivered by computer modem" (Zipperer, John. Sep 12, Vol. 38: No 10, pg. 42) In an interview on National Public Radio's "All Things Considered," attorney Mike Godwin of the Electronic Freedom Foundation (EFF) cautioned that anyone operating a system connected to the internet has reason to be concerned. Goodwin saw this decision placing the responsibility for complying with community standards expanded beyond the locality in which the system operates to include the standards of every conceivable locality in which the data can be accessed. Godwin sees two flaws with this. "You can either accept the idea of geographic communities; in which case, you say there's something wrong with Memphis dictating the standards of California. Or, you can say the whole idea of geographic communities is bankrupt and we need to revisit that reasoning in the Supreme Court. And I would be happy with either approach." Reporter John McChesney voiced the NCAP concern about computer literate children easily accessing pornography over the net. Godwin thought this danger was overstated. Most of the really hard-core material requires payment by credit card. So unless one can establish that children are getting their own credit cards and signing up on these systems, Godwin sees this as consenting adults in transactions with other consenting adults. (McChesney, John. "All Things Considered" National Public Radio, Jul. 29, 1994) IMMEDIATE EFFECTS The conviction has already had a chilling effect on the electronic community. Most major universities are connected to the internet, and carry millions of files on the usenet news groups covering every imaginable topic. Many of these topics are potentially offensive to some readers: alt.sex.bestiality Happiness is a warm puppy. alt.sex.bondage Tie me, whip me, make me read the net! alt.sex.enemas Cleansing the bowels as an erotic act. alt.sex.fetish.amputee Sexual attraction to missing body parts. alt.sex.intergen Robbing the cradle and the grave. alt.sex.magazines Magazines with sticky pages alt.sex.movies The ins and outs of certain movies. alt.sex.necrophilia Dead people as stimulus. alt.sex.pedophilia Discussing attraction to children. alt.sex.pictures Gigabytes of copyright violations. alt.sex.services The oldest profession. alt.sex.spanking Bondage for beginners. alt.sex.strip-clubs Strip clubs and exotic dancers alt.sex.telephone Discussion of phone sex services alt.sex.voyeurism A lot of lurkers in this group. It is even possible that individuals trading messages and files in such groups may even conspire to commit illegal activites, ie. exchange materials that are, in fact, obscene and illegal. To deal with this, many Usenet providers publish a standard disclaimer explaining that it is impossible to filter through gigabytes of data in order to eliminate files that may "contain material which could be in violation of federal, state, and/or local laws .... individuals posting newsitems are responsible for their content." The law may now hold the system operators liable for the content, and may use the community standards of the location in which the files are downloaded. Some system administrators, in the wake of the Thomas' conviction, made unilateral decisions to remove groups they felt might get them into trouble. One system removed "pictures.tasteless" with a message to users that "the conviction by a jury in a conservative town effectively imposed its community standards throughout the nation" ("New thought police patrol superhighway" Chicago Sun-Times, editorial, Aug. 3, 1994, pg. 37). Carnegie Mellon University's academic council temporarily stopped carrying Usenet groups that made any reference to "sex." This had the unfortunate side effect of eliminating groups devoted to scientific, medical, and social research as well as anonymous support groups for sexual abuse recovery. "The student council pointed out that the administration was restricting the reading matter of adults to what was acceptable for children. The American Civil Liberties Union complained that the ban was overly broad and included discussions of sexual matters that were clearly protected speech." The decision was finally reversed. (Elmer-Dewitt, Philip. "Censoring Cyberspace" Time, 1994) CONCLUSION The Thomas' case will undoubtedly go to appeal, and may establish new law in doing so. I question the applicability of the 1983 Miller decision for local community standards in the face of rapid technological advances. Crooks may use the telephone to plot a bank robbery, but the phone company is not considered to be an accessory to the crime. Perhaps the same analogy should be applied to an information carrier, so that they are not directly responsible for the information content. Otherwise, system operators face the daunting task of filtering every message or file and then determining if it might violate the community standards of any community with access to telephones. Even blocking certain area codes from access will not always work, because users can "telnet" through various providers so that the system they communicate cannot determine where the caller really originates from. By the standards established in the Thomas case, any major university could have been used as a sting target just as easily. ********************************************************************* REFERENCES CuD, Vol. 6: Issue 35, Apr. 19, 1994. Thomas, Jim and Gordon Meyer, eds. The Computer Underground Digest, Apr. 14, 1994, Vol. 6: Issue 33. Ducar, Frank L., US Postal Inspection Service News Release, San Francisco, CA, Feb. 3, 1994. Conley, Chris. The Commercial Appeal, Memphis, TN, Jul. 23, 1994. Corrigan, Patricia and Associated Press, St. Louis Post-Dispatch, St. Louis, Jul. 29, 1994. Associated Press. "Jail for couple over computer pornography" The New York Times, New York, Dec. 3, 1994, Sec 1: Page 9, Col. 3. Cabell, Brian. Cable Network News, Jul. 27, 1994. San Francisco Examiner, Aug.. 24, 1994, 4th ed. Zipperer, John. Christianity Today, Sep 12, Vol. 38: No 10, pg. 42. McChesney, John. "All Things Considered" National Public Radio, Jul. 29, 1994. "New thought police patrol superhighway" Chicago Sun-Times, editorial, Aug. 3, 1994, pg. 37. Elmer-Dewitt, Philip. "Censoring Cyberspace" Time, 1994.