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| | 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...