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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 4�th 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 14�th 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. The case could set a far ranging statewide and nationwide precedent whether or not the sysop is innocent or guilty, since he and his family might lack the funds to fight this--after battling to get this far. These kinds of issues are normally resolved in the higher courts-and *need* to be resolved, lest this becomes commonplace anytime the police or a prosecutor want to intimidate a BBS, snoop through users� electronic mail, or �just appropriate someone�s computer for their own use.� You, the reader, probably know a sysop like Mark Lehrer. You and your family have probably enjoyed the benefits of BBS�ing. You may even have put one over on a busy sysop now and then. In this case; the sysop is a sober and responsible college student, studying computer science and working to put himself through school. He kept his board a lot cleaner than could be reasonably expected, so much so that the prosecution can find very little to fault him for.