Re: AA BBS - Thomases are going to jail...

We have a Problem . . .  

H. Keith Henson 

Part of the Federal Government's law enforcement mechanism is under 
the control of the Religious Right.  

By reaching out thousands of miles through cyberspace connections, the 
RR is using Federal power to suppress constitutionally protected 
activities which they find offensive. 

I expect the RR people involved feel that what they are doing is fair 
return for Federal power being used to suppress the school Christmas 
pageant in a thousand sleepy little towns in middle America--and less 
dangerous than offing abortion doctors, or killing gays. 

Most of you reading these groups are familiar with the AA BBS case.  

In a nutshell, a postal inspector in Memphis called Amateur Action BBS 
in California, downloaded a dozen files, ordered other stuff, shipped 
the sysop some unsolicited kiddy porn, then arrested the sysop (Robert 
Thomas) and his wife (Carleen) for kiddy porn and (by Memphis standards) 
obscenity.  They were tried in Memphis last summer by an obviously 
biased court.  (The judge and prosecutor made no attempt to hide their 
longstanding mutual admiration.)  The Memphis jury found the sysop 
and his wife guilty of obscenity, but even they couldn't buy the kiddy 
porn charges, and acquitted on that charge.  Friday (Dec. 2, 1994), in 
the worst perversion of justice I have ever witnessed, the sysop and 
his wife were sentenced to three years. 

They were lucky to get that little time. 

I got a look at the pre-sentencing report.  (I may be able to post 
some of it later.)  The recommended sentence included about twice this 
amount of time based on the kiddy porn charge they were *acquitted* 
of.  

Those reports are simply *amazing*.  They cover family members and 
history out a generation or so in all directions, not to mention 
school, medical records, tax filings, and any police record--even if 
you were found innocent!  It seems to be the function of these things 
to put your entire life in the worst possible light. 

Someone should take the form and do one for Christ just prior to the 
Crucifixion.  It would run something like: 
 
   ". . . questionable father, . . low class occupation (carpenter), . 
   . . accused of impersonating a doctor by healing sick, . . . known 
   to associate with low class persons, . . . travels about 
   (vagabond), . . ." 

Back to the problem. 

I find the situation intolerable--without having a clear idea of how 
to deal with it. 

With little more effort (though a lot more skill than the postal 
inspector demonstrated) the RR-controlled Feds can create crime and 
venue problems for just about anyone running a BBS or net node. 

Certainly *any* system which carries alt.sex.* is subject to the same 
treatment by the Religious Right (in the guise of the Memphis Feds) as 
AA BBS.  In fact, the very .gifs that were found obscene in Memphis 
were made "freely distribute," by Robert and have been posted *many* 
times to the net. 

Could we use economic retaliation?  I won't use Federal Express any 
more because it and Graceland (and the cat houses near Graceland) seem 
to be the economic mainstays of Memphis.  Unfortunately, even a very 
effective economic boycott is not going to have an effect on the 
zealots, and depressing that area further might make it an even *more* 
repressive backwater because the last of the intelligent/tolerant 
people would move out.  On the other hand, economic pressures might 
induce the more sensible part of the community to pressure the zealots 
into being more tolerant (at least of people 3 time zones away!).  In 
recent years economic pressure has induced two states to change laws.  
A positive sign that economic pressure might be effective is that the 
local newspaper did *not* support the prosecution.  Research question:  
Why did the Memphis Feds back off after the Deep Throat trials? 

Is the law any help?  After nearly a year of watching the process, I 
am *quite* pessimistic.  In its own way, the court system is deeply 
corrupt.  I think even the RR folks know this is a political case and 
not a criminal one.  In political cases, leaving a person out on bail 
during appeal is normal, but in this case, it is very much in the 
government's interest to have Robert out of circulation so he cannot 
pursue the Electronic Communication Privacy Act suit and other causes 
of action against them in civil court.  Robert's motion for bail 
during appeal was denied.

Are there political routes?  Yes, but chancy.  It is possible that a  
political fight with the RR might backfire and result in heavy 
restrictions on the nets.  Coming down hard on the nets would be very 
popular with the Administration forces after the Clipper debacle.  The 
power of the net to organize political force must be quite worrying 
to those in power. (It is clear to me that modern day revolutions, 
anywhere in the world, and peaceful or not, would be organized through 
the net.  In some places this has already happened.)  It may be that a 
general cutting down on the powers of the Federal Government is in 
order.  This has pros and cons, and support (in some areas) even from 
the RR.  How *does* one shrink the unshrinkable?  Tax revolts (in the 
form of massive political pressure) seem to come about when the tax 
rates get as high as they are now.  Another possibility is that the 
formation of private money may greatly shrink the ability of 
governments everywhere to collect taxes. 

Should people start thinking about direct action?  I hope we don't 
come to this!  There is nothing I can think of worse than arousing the 
technically knowledgeable to take the infrastructure apart.  Problem 
is that pinpoint damage (like taking the 901 area code down for a few 
days or weeks) is somewhere between impossible and probably 
impossible.  (Though ATT managed to take down their entire phone 
network for a day with a missing "case" statement.) 

Your thoughts and suggestions would be appreciated.  Please post 
encrypted through a remailer chain if you absolutely *must* post ideas 
about the last paragraph!
S
,.

> From: hkhenson@cup.portal.com
[...]
> By reaching out thousands of miles through cyberspace connections, the 
> RR is using Federal power to suppress constitutionally protected 
> activities which they find offensive. 
[...]

After having spent most of Saturday at an EFF-sponsored workshop on sysop
liability and the law I will throw in a few bits of information passed on
at this event from real lawyers (Mike Godwin gave the "porno on the net"
talk and the AA case was highlighted in it, but all of the lawyers there
had interesting things to say about this situation.)  First of all,
"obscenity" is _not_ constitutionally protected.  "Pornography" is
protected if it meets several standards established in various decisions of 
the Supreme Court, obscenity is that which does not pass these standards.
There are a lot of ways to get around the community standards part of the
test if the questionable bits have any artistic merit, instructional or
informational use, or do not simply appeal to prurient interest.  The
"community standards" bit is the last line of defense and the only one of
much interest here.

> Most of you reading these groups are familiar with the AA BBS case.  
> 
> In a nutshell, a postal inspector in Memphis called Amateur Action BBS 
> in California, downloaded a dozen files, ordered other stuff, shipped 
> the sysop some unsolicited kiddy porn, then arrested the sysop (Robert 
> Thomas) and his wife (Carleen) for kiddy porn and (by Memphis standards) 
> obscenity. 

This case is yet another example of bad fact leading to bad law.  The big
problem here is that the sysops of this BBS were mailing out video tapes to
customers; while it may not be popular to criticize the current net.martyrs
of the month, the biggest reason they got busted is because they were
stupid.   The fact that they shipped the video tapes made it much easier
for the Memphis prosecutors to claim that they were involved in
transportation of obscene material to Tennessee.  It also blew apart any
claim they could have made regarding the fact that the postal inspector
connected to the BBS and "pulled" the bits rather than having them "pushed"
(e.g. he initiated the transfer and the sysops were unaware of the
transportation...obscenity stuff does have some reliance upon knowledge of
the contents and upon the alledged perpetrator knowing that the shipment
was taking place) because they then went and shipped this video tape, an
action which could not have been done without thier knowledge and in which
the transportation was caused by the sysop's action.  It also meant they
they could not claim that they were unaware of the final destination of the
bits. Morons. 

On the upside of things relating to this case, it seems that thier counsel
was rather inept, in fact the judge in this case "spoke from the bench" and
lambasted the AA couple's lawyer and being incompetent and completely
unable to handle the case.  This will make it much easier for the couple to
appeal thier conviction, as the judge's opinion of thier counsel's
competency is now a matter of record. 

> The Memphis jury found the sysop 
> and his wife guilty of obscenity, but even they couldn't buy the kiddy 
> porn charges, and acquitted on that charge.

The reason they were acquitted on the kiddie porn charge is that the law
enforcement officials acted too quickly.  The envelope containing the
offending video tape of kiddie porn had been delivered the day of the
arrest and had not even been opened.

[...]
> Certainly *any* system which carries alt.sex.* is subject to the same 
> treatment by the Religious Right (in the guise of the Memphis Feds) as 
> AA BBS.  In fact, the very .gifs that were found obscene in Memphis 
> were made "freely distribute," by Robert and have been posted *many* 
> times to the net. 

Sorry, but "*any* system which carries alt.sex.*" is probably not providing
access to people from Tennessee, and even then the admins of such a site
can probably work thier case to be closer to the bookseller situation of
not knowing the specific contents of the aforementioned groups (the
signal-to-noise ratio on those groups actually acts in the admins favor :) 
Additionally, all of the alt.sex.* groups are primarily text, which is
almost impossible to get an obscenity conviction on.  There apparently has
not been a successfull obscenity conviction on text in over 20 years and
films are almost as hard to get a conviction on.  The real danger is in
standard images, because the law requires the proof of obscenity to be
based upon the artistic merit of _the work as a whole_ which makes text
erotica almost completely immune and film safer than pictures.

In fact, the biggest danger most sites have is not from obscenity action
regarding the contents of alt.binaries.pictures.erotica.*, but from
copyright action regarding the contents of those groups.  To nail someone
on copyright does not require them having knowledge of the copyright status
of the work (ignorance is no excuse in copyright cases.)  There has already
been one case addressing this issue (Playboy v. Frenya [I think it was
Frenya, I can't remember exactly]) and the sysop lost.

You seem to have this big paranoia regarding the RR (who are actually
cypherpunk allies on many issues) which I will avoid discussing, but the
problem here is that you seem to think that the law in some way reflects
reality.  It doesn't.  Pick up a copy of "Cyberspace and the Law" [Cavazos
and Morin, ISBN 0-262-53123-2], read it, and then pass it on to other
sysops and sysadmins so that they know how to avoid doing something stupid
like the admins in the AA case.  The best way to prevent something like
this from happening again is to make sysops and sysadmins aware of the
current law and how they can minimize thier exposure.

At the conference Mike said that he was working on a listing of the various
obscenity standards that he could find for communities across the nation,
so admins will eventually be able to limit access to certain subjects or
newsgroups based upon the location of the user.

jim

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H. Keith Henson writes

> It may be that a general cutting down on the powers of the Federal
> Government is in order.

How could you doubt it?

> This has pros and cons,

Name a con.

> and support (in some areas) even from the RR.

That's ok.  Without a government to wield, they would be ignorable.

> How *does* one shrink the unshrinkable?  Tax revolts (in the 
> form of massive political pressure) seem to come about when the tax 
> rates get as high as they are now.

Tax revolts do no good.  Taxes are the _result_, not the cause.

The cause of big government is popular gratuitous acceptance of
government favor.

If you want to shrink government, you've got to begin by changing the
minds of a hundred million of your neighbors who think it's civilized to
take a government job or contract, accept social security, apply for an
SBA loan or FEMA assistance, and on down the list.

I know a tax revolter who held an anti-tax rally on a tax-funded picnic
ground without even noticing or acknowledging the inconsistency.

This is why it's unshrinkable.  We have met the enemy, and he is us.

	John E. Kreznar		| Relations among people to be by
	jkreznar@ininx.com	| mutual consent, or not at all.

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jkreznar@ininx.com (John E. Kreznar) writes:

> Tax revolts do no good.  Taxes are the _result_, not the cause.

Perhaps. But anger over taxation can be a powerful galvanizing force
that gets disinterested, apolitical, apathetic people to stand up
and vote. It may not be your philosophical piece of cake, but it works.

Besides, getting angry at the result of a policy is a good first step
to questioning the policy itself. "If you don't like high taxes, think
of where all that money is going."

> The cause of big government is popular gratuitous acceptance of
> government favor.

It's hardly gratuitous. The general public feeling nowadays, that
their money is being taken whether they consent or not. Given that
(nonconsensual takings backed by prevailing law), it is perfectly
rational to "get yours", i.e. milk the resulting machine for whatever
you can do (including, i might note, disregarding prevailing IRS codes).
It's not a "government favor", it's called "getting back your money."

> If you want to shrink government, you've got to begin by changing the
> minds of a hundred million of your neighbors who think it's civilized to
> take a government job or contract, accept social security, apply for an
> SBA loan or FEMA assistance, and on down the list.

Not necessarily. It is quite enough to convince many of your neighbors
that they (a) are not getting their tax money's worth back from the
government(s), and that (b) there's a better way. Right now, it seems
that (a) is gathering steam. The problem is expressing (b) - which
many of us are convinced of - in terms Mr./Ms. Average Voter can
agree with... and "taking money from government is uncivilized" does
not strike me as very effective.
  -- perry
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Perry The Cynic                                             perry@cynic.org
To a blind optimist, an optimistic realist must seem like an Accursed Cynic.
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