DP Tool Club 17/CD_ASCQ_17_101194.iso/vrac/sexsysad.zip/SEXSYSAD.EFF

Text File | 1994-09-17 | 23KB | 420 lines

SEX AND THE SINGLE SYSADMIN:
The risks of carrying graphic sexual materials.
Column: Internet World
Approx: 3700 words
March/April 1994 issue


By Mike Godwin
([e-mail])

It's the kind of nightmare that will cause any sysadmin to bolt upright in
bed, shaking, gripping the sheets with white-knuckled fingers.

In this nightmare scenario, the facts are simple: you hear a knock at the
door, you answer to discover grim-faced law-enforcement agents holding a
search warrant, and you are forced to stand by helplessly while they seize
your system to search it for obscene or child-pornographic images.

In some versions of the nightmare, you may not even have known your hard disk
contained such images; in others, your lack of knowledge may prove to be no
defense in a criminal prosecution for possession of child pornography.


        A wave of concern about porn

In recent months, the Legal Services Department here at EFF (the Electronic
Frontier Foundation) has faced a wave of concern in the United States about
the legal issues raised by online obscenity and child pornography. Most
recently, a nationwide federal investigation into the importing of
child-pornographic computer files led first to several well-publicized
searches and seizures of computers and bulletin-board systems (BBSs) and later
to a number of indictments of computer users on charges relating to possession
or distribution of this material. One result has been that a large number of
BBS operators and network site administrators have contacted EFF with
questions and concerns about their potential liability under obscenity and
child-pornography laws.

Why so much concern? Partly, it's that, thanks to the availability of cheap
image scanners, fast modems, and capacious hard disks, a large number of this
country's BBSs and network sites carry GIF (Graphic Interchange Format) files
or other kinds of graphic images with sexual content. These images can range
from centerfold-type nudes to "hard-core" pornography. (For the sake of
simplicity, I will refer to all graphic-image files as GIFs, although there
are a number of other formats commonly available.)

Just as the growth of the consumer VCR market was linked to a growth in the
market for adult videos, the increasing availability of certain kinds of
consumer computer technology has led to a rapid increase in GIF-file traffic.
System operators who might never consider opening an adult book or video store
have either allowed or encouraged sexually oriented images to be exchanged on
their systems. To understand this difference in attitudes one has to
understand how online conferencing systems are generally run--as forums for
their users to talk to each other, and to trade computer programs and files
with each other.


        How porn gets online

Although these problems pervade the world of the Internet, the easiest case to
understand is the microcomputer-based BBS. The operator of a BBS typically
dedicates a computer and one or more phone lines at her home or business for
the use of a "virtual community" of users. Each user calls up the BBS and
leaves public messages (or, in many cases, GIFs) that can be read by all other
users or private mail (which may include GIFs) that can be read by a
particular user or both. BBSs become forums--digital public houses, salons,
and Hyde Park corners--for their users, and users with similar interests can
associate with one another without being hindered by the accidents of
geography. By some estimates, there are currently in excess of 40,000 BBSs
throughout North America, randing from low-end free-access BBSs with only one
or two phone lines to BBSs run by companies, government agencies, user groups,
and other organizations.

A step up from the BBS in complexity is the conferencing system or information
service. These systems differ in capacity from BBSs: they have the capability
of serving dozens, or hundreds, of users at the same time. But they're like
BBSs in that uploaded files can be found at a fixed geographic location. A
further step up are entities like Fidonet and Usenet, which, because they're
highly distributed, decentralized conferencing systems, add complications to
the legal issues raised by the computerization of sexual images.

Internet nodes and the systems that connect to them, for example, may carry
such images unwittingly, either through uuencoded mail or through uninspected
Usenet newsgroups. The store-and-forward nature of message distribution on
these systems means that such traffic may exist on a system at some point in
time even though it did not originate there, and even though it won't
ultimately end up there. What's more, even if a sysadmin refuses to carry the
distributed forums most likely to carry graphic images, she may discover that
sexually graphic images have been distributed through a newsgroup that's not
obviously sexually oriented.

Depending on the type of system he or she runs, a system operator may not know
(and may not be able to know) much about the system's GIF-file traffic,
especially if his or her system allows GIFs to be traded in private mail.
Other operators may devote all or part of their systems to adult-oriented
content, including image files.

Regardless of how their systems are run, though, operators often create risks
for themselves under the mistaken assumption that a) since this kind of
material is commonplace, it must be legal, and b) even if it's illegal, they
can't be prosecuted for something they don't know about. EFF's Legal Services
Department has been working actively to educate system operators about the
risks of making these assumptions.


        What counts as "obscene"?

First of all, we've explained that the fact that graphic sexual material is
common on BBSs doesn't mean that it's not legally obscene and illegal in their
jurisdiction.

As Judge Richard Posner comments in the October 18, 1993, issue of THE NEW
REPUBLIC, "Most "hard-core" pornography--approximately, the photographic
depiction of actual sex acts or of an erect penis--is illegal." even though it
is also widely available. (Let me emphasize the word "approximately"--Posner
knows that there are countless exceptions to this general rule.) That is,
distribution of most of this material is prohibited under state or federal
anti-obscenity law because it probably would meet the Supreme Court's test for
defining obscenity.

But what precisely is the Court's definition of obscenity? In Miller v.
California (1973), the Court stated that material is "obscene" (and therefore
not protected by the First Amendment) if 1) the average person, applying
contemporary community standards, would find the materials, taken as a whole,
arouse immoral lustful desire (or, in the Court's language, appeals to the
"prurient interest"), 2) the materials depict or describe, in a patently
offensive way, sexual conduct specifically prohibited by applicable state law,
and 3) the work, taken as a whole, lacks serious literary, artistic, political
or scientific value.

This is a fairly complex test, but most laymen remember only the "community
standards" part of it, which is why some system operators are under the
mistaken impression that if the material is common and available, "community
standards" and the law must allow it.

In layman's terms, a jury (or a judge in a nonjury case) would ask itself
something like these four questions:
1) Is it designed to be sexually arousing?
2) Is it arousing in a way that one's local community would consider unhealthy
or immoral?
3) Does it depict acts whose depictions are specifically prohibited by state
law?
4) Does the work, when taken as a whole, lack significant literary, artistic,
scientific, or social value?

If the answer to all four questions is "yes," the material will be judged
obscene, and it will be Constitutional to prosecute someone for distributing
it. (It should be noted in passing that pictures of the "hardness" of Playboy
and Penthouse photography have never been found to be obscene--their
appearance in digital form on Usenet sites may create copyright problems, but
they won't create obscenity problems.)


        The perils of online obscenity

In theory, most "hardcore" pornography qualifies as "obscenity" under the
Supreme Court's test. Yet theoretically obscene material is commonly available
in many urban areas--this signifies, perhaps, that the relevant laws, when
they do exist, are underenforced. At EFF, however, we have been telling system
operators that there is no *legal* basis for their assuming that the laws will
remain underenforced when it comes to online forums.

For one thing, most of this country's law-enforcement organizations have only
recently become aware of the extent that such material is traded and
distributed online--now that they're aware of it, they're aware of the
potential for prosecution. In a recent case, an Oklahoma system operator was
charged under state law for distribution of obscene materials, based on a
CD-ROM of sexual images that he'd purchased through a mainstream BBS trade
magazine. He was startled to find out that something he'd purchased through
normal commercial channels had the potential of leading to serious criminal
liability.

Still another issue, closely related to obscenity law, is whether an online
system creates a risk that children will have access to adult materials.
States in general have a special interest in the welfare of children, and they
may choose to prohibit the exposure of children to adult materials, even when
such materials are not legally obscene. (Such materials are often termed
"indecent"--that is, they violate some standard of "decency," but nevertheless
are Constitutionally protected. If this category seems vague, that's because
it is.) In Ginsberg v. State of New York (1968), the Supreme Court held a
state statute of this sort to be Constitutional.

Although there is no general standard of care for system operators who want to
prevent children from having such access, it seems clear that, for a system in
a state with such a statute, an operator must make a serious effort to bar
minors from access to online adult materials. (A common measure--soliciting a
photocopy of a driver's license--is inadequate in my opinion. There's no
reason to think a child would be unable to send in a photocopy of a parent's
driver's license.)

It's worth noting that, in addition to the risk, there are also some
protections for system operators who are concerned about obscene materials.
For example, the system operator who merely possesses, but does not
distribute, obscene materials cannot Constitutionally be prosecuted--in the
1969 case Stanley v. Georgia, the Supreme Court held the right to possess such
materials in one's own home is Constitutionally protected. Thus, even if you
had obscene materials on the Internet node you run out of your house, you're
on safe ground so long as they're not accessible by outsiders who log into
your system.

And, in the 1959 case Smith v. California, the Court held that criminal
obscenity statutes, like the great majority of all criminal laws, must require
the government to prove "scienter" (essentially, "guilty knowledge" on the
defendant's part) before that defendant can be found guilty. So, if the
government can't prove beyond a reasonable doubt that a system operator knew
or should have known about the obscene material on the system, the operator
cannot be held liable for an obscenity crime.

In short, you can't constitutionally be convicted merely for possessing
obscene material, or for distributing obscene material you didn't know about.


        Child pornography--visual images that use children

When the issue is child pornography, however, the rules change. Here's one of
the federal child-porn statutes:

 18 USC 2252: Certain activities relating to material involving the sexual
 exploitation of minors.

 (a)Any person who--

 (1) knowingly transports or ships in interstate or foreign commerce by any
 means including by computer or mails, any visual depiction, if--

    (A) the producing of such visual depiction involves the use of a minor
 engaging in sexually explicit conduct; and

    (B) such visual depiction is of such conduct; or

 (2) knowingly receives, or distributes, any visual depiction that has been
 transported or shipped in interstate or foreign commerce by any means
 including by computer or mailed or knowingly reproduces any visual depiction
 for distribution in interstate or foreign commerce by any means including by
 computer or through the mails if--

    (A) the producing of such visual depiction involves the use of a minor
 engaging in sexually explicit conduct; and

    (B) such visual depiction is of such conduct;

 shall be punished as provided in subsection (b) of this section.

 (b)Any individual who violates this section shall be fined not more than
 $100,000, or imprisoned not more than 10 years, or both, but, if such
 individual has a prior conviction under this section, such individual shall
 be fined not more than $200,000, or imprisoned not less than five years nor
 more than 15 years, or both. Any organization which violates this section
 shall be fined not more than $250,000.

(N.B. For the purposes of federal law, "minor" means "under age 18"--it does
not refer to the age of consent in a particular state.)


This statute illustrates some of the differences between the world of
obscenity law and that of child-pornography law. For one thing, the statute
does not address the issue of whether the material in question is "obscene."
There's no issue of community standards or of "serious" artistic value.  For
all practical purposes, the law of child pornography is wholly separate from
the law of obscenity.

Here's the reason for the separation: "obscenity" laws are aimed at forbidden
expression--they assume that some things are socially harmful by virtue of
being expressed or depicted. Child-porn laws, in contrast, are not aimed at
*expression* at all--instead, they're designed to promote the the protection
of children by trying to destroy a market for materials the production of
which requires the sexual use of children.

This rationale for the child-pornography laws has a number of legal
consequences. First of all, under the federal statute, material that depicts
child sex , but in which a child has not been used, does not qualify as child
pornography. Such material would include all textual depictions of such
activity, from Nabokov's novel LOLITA to the rankest, most offensive
newsgroups on Usenet, all of which are protected by the First Amendment
(assuming that, in addition to not being child pornography, they're also not
obscene).

Secondly, the federal child-porn statute is limited to visual depictions (this
is not true for all state statutes), but does not apply to *all* visual
depictions: computer-generated or -altered material that *appears* to be child
pornography, but which did not in fact involve the sexual use of a real child,
would not be punishable under the federal statute cited above. This makes
sense in light of the policy--if real children aren't being sexually abused,
the conduct these statutes are trying to prevent has not occurred. Although
prosecutors have had little trouble up to now in proving at trial that actual
children have been used to create the child-porn GIF images at issue, we can
anticipate that, as computer-graphics tools grow increasingly powerful, a
defendant will someday argue that a particular image was created by computer
rather than scanned from a child-porn photograph.

Third, since the laws are aimed at destroying the market for child
pornography, and since the state has a very powerful interest in the safety of
children, even the mere possession of child porn can be punished. (Compare:
mere possession of obscene materials is Constitutionally protected.)

The fourth consequence of the child-protection policy that underlies
child-porn statutes is that the federal law, as interpreted by most federal
courts, does not require that the defendant be proved to have known that a
"model" is a minor. In most jurisdictions, a defendant can be convicted for
possession of child porn even if he can prove that he believed the model was
an adult. If you can prove that you did not even know you possessed the image
at all, you should be safe. If your knowledge falls somewhere in between --
you knew you had the image, but did not know what it depicted, or that it was
sexual in its content -- the law is less clear." (In other words, it's not yet
clear whether it is a defense for a system administrator to claim he didn't
even know he possessed the image, either because it had been uploaded by a
user without his knowledge, or because it had appeared in "pass-through" mail
or through a Usenet newsfeed.)

In sum, then, the child-porn statutes create additional problems for the
system administrator who wants to avoid criminal liability and minimize the
risk of a disruptive search and seizure.


        What you can do

The first thing to do is not to overreact at this discussion of the risks. It
would amount to a serious "chilling effect" on freedom of expression if a
sysadmin--in order to eliminate the risk of prosecution for distribution of
obscenity, or for possession or distribution of child-pornography--decided to
eliminate all newsgroups with sexual content. The textual content of such
newsgroups is constitutionally protected, as is much of the GIF content.

What's worse is that the tactic wouldn't eliminate the risks--it's always
possible for someone to post illegal material to an innocuous newsgroup, like
sci.astro or rec.arts.books, so that it would get to your system anyway.
Similarly, an illegal image might be uuencoded and included in e-mail, which,
if you're a system covered by the Electronic Communications Privacy Act,
you're not allowed to read.

You should begin with the knowledge that nothing you can do as a sysadmin will
eliminate altogether the risks of prosecution or of a disruptive search and
seizure. But a few sensible measures can reduce the risks of a search or an
arrest, and at the same time preserve the freedom of expression of your users
and of those users who transmit material through your system.

* If you plan to carry graphic sexual material, look up your state's obscenity
laws. A lawyer or librarian can help you find the relevant state statutes.
Find out what, specifically, your state tries to prohibit. (If the state
statute seems inconsistent with what I've written here, consider seeking legal
advice--it may be that the statute predates the Supreme Court's decisions on
obscenity and child pornography but has not yet been challenged.) You may also
want to consult local adult bookstores--they often have clear, practical
information about avoiding obscenity prosecutions.

* If you're running an online forum local to your system, and that forum has
an upload/download area, prescreen graphic images before making them publicly
available for downloads. While "calendar" and "foldout" images are
Constitutionally protected, you may want to consider deleting "hardcore"
images that might be found "obscene" in your community. You also want to
delete anything that looks like child pornography.

* If you're running a Usenet node, and you are informed by users that an
obscene or child-porn image has been posted to a newsgroup you carry, examine
it and consider deleting it. If there's any ambiguity, err on the conservative
side--remember, if you guess wrong about the age of the model, you can be
convicted anyway.

* Take pains on your system to limit childrens' access to adult material, even
if that material is not legally obscene (it may still be "indecent"). This
includes textual material dealing with adult topics. Hint: asking for a
photocopied driver's license in the mail is probably not an adequate
safeguard--too easy for industrious minors to circumvent. A good set of rules
to follow is spelled out in an FCC regulation applicable to phone-sex
providers--47 CFR 64.201. The easiest FCC suggestions for a for-pay BBS,
online service, or Internet access provider is to require payment by credit
card; the easiest for a nonpay system is have an application process that
reasonably ascertains whether an applicant for access is an adult, and to have
a procedure whereby one can instantly cut off that access when informed that a
user is in fact a minor.

* Don't delete discussions of sexual topics--they're Constitutionally
protected. And even though the Supreme Court has not limited the definition of
"obscenity" to visual depictions, as a practical matter, there is little legal
risk in carrying textual narratives ("stories") on sexual themes.

* Don't inspect individuals' e-mail without their consent--unless they're
employees of your company, their mail is probably protected by the Electronic
Communications Privacy Act.

* If you're a university site, or if you're simply interested in the law of
freedom of speech, consult the Computers and Academic Freedom (CAF) archive,
which is part of the EFF archive at ftp.eff.org. If you have gopher, the
archive is browsable with the command "gopher -p academic/law gopher.eff.org";
if you are limited to e-mail access, send e-mail to [e-mail],
and include the line

        send acad-freedom/law <filename>

where <filename> is a list of the files that you want (start with README, a
detailed description of the items in the directory). The CAF archive has a
number of instructional materials that deal with obscenity and
child-pornography law.


-----


These measures won't guarantee that you'll never have legal troubles--nothing
can guarantee that. (And if you have particular legal worries, you should
consult a lawyer in your jurisdiction.) But they can reduce the risks you face
as a system administrator and as a carrier and distributor of information. At
the same time, they'll minimize the extent to which you interfere with your
users' freedom to communicate--which is, after all, one of the chief reasons
they're online in the first place.


Mike Godwin ([e-mail]) is online counsel for the Electronic Frontier
Foundation, where he advises users of electronic networks about their legal
rights and responsibilities, and instructs criminal lawyers, law-enforcement
personnel, and others about computer civil-liberties issues.

For info on EFF mailing lists, newsgroups & archives, mail [e-mail]. To
browse EFF's archives, use FTP, gopher, or WAIS to connect to ftp.eff.org,
gopher.eff.org, or wais.eff.org respectively.  Look in /pub/Eff. To get basic
EFF info send a message to [e-mail]. Send detailed queries to [e-mail].
For membership information, mail [e-mail].

Thanks for your support. I hope to be back again.