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The 640 Meg Shareware Studio CD-ROM Volume II (Data Express)(1993).ISO
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1993-01-05
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From: Aragorn #72 @4242 VirtualNET
Re: AKRON TRIAL UPDATE - Posted on VirtualNET/CellNET - IMPORTANT!
From: Friggin' Frog #23 @3021 VirtualNET
Re: Adult Access and the Law
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 down-
load, 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 "posses-
sion of criminal tools" (i.e. "one computer system").
Note that "criminal tool" statutes were originally intended for spe-
cialized tools such as burglar's tools or hacking paraphernalia 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 (14th Amend-
ment). Why should a computer hobbyist be charged with a felony when any-
one 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 al-
lowed 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 charac-
ter or content", as the statute requires. Indeed, the SysOp had a long
history of 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 blanch to search unre-
lated 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 with-
out 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 dif-
ficult 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 de-
stroy 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 opin-
ion. The digitization process also modifies and distorts the image during
compression.
The prosecutor has offered to plea-bargain these charges down to "pos-
session" 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 exemp-
tion 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 be-
comes 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 unconstitu-
tional 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 "pos-
session", even though he was *totally unaware* of what was on an old
backup floppy, unsolicited in the first place, found unused in a card-
board box. "Possession" does not require knowledge that the person de-
picted 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. Trial and
precedent, with standards of evidence upheld, so that mere possession of
a computer is not grounds for a witch hunt.
These issues must not be decided by the tactics of a 'war of
attrition'; *however far* in the court system this needs to go. For this
reason, an independent, legal defense trust fund has been set up by con-
cerned area computer users, CPA's, attorneys,etc.
Mark Lehrer First Amendment Legal Defense Fund
(or just: MLFALDF)
Lockbox No. 901287
Cleveland, OH 44190-1287
Foundation, a nonprofit, 501c3 organization, to defend BBS's and
First Amendment rights.
Help get the word out. If you're not sure about all this, ask your lo-
cal SysOps what this precedent could mean, who the EFF is - and ask them
to keep you informed of further developments in this case. Please copy
this file and send it to whoever may be interested. This case *needs* to
be watchdogged.
Please send any questions, ideas or comments directly to the SysOp:
Mark Lehrer
CompuServe: 71756,2116 InterNet: 71756.2116@compuserve.com
Modem: (216) 688-6383 USPO: P.O. Box 275
Munroe Falls, OH 44262
Aragorn