Hacker 2/HACKER2.mdf/cud/cud462h.txt

Text File | 1995-01-03 | 10KB | 207 lines

Date: 02 Dec 92 11:49:08 EST
>From: David Lehrer <[e-mail]>
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 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.


*Important*  Please consider a small contribution to ensure a fair
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 concerned area computer users, CPA's, attorneys,etc.

     Mark Lehrer First Amendment Legal Defense Fund
                         (or just:  MLFALDF)
     Lockbox No. 901287
     Cleveland, OH  44190-1287

*All* unused defense funds go to the Electronic Frontier
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
local 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: [e-mail]
Modem: [phone]    USPO: P.O. Box 275
                               Munroe Falls, OH  44262


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