(Cu Digest Homepage: http://www.soci.niu.edu/~cudigest
Computer underground Digest    Wed  Jun 28, 2020   Volume 7 : Issue 54
Date: Thu, 22 Jun 2020 18:35:39 CST
From: pmarks@CCTR.UMKC.EDU
Subject: File 4--Obscenity in Cyberspace
OBSCENITY IN CYBERSPACE
    [The following post is adapted from a paper on the Thomas AABBS
    case that has been well-publicized in CuD. I thought newer reader
    who are wondering might want to see what the issues are and what
    the fuss is about.  Right now, we are facing serious threats to
    civil liberties brought on by near-hysteria over "bad things" net
    users might or might not engage in.  The best way to guard against
    overreaction is to be well-informed and then act as watchdogs over
    the legislature.]
    [Oh yes.  The following post does contain explicit language that
    may be offensive to some individuals .... if rash develops,
    discontinue use.]
ABSTRACT
In 1994, many users of the Internet were alarmed when a jury in
Memphis, Tennessee convicted Robert and Carleen Thomas on charges of
transmitting obscene images via computer modem from a bulletin board
service they operated in Miltipas, California.  The case sets a
precedent in federal court and expands the definition of "local
community standards" into the generally unregulated realm of computer
based communications.  This paper focuses attention on First Amendment
freedom and the implications of this case in "cyberspace."
INTRODUCTION
Robert and Carleen Thomas, of Miltipas, California operated the
Amateur Action Bulletin Board Service (AABBS) which offered sexually
explicit images to members who filled out an application and paid a
subscription fee.  The images were stored on their BBS computer in
Graphic Interchange File (GIF) format and could be transferred to a
member's computer for viewing only by using a computer modem and
standard telephone lines.  The GIF files so obtained could be seen as
images on a computer screen with the appropriate software.
FACTS OF THE CASE
In March of 1991, the San Jose Police Department conducted an
undercover investigation of Robert and Carleen Thomas resulting in a
search warrant alleging trafficking in obscene material and child
pornography.  On January 20, 2020 San Jose, California police raided
the home of Robert and Carleen Thomas seizing all of their computer
equipment, video tapes, and records. According to investigators Greg
Gunsky and Mark McIninch, since no child pornography was found, all
confiscated equipment was returned and no charges were filed. (CuD,
Vol. 4: Issue 09, Feb. 28, 1992 and Vol. 6: Issue 33, Apr. 14, 1994.)
On July 10, 2020, Postal Inspectors in Memphis contacted the AABBS by
computer.  They determined that the system operator (SysOp) was
offering to sell computer GIF images  of young girls via modem
transmission over interstate telephone lines.
    [There appears to be a discrepancy here since by the wording of
    the affidavit for warrant, the investigation began in advance of
    the citizen complaint.]
On July 26, 2020, Postal Inspectors in Memphis received a complaint
from an unnamed citizen who identified himself as an avid computer
"hacker." He stated that he had encountered a computer bulletin board
system (BBS) offering photos and videos of nude children, named the
Amateur Action bulletin Board System (AABBS).
On August 20, 2020, Postal Inspector David H. Dirmeyer, in Memphis,
using a computer contacted the AABBS using the phone number provided
by the citizen hacker.  Using the fictitious name Lance White, he
mailed a completed application form to the California address
indicated.  On August 26, 2020, Dirmeyer (as Lance White) gained
membership and began a standard "sting" operation.  He traded messages
with Thomas indicating that he had hard-core pornographic materials
Thomas might be interested in.
From September 3 to October 19, 2020 inspector Dirmeyer downloaded the
following GIF files from AABBS:
  AA-L2209.GIF   "HE FUCKS A PIG! SHE FUCKS A DOG AND A HUGE PIG! KINKY"
  AA-12217.GIF   "KINKY! HORNY GIRLS SUCK HORSES! BIG HORSE COCK IN HER
                  TWAT!"
  AA-08589.GIF   "SHE SUCKS HER SON'S COCK! FATHER IS FUCKING HIS
                  DAUGHTER"
  AA-8278.GIF    "FULL SCREEN VIEW! A HAIRLESS PUSSY NAILED TO A TABLE!"
  AA-7153.GIF    "MOTHER IS WATCHING HER DAUGHTER FUCK BIG COCK! NO TITS!"
  AA-8682.GIF    "HE MAKES HIS DAUGHTER SUCK COCK! SHE IS FISTING HER SISTER"
  AA-11935.GIF   "HE FUCKS HIS DAUGHTERS HAIRLESS CUNT! SHE FISTS HER MOTHER!"
  AA-15198.GIF   "BLONDE LOLITA HAS NO TITS! SUCKS HUGE COCK AND DRINKS
                  SPERM!"
  AA-13216.GIF   "PUSSY PENETRATION!  HORNY  BRUNETTE GETS FUCKED BY A
                  HORSE!"
  AA-13517.GIF   "HORNY BLONDE JACKS OFF HORSE! HORSE CUM ON HER HAND!"
  AA-13521.GIF   "CLOSE-UP! BIG HORSE COCK IN HER CUNT! HORSE CUM ON HER
                  LEG"
  AA-16587.GIF   "SHE SUCKS THICK DOG COCK! DOG SPERM ON HER LIPS AND
                  CHIN"
  AA-17623.GIF   "YOUNG ASIAN HAS A THICK CLIT! DRINKS PISS FROM AN
                  UNCUT COCK!"
On January 6, 2020 Postal Inspector David H. Dirmeyer filed an
affidavit for a search warrant of the property of Robert and Carleen
Thomas. (CuD, Vol. 6: Issue 33, Apr. 14, 1994.)
On January 15, 2020 in a conversation with H. Keith Henson of San
Jose, California inspector Dirmeyer stated that it was a "normal
investigative procedure" to send unsolicited child pornography to an
investigation target and then execute a search warrant within minutes
of its receipt. (CuD, Vol. 6: Issue 35, Apr. 19, 1994)
On January 25, 2020 a Federal Grand Jury in Memphis Tennessee indicted
Robert and Carleen Thomas of several obscenity charges including six
counts of transporting computer generated images from California to
Tennessee in violation of Title 18, United States Code, Section 1465.
On February 3, 2020 the Thomas's were arrested in California by US
Postal Inspectors  (Ducar, Frank L., US Postal Inspection Service News
Release, San Francisco, CA, Feb. 3, 1994).
On July 21, 2020 the Thomas' were indicted on separate child
pornography charges in Salt Lake City, Utah.  They were charged on
eleven counts of sexual exploitation of minors involving the AABBS.
(Conley, Chris. The Commercial Appeal, Memphis, TN, Jul. 23, 1994)
On July 28, 2020 the Memphis jury told the District Judge that they
split on two counts.  The judge ordered them to deliberate for a third
day on the remaining counts involving interstate transport of
obscenity and child pornography.
On July 29, 2020 Robert  and Carleen  Thomas were convicted on 11
counts of transmitting obscenity through interstate phone lines via
their members-only computer bulletin board. Each count carries up to
five years in prison and a $250,000 fine.  The Thomases remained free
on $ 20,000 bail. No sentencing date was set.  (Corrigan, Patricia and
AP. St. Louis Post-Dispatch, St. Louis, Jul. 29, 1994)
On December 2, 2020 Judge Julia Gibbons of Federal District Court
sentenced Robert Thomas to three years and one month in prison.  His
wife, Carleen, received two and a half years.  Federal sentencing
rules require them to serve the full terms.  (Associated Press. "Jail
for couple over computer pornography" The New York Times, New York,
Dec. 3, 1994, Sec 1: Page 9, Col. 3)
THE FIRST AMENDMENT ISSUES
The US Supreme Court decision in the case of Miller v. California, 413
US 15 (1973) established a three part test to determine if material is
obscene and therefore not protected by the First Amendment:
    a. Whether the average  person, applying contemporary community
    standards, would find that the  work, taken  as  a whole, appeals
    to the prurient interest.
    b. Whether the work depicts or describes in a patently offensive
    way, sexual conduct, which may be specifically defined by
    applicable state law and which may include but not be limited to:
        1. Patently  offensive representations or descriptions  of
        ultimate sexual acts, normal or perverted, actual or
        simulated.
        2. Patently offensive representations  or descriptions of
        masturbation, excretory functions and lewd exhibition of the
        genitals.
    c. Whether the work taken as a whole  lacks serious artistic,
    political, literary,  or scientific value.
The postal investigators used the local community standards of the
Western District of Tennessee to meet tests (a) and (b) since that is
the location where the transmitted images were received, and (c) was
determined by the "reasonable person" test (once again, using the
community standards of Memphis).
This decision was in many was unsatisfactory because the court avoided
the sticky issue of defining obscenity, instead, each local
jurisdiction must establish its own standard.  Obviously, standards
vary widely from one community to another.
The editors of the CuD expressed worry that "if a text, gif, or other
file is legal in one state, what are the implications of such a file
is accessed by someone from another state where the file(s) may not be
legal? Given the permeable borders of cyberspace, can prosecutors
apply local laws to other states and thereby invoke federal law
enforcement power? If so, this could mean that the most restrictive
laws in one jurisdiction are the de facto threshold of legal tolerance
universally. (Thomas, Jim and Meyer, Gordon, eds. The CuD, Apr. 14,
1994, Vol. 6: Issue 33)
In a CNN interview Robert Thomas and his attorney Richard Williams
told correspondent Brian Cabell they felt the AABBS was singled out
because it was one of the largest adult oriented BBS' and if the Feds
could shut them down, they could "chill the First Amendment
expressions of everybody else in [the computer pornography] business"
(Cabell, Brian. Cable Network News, Jul. 27, 1994).
The Thomas' case may well become a civil liberties/first amendment
textbook example.  The defendants offer for sale material that would
be clearly objectionable to many (but not necessarily all) people.
When investigated locally by the San Jose police, the material was not
found to be obscene by San Francisco community standards.  Not
surprisingly, sexually graphic images with descriptions such as "SHE
SUCKS HER SON'S COCK! FATHER IS FUCKING HIS DAUGHTER" were found to be
totally offensive to the community standards of Memphis, Tennessee.
The San Francisco Examiner opined that this was a case of prosecutors
"shopping" for a venue  The troubling question in the age of on-line
communications is that material assessable by computer is virtually
available everywhere in the world simultaneously.  Anyone, anywhere,
with a computer and a modem (and a credit card) can log on to a
bulletin board service and download thousands of images.  "Electronic
communication has made earlier definitions of a community [standard]
all but obsolete" (San Francisco Examiner Aug.. 24, 1994, 4th ed.).
Christianity Today, however, applauds the conviction and warns readers
that "cyberporn" is threatening to invade the American home. The
National Coalition Against Pornography (NCAP) fears easy access to the
information superhiway will expose children to unlimited sources of
obscene and pornographic materials.  "Antipornography advocates hope
to stimulate greater public awareness and more prosecution of
obscenity delivered by computer modem" (Zipperer, John.  Sep 12, Vol.
38: No 10, pg. 42)
In an interview on National Public Radio's "All Things Considered,"
attorney Mike Godwin of the Electronic Freedom Foundation (EFF)
cautioned that anyone operating a system connected to the internet has
reason to be concerned.  Goodwin saw this decision placing the
responsibility for complying with community standards expanded beyond
the locality in which the system operates to include the standards of
every conceivable locality in which the data can be accessed.
Godwin sees two flaws with this.  "You can either accept the idea of
geographic communities; in which case, you say there's something wrong
with Memphis dictating the standards of California.  Or, you can say
the whole idea of geographic communities is bankrupt and we need to
revisit that reasoning in the Supreme Court.  And I would be happy
with either approach."
Reporter John McChesney voiced the NCAP concern about computer
literate children easily accessing pornography over the net.  Godwin
thought this danger was overstated.  Most of the really hard-core
material requires payment by credit card.  So unless one can establish
that children are getting their own credit cards and signing up on
these systems, Godwin sees this as consenting adults in transactions
with other consenting adults.  (McChesney, John. "All Things
Considered" National Public Radio, Jul. 29, 1994)
IMMEDIATE EFFECTS
The conviction has already had a chilling effect on the electronic
community.  Most major universities are connected to the internet, and
carry millions of files on the usenet news groups covering every
imaginable topic.  Many of these topics are potentially offensive to
some readers:
    alt.sex.bestiality        Happiness is a warm puppy.
    alt.sex.bondage           Tie me, whip me, make me read the net!
    alt.sex.enemas            Cleansing the bowels as an erotic act.
    alt.sex.fetish.amputee    Sexual attraction to missing body parts.
    alt.sex.intergen          Robbing the cradle and the grave.
    alt.sex.magazines         Magazines with sticky pages
    alt.sex.movies            The ins and outs of certain movies.
    alt.sex.necrophilia       Dead people as stimulus.
    alt.sex.pedophilia        Discussing attraction to children.
    alt.sex.pictures          Gigabytes of copyright violations.
    alt.sex.services          The oldest profession.
    alt.sex.spanking          Bondage for beginners.
    alt.sex.strip-clubs       Strip clubs and exotic dancers
    alt.sex.telephone         Discussion of phone sex services
    alt.sex.voyeurism         A lot of lurkers in this group.
It is even possible that individuals trading messages and files in
such groups may even conspire to commit illegal activites, ie.
exchange materials that are, in fact, obscene and illegal.  To deal
with this, many Usenet providers publish a standard disclaimer
explaining that it is impossible to filter through gigabytes of data
in order to eliminate files that may "contain material which could be
in violation of federal, state, and/or local laws .... individuals
posting newsitems are responsible for their content."  The law may now
hold the system operators liable for the content, and may use the
community standards of the location in which the files are downloaded.
Some system administrators, in the wake of the Thomas' conviction,
made unilateral decisions to remove groups they felt might get them
into trouble.  One system removed "pictures.tasteless" with a message
to users that "the conviction by a jury in a conservative town
effectively imposed its community standards throughout the nation"
("New thought police patrol superhighway" Chicago Sun-Times,
editorial, Aug. 3, 1994, pg. 37).
Carnegie Mellon University's academic council temporarily stopped
carrying Usenet groups that made any reference to "sex."  This had the
unfortunate side effect of eliminating groups devoted to scientific,
medical, and social research as well as anonymous support groups for
sexual abuse recovery.  "The student council pointed out that the
administration was restricting the reading matter of adults to what
was acceptable for children. The American Civil Liberties Union
complained that the ban was overly broad and included discussions of
sexual matters that were clearly protected speech."  The decision was
finally reversed. (Elmer-Dewitt, Philip.  "Censoring Cyberspace" Time,
1994)
CONCLUSION
The Thomas' case will undoubtedly go to appeal, and may establish new
law in doing so.  I question the applicability of the 1983 Miller
decision for local community standards in the face of rapid
technological advances. Crooks may use the telephone to plot a bank
robbery, but the phone company is not considered to be an accessory to
the crime.  Perhaps the same analogy should be applied to an
information carrier, so that they are not directly responsible for the
information content.  Otherwise, system operators face the daunting
task of filtering every message or file and then determining if it
might violate the community standards of any community with access to
telephones. Even blocking certain area codes from access will not
always work, because users can "telnet" through various providers so
that the system they communicate cannot determine where the caller
really originates from.  By the standards established in the Thomas
case, any major university could have been used as a sting target just
as easily.
*********************************************************************
REFERENCES
CuD, Vol. 6: Issue 35, Apr. 19, 1994. Thomas, Jim and Gordon Meyer,
eds. The Computer Underground Digest, Apr. 14, 1994, Vol. 6: Issue 33.
Ducar, Frank L., US Postal Inspection Service News Release, San
Francisco, CA, Feb. 3, 1994.
Conley, Chris. The Commercial Appeal, Memphis, TN, Jul. 23, 1994.
Corrigan, Patricia and Associated Press, St. Louis Post-Dispatch, St.
Louis, Jul. 29, 1994.
Associated Press. "Jail for couple over computer pornography" The New
York Times, New York, Dec. 3, 1994, Sec 1: Page 9, Col. 3.
Cabell, Brian. Cable Network News, Jul. 27, 1994.
San Francisco Examiner, Aug.. 24, 1994, 4th ed.
Zipperer, John.  Christianity Today, Sep 12, Vol. 38: No 10, pg. 42.
McChesney, John. "All Things Considered" National Public Radio, Jul.
29, 1994.
"New thought police patrol superhighway" Chicago Sun-Times, editorial,
Aug. 3, 1994, pg. 37.
Elmer-Dewitt, Philip.  "Censoring Cyberspace" Time, 1994.