From: Donald E. Eastlake, III <dee@ranger.enet.dec.com>
Subject: Akron BBS Trail
Organization: Digital Equipment Corporation
X-Useragent: Nuntius v1.1
Date: Wed, 16 Dec 1992 16:41:47 GMT

What's the story on this:


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: 71756.2116@compuserve.com
Modem: (216) 688-6383    USPO: P.O. Box 275
                               Munroe Falls, OH  44262