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Trial de novo for Akron Anomaly sysop: Double Jeopardy IS allowed as is entrapment! FREEDOM IS DEAD! Heil Amerikkka!

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From: an42905@anon.penet.fi
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Date: Mon, 30 May 1994 09:13:14 UTC
Subject: From a local newsgroup re kiddie porn charges
Lines: 174

From: Aragorn #72 @4242 VirtualNET
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
    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
    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


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