THE BBS BURNINGS by Lance Rose
Computer bulletin board owners are being arrested in various cities, while local news media weigh in with tales of high tech villainy. Fear of BBS¹s is still spreading across the land; if a BBS was a book, they¹d burn it. Since computers are alot more expensive than books, and don¹t burn too well anyway,we are seeing sysops tossed in the slammer and their equipment confiscated instead. Civil Rights seem too often to go on vacation when the police confront sysops and BBS¹s. This month,we zero in to look at two sysops who are receiving a raw deal from their local police. These are not the only criminal proceedings under way, just the ones on which we have more information. How many sysops will be wrongfully arrested and their posessions confiscated before the cops figure out how to accord them their basic rights as U.S. Citizens?
1. TONY DAVIS AND THE SHOW-BIZ COPS OF OKLAHOMA CITY
The arrest of Tony Davis was reported in last month¹s Boardwatch. Davis operated the Oklahoma Information Exchange BBS in Oklahoma City. On August 17, 1993, he was formally arraigned in Oklahoma state court and allowed to remain out of jail on $4500 bail. Since the first report, we lookedinto this affair more closely, The closer one looks, the more absurd Davis¹ plight gets. The police investigation of Tony Davis culminated in two purchases of allegedly obscene CD-ROMs from Davis by undercover police on June 4th and July 12th, 1993. Shortly after the second purchase, on July 19, 1993, they arrived in force at Tony Davis¹ office with a warrant and seized some adult CD-ROMs from the stock he maintained in operating a CD-ROM retail business. They did not stop there,however, They also grabbed his BBS computer equipment and arrested Davis. The event had little chance of passing unnoticed, as the police brought along a professional video camera and videotaped the whole affair. Afterwards they edited the tape, wrote a script, and with the help ofthe local ABC affiliate turned it into a weekly installment of a ³reality television² program called ³You¹re Busted². It was broadcast throughout the Oklahoma City area on July 23rd, four days after the raid. For that extra dose of reality, the episode was narrated by one of the policeman who searched Davis¹place and arrested him. As the police burst in on Davis, the voiceover informed TV viewers they were witnessing the control center for Davis¹ ³International pornographic network². Out of roughly 2,000 CD-ROMs Davis kept on hand for the CD-ROM retail business he operated, the police confiscated 57. For purposes of comparison, that¹s under 3% of Davis¹total stock of CD-ROMs. A far smaller percentage than the amount of hardcore adult material found in typical video stores in most parts of our country. Later in the show, the cop with the video camera focused on a computer screen showing the CD-ROM activity on Davis¹ BBS. The names of BBS users could be seen as they downloaded files from the CD-ROMs. The narrating officer knowingly explained to the TV audience that they were seeing BBS users ³viewing the smut² right then and there ( not to spoil the fun, but the police were mistaken; users can¹t read image files until they are transferred to their own computers). At the end of the show, the narrator belted out the show¹s theme: ³Tony Davis, you¹re Busted!² Davis did not enjoy his 15 minutes of fame. According to Davis, ³the .Your¹e Busted¹ show was the most degrading thing I¹ve seen done to anybody in my life.² The newspapers were thoroughly scooped by joined in spiritedly, passing along police allegations that Tony Davis was running a ³high tech, modern-day porno house². They noted that other investigations continued, which might mean the police were investigating Davis¹ CD-ROM suppliers, his customers, or both. To their credit, they also gave a number of column inches to questions raised by Davis¹defense attorney. William Holmes, about the legality of the police actions. Davis was charged with four obscenity-related counts at the arraignment, two based on the CD-ROM purchases from Davis by undercover officers prior to the raid. Another count charged Davis with criminal ³possession² of obscenity, despite the Supreme Court¹s declaration in the past that mere possession of obscene material is perfectly legal. The addition of this bizarre claim indicates that either the local police do not understand the Constitutional rights of U.S. citizens, or do not care. The last count was for trafficing in obscene images. According to Davis¹ attorney, this statute was originally enacted in reaction to pornographic video games, and now seems to be directed at the downloading of BBS files that the cops videotaped. All charges could have a very hard time sticking if the defective search and seizure procedures used by the police are closely scrutinized in court. Those procedures do appear deeply defective. Federal protections for BBS¹s and sysops were apparently ignored wholesale in the Davis raid, just as in other BBS raids we¹ve seen the past couple of years. The Electronic Communications Privacy Act (³ECPA²), protects electronic messages against government search and seizure. When the police took Davis¹ BBS, they prevented messages travelling through the BBS from being delivered to their ultimate addresses. About 150 messages went undelivered, according to Davis¹ attorney. This interception violates the ECPA, even if the police resisted the temptation to read e-mail onthe seized computers back in their offices. The Privacy Protection Act (³PPA²) prohibits seizure of materials being kept or prepared for publication, unless the person holding them is suspected of a crime involving those very materials (with a few narrow exceptions). Davis¹ business activities included publishing the ³Magnum² series of CD-ROMs, none of which were included ing the titles the police thought obscene. By seizing computers containing the materials used by Davis in publishing his CD-ROMs, the police grossly violated the PPA.Since Davis was not suspected or accused of any crime in relation to the Magnum CD-ROMs he published, any associated materials should not have been touched by the police. Even plain vanilla 4th and 5th Amendment warrant requirements may have been violated by the police in this case. According to sources, the Oklahoma City police typically obtain a warrant based on an informal chat with the magistrate. Afterwards, they perform the actions authorized by the warrant, and only then submit a formal affidavit to support the warrant. If the police followed this sloppy and deeply illegal procedure in Davis¹ case, then his due process rights were grossly violated. As a further example of official slop, neither the warrant under which the raid was conducted, nor the police request for that warrant, mentioned Davis¹ computer bulletin board at all. That fatal omission did not stop the cops from taking all the computer equipment anyway. Perhaps the Oklahoma City prosecutors believe the seizure was legal because it is authorized under Oklahoma¹s own obscenity seizure statutes. If so, they¹re dead wrong. Federal due process protections trump state seizure laws. There was no emergency here to justify even a temporary abridgement of Davis¹ full due process rights. The particular importance of the ECPA and PPA should not be underestimated by Oklahoma state attorneys or anyone else. The protections of these statutes are so important that congress spelled them out expressly, even though in a sense they merely clarify protections already contained in the constitution. The police cannot bat these protections out of theway every time they threaten this week¹s episode of ³You¹re Busted². Davis¹ lawyer, himself a former local prosecutor, appears fully aware of the mess the police are making of the Davis matter. He sent them a letter a week after the raid formally notifying them they are violating the ECPA and PPA through their seizure and retention of Davis¹computer equipment. In doing so, he is trying to short circuit a possible future defense by the cops that they did not know they were doing anything wrong by holding Davis¹ equipment. Readers of Boardwatch may recall the lawsuit won by Steve Jackson Games against the U.S. Government in Austin, Texas a few months back. The federal court held that the agents ³ naive BBS seizure² violating the ECPA and PPA could be excused, but the agents became obligated to return the wrongly seized materials as soon as they found out about their privacy and publishing aspects and the laws forbidding their seizure. The same should certainly hold true here. Despite this precident, as of August 19th the police still did not return anything to Davis, almost a month after receiving his lawyer¹s notifying letter. Why did the police pick on Davis? It certainly wasn¹t due to their keen law enforcement instincts. Despite the screaming newspaper headlines about porno shop merchants, Davis is a well-known and respected businessman. He runs a telephone goods and services company, selling equipment and special services like Centrex switching to local area businesses. He was operating Oklahoma Information Exchange, a widely reputed and very busy BBS. He was one of the founders of Fidonet, and was Region 19 coordinator for several years. In his CD-ROM business, he sold many titles (with adult titles accounting for a minute portion of his business) and produced his own Magnum CD-ROMs. Davis also had a fairly extensive age verifcation scheme to assure only adults were getting access to adult materials on his BBS. Memeberships were given to those who had credit cards. In addition, to get access to the adult area users had to send davis a signed letter stating that they were over 21. Despite these measures, when the dust cleared, Davis¹ standing as a businessman and his age cerification procedures did nothing to slow down the police. After talking with Davis, his attorney and other local sources, the blame for his troubles should be laid on the creepy little deal the Oklahoma City police cooked up with the local ABC affiliate for the ³You¹re Busted² television program. The TV station gave the police a professional video camera and the opportunity to shoot, script and narrate a TV program called ³You¹re Busted². The payoff to the police was 15 minutes of fame on a weekly basis for individual cops, and great publicity and a high profile for the police department as a whole. In return, the TV station received a TV show in a hugely popular ³reality television² format, an exclusive relationship with the police not enjoyed by other local stations, and, it would appear, very low production costs. A great business deal for the police and the television station, but terrible news for just about everyone else. For starters, the police end up paying less attention to protecting the community and more to show biz. On-the-scene arrests make the best TV, so the police will be more motivated to obtain search and arrest warrants and less concerned about whether the intrusion on peoples¹ lives is justified. In fact, the more individuals they intrude on, the better the ³You¹re Busted²episode. The effect on the news media is just as bad. The local ABC affiliate falsely presents the police-made footage as ³reality², when in fact it¹s been manufactured for TV just like all other TV fodder. The police may not be conversant with the finer points of constitutional law, but they¹re smart enough to know if they don¹t make a good show, they¹ll be canned fast by the station. Further, the media, the proud ³fourth estate² lets itself become no more than a flack for the local police. The public, as usual, is victimized on both ends. It gets prosecution of the most entertaining instead of the most deserving,while the couch potatoes of Oklahoma City are served up a desperately skewed view of lawenforcement and who are the criminals. Without the cop/show biz connection, Tony Davis might never have been busted. If the police had taken the trouble to investigate Davis¹ life a bit, they would have discovered that the adult CD-ROMs were only a small part of his business. Tony Davis is not a porn merchant, not the type of person to hold up to others as a bad example. Yet with their constant need to come up with new and exciting material on a TV production schedule, the police overlooked the reality of Davis¹ business. It fit their agenda betterto bust Tony Davis with a bang with the whole world watching, than to quietly give Davis a word to the wise about the police department¹s newly formulated policies on digitized adult materials. Indeed, the police departments¹ failure to give Davis a little advance warning seems almost criminally negligent. According to assistant district attorney Lori Nettleton, ³This is the first time that charges have been filed involving the use of computers in an obscenity case in Oklahoma County.² A quick look at the laws under which Davis was charged shows they were on the Oklahoma Statute books for almost ten years. Why did the police not act under them until now? One could argue the police themselves promoted the growth of the adult computer file business through their own laissez-faire attitude toward computer obscenity laws for the last ten years. Most people figure out something¹s illegal by looking to see if the police are arresting people for doing it. While this is no excuse for pursuing clearly illegal activity, Davis¹ acts were, at worst, in a grey area of arguable criminality. Now the police are overeager to make an example out of him, after entirelyfailing to give any guidance on just what counts as criminal conduct when it comes to adult materials. In the overzealous police raid and arrest of Tony Davis, everyone loses. Davis loses his Freedom and his property, and her already lost much of his reputation as a business man. The users of the Oklahoma Information Exchange BBS lost. They trusted that they had rights of privacy from the government, and the Oklahoma City police betrayed that trust. The police will lose as well if they are held responsible for their gross violations of warrant procedures. If anyone decides to sue them, maybe they¹ll be kindenough to videotape it so we can watch it all later on TV.
2. MICHAEL ELANSKY & HIS CONNECTICUT BBS BOMB FACTORY
Moving from the absurd to the ridiculous, a 21 year old sysop named Michael Elansky is in jail on $500,000 bail in West Hartford, Connecticut. The crime? They found a text file on his BBS describing how to build a bomb.Elansky spoke to me from prison, while a noisy fellow inmate yelled at him the whole time to get off the phone. His bulletin board system, the Warehouse BBS, was about three years old, with two lines, 1.2 gigabytes of storage and a CD-ROM drive. His specialty was utility software, and he boasted a full range of the latest and greatest utilities to be found on the networks. One day near the end of June, he was picked up by the police after they discovered a file named ANARC2 on his BBS. This file, uploadedby a user, was an anarchist tract preaching chaos and disorder for society. Deeper into the file was the bomb-making recipe cited by the police. A recipe, according to Elansky¹s father, straight out of theAnarchist¹s Cookbook, an above ground publication available from Paladin Press to anyone with the price of purchase.The file was found in an area of the Warehouse BBS called IIRG, for ³International Information Retrieval Group.² Elansky says this group gathered all kinds of information. Anything might be found there at a given time, so it was no surprize that bomb-making plans had found their way to that area. The file was supposedly downloaded by a 14 year old caller, who then contacted the police, leading to Elansky¹s arrest. Elansky¹s disputes this claim, saying his BBS records don¹t show that anyone who might have been 14 downloaded the file in question.Two charges were filed against Elansky. The first is inciting injury to persons and property, based on the mere fact that the ANARC2 file was on Elanksky¹s BBS. The second charge is creating risk of injury to a minor, covering the download by the 14 year old. Somehow Elansky, simply by having the file on his BBS, is blamed by the police for the possibility that some young kid might download the bomb-building instructions, build a bomb, and blow it up and hurt himself. According to Elansky¹s parents, he found out months before the arrest that an investigator had been checking out his BBS. He gave the investigator a call and invited him to inspect the BBS at close range, but the investigator demurred. The arrest and jailing eventually followed.Elansky was held on $500,000 bail right from the beginning. This was far more than his parents could afford, so he went straight into jail to await further proceedings. His attorney was outraged when he learned of the bail amount, and obtained a hearing on having it lowered. The judge was none too sympathetic to Elansky. He flatly refused to lower the bail amount, saying Elansky ran a bomb-making factory using his BBS, and that he was just as dangerous as the bomber who blew up the World Trade Center. Naturally, the local newspaper picked up the bomb factory angle for their shocked story about the jailed local BBS sysop.Elansky says the police and the judge are not only equating his mere possession of text with trafficking in bombs, but also seem to be holding him personally responsible for the ANARC2 file. ANARC2 was written by a stranger and uploaded by a user, but the police are acting as if Elansky wrote the text himself. According to sources, the ANARC2 file in fact is widely available across the various computer networks.If this seems far too much fuss over a little chunk of text, indeed it is. There is another side to this story. Elansky and the West Haven police have been playing a game of cat and mouse for the past few years, with bomber accusations against Elansky the constant theme. Elansky says it started in 1988, when the police found him with explosives. He sayse they were for a fireworks show at his high school, the police say they were bombs. The poilce wanted him to cop a plea and turn over friends who also dabbled in explosives. He refused, and they had to let him go for lack of strong enough evidence to convict him of anything. Since that time, he says, the police have given him a hard time, picking him up a couple more times with explosives in his possession, but always letting him go again. While Elansky admits he has had exploding objects in his possession, he says it was always in connection with fireworks displays, a hobby of his. Elasnsky¹s account is certainly plausible, though the facts he relates could also support the view that he was dabbling in bombs the whole time. Either way, we can understand why the police were so eager to put him away for a bomb making recipe.Regardless of their motivations, however, the police made a big mistake in jailing Elansky for a text file on his BBS. The 1st Amendment prohibits government officials from acting against anyone for distributing materials containing political content. If, as Elansky¹s parents claim, he did not even know the file was on his BBS until after he was arrested, then he is entitled to even greater legal protection from prosecution, such as accorded to book stores and magazine distributors. Distributors are not responsible for materials passing through their systems, even patently illegal materials like obscene or infringing publications, unless they are specifically aware of the materials in question. This rule is necessary to assure the smooth flow of 1st Amendment materials through mass distribution systems for both printed and electronic materials. Without the rule, distribution systems would slow to a crawl as their owners review every text to make sure they will not get sued for carrying it. Even if Elansky made bombs all those years as the police believe, this gives no support to jailing him based on the BBS file. The police acted criminally in penalizing him for his speech on his BBS. There is ³incitement² exception to the protection of speech, but it requires a ³clear and present danger² that injury is about to result from the speech being penalized. There was absolutely no clear and present danger from the bomb-making file on the Warehouse BBS. The text was in circulation for years in print form, and is now common all over the nets, just another wild-eyed political leaflet strewn along the electronic highway. If the text ever posed a danger to anyone, that ³present² has now receded into the distant past. At any rate, Elansky did not author the file, did not even know it was on his system, and absolutely should not be held legally to account for it.The question now is whether the West Hartford police will continue their illegal incarceration of Elansky based on the BBS bomb-making file. Their best bet would be to cut their losses now and spring him loose. In the meantime, Elansky been cooling his heels in jail for three weeks now, and looks forward to at least another three weeks behind bars before the next hearing in his case.As we went to press, Elansky called me once more from jail, telling me his parents just set up a legal defense fund. Boardwatch readers who want to help can send checks payable to the ³Michael Elansky Fund² acc.# 02060573652, either to the Society for Savings, 342 North Main Street, West Hartford, CT, 06117 or directly to Michael Elansky, 25 Maiden Lane West Hartford, CT, 06117(we did not have time to confirm this with the Society for Savings). They¹re going to need every penny. Elansky says he just hired the best lawyer in town, who charged an initial retainer of $15,000 to get started. This could be an important 1st Amendment case; if you think he¹s been wronged, helping Michael can be a good investment in justice.
[Lance Rose is an attorney practicing high-tech and information law in Montclair, N.J. He can be foundon the Internet at firstname.lastname@example.org, and on compuserve at 72230,2044. He is also author of Syslaw, the legal guide for online service providers available from PC Info Group at 1-800-321-8285].