When Oklahoma Information Exchange BBS operator Anthony A. Davis was convicted on five counts of obscenity in 1993, civil libertarians said it was a wake-up call for sysops. But that isn't much of a consolation to Davis, who faces 10 years and a US$10,000 fine unless he wins his appeal.
Bill Holmes, Davis's attorney in the district court trial, says the appeal will likely focus on three issues. First, a technicality in Oklahoma's criminal pornography statute fails, in defense eyes, to include computer-generated images. "Mr. Davis is more the victim of the first case of its kind than a dangerous criminal," asserts Holmes. Secondly, the attorney argues, Davis did not have knowledge of the information, such as the bestiality scenes, that were on some of the CD-ROMs on his system. "Only a tiny proportion of this legitimate bulletin board system was dealing with adult material," he said. "This is a family man with no prior serious convictions."
And third, Holmes alleges, the search that officers conducted in July violated Davis's right under the federal Electronic Communications Privacy Act (ECPA). Police claim that while the warrant permitted only the seizure of CD-ROMs, officers spotted an obscene image on a computer screen during the search in Davis's Oklahoma City home. This spurred them to seize the entire BBS hardware, an action for which it would have been very difficult to obtain a warrant, due to ECPA.
Davis has filed a federal civil rights lawsuit against the Oklahoma City Police - he is asking for more than $1 million in damages. He could use the money if he wins: his appellate representation will be by a public defender. Although Holmes won't be representing Davis on the appeal, he is sticking with him on the federal case.
Free on bond, Davis is broke and bitter. The wounded Vietnam vet faced a jury that included two ministers and a conservative talk-show host, and stood before a judge who ignored the corrections department's recommendation of probation. Davis's only comment to Wired was "I don't want to talk about it anymore."
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