While we've been battling violations of cyber rights at the federal level, state and local governments have been shredding the Constitution.
Will the Christian Coalition ever give up trying to censor the Net? Will the American Civil Liberties Union run out of appeals? Will we ever be free from the legacy of Senator James Exon brandishing his binder of bestiality pictures and demanding a law to protect American children from indecency?
The struggle over Net censorship now seems likely to last for many more months - maybe years. But through all the diatribes and denunciations, one fact has been overlooked: federal legislation isn't a new threat to our freedoms online. In some areas of the country, local actions have already shut down bulletin boards and had a chilling effect on free speech. Without realizing it, millions of Americans lost their Net freedoms in 1995 or even 1994 - not because of congressional action, but through state laws that were passed with virtually no news coverage. And in some states, these laws are more restrictive than anything Senator Exon or the Christian Coalition ever called for. Consider these facts:
In Kansas, a law specifically prohibits people from making "indecent comments" online.
In Connecticut, Georgia, New Jersey, North Dakota, and South Dakota, state laws covering phone calls have been expanded to include computer communications, so it is now a criminal act to send email that is obscene, vulgar, offensive, or causes annoyance (the exact wording varies from state to state).
Even if you don't live in one of the states listed above, you can still be prosecuted for sending such a message to someone who does. n State decency laws have been used to harass owners of bulletin board systems and at least two Internet sites.
Many BBS owners, and some small Internet service providers, have started censoring their content in self-defense.
New state laws are still being passed, criminalizing the free speech of Net users all over the country.
If we go beyond harassment and look at state obscenity laws, the situation is even worse. Theoretically, you could be indicted merely for posting something to Usenet, if a prosecutor in a conservative state downloads the material and finds it offensive. And media coverage of cyberporn has attracted so much attention that any systems operator can be victimized by a local district attorney looking for support from conservative voters.
Lorne Shantz discovered this the hard way. For years he operated a BBS out of his home in Phoenix, Arizona. He was careful to stay within the law; in fact, Shantz was the law. He worked for the Arizona Department of Public Safety, in the Highway Patrol. Many of his law enforcement colleagues used to log on to his system, and so did at least one judge and one prosecutor.
All this changed abruptly in November 1994 when Shantz's computer was seized because it was suspected of containing obscene materials and child pornography. Shantz protested that he had maintained a strict policy prohibiting illegal, obscene uploads - they would have been in violation of federal law. He was immediately suspended from his job and, four months later, was indicted by a grand jury. The day after Shantz was indicted, County Attorney Rick Romley held a press conference claiming that his office was "cutting new ground" in the war against cyberporn.
According to the prosecutor's office, three pictures on Shantz's BBS were of girls under 18 years of age. (They were judged to be minors by using the Tanner Scale, a technique devised by doctors to estimate age by measuring breast development and pubic hair. Shantz objected that the scale was inexact.)
Shantz's BBS also contained some pictures of bestiality. Shantz readily agreed that those should not have been there - but he said he had never seen them. They were included on a CD-ROM he'd bought by mail order. It was labeled "BBS Ready," so Shantz had assumed it was legal. He had sampled a couple of pictures, found they were no different from poses in Penthouse, and didn't bother to check each of the thousands of other images on the disc.
"We're talking hardcore obscenity," said Barnett Lotstein, special assistant to the county attorney, speaking on the nightly news. "Mr. Shantz had an obligation to know what was on his bulletin board."
Did he? The grand jury agreed to press charges, but Shantz complained that he had been given no opportunity to tell them his side of the story. In fact, he had formally requested an opportunity to testify - but somehow the prosecutor had forgotten to call him. Shantz's lawyer then demanded a second grand jury. This time the jurors listened to Shantz; he convinced them that he had acted in good faith, and they let him go free.
"Almost every BBS around used to have an adult section," comments Jonathan Gillies, 32, a networking engineer and former BBS owner. "Lorne actually took more trouble than most of them, posting notices warning people not to upload certain types of picture, and demanding proof of age."
According to Gillies, the real value of Shantz's board had nothing to do with its erotic content. "This was one of the best information resources we had in Phoenix. I made some valuable contacts with people using the message base, and there was an enormous amount of shareware programs. Plus, he had Internet connectivity."
Shantz is convinced that he was a victim of Romley's political ambitions. "What happened to me was an abuse of prosecutorial power," he says. (A spokesperson at the county attorney's office refused to comment on the case.)
Shantz beat the charges, but he endured six months of anxiety and unemployment and ran up US$30,000 in legal fees. He had to fight for the return of his computer equipment; and to get back his old job with the Highway Patrol, he now has to take his case before a civil review board - which is costing him another $25,000 in legal fees.
Meanwhile, even though the charges were thrown out, a spokesperson for the prosecutor said he hoped the case would send a loud message to all BBS owners in the area. And that's exactly what has happened. Local observers estimate that half a dozen BBS operators shut down their systems after they saw what happened to Shantz, and many others who stayed in business closed their adult sections just to be on the safe side. This is the real danger posed by local prosecution: its effects spread far beyond the site that is hit.
Robert Carr runs a small BBS in Boise, Idaho. He used to offer a huge library of counterculture files, including erotic stories and his own videogames mocking religious fundamentalists and the hard-core right. In August 1994, Carr's picture was published in Wired magazine as that of a defiant, anarchist sysop, armed and dangerous.
Today, Carr is still armed but no longer so dangerous. The erotic stories are gone from his BBS, along with most of the games. "The final straw," he says, "was when the local police were looking for some kids who had been setting off pipe bombs. The kids hadn't actually hurt anyone, but the police announced they were going to come online, find the source of the bomb recipes, and eradicate it. Also, a year previously, a couple of boards had been shut down where teenagers were trading GIFs. I couldn't risk getting raided, because my neighborhood is so conservative the publicity could cost me my job."
Carr took everything he regarded as potentially dangerous off his system. He feels the BBS scene will never be the same again. "When I first started my board, it was fun. You could put anything online and nobody cared. These days, I have to examine every upload to make sure no one's planting something. Running a board has become an exercise in paranoia."
At ONE BBSCON, the national BBS convention that took place last August in Tampa, Florida, similar stories were told by sysops from all over America. Many of them had toned down their libraries of erotica or had removed the adult sections altogether. There was a mood of caution tinged with fear - not because of federal legislation, but because of local harassment.
Last year, Cincinnati witnessed perhaps the most remarkable example of state law enforcement run amok. This was no coincidence. Consider what else had happened there:
In the '70s, Larry Flynt, the publisher of Hustler, had to fight in court for the right to distribute his magazine through local vendors.
In 1990, a museum exhibition of photographs by Robert Mapplethorpe was shut down by 125 sheriff's deputies in SWAT uniforms carrying automatic weapons. The subsequent trial created national publicity.
One by one, all of the adult bookstores have been shut down; there are now none anywhere in the city.
The man who takes most of the credit for this relentless campaign is Simon Leis Jr., sheriff of Hamilton County, which covers a large part of the Cincinnati area. Last year, Leis went further, taking on a BBS owner by the name of Bob Emerson. Emerson is a big, friendly, cheerful man; he looks like Santa Claus without the hair and the beard. He says that one of his guiding principles in life has been to make a living by doing things that are fun, and he's succeeded pretty well at putting his principles into practice. He had a weakness for hot-rodding, so he opened an auto accessory store specializing in high-performance parts. He got interested in video in the early 1980s, so he opened the first video rental store in Cincinnati. It was the same kind of thing with his computer bulletin board: he was one of the pioneers - he started it out of his home in 1984 and built it up as a labor of love.
Like most of Emerson's ventures, the board was successful. He had very little formal training in computers or electronics, but he taught himself what he needed to know, and for a total investment of around $45,000, he ended up with a Novell network of 27 computers serving about 6,000 subscribers over 18 phone lines. Emerson even added Internet access, with email service and a Usenet feed.
In 1995, he lost it all.
He was working in his auto accessory store with his son one Friday morning when the phone rang. "It was one of my neighbors," he says, "calling to tell me that it looked like a SWAT team was in the driveway outside my home. I assumed someone must have broken into the house, so I jumped in the car and headed over there. I found eight or ten cops, two or three police cruisers, and a big black sheriff's van parked in the street. And they were all waiting just for me."
Emerson was served with a search warrant. "There was nothing I could do to stop them. They went in the house, and the first thing they did was pull out all the phone lines. Then they asked me to show them where everything was at on my system. I asked them if they would let me keep my computers if I did what they wanted, and they said no. I said the heck with that, I wasn't going to show them anything. So they took it all away, 23 computers and the monitors and hard drives. They even took my grandchild's multimedia machine, which we use just for running games."
The search warrant listed 140 graphics files that the police believed were obscene. Emerson let users upload freely, so he didn't know exactly what was on the BBS at any given moment. But the content he provided was another matter: Emerson claims he always went out of his way to be discreet and to stay on the right side of the law. In addition, "the adult area of the board wasn't even listed on the main screen," he says. "To get access to it, people had to come to me, in person, so I could make sure they were of age. I made absolutely no extra charge for access to the adult section, and I estimate that it amounted to only 3 percent of the total usage."
One longtime member of Emerson's BBS, who describes herself as a churchgoer, confirms that this was his policy. "I was given access myself, and I looked around," she says. "What he had and what I saw was what you'd see in Playboy and Penthouse. I decided it was not for me, so I simply stayed away from that section in the future."
Most users had no idea that the X-rated pictures were available. "I used the board for about a year and a half," says Steve Guest, who runs a network consulting business called PC Plus. "I hadn't a clue that there was an adult area. There was no way for the average user to know that it existed." Guest says he used Emerson's BBS mainly for its email and file transfer facilities. "We have five engineers, and almost 90 percent of our business is outside the local area," he explains. "The BBS was basically our mailbox. Ironically, I selected the board because it was among the cleanest, most family oriented that I could find. People on the system didn't use any bad language, and I never found any pirated software."
So why was Emerson's equipment seized? One simple answer: local politics.
Sources close to Leis report that the sheriff is a devout Catholic who attends church every day. (He refused to accept phone calls in connection with this article, and no one from his office would comment.) Without a doubt, such moralistic behavior is an entrenched tradition in Leis's family: his father, a judge, used to fight smut back in the 1940s. Leis has not triumphed in his own legal crusades, however. As a prosecutor in the '70s, he brought the case against Larry Flynt and lost. Since becoming sheriff in 1987, Leis has lost every obscenity case that has gone to appeal, including the much-publicized Mapplethorpe battle. Yet for some time he has been winning the war. His policy of raiding adult bookstores and seizing their merchandise has discouraged anyone from opening similar businesses in Cincinnati.
To understand the connection between Leis and Emerson, we have to go back to 1982, when Emerson opened his video rental store. It included an adult section, but "the adult stuff was not displayed," he says. "If you wanted it, you had to pick it off a list of titles, and it was given to you in a plain black box."
There was a Catholic church on the opposite side of the street, and members of the congregation rented tapes from Emerson's store all the time - most of his stock was family oriented. Patty Volz has been a member of that church all her life, and she was one of Emerson's first customers. "I never had a problem with the adult section," she says. "You could bring anyone into the store, your grandmother or a child, and never be ashamed, because nothing offensive was displayed. I was raised in a strict Catholic environment, but I believe that what people choose to watch in the privacy of their own homes is no one else's business. This is freedom of choice, and that's what America is based on. Personally, I don't even like to see people rent violent movies for their children. That to me is offensive. But I have no business telling them what they should or shouldn't spend their money on. I don't think Simon Leis has any business doing that, either."
Leis saw matters differently, but he had a problem: Emerson's video store was located just outside his jurisdiction, in Clermont County.
As it happened, the prosecutor in that county shared Leis's opinion of the video store. The prosecutor charged Emerson with violating state obscenity laws, took him to court - and lost. The prosecutor tried again, and lost again. He kept trying and kept losing, seven times in a row. Emerson says he was told by his attorney that Leis had offered to help the local prosecutor on an informal basis. Having cleaned up Cincinnati, the sheriff wanted to extend his reach into the suburbs. But officials in the neighboring counties tended to want control of their own campaigns, and it seemed that Leis could do no more than encourage them from the sidelines.
Then last year, amid the mass media's obsession with the threat of cyberporn, Leis hit on a new strategy. News coverage of the dangers of online porn was becoming so intense that citizens were under the impression their children's welfare was at stake. At the same time, the Cincinnati area was now well supplied with bulletin boards - more than 200 of them, serving more than 20,000 users, according to one estimate - and many of the boards had adult sections featuring explicit photographs. Leis finally had a vote-getting crusade that no elected official could afford to ignore. He put together his coalition, a regional computer crimes task force containing personnel from two counties in Ohio and one from across the border in Kentucky. (Cincinnati sits right on the state line.) It was a great new way to reach out and bust someone, and with so many tempting targets, the only problem was deciding who to go after first.
Bob Emerson was the obvious choice. His video store had defied Leis's notions of decency for more than a decade, and unlike Cincinnati bookstore owners, Emerson had refused to be intimidated. The sheriff could now teach him a lesson.
On the day the task force confiscated his computers, Emerson recalls one of the cops telling him that he seemed to be taking it very calmly. "What do you expect me to do?" he said. "Jump up and down?" Indeed, Emerson describes himself as an amiable, laid-back kind of guy. "I don't start anything," he says. But then, thoughtfully, he adds: "If somebody pushes me, I push back. I love my country and the freedom that it stands for. To me, these people are trying to take away my freedoms, and that pisses me off." The day after the bust, Emerson went out and bought $17,000 of hardware. By Sunday, he had his board up and running again. Then he hired Louis Sirkin, national chair of the First Amendment Lawyers Association. A few weeks later, Sirkin filed a suit on behalf of Bob Emerson against Simon Leis and a long list of other city employees and departments. Citing violations of constitutional rights, the suit requested $250,000 in damages.
This wasn't all. Steve Guest, the networking consultant, decided to push things a step further. "I'm not a political person," he says. "I never get involved in political crusades. But in this case, I just got angry. I put out a message asking if anyone was interested in helping with a lawsuit on behalf of the users, and I got 200 messages in the first day. So I hired a local lawyer to look into it, and he found some other attorneys who were experienced in this area."
Guest still sounds surprised that he got involved. "You have to understand," he says, "I'm a conservative kind of guy, I'm not a liberal. But Simon Leis - how can I put it nicely? We just couldn't let an official get away with this. He has to pay for forcing his beliefs on everyone else. He's violating the basic principles on which this country was founded."
Guest is now the first person listed in an unprecedented class-action suit filed on behalf of all Emerson's BBS users who were deprived of access and had their email illegally seized. The suit demands statutory damages of $12,000 compensation per person, plus punitive damages. Bearing in mind that Emerson's system served perhaps as many as 6,000 people, the total compensation could be more than $70 million.
The filing of this suit was good news for Emerson and his online community. But he wasn't the only one who had been targeted by the task force. Four other BBS owners in the region were raided on the same day - and they didn't have his ability to fight back.
One of them is Steve Brown, who is married with one daughter and lives in a neighborhood he modestly describes as working class. Brown has a full time job as a salesperson. He started his BBS as a hobby, serving 520 people via just one phone line and a single 486SX computer. He kept the computer and a couple of CD-ROM drives sitting on a ping-pong table in the basement of his suburban Cincinnati home.
He was at work when his wife called to tell him that police were taking his BBS apart. "I got a sick feeling in my stomach," Brown recalls. "I spoke to the cops on the phone, and they asked me which computer ran the BBS. I told them. Then they asked me where the CD-ROMs were. I told them that, too. Then they went to my personal system, which requires a CMOS password to get in. I explained that it had nothing to do with the BBS. I gave them my password so they could see for themselves. But the guy mistyped it, and he got mad and just said, 'Take it.' So they seized that as well. And it's got my finances, my tax records, my whole life in there."
Brown says he was shell-shocked for days afterward. "It was a nightmare - except that each day I woke up, and it was real." He was afraid he would lose his job because the police had released his photograph to local newspapers and TV stations, alleging there had been kiddie porn on the BBS.
Like Emerson, Brown had allowed users to upload material freely. He had no idea what people put there. This meant that he couldn't even respond to the police allegations, because he hadn't seen what they claimed they had found. He still doesn't know exactly what the pictures portray.
In the months since the bust, Brown hasn't tried to replace his BBS. He says he's through with it; he doesn't want any more hassles. The experience has deepened his general distrust of government. "I feel they have gone far beyond their duties, to the point of malicious persecution of me and my family," he says. "I just don't understand what's happening in this country. The fact is, Americans are not as free as we think we are."
Even Emerson hasn't bounced back completely. Many people have chosen not to renew their memberships with his BBS, and there's a new air of caution even in text messages in the chat areas, where citizens now feel that anything they say may be monitored and possibly used against them.
Lorne Shantz, whose system was seized in Phoenix, shares their anxiety. "The federal situation is bad enough," he says, "but what's going on at the state level is more frightening, because they're getting away with more than the Feds. Big Brother has got his nose where it does not belong."
This from the man who spent 14 years as a law enforcement officer.
Scott Greenwood, co-counsel for the class-action suit on behalf of Emerson's BBS users, thinks that for all the damage Leis has done, he has also created a golden opportunity to demonstrate the power of the law. "We're suing the hell out of the sheriff's department," Greenwood says with cheerful relish. "What the police did was totally outrageous, like walking into a post office and taking all the mail because one person receives hardcore magazines. The police didn't need to take anything away; they already knew which files they wanted on the BBS. They could have copied them onto a few floppy disks. If the government can shut down a computer system because one individual sees something he doesn't like, then the whole communications system of the country is under attack. You could just as well shut down a phone switch because organized crime is using it."
Greenwood, who runs a Cincinnati law firm (Greenwood & Associates) specializing in constitutional law, is collaborating on the civil suit with Pete Kennedy of George Donaldson & Ford LLP, in Austin, Texas. That firm has defended major media clients such as The Wall Street Journal and Time Warner in First Amendment cases; Kennedy, its resident expert on computer law, was the lead trial counsel in the case of Steve Jackson Games Inc. v. US Secret Service, which ended in 1993 with the Secret Service being ordered to pay damages for illegally seizing email.
Kennedy is not as excitable as Greenwood. He has an erudite, low-key manner. Still, he's openly scornful of Cincinnati officials and can itemize a dozen deficiencies in the way the search warrant in the Emerson case was requested, issued, and applied. And yes, he says, it all comes down to politics. "A lot of state prosecutors are elected," he says matter-of factly. "Federal prosecutors are not elected. That can make a big difference in how they behave over issues such as cyberporn." In other words, when there's a hot-button issue, a state prosecutor has a strong incentive to do stuff that plays well on TV.
"Compare what happened in Cincinnati with the federal investigators who went looking for child pornography at America Online," Kennedy says. "Investigators didn't seize computers at AOL, they didn't take email, and the system stayed up. They used legal process to order AOL to produce particular information about particular suspected users. This is what is required under the Electronic Communications Privacy Act: you have to state precisely what you're looking for.
"Federal law enforcement is now getting the message, slowly," he continues. "But there are 50 states with hundreds of county prosecutors apiece who are way behind on the learning curve. We're now trying to teach them the lesson the federal people learned in the Steve Jackson case."
In fact, Greenwood and Kennedy are trying to set an additional precedent - they claim that messages exchanged semipublicly in forums on Emerson's system should be protected under a separate, noncomputer law, the Privacy Protection Act of 1980.
"This act traditionally protects a reporter's news notes," explains Greenwood. "Our theory is that sending messages via Usenet or a BBS conference is the functional equivalent of publishing. After all, companies like Lexis refer to themselves as being in electronic publishing, when all they do is send formatted data."
Unfortunately, the BBS users' civil suit may take several years to reach trial, and in the meantime, Leis shows no sign of changing his ways. At the end of August 1995, the sheriff's task force raided and seized several more boards - this time, systems that were being used by alleged hackers and phonephreaks.
Greenwood's voice takes on a tone of amazement bordering on awe when speaking of Leis's recent actions. "The sheriff just doesn't know any boundaries," he says. "In the case of these alleged hackers, he's prosecuting eight juveniles using a novel theory that possession of dialing software is a criminal act in and of itself. I believe the police in Cincinnati are acting like thugs with badges and uniforms in order to squelch online speech. The sheriff has already prompted two lawsuits, and if he continues doing this - well, there will be more."
A familiar pattern seems to be repeating itself: Leis arguably has no more chance of winning this battle in court than any of the others he has lost over the years, and yet, outside the courtroom, he has succeeded in drastically curtailing the BBS scene in Cincinnati. Has he already won the war?
While Leis would like to have us think so, things may turn out differently this time around. When the suits brought by Bob Emerson and his users ultimately come to trial, Leis may well find that the people of the modem world are a tougher target than any of the others he has gone after. Cincinnati BBS users may yet succeed in restoring some of their lost liberties - and, in the process, offer a lesson for other local governments to live by.
What you can do
The first thing to realize is that we can't count on print media or television to tell us when our liberties are jeopardized at the state level. The kind of blow-by-blow coverage that Senator Exon's notorious amendment and its spinoffs received is virtually unknown locally.
Organizations such as the Electronic Frontier Foundation, Voters Telecommunications Watch, Electronic Privacy Information Center, and the Center for Democracy and Technology do an excellent job of monitoring Washington, but they lack the resources to track legislation in all the states. The newly formed Association of Online Professionals plans to lobby in Washington on behalf of BBS owners, but the only organization that is fighting online freedoms through affiliates in all 50 states is the ACLU.
"When we have had some time to react," says Ann Beeson, the ACLU's Net expert in New York, "we've been generally successful in defeating state bills. We are now considering constitutional challenges to bills that passed in 1995."
Also, where possible, the ACLU helps provide legal defense for BBS owners and Internet service providers who get in trouble for the material they have on their systems. The ACLU has filed an amicus curiae brief in the federal case of the Amateur Action BBS, whose California owners were jailed for three years after a Tennessee postal inspector down-loaded a graphic image that was found to be obscene under local Tennessee community standards. The ACLU is also offering assistance to the five BBS owners in Cincinnati who were targeted by Simon Leis's task force.
If you're interested in helping to fight online censorship legislation in your state, call Ann Beeson at the ACLU: +1 (212) 944 9800, extension 788.
To subscribe to the ACLU Cyber-Liberties Update, a biweekly online newsletter, send a message to infoaclu@aclu.org with "subscribe cyber liberties update" in the subject line. To get a directory of local ACLU offices, send a message to infoaclu @aclu.org with "directory of local offices" in the subject line.
On America Online, ACLU documents are in Constitution Hall at keyword: ACLU.
Also, visit the ACLU on the Web at www.aclu.org.
Other Resources
If you're a BBS sysop or Internet site owner, consider contacting the Association of Online Professionals. Its BBS number is +1 (703) 264 1750.
Scott Madigan, a BBS user in Cincinnati, has set up his own Web site offering news and information on local events and First Amendment issues generally. (Madigan contributed information to this article.) Set your browser to w3.one.net/~smadigan/free/free.htm.
Bob Emerson's BBS can be dialed at +1 (513) 752 1055. He also has a legal defense fund:
CCC BBS Defense
Fund PO Box 532
Batavia, OH 45103
The class-action suit on behalf of Emerson's BBS users has a separate fund:
CCC Users' Litigation Fund
c/o Peggy Huesman
Star Bank - Cincinnati
425 Walnut Street, M/L 9215
Cincinnati, OH 45202
And if you want to see how much subversive material still remains on Robert Carr's "Private Idaho" BBS, tell your modem to call +1 (208) 338 9227.
