Newsgroups: comp.org.eff.talk,alt.society.civil-liberties,misc.legal.computing From: mr@gonix (Mike Riddle) Subject: Computer Porn a Prosecutorial Challenge Keywords: aabbs pornography aba Sender: news@gonix.com (News pseudo-user) Organization: Greater Omaha Public Access Unix Message-ID: Date: Fri, 9 Dec 1994 15:00:23 GMT Lines: 132 -----BEGIN PGP SIGNED MESSAGE----- COMPUTER PORN A PROSECUTORIAL CHALLENGE by Henry J. Reske _ABA Journal_, December, 1994 Copyright (c) 1994 American Bar Association Reprinted by permission of the _ABA Journal_. Further reproduction prohibited except for versions made by non-profit organizations for use by blind or physically handicapped persons, provided that no fees are charged. Cyberspace smut easy to distribute, difficult to track, open to legal questions While the prosecution of computer pornographers has sent shock waves through the online networks, the reality of what the government can do in cyberspace maya be much more limited. The prospects of government censors mining the Internet for miscreants is uncertain at best, experts say. They point out that it is nearly impossible for police constantly to look for crime on computers networks because there is simply too much to view. And the traditional laws used to prosecute some kinds of pornography may not apply to high-tech versions of it. But experts nonetheless concede that computer porn prosecutions are likely to continue, perhaps forcing a re-evaluation of First Amendment law on obscenity. Large Potential Audience Currently there are literally millions of people using approximately 45,000 computer bulletin boards. the kind of sexual material available online ranges from images of simple nudity to acts such as bondage and sadomasochism. The material is both free and for sale, can originate anywhere and can be transmitted and retransmitted around the globe. "We have been very clear from the get-go that we are not network police," said Scott Charney, chief of the Justice Department's computer crime section. "We don't go on boards and see if we can stumble onto crime. That has a chilling effect on networks. ... But we don't want o turn away from the fact that certain people are doing things that are bad." Charney estimates the number of prosecutions for transmitting sexually explicit material through computer networks to be in the "dozens," while others put it as low as a handful. All agree the number is even lower if you exclude prosecutions for child pornography. Federal prosecutions are based on existing statutes dealing with mail or wire fraud, said Buck BloomBecker, director of the National Center for Computer Crime Data. At the state level, Florida's 1986 law, the Computer Pornography and Child Exploitation Act, is the only legislation explicitly dealing with computer pornography. In some instances, it is unclear if existing laws are applicable to some kinds of cyberporn, Charney said. As an example, he cited a technique called "morphing" that uses computers to alter images. It was used in the film "Terminator II" to make a character appear to melt or to walk through a gate. Through morphing, the image of a 40-year-old nude woman can be transformed into the figure of a child. Whether that can be considered kiddie porn may eventually be settled in the courts, Charney said. [Photograph: Charney with computer in background. Caption: "We have been very clear from the get-go that we are not network police." -- Scott Charney, DOJ computer crime chief] Picking the Community One of the most recent federal prosecutions raises questions about whether existing obscenity law, which relies on an evaluation of community standards, should be applicable to computer porn. The case resulted in the July 28 Memphis conviction of a California couple on 11 counts of transmitting obscenity through interstate phone lines. They were acquitted, however, of engaging in child pornography. The defendants, Robert and Carleen Thomas, 38, of Milpitas, run a computer bulletin board called Amateur Action that makes sexual pictures available to subscribers, Robert Thomas told the _ABA Journal_ before his sentencing, scheduled for December. BloomBecker said federal prosecutors in the Thomas case were accused of forum shopping--finding the most likely place for a conviction. Thomas agreed, saying he doubts he would have been convicted in California. "Everything I have on my bulletin board can be purchased on the street in San Francisco," he said. Federal child pornography charges are pending against Thomas in Utah, "probably the second worst state" after Tennessee in which to be a pornography defendant, he said. Mike Godwin, counsel for the Electronic Frontier Foundation, called the Tennessee prosecution troubling. In this case, Memphis set the community standard for the San Francisco bay area, he said, calling into question the viability of _Miller v. California_, the Supreme Court ruling that set a community-standards rule to judge obscenity. "What you have is people discovering that adhering to their own community standards is not enough,' said Godwin, whose Electronic Frontier Foundation often is called the ACLU of cyberspace. The standard of _Miller v. California_ is "unrealistic in the age of Internet and computers," added the Thomases' new attorney, Thomas Nolan of Nolan & Armstrong in Palo Alto, Calif. "Something's got to change." -----BEGIN PGP SIGNATURE----- Version: 2.6.2 iQCVAwUBLueX3UpSi8D+DhVtAQGbtQP/dT5lKONcj2PMRv3BzjEnlTSnBGqcNGwp 29iyuCFuwaHi4oM8iSUPM81rMh+zESvNr9i2R8sO4qYetqO45mdEOZjRQZu8U/LJ +yG8QwlLIdibRWbuSXVsxDPQ49HGmJdjF4yvMJMZm8HLBzzLnn32DONltAvF5fc9 QR8ivONX7c4= =n5CF -----END PGP SIGNATURE----- [The _ABA Journal_ is on the net at abajournal@attmail.com] -- Mike Riddle | "Opinions expressed herein General Counsel | are mine alone and not those Greater Omaha Public Access Unix Corp. | of Gonix unless specifically Finger mr@gonix.gonix.com for PGP Key | stated otherwise."