IP: Ruling on Amateur Action BBS

[Dave Farber <farber () central cis upenn edu>]

From: "Oliver S. Giessler" <100135.267 () compuserve com>


On January 29 the United States Court of Appeals for the sixth circuit
affirmed Robert and Charleen Thomas convictions and sentences. The
decission can be found at:


http://www.epic.org/free_speech/censorship/us_v_thomas.html


For those who are not aware of the case I will summarize it: The
defendants operated a BBS in California. Users had to register and pay a
certain amount to use the BBS. The main purpose of the BBS was the
offering of sex-GIFs.  An agent from the US Postal Inspection located in
Tennessee applied for an account and subsequently loaded several sex-GIFs
down and ordered some porno videos. This has been considered a violation
of 18 U.S.C. SS 1462 amd 1465.


After reading the decision I think that the part quoted below is the most
important for us netizens:


"Defendants' First Amendment issue, however, is not implicated by the
facts of this case. This is not a situation where the bulletin board operator
had no knowledge or control over the jurisdictions where materials were
distributed for downloading or printing. Access to the Defendants' AABBS
was limited. Membership was necessary and applications were submitted and
screened before passwords were issued and materials were distributed.
Thus, Defendants had in place methods to limit user access in jurisdictions
where the risk of a finding of obscenity was greater than that in California.
They knew they had a member in Memphis; the member's address and local phone
number were provided on his application form. If Defendants did not wish
to subject themselves to liability in jurisdictions with less tolerant
standards for determining obscenity, they could have refused to give
passwords to members in those districts, thus precluding the risk of
liability.


This result is supported by the Supreme Court's decision in Sable
Communications of Cal., Inc. v. F.C.C. where the Court rejected Sable's
argument that it should not be compelled to tailor its dial-a-porn
messages to the standards of the least tolerant community. 492 U.S. 115, 125-26
(1989). The Court recognized that distributors of allegedly obscene
materials may be subjected to the standards of the varying communities
where they transmit their materials, citing Hamling, and further noted that
Sable was "free to tailor its messages, on a selective basis, if it so chooses,
to the communities it chooses to serve." Id. at 125. The Court also found no
constitutional impediment to forcing Sable to incur some costs in
developing and implementing a method for screening a customer's location and
"providing messages compatible with community standards."




Well, now the decision stands for discussion. Beside the fact that you
can agree with it or not IMO it can at moment not transfered to Internet
cases. The affirmation stands with the fact that the defendants where
able to restrict the access to their BBS to users from California (sure
you can fake your residential status).


This is not possible in the internet so far. You can hide yourself behind
another server or just use an comercial online service like CIS or AOL.
If you use them your address can only be traced back to your server.
Nobody is able to know whether you locked into a service (NOT on your
server) from state X or even country Y.


So the internet community has not to be concerned esp. of this decision.
Nevertheless we have to pay attention to censorship! Please join the blue
ribbon campaign of the EFF!


Oliver S. Giessler
(Brussels - Belgium)


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Consulting in European and German telecommunications and media law


Email: 100135.267 () compuserve com or giessler () aol com
Fax:   +32 2 238 21 26 (till 28.03.96)


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