Technology Law Column

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Published in the Chicago Daily Law Bulletin, August 1, 1994 at page 5.

Whose Standards? Whose Community?

Copyright 1994 by David Loundy

We may be living in a "global village," but the village is still full of separate communities with their own standards of obscenity.

Lately the Cyberspace community has been shaken by the conviction of Robert and Carleen Thomas of Milpitas, California on eleven counts of distributing pornographic materials by way of common carrier (each count carrying a maximum sentence of five years). The pornographic material includes computer images distributed by their computer bulletin board system "Amateur Action", located in their home state of California. But the convictions took place in Memphis, Tennessee.

The denizens of Cyberspace are outraged. Discussions immediately erupted on the Internet (the "network of networks" that connects computers all over the United States and in nearly 150 other countries). The on-line community sure that the case will be turned over on appeal, cannot understand how the Thomases, running a business in California, can be made to face charges of violating community standards in Tennessee. Unfortunately for the shocked travelers of the Infobahn, this is not a carjacking deserving outrage, but rather a speeding ticket illustrating that if you break the law - even if you are driving in a foreign state - you might get caught and have to pay for the infraction.

Here is the law. The statutes the Thomases violated are: 18 U.S.C. Section 1462 (which outlaws the transporting of obscene material via common carrier) and 18 U.S.C. Section 1465 (which covers transporting obscene material in interstate or foreign commerce). Obscene material is defined by employing the Supreme Court test articulated in Miller v. California (413 U.S. 15 (1973)). The test asks whether the work, as a whole, is designed to be sexually arousing in a "patently offensive" way, whether the material portrays acts whose depictions are specifically prohibited by state law, and "whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." Most importantly, the measure in applying this test is to be what the "average person," applying "community standards," would find satisfies the elements of the test.

Here are the facts. Agent Dirmeyer, a postal inspector in Tennessee who investigates the distribution of pornography by mail, ordered materials from the Thomases. The material included pictures and videos of people having intercourse with a variety of farm and domestic animals, people urinating and defecating on one another, images of torture, and other "novelty" items. Some of this material was transported by UPS (a common carrier) to an address in Tennessee, and some was transmitted via the telephone system (also a common carrier), by modem, to a phone in Tennessee - plugged into Agent Dirmeyer's computer. The jury, applying local Memphis community standards, found the material obscene. Guilty as charged on a straightforward obscenity conviction.

Here is the problem. The Thomas' bulletin board system (BBS) had been raided previously - by the San Jose Police Department. In that 1991-92 investigation, the material on the BBS was not sufficient to produce an indictment. The Thomases even had a note on their bulletin board system addressed to law enforcement officials that read, "The San Jose Police Department as well as the Santa Clara County District Attorney's Office and the State of California agree that Amateur Action BBS is operating in a legal manner. I encourage you to check with these officers before accusing us of any illegal activities." Being hauled into court in Tennessee and found guilty was like a lightning bolt out of the sky to the Thomases, as well as to much of the Internet Community. (I say Internet Community because it is a separate community, many of them, in fact.) In a community, people conduct business, learn, play, develop a common vocabulary, and have relationships. Memphis, Tennessee is a community. San Jose, California is a community. And many people feel that Prodigy and CompuServe and The Well are also communities.

In some of these communities, geographically fixed or "virtual," there are adult bookstores and movie houses, in some there are not. Pictures showing people having sex with horses may offend local standards in a "community" such as Prodigy (which prides itself in having a "family atmosphere"), or in Tennessee, but may not offend the standards in California or on parts of the Internet (where speech is often quite free and diverse).

Here is the point. While Cyberspace may consist of an intangible area with no geographical location, each person plugged into Cyberspace is still a part of a real world community, and each community has real social mores that it will apply to material which may be obscene, whether it is transported into the community in the form of a computer file on a floppy disk delivered by the postal carrier, or whether it is transported in the form of a computer file delivered by the telephone.

Computer system operators should be made aware that there are two choices: either do not make available for transmission pictures of naked women being tortured, or ensure that such pictures are not available to people in locations where such pictures are illegal. This is not an easy task for SYSOPs who may wish to provide explicit material to the users of their systems.

The Thomases were convicted of violating community standards in Tennessee. Instead of Agent Dirmeyer, an inspector could just as easily have been calling from one of the countries in, for example, the Middle East where women run the risk of being stoned to death or spat upon for not wearing a veil in public. By transmitting pornography into such a restrictive country, System Operators may find themselves facing extradition or having their choice of vacation spots limited. In this age of instantaneous global communications, they must either run a very "sanitary" computer system, or carefully monitor who is using the system and know the obscenity laws of the user's jurisdiction.

It is not realistic to monitor the laws of all 50 states and all of the countries with telephones and network connections. However, given the current state of the law, this is what is required of a System Operator. Any System Operator can gamble, and try to design a computer system he or she believes is "safe enough" to avoid legal problems. SYSOPs may even determine their degree of risk by choosing what material they carry and to whom access is given. However, as in any gamble, System Operators run the risk of losing.

The law is slow to adapt to advancing technology. In many cases, old precedents (such as the twenty year old Miller v. California) may still provide guidance for the behavior of people who communicate and interact in old ways - but using new technology. The problem lies not in deciding how to define problems such as "what is pornographic?" but rather in defining issues such as "what makes up the relevant community whose standards need to be applied?"

If the Information Superhighway is ever to evolve in ways that will support diversity and freedom, then the laws must recognize that new forms of communities are developing; communities in a world where physical location has little meaning. We are already living in a global village where information knows no borders, be they local or international.

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