THE BBS BURNINGS
by Lance Rose

Computer bulletin board owners are being arrested in various cities, while
local news media weigh in with tales of high tech villainy.  Fear of BBSıs
is still spreading across the land; if a BBS was a book, theyıd burn it.
Since  computers are alot more expensive than books, and donıt burn too
well anyway,we are seeing sysops tossed in the slammer and their equipment
confiscated instead.  Civil Rights seem too often to go on vacation when
the police confront sysops and BBSıs. This month,we zero in to look at two
sysops who are receiving a raw deal from their local police. These are not
the only criminal proceedings under way, just the ones on which we have
more information.   How many sysops will be wrongfully arrested and their
posessions confiscated before the cops figure out how to accord them their
basic rights as U.S. Citizens?

1. TONY DAVIS AND THE SHOW-BIZ COPS OF OKLAHOMA CITY

The arrest of Tony Davis was reported in last monthıs Boardwatch. Davis
operated the Oklahoma Information Exchange BBS in Oklahoma City. On August
17, 1993, he was formally arraigned in Oklahoma state court and allowed to
remain out of jail on  $4500 bail. Since the first report, we lookedinto
this affair more closely, The closer one looks, the more absurd Davisı
plight gets.  The police investigation of Tony Davis culminated in two
purchases of allegedly obscene CD-ROMs from Davis by undercover police on
June 4th and July 12th, 1993. Shortly after the second purchase, on July
19, 1993, they arrived in force at Tony Davisı office with a warrant and
seized some adult CD-ROMs from the stock he maintained in operating a
CD-ROM retail business. They did not stop there,however, They also grabbed
his BBS computer equipment and arrested Davis.  The event had little
chance of passing unnoticed, as the police brought along a professional
video camera and videotaped the whole affair.  Afterwards they edited the
tape, wrote a script, and with the help ofthe local ABC affiliate turned
it into a weekly installment of a ³reality television² program called
³Youıre Busted².  It was broadcast throughout the Oklahoma City area on
July 23rd, four days after the raid. For that extra dose of reality, the
episode was narrated by one of the policeman who searched Davisıplace and
arrested him.  As the police burst in on Davis, the voiceover informed TV
viewers they were witnessing the control center for Davisı ³International
pornographic network².  Out of roughly 2,000 CD-ROMs Davis kept on hand
for the CD-ROM retail business he operated, the police confiscated 57. For
purposes of comparison, thatıs under 3% of Davisıtotal stock of CD-ROMs. 
A far smaller percentage than the amount of hardcore adult material found
in typical video stores in most parts of our country.  Later in the show,
the cop with the video camera focused on a computer screen showing the
CD-ROM activity on Davisı BBS. The names of BBS users could be seen as
they downloaded files from the CD-ROMs.  The narrating officer knowingly
explained  to the TV audience that they were seeing BBS users ³viewing the
smut² right then and there ( not to spoil the fun, but the police were
mistaken; users canıt read image files until they are transferred to their
own computers).  At the end of the show, the narrator belted out the
showıs theme: ³Tony Davis, youıre Busted!²  Davis did not enjoy his 15
minutes of fame.  According to Davis,  ³the .Yourıe Bustedı show was the
most degrading thing Iıve seen done to anybody in my life.² The newspapers
were thoroughly scooped by joined in spiritedly, passing along police
allegations that Tony Davis was running a ³high tech, modern-day porno
house².  They noted that other investigations continued, which might mean
the police were investigating Davisı  CD-ROM suppliers, his customers, or
both. To their credit, they also gave a number of column inches to
questions raised by Davisıdefense attorney. William Holmes, about the
legality of the police actions.  Davis was charged with four
obscenity-related counts at the arraignment, two based on the  CD-ROM
purchases from Davis by undercover officers prior to the raid. Another
count charged Davis with criminal ³possession² of obscenity,  despite the
Supreme Courtıs declaration in the past that mere possession  of obscene
material is perfectly legal. The addition of this bizarre claim indicates
that either the local police do not understand the Constitutional rights
of U.S. citizens, or do not care.  The last count was for trafficing in
obscene images.  According to Davisı attorney, this statute was originally
enacted in reaction to pornographic video games, and now seems to be
directed at the downloading of BBS files that the cops videotaped. All
charges could have a very hard time sticking if the defective search and
seizure procedures used by the police are closely scrutinized in court. 
Those procedures do appear deeply defective.  Federal protections for 
BBSıs and sysops were apparently ignored wholesale in the Davis raid, just
as in other BBS raids weıve seen the past couple of years. The Electronic
Communications Privacy Act (³ECPA²), protects electronic messages against
government search and seizure. When the police took Davisı BBS, they
prevented messages travelling through the BBS from being delivered to
their ultimate addresses. About 150 messages went undelivered, according
to Davisı attorney.  This interception violates the  ECPA, even if the
police resisted the temptation to read e-mail onthe seized computers back
in their offices.  The Privacy Protection Act (³PPA²)  prohibits seizure
of materials being kept or prepared for publication, unless the person
holding them is suspected of a crime involving those very materials (with
a few narrow exceptions).  Davisı business activities included publishing
the ³Magnum² series of CD-ROMs, none of which were included ing the titles
the police thought obscene. By seizing  computers containing the materials
used by Davis in publishing his CD-ROMs, the police grossly violated the
PPA.Since Davis was not suspected or accused of any crime in relation to
the Magnum CD-ROMs he published,  any associated materials should not have
been touched by the police. Even plain vanilla 4th and 5th Amendment
warrant requirements may have been violated by the police in this case. 
According to sources, the Oklahoma City police typically obtain a warrant
based on an informal chat with the magistrate.  Afterwards, they perform
the actions authorized by the warrant, and only then submit a formal
affidavit to support the warrant. If the police followed this sloppy and
deeply illegal procedure in Davisı case, then his due process rights were
grossly violated.  As a further example of official slop, neither the
warrant under which the raid was conducted, nor the police request for
that warrant, mentioned Davisı computer bulletin board at all. That fatal
omission did not stop the cops from taking all the computer equipment
anyway.  Perhaps the Oklahoma City prosecutors believe the seizure was
legal because it is authorized  under Oklahomaıs own obscenity seizure
statutes.  If so, theyıre dead wrong.  Federal due process protections
trump state seizure laws. There was no emergency here to justify even a
temporary abridgement of Davisı full due process rights.  The particular
importance of the ECPA and PPA should not be underestimated by  Oklahoma
state attorneys or anyone else. The protections of these statutes are so
important that congress spelled them out expressly, even though  in a
sense they merely clarify protections already contained in the
constitution.  The police cannot bat these protections out of theway every
time they threaten this weekıs episode of ³Youıre Busted².  Davisı lawyer,
himself a former local prosecutor, appears fully aware of the mess the
police are making of the Davis matter. He sent them a letter a week after
the raid formally notifying them they are violating the ECPA and PPA
through their seizure and retention of Davisıcomputer equipment. In doing
so, he is trying to short circuit a possible future defense by the cops
that they did not know they were doing anything wrong by holding Davisı
equipment. Readers of Boardwatch may recall the lawsuit won by Steve
Jackson Games against the U.S. Government in Austin, Texas a few months
back. The federal court held that the agents ³ naive BBS seizure²
violating the ECPA and PPA could be excused, but the agents became
obligated to return the wrongly seized materials as soon as they found out
about their privacy and publishing aspects and the laws forbidding their
seizure.  The same should certainly hold true here.  Despite this
precident, as of August 19th the police still did not return anything to
Davis, almost a month after receiving his lawyerıs notifying letter.  Why
did the police pick on Davis? It certainly wasnıt due to their keen law
enforcement instincts.  Despite the screaming newspaper headlines about
porno shop merchants, Davis is a well-known and respected businessman. He
runs a telephone goods and services company, selling equipment and special
services like Centrex switching to local area businesses. He was operating
Oklahoma Information Exchange, a widely reputed and very busy BBS.  He was
one of the founders of Fidonet, and was Region 19 coordinator for several
years. In his CD-ROM business, he sold many titles (with adult titles
accounting for a minute portion of his business) and produced his own
Magnum CD-ROMs.  Davis also had a fairly extensive age verifcation scheme
to assure only adults were getting access to adult materials on his BBS.
Memeberships were given to those who had credit cards.  In addition, to
get access to the adult area users had to send davis a signed letter
stating that they were over 21. Despite these measures, when the dust
cleared, Davisı standing as a businessman and his age cerification
procedures did nothing to slow down the police.  After talking with Davis,
his attorney and other local sources, the blame for his troubles should be
laid on the creepy little deal the Oklahoma City police cooked up with the
local ABC affiliate for the ³Youıre Busted²  television program. The TV
station gave the police a professional video camera and the opportunity to
shoot, script and narrate a TV program called ³Youıre Busted².  The payoff
to the police was 15 minutes of fame on a weekly basis for individual
cops, and great publicity and a high profile for the police department as
a whole.  In return, the TV station received a TV show in a hugely popular
³reality television² format, an exclusive relationship with the police not
enjoyed by other local stations, and, it would appear, very low production
costs.  A great business deal for the police and the television station, 
but terrible  news for just about everyone else.   For starters, the
police end up paying less attention to protecting the community and more
to show biz.  On-the-scene arrests make the best TV, so the police will be
more motivated to obtain search and arrest warrants and less concerned 
about whether the intrusion on peoplesı lives is justified.  In fact, the
more individuals they intrude on, the better the ³Youıre Busted²episode. 
The effect on the news media is just as bad. The local ABC affiliate
falsely  presents the police-made footage as ³reality², when in fact itıs
been manufactured for TV just like all other TV fodder.  The police may
not be conversant with the finer points of constitutional law, but theyıre
smart enough to know if they donıt make a good show, theyıll be canned
fast by the station. Further, the media, the proud ³fourth estate² lets
itself become no more than a flack for the local police.  The public, as
usual, is victimized on both ends. It gets prosecution of the most
entertaining instead of the most deserving,while the couch potatoes of
Oklahoma City are served up a desperately skewed view of lawenforcement
and who are the criminals.  Without the cop/show biz connection, Tony
Davis might never have been busted.  If the police had taken the trouble
to investigate Davisı life a bit, they would have discovered that the
adult CD-ROMs were only a small part of his business.  Tony Davis is not a
porn merchant, not the type of person to hold up to others as a bad
example.  Yet with their constant need to come up with new and exciting
material on a TV production schedule, the police overlooked the reality of
Davisı business. It fit their agenda betterto bust Tony Davis with a bang
with the whole world watching, than to quietly give Davis a word to the
wise about the police departmentıs newly formulated policies on digitized
adult materials.  Indeed, the police departmentsı failure to give Davis a
little advance warning seems almost criminally negligent.  According to
assistant district attorney Lori Nettleton, ³This is the first time that
charges have been filed involving the use of computers in an obscenity
case in Oklahoma County.²  A quick look at the laws under which Davis was
charged shows they were on the Oklahoma Statute books for almost ten
years. Why did the police not act under them until now?  One could argue
the police themselves promoted the growth of the adult computer file
business through their own laissez-faire attitude toward computer
obscenity laws for the last ten years. Most people figure out somethingıs
illegal by looking to see if the police are arresting people for doing
it.  While this is no excuse for pursuing clearly illegal activity, Davisı
acts were, at worst,  in a grey area of arguable  criminality.  Now the
police are overeager to make an example out of him, after entirelyfailing
to give any guidance on just what counts as criminal conduct when it comes
to adult materials.  In the overzealous police raid and arrest of Tony
Davis,  everyone loses. Davis loses his Freedom and his property, and her
already lost much of his reputation as a business man. The users of the
Oklahoma Information Exchange BBS lost. They trusted that  they had rights
of privacy from the government, and the  Oklahoma City police betrayed
that trust.  The police will lose as well if they are held responsible for
their gross violations of warrant procedures.  If anyone decides to sue
them, maybe theyıll be kindenough to videotape it so we can watch it all
later on TV.

2. MICHAEL ELANSKY & HIS CONNECTICUT BBS BOMB FACTORY

Moving from the absurd to the ridiculous, a 21 year old sysop named
Michael Elansky is in jail on $500,000 bail in West Hartford,
Connecticut.  The crime? They found a text file on his BBS describing how
to build a bomb.Elansky spoke to me from prison, while a noisy fellow
inmate yelled at him the whole time to get off the phone.  His bulletin
board system, the Warehouse BBS, was about three years old, with two
lines, 1.2 gigabytes of storage and a CD-ROM drive. His specialty was
utility software, and he boasted a full range of the latest and greatest
utilities to be found on the networks.  One day near the end of June, he
was picked up by the police after they discovered a file named ANARC2 on
his BBS. This file, uploadedby a user,  was an anarchist tract preaching
chaos and disorder for society.  Deeper into the file was the bomb-making
recipe cited by the police. A recipe, according to Elanskyıs father,
straight out of theAnarchistıs Cookbook, an above ground publication
available from Paladin Press to anyone with the price of purchase.The file
was found in an area of the Warehouse BBS called IIRG, for ³International
Information Retrieval Group.² Elansky says this group gathered all kinds
of information.  Anything might be found there at a given time, so it was
no surprize that bomb-making plans had found their way to that area.  The
file was supposedly downloaded by a 14 year old caller, who then contacted
the police, leading to Elanskyıs arrest.  Elanskyıs disputes this claim,
saying his BBS records donıt show that anyone who might have been 14
downloaded the file in question.Two charges were filed against Elansky.
The first is inciting injury to persons and property, based on the mere
fact that the ANARC2 file was on Elankskyıs BBS. The second charge is
creating risk of injury to a minor, covering the download by the 14 year
old. Somehow Elansky,  simply by having the file on his BBS, is blamed by
the police for the possibility that some young kid might download the
bomb-building instructions, build a bomb, and blow it up and hurt
himself.  According to Elanskyıs parents, he found out months before the
arrest that an investigator had been checking out his BBS.  He gave the
investigator a call and invited him to inspect the BBS at close range, but
the investigator demurred.  The arrest and jailing eventually
followed.Elansky was held on $500,000 bail right from the beginning.  This
was far more than his parents could afford, so he went straight into jail
to await further proceedings. His attorney was outraged when he learned of
the bail amount, and obtained a hearing on having it lowered.  The judge
was none too sympathetic to Elansky.  He flatly refused to lower the bail
amount, saying Elansky ran a bomb-making factory using his BBS, and that
he was just as dangerous as the bomber who blew up the World Trade Center.
Naturally, the local newspaper picked up the bomb factory angle for their
shocked story about the jailed local BBS sysop.Elansky says the police and
the judge are not only equating his mere possession of text with
trafficking in bombs, but also seem to be holding him personally
responsible for the ANARC2 file.  ANARC2 was written by a stranger and
uploaded by a user, but the police are acting as if Elansky wrote the text
himself.  According to sources, the ANARC2 file in fact is widely
available across the various computer networks.If this seems far too much
fuss over a little chunk of text, indeed it is. There is another side to
this story. Elansky and the West Haven police have been playing a game of
cat and mouse for the past few years, with bomber accusations against
Elansky the constant theme. Elansky says it started in 1988, when the
police found him with explosives.  He sayse they were for a fireworks show
at his high school, the police say they were bombs. The poilce wanted him
to cop a plea and turn over friends who also dabbled in explosives. He
refused, and they had to let him go for lack of strong enough evidence to
convict him of anything. Since that time, he says, the police have given
him a hard time, picking him up a couple more times with explosives in his
possession,  but always letting him go again. While Elansky admits he has
had exploding objects in his possession, he says it was always in
connection with fireworks displays, a hobby of his.  Elasnskyıs account is
certainly plausible, though the facts he relates could also support the
view that he was dabbling in bombs the whole time.  Either way, we can
understand why the police were so eager to put him away for a bomb making
recipe.Regardless of their motivations, however, the police made a big
mistake in jailing Elansky for a text file on his BBS.  The 1st Amendment
prohibits government officials from acting  against anyone for
distributing materials containing political content.  If, as Elanskyıs
parents claim, he did not even know the file was on his BBS until after he
was arrested, then he is entitled to even greater legal protection from
prosecution, such as accorded to book stores and magazine distributors.
Distributors are not responsible for materials passing through their
systems, even patently illegal materials like obscene or infringing
publications, unless they are specifically aware of the materials in
question. This rule is necessary to assure the smooth flow of 1st
Amendment materials through mass distribution systems for both printed
and  electronic materials. Without the rule, distribution systems would
slow to a crawl as their owners review every text to make sure they will
not get sued for carrying it.  Even if Elansky made bombs all those years
as the police believe, this gives no support to jailing him based on the
BBS file.  The police acted criminally in penalizing him for his speech on
his BBS.  There is ³incitement² exception to the protection of speech, but
it requires a ³clear and present danger² that injury is about to result
from the speech being penalized. There was absolutely no clear and present
danger from the  bomb-making file on the Warehouse BBS.  The text was in
circulation for years in print form, and is now common all over the nets,
just another wild-eyed political leaflet strewn along the electronic
highway. If the text ever posed a danger to anyone,  that ³present² has
now receded into the distant past.  At any rate, Elansky did not author
the file, did not even know it was on his system, and absolutely should
not be held legally to account for it.The question now is whether the West
Hartford police will continue their illegal incarceration of Elansky based
on the BBS bomb-making file. Their best bet would be to cut their losses
now and spring him loose. In the meantime, Elansky been cooling his heels
in jail for three weeks now, and looks forward to  at least another three
weeks behind bars before the next hearing in his case.As we went to
press,  Elansky called me once more from jail, telling me his parents just
set up a legal defense fund.  Boardwatch readers who want to help can send
checks payable to the ³Michael Elansky Fund² acc.# 02060573652, either to
the Society for Savings, 342 North Main Street, West Hartford, CT, 06117
or directly to Michael Elansky, 25 Maiden Lane West Hartford, CT, 06117(we
did not have time to confirm this with the Society for Savings).  Theyıre
going to need every penny.  Elansky says he just hired the best lawyer in
town,  who charged an initial retainer of $15,000 to get started. This
could be  an important 1st Amendment case; if you think heıs
 been wronged, helping Michael can be a good investment in justice.

[Lance Rose is an attorney practicing  high-tech and information law in 
Montclair, N.J. He can be foundon the Internet at elrose@well.sf.ca.us,
and  on compuserve at 72230,2044. He is also author of Syslaw, the legal
guide for online service providers available from PC Info Group at
1-800-321-8285].
