235 lines
14 KiB
Plaintext
235 lines
14 KiB
Plaintext
From ww3@fasttax.com Fri Oct 8 08:44:33 1993
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id AA04036; Fri, 8 Oct 93 08:44:12 -0700
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(Smail3.1.28.1 #11) id m0olK1S-001FO8C; Fri, 8 Oct 93 10:46 CDT
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Message-Id: <m0olK1S-001FO8C@zeus.fasttax.com>
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X-Sender: ww3@zeus.fasttax.com
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Date: Fri, 08 Oct 1993 10:45:04 -0500
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To: hostmaster@wps.com
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From: ww3@fasttax.com (Wynn Wagner III)
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Subject: Tony Davis got busted
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X-Mailer: <PC Eudora Version 1.1a5>
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Status: OR
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Here is a story that is in the October issue of Boardwatch. The writer is
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Lance Rose, an attorney, and the author of "SYSLAW", the 'bible' on
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electronic communication law.
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TONY DAVIS & THE SHOW-BIZ COPS OF OKLAHOMA CITY
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The arrest of Tony Davis was reported in last month's Boardwatch. Davis
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operated the Oklahoma Information Exchange BBS in Oklahoma City. On August
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17, 1993, he was formally arraigned in Oklahoma state court and allowed to
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remain out of jail on $4500 bail. Since the first report, we looked into
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this affair more closely. The closer one looks, the more absurd Davis'
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plight gets.
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The police investigation of Tony Davis culminated in two purchases of
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allegedly obscene CD-ROMs from Davis by undercover police on June 4th and
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July 12th, 1993. Shortly after the second purchase, on July 19, 1993, they
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arrived in force at Tony Davis' office with a warrant and seized some adult
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CD-ROMs from the stock he maintained in operating a CD-ROM retail business.
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They did not stop there, however. They also grabbed his BBS computer
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equipment and arrested Davis.
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The event had little chance of passing unnoticed, as the police brought
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along a professional video camera and videotaped the whole affair.
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Afterwards they edited the tape, wrote a script, and with the help of the
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local ABC affiliate turned it into a weekly installment of a "reality
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television" program called "You're Busted". It was broadcast throughout the
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Oklahoma City area on July 23rd, four days after the raid. For that extra
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dose of reality, the episode was narrated by one of the policemen who
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searched Davis' place and arrested him.
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As the police burst in on Davis, the voiceover informed TV viewers they were
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witnessing the control center for Davis' "international pornographic
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network". Out of roughly 2,000 CD- ROMs Davis kept on hand for the CD-ROM
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retail business he operated, the police confiscated 57. For purposes of
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comparison, that's under 3% of Davis' total stock of CD-ROMs. A far smaller
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percentage than the amount of hardcore adult material found in typical video
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stores in most parts of our country. Later in the show, the cop with the
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video camera focused on a computer screen showing the CD-ROM activity on
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Davis' BBS. The names of BBS users could be seen as they downloaded files
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from CD-ROMs. The narrating officer knowingly explained to the TV audience
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that they were seeing BBS users "viewing the smut" right then and there (not
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to spoil the fun, but the police were mistaken; users can't read image files
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they are transferred to their own computers). At the end of the show, the
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narrator belted out the show's theme: "Tony Davis, you're busted!" Davis did
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not enjoy his 15 minutes of fame. According to Davis, "the You're Busted'
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show was the most degrading thing I've seen done to anybody in my life."
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The newspapers were thoroughly scooped but joined in spiritedly, passing
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along police allegations that Tony Davis was running a "high-tech,
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modern-day porno house". They noted that other investigations continued,
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which might mean the police were investigating Davis' CD-ROM suppliers, his
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customers, or both. To their credit, they also gave a number of column
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inches to questions raised by Davis' defense attorney, William Holmes, about
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the legality of the police actions.
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Davis was charged with four obscenity-related counts at the arraignment, two
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based on the CD-ROM purchases by undercover officers prior to the raid.
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Another count charged Davis with criminal "possession" of obscenity, despite
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the Supreme Court's declaration in the past that mere possession of obscene
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material is perfectly legal. The addition of this bizarre claim indicates
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either that the local police do not understand the Constitutional rights of
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U.S. citizens, or do not care. The last count was for trafficking in obscene
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images. According to Davis' attorney, this statute was originally enacted in
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reaction to pornographic video games, and now seems to be directed at the
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downloading of BBS files that the cops videotaped. All charges could have a
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very hard time sticking if the defective search and seizure procedures used
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by the police are closely scrutinized in court.
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Those procedures do appear deeply defective. Federal protections for BBS's
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and sysops were apparently ignored wholesale in the Davis raid, just as in
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other BBS raids we've seen the past couple of years. The Electronic
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Communications Privacy Act ("ECPA"), protects electronic messages against
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government search or seizure. When the police took Davis' BBS, they
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prevented messages traveling through the BBS from being delivered to their
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ultimate addresses. About 150 messages went undelivered, according to Davis'
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attorney. This interception violates the ECPA, even if the police resisted
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the temptation to read e-mail on the seized computers back in their offices.
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The Privacy Protection Act ("PPA"), prohibits seizure of materials being
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kept or prepared for publication, unless the person holding them is
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suspected of a crime involving those very materials (with a few narrow
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exceptions). Davis' business activities included publishing the "Magnum"
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series of CD-ROMS, none of which were included in the titles the police
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thought obscene. By seizing computers containing the materials used by
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Davis' in publishing his CD-ROMs, the police grossly violated the PPA. Since
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Davis was not suspected or accused of any crime in relation to the Magnum
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CD- ROMs he published, any associated materials simply should not have been
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touched by the police.
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Even plain vanilla 4th and 5th Amendment warrant requirements may have been
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violated by the police in this case. According to sources, the Oklahoma
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City police typically obtain a warrant based on an informal chat with the
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magistrate. Afterwards, they perform the actions authorized by the warrant,
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and only then submit a formal affidavit to support the warrant. If the
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police followed this sloppy and deeply illegal procedure in Davis' case,
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then his due process rights were grossly violated. As a further example of
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official slop, neither the warrant under which the raid was conducted, nor
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the police request for that warrant, mentioned Davis' computer bulletin
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board at all. That fatal omission did not stop the cops from taking all the
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computer equipment anyway.
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Perhaps the Oklahoma City prosecutors believe the seizure was legal because
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it is authorized under Oklahoma's own obscenity seizure statutes. If so,
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they're dead wrong. Federal due process protections trump state seizure
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laws. There was no emergency here to justify even a temporary abridgement of
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Davis' full due process rights. The particular importance of the ECPA and
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PPA should not be underestimated by Oklahoma state attorneys or anyone else.
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The protections of these statutes are so important that Congress spelled
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them out expressly, even though in a sense they merely clarify protections
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already contained in the Constitution. The police cannot bat these
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protections out of the way every time they threaten this week's episode of
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"You're Busted."
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Davis' lawyer, himself a former local prosecutor, appears fully aware of the
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mess the police are making of the Davis matter. He sent them a letter a week
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after the raid formally notifying them they are violating the ECPA and PPA
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through their seizure and retention of Davis' computer equipment. In doing
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so, he is trying to short circuit a possible future defense by the cops that
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they did not know they were doing anything wrong by holding Davis'
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equipment. Readers of Boardwatch may recall the lawsuit won by Steve Jackson
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Games against the U.S. government in Austin, Texas a few months back. The
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federal court held that the agents' naive BBS seizure violating the ECPA and
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PPA could be excused, but the agents became obligated to return the wrongly
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seized materials as soon as they found out about their privacy and
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publishing aspects and the laws forbidding their seizure. The same should
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certainly hold true here. Despite this precedent, as of August 19th the
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police still did not return anything to Davis, almost a month after
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receiving his lawyer's notifying letter.
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Why did the police pick on Davis? It certainly wasn't due to their keen law
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enforcement instincts. Despite the screaming newspaper headlines about porno
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shop merchants, Davis is a well- known and respected business man. He runs a
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telephone goods and services company, selling equipment and special services
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like Centrex switching to local area businesses. He was operating Oklahoma
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Information Exchange, a widely reputed and very busy BBS. He was one of the
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founders of Fidonet, and was Region 19 coordinator for several years. In his
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CD-ROM business, he sold many titles (with adult titles accounting for a
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minute portion of his business), and produced his own Magnum CD-ROMs.
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Davis also had a fairly extensive age verification scheme to assure only
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adults were getting access to adult materials on his BBS. Memberships were
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which to those who had credit cards. In addition, to get access to the adult
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area users had to send Davis assigned letter stating they were over 21.
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Despite these measures, when the dust cleared Davis' standing as a
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businessman and his age verification procedures did nothing to slow down the
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police.
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After talking with Davis, his attorney and other local sources, the blame
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for his troubles should be laid on the creepy little deal the Oklahoma City
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police cooked up with the local ABC TV affiliate for the "You're Busted"
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television program. The TV station gave the police a professional video
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camera and the opportunity to shoot, script and narrate a TV program called
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"You're Busted". The payoff to the police was 15 minutes of fame on a weekly
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basis for individual cops, and great publicity and a high profile for police
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department as a whole. In return, the TV station received a TV show in
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hugely popular "reality television" format, an exclusive relationship with
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the police not enjoyed by other local stations, and, it would appear, very
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low production costs.
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A great business deal for the police and the television station, but
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terrible news for just about everyone else. For starters, the police end up
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paying less attention to protecting the community and more to show biz.
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On-the-scene arrests make the best TV, so the police will be more motivated
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to obtain search and arrest warrants and less concerned about whether the
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intrusion on peoples' lives is justified. In fact, the more individuals they
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intrude on, the better the "You're Busted" episode.
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The effect on the news media is just as bad. The local ABC affiliate falsely
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presents the police-made footage as "reality", when in fact it's been
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manufactured for TV just like all other TV fodder. The police may not be
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conversant with the finer points of constitutional law, but they're smart
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enough to know if they don't make a good show they'll be canned fast by the
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station. Further, the media, the proud "fourth estate", lets itself become
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no more than a flack for the local police. The public, as usual, is
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victimized on both ends. Its gets prosecution of the most entertaining
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instead of the most deserving, while the couch potatoes of Oklahoma City are
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served up a desperately skewed view of law enforcement and who are the
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criminals.
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Without the cop/show biz connection, Tony Davis might never have been
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busted. If the police had taken the trouble to investigate Davis' life a
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bit, they would have discovered that the adult CD-ROMs were only a small
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part of his business. Tony Davis is not a porn merchant, not the type of
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person to hold up to others as a bad example. Yet with their constant need
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to come up with new and exciting material on a TV production schedule, the
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police overlooked the reality of Davis' business. It fit their agenda better
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to bust Tony Davis with a bang with the whole world watching, than to
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quietly give Davis a word to the wise about the police department's newly
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formulated policies on digitized adult materials.
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Indeed, the police departments' failure to give Davis a little advance
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warning seems almost criminally negligent. According to assistant district
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attorney Lori Nettleton, "This is the first time that charges have been
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filed involving the use of computers in an obscenity case in Oklahoma
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County." A quick look at the laws under which Davis was charged shows they
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were on the Oklahoma statute books for almost ten years. Why did the police
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not act under them until now?
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One could argue the police themselves promoted the growth of the adult
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computer file business through their own laissez-faire attitude toward
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computer obscenity laws for the last ten years. Most people figure out
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whether something's illegal by looking to see if the police are arresting
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people for doing it. While this is no excuse for pursuing clearly criminal
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activity, Davis' acts were, at worst, in a grey area of arguable
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criminality. Now the police are overeager to make an example out of him,
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after entirely failing to give any guidance on just what counts as criminal
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conduct when it comes to adult materials.
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In the overzealous police raid and arrest of Tony Davis, everyone loses.
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Davis loses his freedom and his property, and he already lost much of his
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reputation as a business man. The users of the Oklahoma Information Exchange
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BBS lost. They trusted that they had rights of privacy from the government,
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and the Oklahoma City police betrayed that trust. The police will lose as
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well if they are held responsible for their gross violations of warrant
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procedures. If anyone decides to sue them, maybe they'll be kind enough to
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videotape it so we can watch it all later on TV.
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