textfiles/news/sysopjl.txt

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 LEGALLY ONLINE
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 SYSOP JAILED IN GEORGIA
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 by Lance Rose

Adult BBS' continue to spread across the country. Many of them openly carry
industrial-strength hardcore materials, without much apparent concern for
legal reprisals. One might wonder if the sysops of these BBS' are fools to
proceed so fearlessly, or perhaps the vanguard of a new era of online sexual
liberation. More likely, they simply assume the coast is clear. There is
virtually no hard news about adult BBS' or their operators getting into
trouble. Murky rumors abound (including some retold in this column several
months ago), but they're easy to shrug off in their vagueness.

The suspense is over. A man named Robert Houston is currently doing time in a
jail in Jackson, Georgia, based on the presence of sexually oriented
materials on the BBS he owned and operated. Ironically, he seems to be one of
the guys who took all the right precautions. In the end, his prudent measures
lost out to a repressive local cultural climate and petty personal vengeance.

For over two years, Mr. Houston's quiet incarceration did not raise even a
murmur. Then suddenly, he showed up briefly in a segment of the CNN news show
Technology Week as an example of a sysop who got popped. An interview with
Mr. Houston was hastily arranged afterward, just in time for this issue of
Boardwatch. In a collect call from the Georgia Diagnostic Center, Robert
Houston described how he went from sysop of an adult BBS to convicted felon:

Houston owned and operated a video store and repair shop in Georgia. His BBS,
a Wildcat system called the Stonewall BBS, was a hobby, and did not net him
any money. There was a sister BBS called "Stonewall West" in California, but
the two operations shared little but their names.

The Stonewall BBS contained sexually-oriented adult materials, both straight
and gay varieties. Different types of adult materials were separated from
each other by security levels defined on the BBS. The materials were
relatively mild by adult BBS standards. According to Houston, nothing on the
BBS was racier than what one might find in Hustler, a popular magazine
nationally distributed on newsstands. There were no files with extreme
material such as child pornography or bestiality. There was also a popular
chat area, which Houston describes as the BBS version of a 900 sex talk line.
using computers to converse instead of our voices.

These areas and materials were closed to casual visitors. Anyone wishing
access to the adult materials on Stonewall BBS first had to pass through
Houston's hair-raisingly exhaustive verification procedures. On the first
call to Stonewall, each caller had to fill in a standard questionnaire of
personal information - name, address, age, phone number, and so on. Upon
completion, the caller was asked if he desired access to any of the adult
areas of the BBS. If the answer was yes, the caller was asked which category
of materials interested him, and what kind of lifestyle he led. Houston says
he used this classification to try and group together people of similar
interests within the system. Houston himself was gay, and had a fair amount
of gay-oriented materials on the system.

Next, all callers, regardless of whether they filled out both questionnaires
or only the first one, were placed in the "new users romper room" area of
Stonewall. Callers still wishing to proceed with registration were then led
into an automated callback verification sequence, where the BBS software
called back the number submitted by the caller. After callback verification,
new callers were still restricted to the new users romper room. In this area,
callers could sample limited, non-adult-oriented sections of the BBS, but
could not upload or download any files.

In the evenings, Houston read through all new applications for the day. He
called back all applicants personally the next day, and verified their
applications by voice. In certain cases, such as borderline-age applicants
stating they were college students, he checked their references to make sure
they were genuine. All callers who passed this verification step then had to
send Houston photocopies of their driver's licenses, after which they were
finally given access to the adult areas. Houston's verification process was
quite an extended routine, but he says he fully verified over 600 callers
using this method.

Houston's troubles started when he fired a teenage employee of his video
store business for basic laziness. According to Houston, directly upon being
fired the ex-employee went to Sheriff Earle Lee of Douglas County, Georgia,
the county in which Stonewall BBS operated. He told Sheriff Lee that Houston
was running a nationwide network for the distribution of homosexual materials
from the Stonewall BBS. The police moved like lightning on these charges. The
employee was fired Saturday, September 8, 1990. Two days later, on Monday,
September 10, Sheriff Lee and his deputies hauled Houston off to jail and
confiscated his computer equipment.

The arrest and seizure warrant, and the indictment that followed, contained
four counts against Houston: 2 counts of distribution of obscene materials; 1
count of solicitation of sodomy; and 1 count that Houston "provided a medium
as to which sexually explicit materials containing children could be found".
The counts in the indictment were based on the testimony of two of Houston's
ex-employees: the one who started the legal process against Houston, and
another who had been fired some months earlier.

The second ex-employee, according to Houston, was a computer hacker whom
Houston had suspected of stealing some money from his business, then altering
his business computer records to cover it up. For the indictment, both
ex-employees testified that Houston had created sex videos with them (another
allegation he entirely denies), and that he had given them both access to the
adult areas of his BBS while they were his employees, even though they were
17- year-old minors. Houston thought they were 18 years old until then.
Houston entirely denies all accusations.

After sitting in jail for a couple of months, Houston went to trial and lost.
The prosecuting attorney was D.A. David McDade of Douglas County. Houston
paid his own lawyer $10,000, and had no money left to pay for an appeal after
the trial.

Houston says the trial against him was filled with misconduct. Perhaps his
most shocking charge is that the State did not use a police expert or
independent expert to evaluate the materials contained in his confiscated
BBS. Instead, they put his own ex-employee, the computer hacker who testified
against him for the indictment, in charge of investigating the computer to
conduct the State's own inspection of the evidence! This amazing approach
bore no resemblance to normal procedure, which was to send seized evidence
requiring technical examination to the Georgia Crime Lab. If Houston's charge
is true, this is fatal contamination of the evidence - placing key evidence
against the accused in the hands of a hostile and complaining witness!

Further, Houston says the hacker/ex-employee made the most of his
opportunity, tampering with the BBS computer files to create damning evidence
against Houston. Specifically, Houston says that computer files were altered
before trial to make it look like he had been using his BBS to solicit two
17-year-olds. There were indeed two 17-year-olds on Stonewall BBS, but
Houston had given them access only to a special "teen board" area he set
especially up for them. Houston believes his ex-employee, while he had
control of BBS computer, raised the 17 year olds' security level to make it
look like they had access to the adult materials, and added suggestive
messages addressed from Houston to these callers.

Houston moved for inspection of the computer prior to trial, but the judge
denied his motion. Houston also lined up 3 different computer experts to
check the BBS system for tampering using software tools for inspecting the
computer's hard disk, and to testify to the tampering at trial. For reasons
that are unclear, his lawyer refused to use the experts. Finally, Houston
wanted to show the judge at trial how his BBS worked and how he maintained
system security and age verification, but the judge would not permit the
demonstration.

In the end, Houston was convicted of a single count of sexual exploitation of
children, under Georgia Statute 16-12-100-B6. This conviction classifies him
as a craven sex offender, equivalent to a rapist. The only evidence
supporting his conviction were the computer records regarding the
17-year-olds submitted by the ex-employee hacker. As mentioned above,
Houston's lawyer failed to offer expert testimony disputing the authenticity
and accuracy of the computer records regarding the 17-year-olds' status on
the system. Houston's lawyer further failed to obtain testimony from the
17-year-olds themselves, which could have shown the computer evidence to be
false. Houston seems bewildered at the approach taken by his lawyer. The only
reasoning the lawyer seems to have given him for these seeming enormous
strategic lapses is that such attempts to discredit the state's case would
only make Houston look worse in the eyes of the judge.

Houston says there is no law against precisely what he's been imprisoned for,
and says the prosecuting D.A. said the same thing publicly after his
conviction. Despite the unanimous confusion over whether Houston is actually
guilty of any wrongdoing, he remains in jail for the time being. Houston is
due to be released in September, 1993, and says he plans to head out of
Georgia as soon as he is permitted to do so. Douglas County has not been very
kind to Robert Houston. It is hard to say exactly what role local intolerance
of his sexual preferences might have played in the insulting abridgement of
personal rights Mr. Houston has suffered through, but it would explain the
shocking manner in which his prosecution was carried out.

The story above is based solely on the interview with Mr. Houston. Clearly
there are some areas in which it would be useful to know the other side of
the story. Nonetheless, we can make some useful observations looking at
things just from his side of the cell bars.

First, here is a sysop in jail for running an adult bulletin board. For those
who refused caution up to now for lack of evidence that people are getting in
trouble: here is your evidence. Take note that Houston was not convicted of
having any obscene or child pornography materials on his BBS. Those carrying
such materials could end up in hotter water than he did if they are ever
exposed to the court process.

Second, sysops reading this may be comforting themselves that the exact
freakish course of events Houston suffered through will not likely be
repeated. However, Houston's case is also illustrative of the way things can
break down and land you in a heap of trouble. In his case, canning a lazy
employee ended up landing him in jail, convicted of being a sleazy,
child-molesting BBS sysop. Future sysop convictions, whenever and wherever
they occur, can easily follow similarly tortuous paths from precipitating
cause to miserable result. Those who think they are clever enough to stay out
of trouble while running a hardcore porn board may see their whole scheme
unravel due to one forgotten loose end.

Third, Houston's situation provides yet another example of the institutional
amnesia still inflicting far too many law enforcement authorities and agents:
they forget all about the Constitution, especially the First Amendment, when
they seize a BBS. Houston's BBS was not adjudged to have any illegal
materials falling outside the First Amendment's protection of freedom of
speech and of the press. His conviction, contrived though it may have been,
was only for certain conduct. Yet his BBS was taken down, and likely will
never be resurrected, at least in Georgia.

There is a danger of reading too much into what happened to Robert Houston
(except for sysops knowingly running hardcore porn boards, who should pay
very careful attention to his plight). His peculiar treatment at the hands of
the Douglas County legal system does not mean that all BBS' have suddenly
become unsafe. Running a BBS carries about the same risk as it always has. If
you are reasonable in how you run your BBS, and don't knowingly get involved
with anything illegal, your chances of legal trouble are next to nothing.
Think of Robert Houston as a sysop who tried very hard to be careful while
running a BBS with contents that were riskier than average, and one day got
hit by lightning.

THAT'S ENTERTAINMENT!

Just as this column was being readied for submission, WNBC's "News at Eleven"
showed the first installment of a news series to be aired all week called
"Software: Hard Porn." This astonishing piece of television journalism starts
off with a surveillance film showing two men on a couch discussing a snuff
movie they'd like to make using a little kid. The narrator's voice-over
informs us that this time, the snuff guys are talking about procuring their
dispensable prey using a computer bulletin board . . .

The segment segues into much milder territory, next featuring the talking
head of Bruce Fancher of MindVox (a NYC Unix-based BBS system and Internet
access site) discussing the easy availability of adult GIF image files on
BBS'. Several shots of files supposedly taken  from BBS' are shown, mostly
just girlie pictures almost too tame for Playboy. Surprisingly, the
voice-over informs us that such pictures are all quite legal. They are legal,
of course. The surprising part is that the TV folks got it right.

But don't relax yet. In the very next breath, we are told that the same BBS'
carrying the adult image files also play host to pedophiles, who seek out
youngsters and attempt to arrange illicit meetings for sexual purposes.
Through the magic of TV sequencing, those cute girlie shots are instantly
converted from admittedly protected free speech to cheesecake posters on the
walls of dens of sin inhabited by sleazy, lecherous old men. The dens of sin,
of course, are the BBS' in which they prowl.

So ends the first short episode of "Software: Hard Porn", with the promise of
more rating-boosting tidbits about the sleazy world of BBS' in tomorrow's
news report.

This is a good postscript to the Houston piece. It shows that not only did
someone with an adult board get nailed, but the anti-BBS porn drumbeat is
steadily swelling in the public consciousness. This is not the first news
show covering the BBS porn angle. Last year, WOR in New York ran a story with
a similar theme. But as Howard Stern likes to remind his listeners (after his
show on WOR ended), no one watches WOR, while WNBC is one of the real TV
stations in the New York market. Those who are committed to running hard core
porn BBS' should watch their backs.

[Lance Rose is an attorney practicing high-tech, computer and intellectual
property law in Montclair New Jersey, and is available on the Internet at
elrose@well.sf.ca.us and on CompuServe at 72230,2044. He works with shareware
publishers, software authors, system operators, technology buyers,
interactive media developers, on-line database services and others in the
high technology area. He is also author of the book SYSLAW, a legal guide for
bulletin board system operators, available from PC Information Group
(800)321-8285. - Editor]



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