225 lines
11 KiB
Plaintext
225 lines
11 KiB
Plaintext
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Akron BBS trial update: Dangerous precedents in sysop prosecution
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You may already know about the BBS 'sting' six months ago in Munroe
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Falls, OH for "disseminating matter harmful to juveniles." Those
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charges were dropped for lack of evidence. Now a trial date of
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1/4/93 has been set after new felony charges were filed, although
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the pretrial hearing revealed no proof that *any* illegal content
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ever went out over the BBS, nor was *any* found on it.
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For those unfamiliar with the case, here's a brief summary to date.
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In May 1992 someone told Munroe Falls police they *thought* minors
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could have been getting access to adult materials over the AKRON
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ANOMALY BBS. Police began a 2-month investigation. They found a
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small number of adult files in the non-adult area.
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The sysop says he made a clerical error, causing those files to be
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overlooked. Normally adult files were moved to a limited-access
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area with proof of age required (i.e. photostat of a drivers
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license).
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Police had no proof that any minor had actually accessed those
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files so police logged onto the BBS using a fictitious account,
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started a download, and borrowed a 15-year old boy just long enough
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to press the return key. The boy had no knowledge of what was going
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on.
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Police then obtained a search warrant and seized Lehrer's BBS
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system. Eleven days later police arrested and charged sysop Mark
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Lehrer with "disseminating matter harmful to juveniles," a
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misdemeanor usually used on bookstore owners who sell the wrong
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book to a minor. However, since the case involved a computer,
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police added a *felony* charge of "possession of criminal tools"
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(i.e. "one computer system").
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Note that "criminal tool" statutes were originally intended for
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specialized tools such as burglar's tools or hacking paraphenalia
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used by criminal 'specialists'. The word "tool" implies deliberate
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use to commit a crime, whereas the evidence shows (at most) an
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oversight. This raises the Constitutional issue of equal protection
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under the law (14'th Amendment). Why should a computer hobbyist be
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charged with a felony when anyone else would be charged with a
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misdemeanor?
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At the pretrial hearing, the judge warned the prosecutor that
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they'd need "a lot more evidence than this" to convict. However the
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judge allowed the case to be referred to a Summit County grand
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jury, though there was no proof the sysop had actually
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"disseminated", or even intended to disseminate any adult material
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"recklessly, with knowledge of its character or content", as the
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statute requires. Indeed, the sysop had a long history of
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*removing* such content from the non-adult area whenever he became
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aware of it. This came out at the hearing.
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The prosecution then went on a fishing expedition. According to the
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Cleveland Plain Dealer (7/21/92)
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"[Police chief] Stahl said computer experts with the Ohio
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Bureau of Criminal Identification and Investigation are reviewing
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the hundreds of computer files seized from Lehrer's home. Stahl
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said it's possible that some of the games and movies are being
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accessed in violation of copyright laws."
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Obviously the police believe they have carte blanche to search
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unrelated personal files, simply by lumping all the floppies and
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files in with the computer as a "criminal tool." That raises
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Constitutional issues of whether the search and seizure was legal.
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That's a precedent which, if not challenged, has far-reaching
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implications for *every* computer owner.
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Also, BBS access was *not* sold for money, as the Cleveland Plain
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Dealer reports. The BBS wasn't a business, but rather a free
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community service, running on Lehrer's own computer, although extra
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time on the system could be had for a donation to help offset some
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of the operating costs. 98% of data on the BBS consists of
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shareware programs, utilities, E-mail, etc.
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The police chief also stated:
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"I'm not saying it's obscene because I'm not getting into that
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battle, but it's certainly not appropriate for kids, especially
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without parental permission," Stahl said.
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Note the police chief's admission that obscenity wasn't an issue at
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the time the warrant was issued.
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Here the case *radically* changes direction. The charges above were
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dropped. However, while searching the 600 floppy disks seized along
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with the BBS, police found five picture files they think *could* be
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depictions of borderline underage women; although poor picture
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quality makes it difficult to tell.
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The sysop had *removed* these unsolicited files from the BBS hard
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drive after a user uploaded them. However the sysop didn't think to
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destroy the floppy disk backup, which was tossed into a cardboard
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box with hundreds of others. This backup was made before he erased
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the files off the hard drive.
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The prosecution, lacking any other charges that would stick, is
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using these several floppy disks to charge the sysop with two new
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second-degree felonies, "Pandering Obscenity Involving A Minor",
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and "Pandering Sexually Oriented Matter Involving A Minor" (i.e.
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kiddie porn, prison sentence of up to 25 years).
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The prosecution produced no evidence the files were ever
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"pandered". There's no solid expert testimony that the pictures
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depict minors. All they've got is the opinion of a local
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pediatrician.
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All five pictures have such poor resolution that there's no way to
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tell for sure to what extent makeup or retouching was used. A
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digitized image doesn't have the fine shadings or dot density of a
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photograph, which means there's very little detail on which to base
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an expert opinion. The digitization process also modifies and
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distorts the image during compression.
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The prosecutor has offered to plea-bargain these charges down to
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"possession" of child porn, a 4'th degree felony sex crime
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punishable by one year in prison. The sysop refuses to plead guilty
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to a sex crime. Mark Lehrer had discarded the images for which the
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City of Munroe Falls adamantly demands a felony conviction. This
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means the first "pandering" case involving a BBS is going to trial
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in *one* month, Jan 4th.
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The child porn statutes named in the charges contain a special
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exemption for libraries, as does the original "dissemination to
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juveniles" statute (ORC # 2907.321 & 2). The exemption presumably
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includes public and privately owned libraries available to the
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public, and their disk collections. This protects library owners
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when an adult item is misplaced or loaned to a minor. (i.e. 8 year
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olds can rent R-rated movies from a public library).
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Yet although this sysop was running a file library larger than a
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small public library, he did not receive equal protection under the
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law, as guaranteed by the 14'th Amendment. Neither will any other
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BBS, if this becomes precedent. The 'library defense' was allowed
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for large systems in Cubby versus CompuServe, based on a previous
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obscenity case (Smith vs. California), in which the Supreme Court
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ruled it generally unconstitutional to hold bookstore owners liable
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for content, because that would place an undue burden on bookstores
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to review every book they carry, thereby 'chilling' the
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distribution of books and infringing the First Amendment.
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If the sysop beats the bogus "pandering" charge, there's still
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"possession", even though he was *totally unaware* of what was on
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an old backup floppy, unsolicited in the first place, found unused
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in a cardboard box. "Possession" does not require knowledge that
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the person depicted is underage. The law presumes anyone in
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possession of such files must be a pedophile. The framers of the
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law never anticipated sysops,or that a sysop would routinely be
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receiving over 10,000 files from over 1,000 users.
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The case could set a far ranging statewide and nationwide precedent
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whether or not the sysop is innocent or guilty, since he and his
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family might lack the funds to fight this--after battling to get
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this far.
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These kinds of issues are normally resolved in the higher courts--
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and *need* to be resolved, lest this becomes commonplace anytime
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the police or a prosecutor want to intimidate a BBS, snoop through
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users' electronic mail, or "just appropriate someone's computer for
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their own use."
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You, the reader, probably know a sysop like Mark Lehrer. You and
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your family have probably enjoyed the benefits of BBS'ing. You may
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even have put one over on a busy sysop now and then.
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In this case; the sysop is a sober and responsible college student,
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studying computer science and working to put himself through
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school. He kept his board a lot cleaner than could be reasonably
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expected, so much so that the prosecution can find very little to
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fault him for.
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*Important* Please consider a small contribution to ensure a fair
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trial and precedent, with standards of evidence upheld, so that
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mere possession of a computer is not grounds for a witch hunt.
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These issues must not be decided by the tactics of a 'war of
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attrition'; *however far* in the court system this needs to go. For
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this reason, an independent, legal defense trust fund has been set
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up by concerned area computer users, CPA's, attorneys,etc.
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Mark Lehrer First Amendment Legal Defense Fund
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(or just: MLFALDF)
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Lockbox No. 901287
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Cleveland, OH 44190-1287
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*All* unused defense funds go to the Electronic Frontier
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Foundation, a nonprofit, 501c3 organization, to defend BBS's and
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First Amendment rights.
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Help get the word out. If you're not sure about all this, ask your
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local sysops what this precedent could mean, who the EFF is--and
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ask them to keep you informed of further developments in this case.
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Please copy this file and send it to whoever may be interested.
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This case *needs* to be watchdogged.
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Please send any questions, ideas or comments directly to the sysop:
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Mark Lehrer
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CompuServe: 71756,2116 InterNet: 71756.2116@compuserve.com
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Modem: (216) 688-6383 USPO: P.O. Box 275
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Munroe Falls, OH 44262
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The Sysops' Sig received this letter from the Lehrer defense people,
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with a request that their side of the story be made available to
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Free-net users. DISCLAIMER: The Sysops' Sig takes no position on this
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case, since each Free-net sysop speaks for himself/herself.
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----------------------------------------------------------------------
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FOOTNOTE: The above says the framers of the Constitution weren't aware of BBSs
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when drafting the Constitution....to this I say-THEN WHAT IS FREEDOM?
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The Constitution's 1st Amendment and the 9th Amendment clearly
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addresses this issue. This case is another case of the actual "police
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power" against Americans.
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There is NO crime here! There is NO property damaged and there is NO
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human victim here. Then there should be NO crime but our present
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system has the power to invent a crime which is exactly what is going
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on here.
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PLEASE contribute monetarily or at least in writing to Mark Lehrer at
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the above address. Send proof of such contribution and a 3 months
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FREE access will be granted by "HOME" BBS at (909) 735-2573.
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Can YOU PLEASE Help STOP more loss of our guaranteed FREEDOMS? |