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Computer underground Digest Wed Oct 18, 1995 Volume 7 : Issue 82
ISSN 1004-042X
Editors: Jim Thomas and Gordon Meyer (TK0JUT2@MVS.CSO.NIU.EDU
Archivist: Brendan Kehoe
Shadow Master: Stanton McCandlish
Field Agent Extraordinaire: David Smith
Shadow-Archivists: Dan Carosone / Paul Southworth
Ralph Sims / Jyrki Kuoppala
Ian Dickinson
Cu Digest Homepage: http://www.soci.niu.edu/~cudigest
CONTENTS, #7.82 (Wed, Oct 18, 1995)
File 1--ACLU Cyber-Liberties Update 10/4
File 2--Who's Using Who? Martin Rimm and the Antiporn Activists
File 3--Re: "The Emperor's New Clothes (Re CUD 7.80)
File 4--Cu Digest Header Info (unchanged since 18 Oct, 1995)
CuD ADMINISTRATIVE, EDITORIAL, AND SUBSCRIPTION INFORMATION APPEARS IN
THE CONCLUDING FILE AT THE END OF EACH ISSUE.
---------------------------------------------------------------------
Date: Tue, 17 Oct 1995 12:47:54 -0400
From: Ann Beeson <beeson@ACLU.ORG> (by way of pstemari@erinet.com)
Subject: File 1--ACLU Cyber-Liberties Update 10/4
October 4, 1995
ACLU CYBER-LIBERTIES UPDATE **Premiere Issue**
A bi-weekly online 'zine on cyber-liberties cases and controversies at the
state and federal level.
------------------------------------------
FEDERAL PAGE (Congress/Agency/Court Cases)
------------------------------------------
* "Virtual" Child Pornography Bill is Overbroad and Fails to Protect Real
Children
Despite the FBI's apparent success in raiding alleged child pornographers
on America Online, Senator Orrin Hatch decided we needed a new child
pornography law. Hatch's bill would expand the existing child porn law to
include materials that are:
-visual depictions of what "appears to be . . . a minor engaging in
sexually explicit conduct;" and
-visual depictions "advertised, promoted, presented, described, or
distributed in such a manner that conveys the impression that the material
is or contains a visual depiction of a minor engaging in sexually explicit
conduct."
In its effort to outlaw "virtual" child pornography, the bill would
criminalize a wide range of constitutionally protected expression.
Hatch attempts to justify the new bill by reference to a widely-publicized
Canadian case in which a pornographer copied pictures of clothed children
from catalogs and morphed them into child pornography. Senator Hatch
claims that the case would not be covered under the existing federal child
porn statute, but that issue has never been decided by a United States
court. While the application of the existing statute to these facts is far
from clear, the Hatch bill covers *much more* than just this case scenario.
The statute would cover *any* image of a child engaged in sexual behavior,
including non-computer-generated drawings, cartoons, and visual images
created without the use of photos of real children or even real adults.
In upholding child pornography laws, the Supreme Court has stated that "the
nature of the harm to be combated requires that the state offense be
limited to works that visually depict sexual conduct by children below a
specified age. . . . [T]he distribution of descriptions or depictions of
sexual conduct, not otherwise obscene, which do not involve live
performance or photographic or other visual reproduction of live
performances, retains First Amendment protection." _New York v. Ferber_,
458 U.S. 747, 764-65 (1982).
Hatch's "virtual child porn" law is clearly unconstitutional because it
would outlaw images produced without any involvement by an actual child.
Bruce Taylor of the National Law Center for Families and Children argued at
a recent conference at Brooklyn Law School that a "virtual child porn" law
was needed because pedophiles use virtual porn to lure children. Under
that rationale, if a pedophile used a piece of candy to lure a child into
sex we would have to outlaw candy. In a free society, we cannot use
censorship laws to try to control "bad thoughts." Outlawing all images
that might be stimulating to pedophiles would require a massive amount of
censorship and would *not* cure pedophilia.
The ACLU reiterates its position on child pornography laws:
"The ACLU believes that the First Amendment protects the dissemination of
all forms of communication. The ACLU opposes on First Amendment grounds
laws that restrict the production and distribution of any printed and
visual materials even when some of the producers of those materials are
punishable under criminal law."
"The ACLU views the use of children in the production of visual depictions
of sexually explicit conduct as a violation of childrens' rights when such
use is highly likely to cause: a) substantial physical harm or, b)
substantial and continuing emotional or psychological harm. Government
quite properly has the means to protect the interest of children in these
situations by the use of criminal prosecution of those persons who are
likely to cause such harm to children."
The Hatch proposal only demonstrates the dangers of trying to protect
children indirectly through censorship laws.
----------------------------------------------------------------------------
------------------------------------------
* Clipper II? Your electronic privacy rights are at stake . . . again.
In 1993, the ACLU and an overwhelming majority of industry condemned the
Clipper Chip -- the Administration's key escrow encryption scheme to equip
every telecommunications device with a "chip" that would allow anyone to
secure his private communications as long as the U.S. government held the
descrambling key. The government insisted that Clipper would be merely a
voluntary standard, but government documents requested under the Freedom of
Information Act now confirm the suspicions of civil liberties advocates
that the government really believes key escrowed encryption will only meet
law enforcement standards if it is mandatory. (See
URL:http://www.epic.org/crypto/)
Now the Administration has returned with another scheme -- commercial key
escrow ("Clipper II"). At close range, Clipper II is a lot like Clipper I:
* Although supposedly "independent" of the government, key escrow agents
will have to meet standards set by the U.S. government, and will have to
reside in the U.S. or in a country with which the U.S. has entered a
bilateral agreement.
* The proposal provides no privacy safeguards to prevent the compromise of
the key escrow agent or the key.
* Offered as a "voluntary" standard, the proposal nevertheless forbids
interoperability with non-escrowed encryption in exported products.
* While the government says it recognizes industry's need for strong
encryption, the proposal limits exportable encryption to 64 bits -- a
length widely recognized to provide inadequate security.
On September 6, 7, and 15, 1995, the ACLU attended meetings held by the
National Institute for Standards and Technology (NIST) in Gaithersberg,
Maryland. The meetings were called to solicit input from industry on the
Clipper II proposal. Draft export criteria were considered on September
6-7, and the general industry response was very lukewarm -- except for a
few industries that have been meeting with the Administration and are
preparing to announce products that would fit the suggested criteria. The
ACLU led one working group to vote 7-7 in favor of condemning the entire
proposal.
On September 15th, NIST discussed the implementation of a federal key
escrow encryption standard. By requiring federal agencies to use
commercial key escrow as a FIPS (Federal Information Processing Standard),
the Administration clearly hopes to drive industry to accept commercial key
escrow as the export standard as well.
The ACLU issued the following statement on the current key escrow proposal:
The American Civil Liberties Union's Position
on the Administration's Current Key Escrow Proposal:
* Encryption is speech protected by the First Amendment. The
Administration's current key escrow proposal, like the Clipper proposal,
continues to tread on the First Amendment rights of American individuals
and businesses to use encryption technologies to secure their private
communications. The current proposal, like Clipper, should be rejected on
First Amendment grounds alone.
* The current proposal will not accomplish its stated objectives because a
wide array of encryption is available around the globe and will continue to
be employed in place of American government-approved key escrow software.
* The only key escrow proposal that could begin to satisfy the
government's objectives would be an outright ban on the sale of encryption
technologies other than those approved by the government and key escrowed.
The ACLU fears that the current proposal, and similar proposals, are merely
the first step towards mandatory key escrow of encryption. Mandatory key
escrow is completely unacceptable to both industry and privacy advocates.
* The Administration should abandon its fruitless and unconstitutional
efforts to control the export of encryption technology. No legislation is
needed -- the Administration has the power to lift the regulatory
restrictions that it created.
----------------------------------------------------------------------------
------------------------------------------
* Call for Plaintiffs in Suit to Challenge Online Indecency Legislation
Most of you know that the House and Senate have now passed two different
versions of the telecommunications bill that would outlaw "indecent" speech
over the Internet and other online services. This fall, a conference
committee of House and Senate members will work out the differences between
the two telco bills and will probably approve some form of online
censorship legislation. [For a copy of the legislation, send a message to
infoaclu@aclu.org, with "Online Indecency Amendments" in the subject line.]
While the ACLU and other advocacy groups continue to lobby Congress to
remove the censorship provisions from the telco bill, it is highly likely
that some restriction on online indecency will appear in the final bill
that emerges from the conference committee. A coalition of civil liberties
organizations are preparing a constitutional challenge to this legislation
now. The coalition includes the ACLU, Electronic Frontier Foundation,
Electronic Privacy Information Center, Media Access Project, and People for
the American Way. We plan to be ready to file a lawsuit as soon as the
statute is signed into law -- which could be as early as October.
An important first step in planning the lawsuit is the selection of
plaintiffs. We need to put together a set of plaintiffs that disprove the
stereotype created by proponents of the legislation that people opposed to
the bill are "pedophiles and pornographers." We believe that the best
plaintiffs for this challenge will be persons or entities that provide
material that some may deem "indecent" but that has serious artistic,
literary, and educational value to our society. We need plaintiffs who use
online networks to discuss or distribute works or art, literary classics,
sex education, gay and lesbian literature, human rights reporting,
abortion information, rape counseling, and controversial political speech.
Please contact Ann Beeson at the ACLU if your organization is interested in
being a plaintiff in this ground-breaking litigation that will define First
Amendment rights in cyberspace. 212-944-9800 x788, beeson@aclu.org.
----------------------------------------------------------------------------
------------------------------------------
STATE PAGE (Legislation/Agency/Court Cases)
----------------------------------------------------------------------------
------------------------------------------
* Overbroad Searches and Seizures Threaten Electronic Privacy
The latest threat to your civil liberties results from law enforcement's
overzealous attempts to find evidence of crime or wrongdoing in cyberspace.
As we move into the information age, traditional search and seizure rules
will need to be refined to ensure fairness and respect for electronic
privacy rights. Several recent cases illustrate how privacy rights can be
violated when law enforcement conducts investigations in cyberspace.
* The ACLU recently wrote to America Online to inquire about their
cooperation in the FBI's recent raid of alleged child pornographers who
used the online service. The ACLU asked, among other things, whether AOL
revealed any information about individual users that was not sought by
subpoena or court order; whether AOL turned over all private e-mail
messages of suspects or whether they turned over only messages related to
the alleged crime; whether AOL also turned over the names, addresses, and
e-mail messages of persons who had communicated with the suspects; whether
AOL set up accounts for the purpose of allowing government investigators to
have access to public chat rooms; and what information AOL regularly keeps
about its users' online activity and how long the information is kept.
* In Cincinnati, Ohio, a computer bulletin board operator filed a civil
rights suit against the Hamilton County Sheriff's Department after the
department raided the BBS and seized computer equipment, files, and
personal communications. The case argues that the indiscriminate search
and seizures violated the BBS operator's free speech and privacy rights.
See _Emerson v. Leis_, S.D. Ohio, No. C-1-95-608. The subscribers to the
BBS have filed a separate class action suit against the sheriff's
department. See _Guest v. Leis_, S.D. Ohio. Law enforcement seized the
entire BBS -- all the hardware, software, files, and private communications
-- in an effort to obtain 45 files on the BBS that were allegedly obscene.
The case asserts that the 45 files represented only 3% of the total
resources on the board.
* In California, Colorado, and Virginia, the Church of Scientology has
brought three copyright infringement actions against anti-scientologists
who use online communications to criticize the church. The cases raise
important questions about the breadth of computer communications seizures
in civil cases. The ACLU of Southern California and the ACLU of Colorado
continue to monitor the cases in their states.
----------------------------------------------------------------------------
------------------------------------------
* Nine States This Year Passed Online Censorship Legislation
While online activists have been busy fighting the pending federal attempts
to censor online communications, state legislatures have been carelessly
crafting online censorship bills at home. And if you think Congress is
full of Luddites, just wait until to hear what your state legislators have
come up with.
At least nine states (CT, GA, IL, KS, MD, MT, NJ, OK, VA) have passed
legislation this year to regulate online content, and several others
considered such bills, with some still pending. These bills seek to
criminalize a wide range of online speech and content, including:
* speech that "harasses, annoys, or alarms"
* materials deemed "indecent," "obscene" or "harmful to minors"
* information related to "terrorist acts" or "explosive materials"
The state bills, like the federal bills, raise serious free speech and
privacy concerns. None of the bills indicates an understanding of the
unique nature of the online medium. Some bills purposefully, and other
bills inadvertently, fail to clarify that only the initiators of the
illegal images may be held liable -- so service providers can be held
liable for the pedophiles and pornographers that use their networks.
The laws would, at best, require service providers to snoop in private
e-mail in order to avoid criminal liability. At worst, these laws would
force providers to shut down their networks altogether.
The draconian effect of these state bills doesn't stop at state borders. A
message you post to the Internet today in New York City could travel the
fifty states and the globe by tomorrow. You'd better be careful that the
message isn't "obscene" according to an Oklahoman, "annoying" to a
Connecticutter, "solicitous" of a minor in Illinois, or related to
"terrorism" as defined by a Georgian.
The wave of online censorship at the state level is far from over. The
ACLU is considering constitutional challenges to the online censorship laws
that passed this year. But given the continuing media hype over
"cyber-porn," we are certain to see more censorship bills from the states
next year.
With the help of affiliate offices in fifty states, the ACLU continues to
monitor these state attempts to infringe on your online free speech rights.
[For a synopsis of all the online censorship bills passed or considered by
the states this year, send a message to infoaclu@aclu.org with "Update of
State Bills" in the subject line of the message.]
----------------------------------------------------------------------------
------------------------------------------
* Saving the Best for Last: Good News on Cyber-Liberties
ARIZONA: Another troubling application of existing obscenity laws to
cyberspace was averted when charges were dropped against Arizona Department
of Public Safety Officer Lorne Shantz. Shantz, who ran a community
bulletin board, lost his job and endured several months of hassle and
humiliation when he was arrested for allegedly "obscene" files on the
board. Shantz maintains that he was unaware of the existence of the files,
which represented only a minuscule fraction of all the information on the
board.
COLORADO: Federal Judge John Kane ordered the Church of Scientology to
return computers and hundreds of files seized by Federal marshals and
Scientology officials in a copyright infringement action. The judge ruled
that the seizures were overbroad, and said that "The public interest is
best served by the free exchange of ideas."
----------------------------------------------------------------------------
------------------------------------------
ONLINE RESOURCES FROM THE ACLU
----------------------------------------------------------------------------
------------------------------------------
Stay tuned for news on the ACLU's world wide web site, under construction
at http://www.aclu.org. In the meantime, you can retrieve ACLU documents
via gopher at gopher://aclu.org:6601 (forgive the less-than-updated state
of our gopher -- we've devoted all our resources to WWW construction!). If
you're on America Online, check out the live chats, auditorium events,
*very* active message boards, and complete news on civil liberties, at
keyword ACLU.
----------------------------------------------------------------------------
------------------------------------------
ACLU Cyber-Liberties Update
Editor: Ann Beeson (beeson@aclu.org)
American Civil Liberties Union National Office
132 West 43rd Street
New York, New York 10036
To subscribe to the ACLU Cyber-Liberties Update, send a message to
infoaclu@aclu.org with "subscribe ACLU" in the subject line of your
message. To terminate your subscription, send a message to
infoaclu@aclu.org with "unsubscribe ACLU" in the subject line.
For general information about the ACLU, write to infoaclu@aclu.org.
------------------------------
Date: Wed, 18 Oct 1995 12:14:21 -0700 (PDT)
From: Mike Godwin (mnemonic@eff.org)
Subject: File 2--Who's Using Who? Martin Rimm and the Antiporn Activists
From--EFFector Online Vol., 08 No. 17 Oct. 18, 1995 editors@eff.org
To those who have been investigating the scandal behind the fraudulent
Martin Rimm/Carnegie Mellon "cyberporn study" and the Time magazine cover
story that hyped it, it's long been known that there was some kind of
connection between Rimm's efforts and those of antiporn activists --
particularly those on the Religious Right.
But the precise nature of the connection has not been clear until
recently. Thanks to information provided by New York Law School professor
Carlin Meyer and others, it is now apparent that Rimm had the assistance of
antiporn activists, including Bruce Taylor of the National Law Center for
Children and Families.
Thus, at the same time Rimm, himself no fundamentalist, was using the
antiporn activists to contrive a place for himself on the national stage,
the antiporn groups were using Rimm to manufacture evidence that
"cyberporn" was out of control and needed to be regulated.
Figuring out the connection between Rimm and the Taylor gang is like
assembling a mosaic from very numerous and very tiny pieces. Still, the
whole picture begins to come together once one notes certain interesting
facts:
1) On November 5, 1994, Marty posted a message in a public Usenet
newsgroup that included the following response to Carl Kadie:
'You're a good guy, Carl. I'm the principle investigator of the study,
"Marketing Pornography on the Information Superhighway." It is being
refereed and had the assistance of a lawyer who has argued obscenity
cases before the Supreme Court.'
2) Footnote 93 of Marty's article includes the following text:
'Another competing
vision consists of a revised version of the Miller standard. Instead
of using community standards, the proponents of the revised Miller
standard advocate the creation of a per se list of sexual activities
which are automatically and irrevocably deemed obscene. See Bruce A.
Taylor, A Proposal for a Per Se Standard, 21 U.Mich. J.L. Ref. 255
(1987-88).'
3) The Bruce Taylor article appears in the same volume of the
U. of Mich. Journal of Law Reform that includes the Dietz-Sears
study, upon which Marty based his own study (see, e.g., Rimm
footnotes 15 and 56).
4) After ordering a copy of that volume of the Journal of Law Reform,
I discovered the following language in footnote 13 of the Bruce Taylor
article (in which Taylor also boasts of his 15 years of experience in
prosecuting obscenity):
"In all, this author has tried over 65 obscenity jury cases in several
states and has argued over 50 appeals before the Ohio Court of Appeals,
the Ohio and Colorado Supreme Courts, United States Courts of Appeals for
the Sixth and Ninth Circuits, and the United States Supreme Court."
5) Bruce Taylor is currently heading the National Law Center for Children
and Families. This means he *currently* shares a Fairfax, Va., suite of
offices with H. Deen Kaplan.
6) Kaplan, as we have long known, is a) a third-year law student at
Georgetown, b) a vice president of the National Coalition for Children and
Families (formerly the National Coalition Against Pornography, aka NCAP),
and c) a member of the Georgetown Law Journal staff throughout last year
and currently on the journal's articles-selection committee.
7) Bruce Taylor's organization, the National Law Center, formerly employed
John McMickle, who is now on the staff of Sen. Chuck Grassley and who was
the author of Grassley's net.indecency legislation. McMickle, who,
according to Danny Weitzner of the Center for Democracy and Technology,
is known to be a protege of Taylor's, was the person who had
advance knowledge of Marty's study (this is clear from a letter McMickle
sent to university administrators at Rimm's alma mater, Carnegie Mellon, in
early November of last year), and who later planned to call Marty as
a witness to Grassley's Senate hearing. A year ago at this time, McMickle
was sharing offices with Deen Kaplan in Fairfax, VA. The various antiporn
groups at that suite (The National Law Center, the National Coalition, and
Donna Rice-Hughes's group, "Enough is Enough!") apparently prefer to
office only with likeminded individuals.
8) Deen Kaplan is known to have provided Sen. Jim Exon with the "blue
book" of online porn that the Senator brandished on the Senate floor.
9) Sen. *Grassley's* indecency legislation was introduced on June 6 of
this year, at approximately the time the issue of the Georgetown Law
Journal was originally set to be published. Hearings on the Grassley
legislation were set for July 24. Coincidentally, perhaps, that was four
weeks to the day after Time's "Cyberporn" cover story hit the streets.
Or perhaps it wasn't purely coincidental -- Rimm seems to have known
in March that his study would be featured in a Time cover story.
10) Increasingly during the spring of 1995, Rimm expressed concern to many
people that his article might be perceived as anti-porn, and he redoubled
his efforts to get his legal footnotes approved by civil-libertarian
lawyers, including me, Danny Weitzner of Center for Democracy and
Technology, and Stephen Bates, then an Annenberg Fellow.
11) Perhaps in the knowledge that the source of help on the legal
footnotes could result in his study's being branded as a political,
antiporn document, Rimm stressed the following in his request to me in
April:
"In the meantime, we would
greatly appreciate an independent check of our legal notes, which the
journal helped us with. (No one on our team is a lawyer)."
12) In the December, 1994, version of the study, which had undergone no
editing by any of the law journal staff, we see the following text in
footnote 53:
'The second of the competing
visions consists of a revised version of the Miller standard. Instead
of using community standards, the proponents of the revised Miller
standard advocate the creation of a per se list of sexual activities
which are automatically and irrevocably deemed obscene. Bruce
Taylor, A Proposal for a Per Se Standard, _______ J.L. Ref. ______
(1988).'
13) Except for minor changes, the sentences from footnote 53 in the
December version are echoed in footnote 93 of the final version of
the Rimm study. The main difference is that the citation for the Bruce
Taylor article is not complete in the older draft. The most reasonable
inference from this fact is that the person who added that citation was
pulling it from memory, and left blanks so that the cite checkers at the
law journal would know to pull up the specifics. This is a strong
indication that a) the drafter of this footnote was a lawyer or law
student, and b) the drafter knew what kinds of assistance law-journal
staffs could be expected to provide. Together with the citation format,
it strongly suggests the likely background of the person who assisted
Marty with his legal scholarship.
14) In the biographical footnote to Taylor's law-review article, the
author makes a point of thanking "Len Musil, J.D. 1988, Arizona State
University, who is clerking for CDL [Citizens for Decency through Law,
the antiporn organization then headed by Taylor], and who used his skills
as editor of his university and law school newspapers to edit this work
and conform its style to proper form."
15) According to sources at the Georgetown Law Journal, the purported
timetable for Rimm's and the law journal's interactions goes something
like this:
11-18-94
Time article on the CMU censorship flap, written by Philip Elmer-DeWitt,
becomes available on America OnLine. It is also available in the 11-21-94
issue, which may have been on the stands on 11-14-94.
11-14-94 to 12-5-94
In this 21-day interval, Meredith Kolsky, articles
editor for the Georgetown Law Journal, reads about Rimm's study, gets
a copy from Marty Rimm, suggests its publication to the Georgetown Law
Journal staff, the GLJ meets and decides to accept the article, and
Carlin Meyer is selected as a probable contributor.
12-5-94
Meredith Kolsky solicits Carlin Meyer's review of the Rimm article.
12-7-94
Kolsky thanks Meyer for agreeing to write a comment on the Rimm article
and ships a copy of the then-current draft of the study to Meyer. It is
from this draft -- the words "Copyright 1994" and "DO NOT CIRCULATE!!"
appear prominently on the cover -- that I have taken the earlier version
of Rimm's obscenity/child-porn legal footnote.
Based on this breathtaking timetable (it's astonishing that the
law-journal staff members physically survived the rapid acceleration of this
editorial decisionmaking process), it's certain that Marty had legal assistance
prior to the official formal submission article to the law journal. Who
gave that assistance?
The likeliest answers to this question: Deen Kaplan, the Georgetown Law
Journal staff member and antiporn activist, is the author of
the legal footnotes and law-related text of the Rimm article, while
Bruce Taylor, who continues to spearhead the attempts to pressure
Congress into censoring the Internet, is the Supreme Court obscenity
litigator who served as a "referee" for Rimm.
If Rimm's academic fraud were a crime, Taylor and Kaplan, among others,
could easily be listed as unindicted co-conspirators. The real crime,
of course, is that, even though the Rimm study itself has been
discredited, the larger fraud -- the antiporn groups' ongoing
efforts to paint the Internet as vice den in dire need of Congressional
action -- continues unabated.
POSTSCRIPT: THE OBSCENITY FOOTNOTE
How much help did Martin Rimm receive in his legal footnotes and
research, and who helped him?
To get an idea of the assistance Marty had clearly received before his
article was checked by the Georgetown Law Journal editors, take a look at
Rimm's footnote dealing with the legal and constitutional status of
obscenity and child pornography.
The footnote appears as Footnote 2 in the Georgetown Law Journal article,
but it was Footnote 1 in the version of the article the law journal
sent to Carlin Meyer in December of 1994.
I have marked the differences between the earlier and later versions of
the footnote in the following way:
Material *deleted* from the first draft of the footnote is set off and
bracked with <<doubled angle brackets>>.
Material *added to* the first draft of the footnoate (i.e., that appears
in the final draft) is not set off, but appears in [[doubled square
brackets]].
Here's the footnote:
-------------------
The question of whether a sexually explicit image enjoys First
Amendment protection is the subject of much controversy and reflects a
fundamental tension in contemporary constitutional jurisprudence.
While this article discusses only the content and consumption patterns
of sexual imagery currently available on the Internet and "adult" BBS,
the law enforcement and constitutional implications are obvious. Thus,
it is necessary to briefly discuss the constitutional status of
sexually explicit images.
Obscene material does not enjoy First Amendment protection. See Roth
v. United States, 354 U.S. 476 (1957)
<<(opinion of Brennan, J.)>>
; Miller v. California, 413 U.S.
15 (1973). In Miller, the Supreme Court established the current
tripartite definition for obscenity.
<<Id.>>
In order to be obscene, and
therefore outside the protection of the First Amendment, an image must
(1) appeal to a prurient (i.e., unhealthy or shameful) interest in
sexual activity, (2) depict real or simulated sexual conduct in [[a]]
manner that, according to an average community member, offends
contemporary community standards[[,]] and (3) according to [[a]] reasonable
person, lack serious literary, artistic, political[[,]] or scientific
value. Id. at 25-27; [[see also]] Pope v. Illinois, 481 U.S. 497, [[500-01]]
(1987) [[(rejecting "ordinary member of given community" test, in favor
of "reasonable person" standard for purposes of determining whether
work at issue lacks literary, artistic, political, or scientific
value)]]; Pinkus v. United States, 436 U.S. 293, [[298-301]] (1978)
[[(excluding children from "community" for purpose of determining
obscenity, but allowing inclusion of "sensitive persons" in the
"community")]]; [[Ginzburg v. United States, 383 U.S. 463, 471-74 (1966)
(allowing courts to examine circumstances of dissemination to
determine existence of literary, artistic, political, or scientific
value);]] see also United States v. Orito, 413 U.S. 139, [[143]] (1973)
[[(holding that constitutionally protected zone of privacy for obscenity
does not extend beyond the home)]]
<<Ginzburg v. United States, 383 U.S. 463, 471-74]]>>
To complicate matters, all adult pornographic material
<<must be>>
[[is initially]] presumed to be nonobscene.
<<Cf.>>
Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 62 (1989)
<<.>>
[[(requiring judicial determination of obscenity
before taking publication out of circulation);]]
<<See>>
Marcus v. Search
Warrant, 367 U.S. 717, 730-31 (1961) [[(requiring procedures for seizure
of obscenity which give police adequate guidance regarding the
definition of obscenity to ensure no infringement on dissemination of
constitutionally protected speech)]]. Accordingly, law enforcers and
prosecutors attempting to pursue an obscenity investigation or
prosecution face constitutionally mandated procedural obstacles not
present in other criminal matters. See New York v. P.J. Videos, Inc.,
475 U.S. 868 (1986). For instance, the so-called "plain view"
exception to the Fourth Amendment warrant requirement, whereby
contraband plainly visible to a law enforcement officer may be seized,
does not apply to allegedly obscene material because, prior to a
judicial determination, nothing is obscene and therefore, a fortiori,
nothing be can be considered contraband. See Lo-Ji Sales, Inc. v. New
York, 442 U.S. 319, 325 (1979) [[(requiring that search warrants contain
specific description of allegedly obscene items to be seized)]].
In addition to obscenity, one other type of sexually explicit material
does not enjoy constitutional protection. In New York v. Ferber, 458
U.S. 747 (1982), the Supreme Court explicitly removed pornography
depicting minors from the protective aegis of the First Amendment.
That is, obscene or not, visual depictions of children engaged in
sexual conduct are not constitutionally protected. Because the
government interest
<<which the Supreme Court>>
identified [[by the Supreme Court]] as justifying
removing child pornography from the protection of the First Amendment
is more urgent than the government
<<interests>>
[[interest]] which
<<justifies>>
[[justify]] denying
protection to obscenity, and because the child pornography standard is
far less vague than the obscenity standard, law enforcers and
prosecutors are not bound by any unique procedural burdens here. See
United States v. Weigand, 812 F.2d 1239 (9th Cir.), cert. denied, 484
U.S. 856 (1987).
In sum, the constitutional regime that the Supreme Court has
established for pornography creates two distinct categories of
sexually explicit imagery
<<which>>
[[that]] are not protected by the First
Amendment. While ascertaining whether a particular digital image
contains a minor is not [[a]] Herculean labor, ascertaining whether a
particular digital image is obscene in the abstract is well-neigh
impossible. Accordingly,
<<this Author>>
[[the research team]] will not attempt to pass on
the question of obscenity as it applies to the digital images that are
the subject of this
<<Article>>
[[article]].
---------
Two things are immediately clear to anyone accustomed to reading
law-review articles. The first is that Marty's footnote was scarcely
edited at all by the law-journal editors -- it was published in much the
same form as it appears in the December draft. The second is that Marty's
handling of legal citation form is amazingly good for someone who,
supposedly, doesn't have a lawyer on his research team. It is this more
than anything that makes clear that Marty had assistance from someone who
wanted to make his legal scholarship look good enough for a law journal
Finally, I suspect the transmutation of "this Author" to "the research
team" came at Marty's suggestion, and not the law-review editors'.
********
More information on the Rimm/CMU/Time "CyberPorn" scandal is available at:
ftp.eff.org, /pub/Censorship/Pornography/Rimm_CMU_Time/
gopher.eff.org, 1/Censorship/Pornography/Rimm_CMU_Time
http://www.eff.org/pub/Censorship/Pornography/Rimm_CMU_Time/
------------------------------
Date: Thu, 12 Oct 95 14:16 EDT
From: "Dinty W. Moore" <DWM7@PSUVM.PSU.EDU>
Subject: File 3--Re: "The Emperor's New Clothes (Re CUD 7.80)
Re: "Emperor's Virtual Clothes"
Ofer Inbar criticizes the promotional brochure for my book because it
implies that people who discuss sex on the Internet are not "thoughtful
intelligent people who care about ideas and issues ... (or care about)
the people in their Internet communities."
Well, he is dead right in his criticism . I apologize for the
juxtaposition of phrasing (in the brochure, not the book) that makes
this implication. As Ofer Inbar mentions in his response, the Internet
has strong communities of intelligent caring people formed around sexual
issues. One of the happy surprises of my research for THE EMPEROR'S
VIRTUAL CLOTHES: THE NAKED TRUTH ABOUT INTERNET CULTURE was the number
of caring, supportive people in Internet homosexual groups, transgender
groups, and transsexual groups. Time and time again Internet users with
sexual problems, questions, or 'issues' told me in person and by e-mail
that this faceless, semi-anonymous technology was instrumental in
letting them confront their problems, fears, desires, or what have you,
and that they would have been stuck in some place of guilt or confusion
had they not one day logged onto alt.discuss.sexuality (or whatever.)
My book documents these positive testimonials and profiles two
individuals particularly -- one transgendered, the other a post-op
transsexual -- who praise the Internet high and low for being
supportive, informative, and ultimately allowing them to confront their
choices/lifestyle more positively.
Brief blurbs and brochure material, even if they are electronic, are
tricky matters, and the misimpression left in this case is regrettable.
I thank Ofer Inbar for pointing this out.
Dinty W. Moore
Author, THE EMPEROR'S VIRTUAL CLOTHES
The Naked Truth About Internet Culture
(Algonquin Books, September 1995)
to order by e-mail: svobooks@aol.com
------------------------------
Date: Sun, 18 Oct 1995 22:51:01 CDT
From: CuD Moderators <cudigest@sun.soci.niu.edu>
Subject: File 4--Cu Digest Header Info (unchanged since 18 Oct, 1995)
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