Community Standards in Cyberspace A VIRTUAL AMICUS BRIEF IN THE AMATEUR ACTION APPEAL _________________________________________________________________ Introduction Statement of Facts Argument * The Court Erred in Applying the Tennessee Local Community Standard to Determine Whether or Not the Materials Were Obscene. * If a Local Community Standards Test is to be Applied to Determine Whether Materials Are Obscene, the Community in Question should Consist of Those who Voluntarily Access the Online Forum in Question. * Sysops Should Not be Required at their Peril to Take More Extensive Steps to Prevent Access to Offensive Materials from any Geographic Locations that may have Local Community Standards that would Disapprove of such Materials. * There was no Showing and Could not have been any Showing in This Case of any Actionable Adverse Impact on the Local Community. Conclusion *************************************************************************** Introduction On July 29, 1994, the operators of the Amateur Action bulletin board system ("AABBS") located in Milpitas, California were convicted of a federal crime -- distribution of obscene materials across state lines -- in the federal District Court for Western Tennessee. The "obscene materials" in question were obtained by a federal law enforcement official in Tennessee, by means of downloading the materials from AABBS onto a computer located in Tennessee. To determine whether or not the materials in question were "obscene", the court applied the local Tennessee "community standards". This case presents an opportunity for all those who are concerned with content regulation on the global network to re-think the ways in which that regulation can best be applied to materials accessible through computer networks. The Electronic Frontier Foundation (EFF) believes that these convictions should be overturned, and presents, in this "Virtual Amicus Brief," an analysis of the issues raised by the facts of this case, in the hope of triggering additional discussion and the evolution of more appropriate standards governing the regulation of materials distributed over the global networks. Statement of Facts EFF was not involved in the presentation of the case below, has no relationship with the parties, and does not even have access to the full record of the proceedings; we believe, however, that the following fully and accurately states the facts of the case in question. Robert and Carleen Thomas operated the "Amateur Action" BBS ("AABBS"). Although physically located in Milpitas, California, AABBS was accessible by means of a telephone call from anywhere in the world. AABBS was configured as an "adults-only" system; persons dialing in to AABBS were presented with log-in screens that clearly and unmistakably indicated that the system contained sexually explicit photographs that certain individuals might find offensive. Persons who nonetheless sought access to those materials could do so only after AABBS has verified their age (by means of photo identification and voice verification) and they had paid a membership fee ($55.00 for 6 months). In July, 1993, a Tennessee postal inspector, apparently responding to a local complaint, registered with AABBS (using an assumed name), paid the membership fee, and downloaded a number of sexually-explicit files. On the basis of these files, the Thomases were charged with, and ultimately convicted of, "knowingly transport[ing] in interstate or foreign commerce for the purpose of sale or distribution . . . any obscene . . . book, pamphlet, picture, film . . . or any other matter." 18 USC 1465. [See footnote.] Argument The Court Erred in Applying the Tennessee Local Community Standard to Determine Whether or Not the Materials Were Obscene. Before criminal penalties can be imposed on the AABBS operators, the court must determine whether the downloaded files are "obscene." How should the court make this determination? The Tennessee court applied the "community standards" test first promulgated by the United States Supreme Court in 1973; that is, the court instructed the jury that it was proper to assess the materials in question with reference to the prevailing views in the local (i.e., Tennessee) community. EFF believes that the community standards test can, if properly applied, adequately balance the competing needs of free expression, on the one hand, and community control on the other -- but that as applied in this case it disrupts that delicate balance and is destructive of the very principles it was designed to serve. The use of geographically-based local community standards was designed to encourage diversity of expression and to prevent imposition of a uniform, "lowest common denominator" standard across different communities. The Supreme Court stated this principle as follows: "[O]ur nation is simply too big and diverse for the Court to reasonably expect that [obscenity] standards could be articulated for all 50 States in a single formulation, even assuming the prerequisite consensus exists. . . . It is neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or New York City. [People] in different States vary in their tastes and attitudes, and this diversity is not to be strangled by the absolutism of imposed [uniformity.]" [Miller v. California, 415 US 15, 33 (1973)] The community standards test attempts to balance the right of the people of Maine or Mississippi (or Tennessee) to exercise control over the material that enters their communities, against the right of creators and distributors of diverse material to operate freely in those communities where that material is not offensive to prevailing standards. If you "knowingly transport" material to customers in Memphis, you will be held to the prevailing standards in that community; if, however, your material is not suitable for distribution in that community, you may forego such distribution in order to preserve your ability to operate in communities with different views of what constitutes offensive material. In the context of the global network, where users around the globe can obtain copies of material posted on a BBS without the BBS operator's intervention or assistance, the justifications for applying local community standards disappear. The AABBS had no physical contacts with the State of Tennessee, its operators had not advertised in any medium directed primarily at Tennessee, they had not physically visited Tennessee, nor had they any assets or other contacts there. The law enforcement official in Tennessee, not the AABBS operators, took the actions required to gain access to the materials and to cause them to be "transported" into Tennessee (i.e., copied to his local hard disk); the AABBS operators may indeed have been entirely unaware that they had somehow entered the Tennessee market and had subjected themselves to the standards applicable in that community. This case is operationally indistinguishable from one in which a Tennessee resident travels to California and purchases a computer file containing adult-oriented material that he brings back to his home. Whatever sanctions the local community in Tennessee might impose on the purchaser -- and we note here that the Supreme Court has consistently held that private possession of obscene materials cannot be outlawed -- the seller, who had not "knowingly transported" material into Tennessee, would not have violated federal law. Imposing sanctions on the purchaser in this context is tantamount to restricting the purchaser's constitutionally-protected right to interstate travel. Application of geographically-based community standards to transmission over the global network, if interpreted to allow conviction on the basis of any access of a BBS by a member of any community with standards that would disapprove of the materials in question, will have the perverse effect of prohibiting, world-wide, anything disapproved in any single territorial location -- precisely the kind of uniform national (or global) standard that the community standards test was designed to avoid. If a Community Standards Test is to be Applied to Determine Whether Materials Are Obscene, the Community in Question should Consist of Those who Voluntarily Access the Online Forum in Question If application of local, geographically-based community standards to determine whether material is "obscene" is inappropriate in this new context, how, then, can that determination be made with due regard to the rights of members of various communities to establish their own divergent standards? EFF respectfully submits that the very best source of a definition regarding what constitutes "obscenity", for purposes of determining when U.S. (or other) law should intervene to prohibit electronic distribution of materials, is the standard set by the community of users that, collectively, set the rules applicable to any particular online forum in question. Where, as here, the nature of the materials is clearly disclosed on warning screens encountered as the users access the BBS system, those who sign on -- who voluntarily join the community -- have already determined that the materials in question do not violate their own sensibilities. If the operators of a BBS system were to post materials that violated the collective standards of that user community, the community in question could quickly correct things by voting with their modems to go elsewhere. We do not question the right of communities to regulate the contents of the materials to which their members are exposed. Those who wish to associate for religious purposes, for example, should have a right to establish places where materials inconsistent with those purposes are excluded. Those who wish to exchange speech offensive to others should have an ability, indeed a right, to establish spaces where such speech can be exchanged. The question presented in this case is whether those communities and places should be defined exclusively in terms of physical geography. In an age when computer networks allow the formation of virtual communities, globally, without any significant impact on local, territorial communities, the question answers itself. Any decent regard for preservation of the free flow of information (at least other than information posing more direct physical threats to local communities than those presented in this case) requires protection of the right of each individual to associate with others, to communicate freely with others and, in effect, to "travel" throughout the online spaces made available by the global networks. The boundaries between online places and communities are passwords and warning screens. Those boundaries provided, in this case, ample opportunities for anyone in Tennessee to avoid coming into contact with the materials in question. They also provided the opportunity for those who wanted to adopt the standards that would allow the materials in question, a group that includes the Sysops convicted in this case and the other voluntary users of their system, to establish and implement that community standard. Unless the government can establish a more compelling interest, on the basis of which it might prohibit the establishment of such a standard (a showing that could not be made credibly in a context in which California standards do not prohibit the materials in question), the standards of the group that voluntarily joined together to establish and use the BBS system in question should govern. Sysops Should Not be Required at their Peril to Take More Extensive Steps to Prevent Access to Offensive Materials from any Geographic Locations that may have Local Community Standards that would Disapprove of such Materials Given that it was lawful for the Sysops convicted in this case to maintain their BBS system physically in the local territorial community where it was located, the only way in which they might have avoided violation of the distribution law, as interpreted here, would have been to establish elaborate technical means to screen incoming calls. This may not even be physically possible, in light of the growing ability to route networked communications through numerous locations. Even if some steps might provide some such screening of calls originating from territories that disapprove of the content in question, however, no obligation to take such steps should be established. Any such doctrine would seriously burden the entire communications infrastructure. It would require Sysops to stay informed regarding the rules of countless local jurisdictions. And it would interfere with the easy interoperability of computer based communications systems. Cases upholding convictions of those who send physical objects through the US mail are not comparable. In such cases, it is easy for the distributor of material obscene under Tennessee standards to decline to send physical objects to that jurisdiction. In contrast, the Sysops in this case had no way to check in advance where any particular person might be calling from. They did not themselves take the steps required to send the copy to the local jurisdiction. And the installation of mechanisms designed to protect against such an occurrence would be both expensive and infeasible. The question presented by this case is, in essence, how best to protect Tennessee citizens from what they consider the adverse effects of "obscene" materials while preserving, as fully as possible, the right of groups with differing sensibilities to associate and to form communities that establish and enforce different standards. Ultimately, that question reduces to one involving who should bear the burden of preventing undesired exposure to offensive material -- combined with the question how, generally, to preserve the free flow of lawful information and the right of all groups lawfully to associate. EFF submits that the appropriate answer is to be found in exactly the kinds of labelling and password protection schemes found in this case. The Sysop should have the burden accurate to label and appropriately to fence off potentially offensive materials. Thereafter, any local territorial community that wants to enforce its own view of appropriate obscenity standards has a duty to use those tools to just stay away from the offending materials. There was no Showing and Could not have been any Showing in This Case of any Actionable Adverse Impact on the Local Community. In applying the Federal law against interstate distribution of obscene material, the U.S. government is seeking to prevent adverse impacts on local communities that stem from causes that have a range and source too great to be handled by the local territorial community. Absent some real or threatened adverse impact on the local community, the rationale for Federal intervention fails. Here, there was simply no such impact. The fact that someone in Tennessee could call a computer in California, or indeed anywhere else in the world, to access materials the physical sale of which might be prohibited in Tennessee, is neither news nor reason for concern. As noted, a citizen of Tennessee might get on a plane and go anywhere in the world in short order and be exposed to similar material. Accessing materials through a computer screen is most often, and was in this case, an entirely private matter. Even if conducted in groups in a private setting, it is akin to reading books or other materials that might be physically obtained and imported into the local jurisdiction with impunity. It does involve posting signs, entering into sales transactions, establishing a building, or taking other steps of any kind that might even become known to, much less adversely impact upon, the members of the local geographic community. Acknowledging the lack of impact of the actions involved in this case on the local community, and finding that the Federal government had no legitimate basis on which to prohibit such activity, does not amount to a concession that the local geographic community might not regulate actions that had such an impact. If a local Sysop or user were to sell admission to view the screens in question, for example, or if the local user were to have displayed the screens in question in a store window, then perhaps the local community could impose some sort of regulation. But no such local commercial activity nor any such public exhibition occurred in this case. Conclusion The convictions in this case were based, so far as we know, entirely on the fact that it was physically possible to access the BBS system from a geographical location the local "community standard" of which would have found the materials thus accessed "obscene". The convictions should be reversed because the materials in question where not shown to be obscene within the meaning of Federal law, appropriately applied to electronic distribution of the kind presented in this case. The standard applicable to determine whether or not someone has distributed "obscene" materials in electronic form in violation of Federal law should be the community standard established inside the online community that, as was the case here, has established its own boundaries and that gives others sufficient warning to allow them to stay away. Otherwise, federal law would have the perverse effect of imposing unworkable burdens on system operators and all providers of electronic communications and computer based information services, or of imposing a single national (or perhaps even global) standard regarding constitutes obscenity, or of prohibiting an otherwise constitutionally protected free exchange of speech under circumstances in which no significant detrimental impact on local territorial communities could be shown. ********************************************************************** Electronic Frontier Foundation ********************************************************************** FOOTNOTE The full text of 18 USC 1465 reads as follows: Transportation of obscene matters for sale or distribution. Whoever knowingly transports in interstate or foreign commerce for the purpose of sale or distribution, or knowingly travels in interstate commerce, or uses a facility or means of interstate commerce for the purpose of transporting obscene material in interstate or foreign commerce, any obscene, lewd, lascivious, or filthy book, pamphlet, picture, film, paper, letter, writing, print, silhouette, drawing, figure, image, cast, phonograph recording, electrical transcription or other article capable of producing sound or any other matter of indecent or immoral character, shall be fined under this title or imprisoned not more than five years, or both. The transportation as aforesaid of two or more copies of any publication or two or more of any article of the character described above, or a combined total of five such publications and articles, shall create a presumption that such publications or articles are intended for sale or distribution, but such presumption shall be rebuttable. When any person is convicted of a violation of this Act, the court in its judgment of conviction may, in addition to the penalty prescribed, order the confiscation and disposal of such items described herein which were found in the possession or under the immediate control of such person at the time of his arrest. The postal inspector also used AABBS to order a number of adult-oriented videotapes, which were mailed to a postal box in Memphis, Tennessee. We do not, in this amicus brief, address questions or take any position regarding the propriety of this aspect of the Thomas' prosecution. [end]