Robert and Carleen Thomas didn't give a second thought to the Tennessee man who logged on to their computer bulletin board system in August 1993. After all, new users were signing on to the Thomas' sexually explicit Amateur Action Bulletin Board System (AABBS) all the time. Since its launch in 1991, the AABBS had attracted more than 3,500 customers happy to pay the $99 annual membership to access throbbing files of men and women in various states of undress, and had made the now 39-year-old Milpitas couple a very comfortable living.
Had the Thomases scrutinized the password the Tennessean selected for his account, they might still be successful cyberpornographers instead of convicted felons facing three years downtime in prison. A clue to the new user's intentions were contained in his password: “SCOURGE.”
The Tennessee man, it turned out, was a snooping U.S. postal inspector who would bust the Thomas' operation in January 1994 and reignite the controversy over free speech limitations in cyberspace. Last July, a Memphis jury convicted the Thomases on 10 counts of obscenity, six of them stemming from computer images sent by modem to Tennessee. Robert Thomas has already begun serving his sentence at a federal correctional facility in Springfield, Missouri; his wife's term will begin in July after their son graduates from Milpitas High School. And the Thomas' legal problems are far from over — the couple also faces child pornography charges in Utah stemming from their Tennessee conviction.
“I feel like we're being made an example of,” says Carleen Thomas. “It's not fair. It's a violation of our First Amendment rights and I don't know how many others.I think it's totally unfair.”
The Thomas case has received national publicity, rightly being seen as a landmark case that raises unresolved legal questions about how to apply federal obscenity laws to cyberspace. For more than two decades, obscenity cases have followed the precedent established by the 1973 Supreme Court ruling, Miller v. California, which allows states to judge obscenity according to “local community standards.” But where is the “local community” of a bulletin board service that can be accessed from anywhere in the world? If someone in Memphis downloads an X-rated computer file generated in Silicon Valley, is it proper to judge it according to Tennessee standards?
The government apparently thinks it is proper, since the Thomas trial marked the first obscenity case in which prosecutors went after a bulletin board operator in the community where its material was received, rather than where it originated. The Thomas' conviction temporarily stands Miller v. California on its head. Instead of letting local communities decide for themselves what is obscene, the Thomas ruling allows a local community to dictate what goes on the Net — effectively establishing a nationwide obscenity standard.
Even before the case went to trial, the Thomas' lawyer complained that federal prosecutors had “shopped” for a conservative area to try the case before settling on the buckle of the Bible Belt — Memphis. The Land of Elvis has a long history of prosecuting pornography cases no one else will touch with a 10-foot, uh, pole. Porn star Harry Reams was once hauled into a Memphis court on a conspiracy charge stemming from his conspicuous appearance in Deep Throat.
“There's no way this case would have gone to trial in California,” says San Jose defense attorney Richard Williams, who represented the Thomases during their trial. “The Thomases were basically railroaded. I don't think there's any doubt that prosecutors shopped for a venue where they knew they'd get a sympathetic jury. Outside of perhaps Dade County, Florida, I'd say Memphis is the most conservative jurisdiction in the country.”
“If someone flew from Tennessee, went to a bookstore in San Francisco and bought pornography, and then flew back to Tennessee, you couldn't charge the bookstore in San Francisco with obscenity,” notes Palo Alto attorney Thomas Nolan, who is handling the Thomas' appeal. “But there's very little difference between that and phoning up on your computer and accessing the same information. I see this case as an attempt by the government to put constraints on cyberspace. And it's going to have a chilling effect.”
Indeed, the chill has already begun to set in, spreading through the Net like a computer virus designed to attack pubic hair. San Jose computer consultant Keith Henson estimates that 500 adult bulletin boards have exited the I-way lest they suffer the Thomas' fate, and many other boards have established more restrictive posting policies. There are dozens of Internet sites where X-rated graphics interchange format files (GIFs) have been removed, some with a note citing the Thomas case. Last November, Carnegie-Mellon University blocked access to bulletin boards that students could use to call up pornographic pictures. Despite the angry protests of students, university officials said they feared that the school could be prosecuted for distributing pornography to minors via the Internet.
Opportunistic politicians have also mounted the cyberporn issue and are riding it doggie style. Last month, Sen. Jim Exon (D-Neb.) introduced the Communications Decency Act, which would make online services liable for any illicit, inflammatory or obscene material on their network. “I want to keep the information superhighway from resembling a red-light district,” Exon intoned on the Senate floor. The looming prospect of cybercops patrolling the information superhighway has free-speech advocates worried.
“If you're going to apply community standards to judge obscenity, the courts ought to take into account the existence of virtual communities,” says Mike Godwin, staff counsel for the Electronic Frontier Foundation, which supports unfettered communication on the Net. “But in the near future, I think you're going to see more cases like [the Thomas'], until we start to build a consensus among citizens that as long as you don't force people to see this stuff and take measures to prevent children from getting access, you should leave people alone.”
The Thomas' case turns out to be considerably more complex than the pencil sketch hurriedly drafted by the mainstream media. A foot-tall stack of court documents from the case reveals that the prosecution was based entirely on the investigation launched by SCOURGE, Memphis-based U.S. Postal Inspector David Dirmeyer. Dirmeyer's zealous investigation, in which he repeatedly offered Robert Thomas kiddie porn, was close enough to entrapment that the judge gave the jury a mini-seminar on its legal definition. Dirmeyer's efforts were so over the top that even the conservative Memphis jury threw out the kiddie-porn charge against Robert Thomas. And the net public gain from the government's prosecution of the Thomases is practically nil — the AABBS is still quietly humming away in a Milpitas warehouse, even with Robert Thomas now in prison. On the other hand, the Thomases aren't exactly the First Amendment poster children that many news accounts have made them out to be. At the time of the bust, the Thomases were raking in more than a quarter of a million dollars a year on their bulletin board and related adult-videotape sales. The material on their bulletin board was so tawdry that the press could only refer gingerly to acts of “bestiality” and “sadomasochism.” In reality, some of the material on the Thomas' bulletin board and tapes was so depraved and rawly misogynist — including rape and torture films — that a righteous San Francisco jury might well have sent the couple up the river for longer than the Memphis jury did. [page]
The press routinely botches pornography and obscenity cases because the constraints of mainstream journalism prohibit them from describing the details. Recall, for instance, how the media whipped up a national debate over 2 Live Crew's lyrics several years ago without ever actually printing the offending words. As anyone who has viewed the evidence in the Thomas case can attest, the mainstream media outlets gave the couple a free ride. The case of U.S. v. Robert and Carleen Thomas is a bit like the Iran-Iraq war — you kind of want both sides to lose.
No matter — virtuous people seldom make for good legal precedent. In fact, many important Supreme Court decisions have resulted from the clash of reprehensible forces. Ernesto Miranda, the Arizona man whose jailhouse self-incrimination led to the formulation of the as-seen-on-TV “Miranda warning,” was eventually convicted on kidnapping and rape charges after the Supreme Court established the precedent in his name.
Robert and Carleen Thomas, a pair of high-tech pornographers, are equally unlikely characters around whom to rally for First Amendment rights. But the Thomas' case goes to the heart of the emerging battle over freedom of expression on computer networks. Theirs is an important story — but not a pretty one.
“AMATEUR ACTION BBS — THE NASTIEST PLACE ON EARTH!” That's the inviting welcome screen that still greets first-time users of the Thomas' Amateur Action Bulletin Board System. The Thomases certainly weren't the first to unite humankind's latest preoccupation — computers — with one of its oldest ones. But in just a few years' time, the couple managed to become two of the more successful cybersex entrepreneurs in the country. Their success in booting up a bootstrap operation displays just the sort of personal initiative unencumbered by government intrusion currently being touted by Republicans these days, leaving aside for a moment that the Thomas' empire was built mostly on cum shots.
That anyone would bother to pay for a service which makes you wait 20 minutes to download a fuzzy computer-generated image that can be seen in its original form at almost any adult bookstore testifies to the novelty attached to the new medium. But then, sex has played a significant role in the shaping of every form of communication throughout history. The medium may be the message, but it usually isn't long before it turns into the massage, a full Swedish one, at that.
No sooner did Gutenberg roll his first Bible off the printing press than his invention was employed in the service of more earthy forms of ecstasy. By the 18th cen-tury, pornographic works designed solely to arouse became common, culminating in the 1749 classic, Fanny Hill: Memoirs of a Woman of Pleasure. Such works are tame by today's standards — you'll find more raw sex on the evening news during sweeps week.
As each new form of communication emerged, sex has been a vital lubricant, insuring that the new medium developed smoothly. Photo-graphs of reclining nudes began circulating not long after the first ghostly image appeared on Fox Talbot's gel in 1835. Bawdy songs were recorded for posterity on the early Edison cylinders. Pornographic films were widely distributed underground in the '20s and '30s before being circulated freely. So it should come as no surprise that the awesome power of the silicon chip would be harnessed so that a dick shot could be sent to any computer in the world.
Naturally, Silicon Valley has become a hothouse for cyberporn operators like Robert Thomas. Thomas grew up in the Bay Area, married his wife Carleen in 1974 and the two have lived in the same Milpitas home since 1976. A high school graduate, Robert Thomas drove a truck for a while and then installed satellite dishes for local homeowners. But surrounded by the culture of Silicon Valley, he soon found himself becoming involved with computers. Noting the explosion in sexually oriented bulletin boards, Thomas launched the Amateur Action Bulletin Board System from his home in February 1991.
The AABBS was a modest venture at first, consisting of only 12 GIFs depicting topless women that users could download. But before long, Thomas was digitally scanning into his system every pornographic image he could find — many culled from adult magazines — and posting the GIFs on his bulletin board. Over a three-year period, Thomas personally created an astounding 17,000 adult-oriented GIFs, most accompanied by detailed captions. Not since medieval monks toiled over illuminated manuscripts has so much painstaking hand labor gone into creating and preserving an image. [page]
Of course, the monks of the Middle Ages were transcribing works of theology and philosophy that represent the highest aspirations of a culture. Robert Thomas' works have included GIFs titled “He fucks a pig, she fucks a dog and a huge pig!” “Full screen view! A hairless pussy nailed to a table!” and “She has a tender young body with no tits at all!” that one suspects will not withstand the test of time. But it was descriptions like these that attracted the attention of David Dirmeyer, password SCOURGE.
Some might find it strange to find the U.S. Postal Service involved in obscenity and pornography cases. But the Postal Service has had a long and curious history as a self-appointed moral watchdog. Perhaps the most zealous anti-porn crusader of all time, Anthony Comstock, was an official agent of the U.S. Post Office. Comstock's Victorian prudery was so easily aroused that 19th-century publishers were forced even to strike the word “pregnant” from their books, replacing it with “enceinte.”
Dirmeyer first dialed into the Thomas' adult bulletin board in August 1993, supposedly acting on the complaint of a citizen, identified in court papers as Earl Crawley of Gleason, Tennessee. (The phone company has no listing for an Earl Crawley in Gleason, population 299, nor did a database search of the entire state uncover a phone number for an Earl Crawley. Inspector Dirmeyer did not respond to requests to be interviewed for this story.)
After being greeted by the bulletin board's nasty welcome screen, Dirmeyer began cybersleuthing. Adopting a fictitious name, “Lance White,” to go with his smirking password, Dirmeyer signed up for a six-month membership, which at a cost of $55 entitled him to a download of 1.2 megabytes or 90 minutes on the system per day. Robert Thomas called the phone number Dirmeyer listed on his application to confirm that “Lance White” was at least 18 years old — a common ass-covering move by cyberporn entrepreneurs. According to Dirmeyer's testimony, Thomas left a message on an answering machine saying that White now had full access to the bulletin board.
As a prohibited mailing specialist for the U.S. Postal Service, Dirmeyer's job was to investigate those who use the mails to traffic in obscenity or child porn. In recent years, this also entailed logging onto various computer bulletin boards, in search of possible violations of the law, and then collecting evidence for prosecutions. As Dirmeyer told the court, his duties also included undercover operations in which he mailed kiddie porn to subjects of his investigations.
“The postal department has always investigated obscenity, but why they're getting involved with computers now, I don't know,” says attorney Tom Nolan. “I guess it's more interesting than catching people who steal mail.”
A lifelong Memphis resident and “a real Sunday-school boy,” according to defense attorney Richard Williams, Dirmeyer nevertheless was a thorough navigator of the burgeoning cyberporn world. According to court transcripts, Dirmeyer downloaded some of the raunchiest GIFs from the AABBS, as well as descriptions of the porn videos Thomas was offering. These included tapes described as portraying “tender young teens caught candid at nudist colony” and “topless teenagers of all ages.” Dirmeyer sought harder hardcore and placed his first mail order for a Thomas video advertised as “Mother and daughter with dog! Girls shitting and pissing!”
In a letter accompanying his order, Dirmeyer wrote, “I am really excited about AABBS. I think I have some stuff you might be interested in.” At this point, Dirmeyer wasn't any more specific about what sort of “stuff” he had. But already, the generous postal inspector was trying to unload his batch of child pornography. In this online game of cat and mouse, the cat held the mouse, and double-clicked it at will.
A few days after the videotape order, Dirmeyer and Thomas met online in the “chat” mode. Dirmeyer expressed a particular interest in teen nudist material, and Thomas obligingly showed the postal inspector how to search the GIFs using keywords such as “teen,” “nudist” and “Lolita.”
Three weeks into the online investigation, Dirmeyer downloaded a file called ALLVID.ZIP — a zipped, or compressed, directory of all of the videos offered through AABBS. Included on the list were 42 bestiality flicks, 33 featuring scat or golden showers, and 81 “kinky” videos depicting everything from orgies to gruesome rape and torture scenes to extreme closeups of dildos, vegetables and bottles inserted into a vagina. It was the kinky videos, which Thomas handily coded with a “K” prefix, that Dirmeyer seized on as the motherlode.
In a collaborative and involved selection process, inspector Dirmeyer chose four of the most explicit kinky videos on the list and, according to his testimony, asked Thomas to select two more of his own choosing. In a key letter that accompanied his check for $204, Dirmeyer, posing as Lance White, wrote:
“In addition, please select two of your favorite 'junior teen' videos. I want the youngest you have. Please select two that have sweet looking girls showing everything (spreading) if possible … I also have some action mags that you might be interested in. Let me know.”
The videos, which would be shown in their entirety to the Memphis courtroom, would form the basis of three counts of obscenity charged against the Thomases.
The videotapes were mostly pirated copies of European hardcore films, many of which Thomas told the court he purchased in San Francisco adult bookstores. A typical San Francisco jury probably wouldn't be offended by the orgy or golden-shower videos — in fact, some jurors might not be seeing them for the first time. But the savage misogyny of the bondage and torture videos, coupled with Thomas' gleeful description of the action — would disgust even the most ardent civil libertarians (see sidebar).
With the videotapes in hand, Dirmeyer already had enough material against the Thomases to go to trial — at least in Memphis. But the dogged postal inspector made continued offers to the Thomases, which might deliver the knockout punch — a child-pornography charge. The fact that Robert Thomas showed no particular interest in child pornography (and protests to this day that AABBS forbade members from discussing kiddie porn online) didn't seem to bother Dirmeyer. With a kiddie-porn conviction, the Thomases would be going away for a long, long time. [page]
“If, as a prosecutor, I can say you're a purveyor of child porn, then basically you become scum of the earth, and whatever we do to you is okay,” says defense attorney Williams.
The only snag in Dirmeyer's plan was that Robert Thomas wasn't responding to the kiddie-porn offer. The crusading postal inspector wrote to Thomas again, ordering two more hardcore videos and reminding him of his earlier offer about “action mags”:
“Robert, I mentioned in our earlier correspondence that I have some mags you might be interested in. They are hardcore sex magazines featuring young girls having sex with adults and other children. These magazines were hard to come by and are very special to me. I am willing to let you borrow them so you can scan whatever pictures you want for your private collection. All I ask is that you return the mags to me (with a copy of the GIFs) when you are finished.”
Still, Thomas did not reply to the offer. Perhaps he chose to ignore the deal because he was fearful of putting his business at risk. More likely, Thomas was so busy signing up new members, troubleshooting his equipment and madly scanning photos to post on his bulletin board that he didn't have time to take up Lance White on his generous offer.
But Lance White was not about to take no for an answer. Several weeks later, Dirmeyer e-mailed Robert Thomas:
“Robert, enjoying the tapes. You did not respond to my offer to loan you my mags for your review. Are you still interested? Sincerely, Lance.”
It's interesting to note that Dirmeyer asks Thomas if he's “still interested” in the kiddie porn, when Thomas had demonstrated no interest in the magazines — only Dirmeyer had. But finally, Thomas yielded to Dirmeyer's advances. In the chat mode, Thomas electronically wrote to White:
“Got your note about the mags. Please send them if you wish, and I can trade you for their use, okay?”
This hardly sounds like the pantings of a lecherous purveyor of kiddie porn, but for Dirmeyer, it was good enough for government work. Dirmeyer dutifully sent Thomas three dog-eared kiddie-porn magazines seized from a previous investigation: Lolita Color Special 6, Lolita Color Special 18 and Little Girls Fuck Too. Perhaps knowing firsthand the vagaries of the U.S. mails, Dirmeyer dispatched the magazines by UPS.
On January 10, 1994, Carleen Thomas — whose involvement with her husband's bulletin board seemed to be largely administrative — went to a Milpitas Mail Boxes Etc. outlet to fetch the AABBS mail. Dirmeyer, who had flown in from Memphis, was tailing her, accompanied by two officers from the San Jose Police Department's High Tech Crime Detail Unit. Carleen Thomas retrieved the mail — including the package of kiddie porn — and drove to the couple's nearby home. Minutes later, Dirmeyer, armed with a search warrant, busted the couple for accepting a controlled delivery of child pornography.
After an extensive search of the premises, the officers seized all of Thomas' computer equipment, which included a half dozen 486/66MHz 8-meg computers wired to 32 high-speed U.S. Robotics modems. Each system's hard drive — containing personal information about bulletin board members — was seized and taken away to be copied. The files were so extensive, in fact, that High Tech Crime Detail Unit needed five days to copy the entire system, using borrowed equipment and working around the clock.
As the bust proceeded, Thomas phoned Keith Henson, the San Jose computer consultant and occasional Internet columnist on the subject of electronic communications privacy. Henson knew Thomas from a 1992 incident in which San Jose police confiscated Thomas' bulletin board, believing it to contain kiddie porn. After reviewing the system, no child pornography was found and Thomas was never charged by police. But now, thanks to Dirmeyer's diligence, the AABBS was being cased by the feds, with a postal inspector from 2,125 miles away leading the investigation.
“I wasn't surprised to hear he was being busted,” says Henson. “Robert attracts trouble the way shit attracts flies. Part of it is his personality, and part of it is the type of business he's in. He passed the phone over to Dirmeyer and I told him that if he read any of the e-mail on Robert's system, he'd be violating the Electronic Communications Privacy Act.” (The act accords e-mail the same privacy protection as surface mail.)
Thomas alleged in court that Dirmeyer, on his way out the door, shook his finger and warned, “When you get your board back, Robert, if you ever tell your members or warn them about Lance White, I'm going to make it worse for you.”
Thomas could only stand and watch as officers carted off his huge investment in computer equipment. At this point, it's hard not to feel a little sorry for Robert Thomas — but not for very long. Minutes after Dirmeyer left, Thomas phoned the local Mail Boxes Etc. outlet and unleashed a torrent of obscenities at Mrs. Thomas Pennybacker, co-manager of the franchise, for cooperating with authorities.
The Thomas' problems, however, were just beginning. The only thing standing between them and a child-pornography sentence was a jury of 12 God-fearing citizens from Memphis, Tennessee.
“I told Robert there was no way we were going to win a jury trial in Memphis,” recalls Richard Williams. “I told him you'll win in front of a court of appeals if you win at all.”
If Williams and his clients hoped to have any chance of winning the case, they certainly started off on the wrong foot. Their luggage was lost at the airport, and all three arrived late for their July 18 court appearance, still wearing casual clothes. U.S. District Court Judge Julia Gibbons was not amused. [page]
“I'm not going to make you start picking a jury in your jeans and tennis shoes and knit shirt,” Judge Gibbons told Williams. However, I don't like your excuses very much. I think they are poor ones.”
Jury selection lasted more than a day, with prospective jurors quizzed extensively about their familiarity with computers and their views on pornography and obscenity. Only four prospective jurors had computers at home, and none of them owned a modem or any communications software, a pre-requisite for understanding the concept of a virtual community. One of the four “wired” jurors might just as well have used his computer as a decorative planter, as this jury selection exchange makes clear:
The Court: Do you have a computer at home?
Prospective Juror Jones: Yes.
The Court: Do you have a modem for that computer?
Jones: Judge, I do not work on the computer. I don't know what is on the computer.
The Court: Who in the family uses the computer?
Jones: My daughter and my wife.
The Court: What do they use it for?
Jones: Good question.
The Court: You really don't know?
Jones: I really don't know.
It was obvious any defense argument that communication in cyberspace should be judged by different standards would fall on deaf ears — none of the jurors had ever even been online. This would not have been a problem had the Thomases succeeded in having their trial moved to San Francisco or San Jose, as they had petitioned. But in Memphis, they were saddled with a jury that was decidedly analog. Lest readers jump to the conclusion that Tennesseans are a bunch of gap-toothed, moonshine-swilling hillbillies, it should be noted: They don't think much of Californians, either:
Defense Attorney Williams: I think it's also important to let [the jury] know that my clients are from the San Francisco Bay Area, which is very different ….
The Court: Yes, I suppose it is conceivable that we might encounter a juror who suffers from California bias or San Francisco bias.
Opening statements began on July 19, with Assistant U.S. Attorney Dan Newsom laying out the 11 federal charges facing Robert and Carleen Thomas: six counts of interstate transportation of obscene material (singling out six of the lewdest GIFs downloaded by Dirmeyer), three counts of using a common carrier to transport obscene material interstate (six of the bawdiest videotapes mailed to Dirmeyer), one count of criminal conspiracy (charging that the Thomas' bulletin board was an ongoing criminal venture) and one count of causing the transportation of a visual depiction of a minor engaging in sexually explicit conduct (the kiddie-porn charge stemming from Dirmeyer's investigation). Even though Carleen Thomas did not take as significant a role in operating the bulletin board, she was indicted on 10 of the 11 charges faced by her husband, with Robert Thomas alone facing the kiddie-porn charge.
To make a graphic case even more graphic, the prosecution deployed an expensive projection system to display the GIFs on a large screen near the jury box. The same images that appeared on the 14-inch computer monitors of AABBS members were projected several feet high, giving each sordid image a larger-than-life quality.
“It was clear that the prosecution had an almost unlimited budget,” says Williams. “They had TV monitors everywhere and the same kind of telestrators they have in the O.J. trial. I saw all of this stuff and said to [prosecutor] Dan Newsom, 'Some new toys, huh?' He just had this big smile on his face.”
After reviewing a few technical terms for the jury — roughly the knowledge you'd need to get the computer out of the box — the prosecution called its star witness, David Dirmeyer. SCOURGE took the stand and proceeded to walk the jury through his six-month investigation of the bulletin board, culminating in the kiddie-porn bust. Dirmeyer read the posted description of each GIF and video aloud to the court, a relentlessly vile cyberpornocopia of bestiality (“Big horse cock in her cunt. Horse cum on her leg”), sadomasochism (“The slut has shit all over her face, tits and her pussy and legs. She gags and vomits.”), excrement (“Young girl squats over the toilet and wipes her ass”), torture (“He whips her sore, bloody pussy, and then he inserts over two dozen needles into her hairless pussy”), and even a shot-live-on-video enema insertion.
The jury sufficiently stunned, the prosecution dimmed the lights for an impromptu stag-film festival, featuring the six videotapes charged in the obscenity indictment. Each of the hourlong videos was shown in its entirety, with only short breaks in between, a spectacle that left everyone in the courtroom numb. Well, practically everyone.
“[Dirmeyer] sat there in rapt attention looking at the screen,” says defense attorney Williams.
Now, there's a scene you won't be seeing on next week's Matlock.
By the time the last flickering image faded from the screen, the Thomases were already halfway up the river. Defense attorney Williams managed to score some points by chipping away at the government's weakest charge: the child-pornography count. On cross-examination, he got Dirmeyer to admit that nothing on the Thomas' bulletin board system — all 17,000 GIFs — qualified as child pornography.
“I'll say one thing about Dirmeyer — when he was on the witness stand, he was exceptionally honest,” says Williams. “I asked him if there was any child pornography on the system and he said no.”
In fact, the three magazines Dirmeyer had mailed to Robert Thomas were the only certifiable child pornography that surfaced in the entire case. Dirmeyer's “proof” that Thomas had requested the child pornography of his own volition was a printout of an online conversation the two men had in the “chat” mode, in which Thomas supposedly wrote, “Please send them if you wish.” But, as Williams pointed out to the jury, a transcript of any online conversation can easily be altered after the fact. Dirmeyer admitted that investigators had copied the Thomas' entire computer system, including 22,300 e-mail messages, a seeming violation of the Electronic Privacy Act. But Dirmeyer claimed that when investigators reviewed the system, they purposely did not look at any e-mail messages. Defense lawyers say federal smut busters will put the Thomas' data bank to their own uses, anyway. [page]
“What they'll do is they'll take all the names on the database, and cross-reference them with names from other bulletin boards and then focus on people they think are pedophiles,” says attorney Thomas Nolan. “What [Dirmeyer] did in this case was common practice. Sure, it's outrageous behavior, but that happens every day. That's what they do. These people are serious. These guys, they love to do this stuff. They try everything.”
In a pretrial affidavit, Thomas charges that shortly before he was busted, several members of the Amateur Action Bulletin Board System had complained directly to him about a Lance White paging them online and taking them into the chat mode where he told them about his sexual interests.
Later in that affidavit, Thomas stretches his outrage to dubious lengths when he chastises Dirmeyer for sending the package containing child pornography to his Mail Box Etc. address.
He writes: “What would have happened if my two boys ages 13 and 16 would have opened it?” Continuing his outburst, Thomas writes, “This would have been devastating to my kids if they had seen this type of material!”
The likelihood that the teen-age Thomas children would have been seriously and permanently warped after a brief exposure to Dirmeyer's kiddie porn, but not after viewing the contents of mommy and daddy's pornographic computer system, doesn't seem to cross Thomas' mind.
But even with today's anti-government mood, most jurors will take a postal inspector's word over that of an accused child pornographer. Faced with almost certain con-viction on the obscenity counts, the Thomases reluctantly agreed to take the stand in their own behalf. As it turned out, neither defendant cut a very sympathetic figure. Their testimony was largely anticlimactic, especially compared to the government's boner-inducing film festival. Carleen Thomas suggested she wasn't nearly as involved with the day-to-day operation of the bulletin board as her husband, although she admitted that she often took care of the copying and shipping of videotapes and sometimes processed credit card information to sign up new members.
Robert Thomas' testimony fell even flatter, his brusque manner and abrasive personality hardly endearing him to a jury that was sitting in judgment of him. Thomas' basic defense was that he was giving his members what they wanted, and no one had complained about anything until now. The defense argued that the Thomas' bulletin board was private communication between consenting adults who knew what material they were getting. Only five AABBS members were from Tennessee, and none of them from Memphis, the jurisdiction prosecuting them. Thomas sharply denied he had anything to do with child pornography, testifying that he routinely patrolled the bulletin board for possible infractions of the law.
“I go through [the system] on a daily basis, and if I see anything relating to illegal material, I will contact that person, and we will give him a refund and delete them instantly, or possibly call the police,” Thomas told the court. “I have done that before.”
Thomas claimed he didn't recall the online communications with Lance White, but even if they did take place, he maintained he wasn't soliciting child pornography. As defenses go, I am not a child pornographer, honest, is not one that arouses much sympathy among jurors.
In closing arguments, defense attorney Williams tried to convince the judge that the Miller v. California “local community” guidelines weren't appropriate for a case involving cyberspace. But the judge wasn't buying it. In her instructions to the jurors, Judge Gibbons laid out the standard three-pronged test for obscenity established by Miller: Material is deemed to be obscene if the average person, applying contemporary local community standards, finds that it appeals to the prurient interest; if it depicts in a patently offensive way sexual conduct specifically defined by the applicable state law; and if the work, taken as a whole, lacks serious literary, artistic, political or scientific value. As long as the issue was whether Memphis jurors thought the material was obscene by their own community standards — not whether their community had the right to impose standards on a nationwide bulletin board — the Thomases were sunk. For the couple to skate on all the charges, it would have taken at least one juror to stand up and say, “You know, maybe it's just me, but I don't find two dozen steel needles inserted into a screaming woman's vagina patently offensive.”
On July 28, the jury returned with their verdict: Robert and Carleen Thomas were guilty of all 10 obscenity charges lodged against them. Robert Thomas was sentenced to 37 months in prison and his wife, 30 months. Both must serve at least 85 percent of their sentence. But Robert Thomas did receive one bit of good news — in a unanimous decision, the jury found him not guilty of the child-pornography charge, which might have put him behind bars for more than a decade.
While Robert Thomas marks his days as federal inmate #89622-011 in a Missouri prison, and his wife begins her sentence in July, the couple's case is on appeal.
“We're hoping for the best, but expecting the worst,” says Carleen Thomas. (Her husband could not be interviewed for this story because he cannot receive calls and is barred from placing collect ones.)
The couple's bulletin board is still up and running, “but it's a day-to-day thing,” says Carleen Thomas. Although AABBS isn't currently accepting new members, its old users can still connect at (408) 263-3393. Besides billing itself “The nastiest place on earth!” the AABBS welcome screen now also boasts, “The BBS you have learned to love!” and inexplicably, “The Information Super Highway!” [page]
The Thomas' appeal, handled by attorney Thomas Nolan, contends, among other things, that the Tennessee court lacked jurisdiction to try the Thomases, and that the couple received ineffective representation from their first lawyer, Richard Williams.
“The Thomases were not well served at all [by Williams],” says Nolan. “You need to win in front of a jury. I would have found out how they defend obscenity cases in Memphis, Tennessee. I wouldn't have flown in the morning of the trial — late. And I wouldn't represent two people who are in different (legal) positions.”
“Nolan's decided the only way to get a new trial is to slam me,” counters Williams. “He can't even look me in the eye when I pass him in the hall.”
Meanwhile, the Thomases face even deeper trouble. A Salt Lake City court has indicted the couple on child-pornography charges, entering as evidence some of the same GIFs that Postal Inspector Dirmeyer testified were not kiddie porn. The Thomases plan to file a motion to dismiss the charges, claiming double jeopardy. But if that is rejected, the case will go to trial on April 5. If that happens, it's hard to see how a Mormon jury in Utah will find the material any less offensive than a Baptist jury in Tennessee did.
Legal and computer experts are left to debate the significance of the Thomas' case for freedom of expression on computer networks: Some believe that there needs to be a new obscenity standard for cyberspace, one based on the virtual community of the Net, rather than the geographic community cited by Miller v. California.
“Miller happened at a time when this technology wasn't in existence,” says Nolan. “In the context of bulletin boards, the government is establishing that the local community is anywhere that a person accesses the information. It's intimidation. With the publicity this case has received, it has a chilling effect on anybody running a bulletin board and distributing material.”
Others aren't so sure that the courts will view computer networks as being so radically different than other forms of communication as to warrant their own obscenity standards.
“I think the courts will have no problem upholding the [Thomas'] conviction,” says Stephen Bates, a lawyer and senior fellow with the Annenberg Washington Program, a communications think tank. “I know some computer enthusiasts have argued for a new definition of community standards for cyberspace, but the Supreme Court has already dealt with something similar to that in allowing restrictions on phone sex. You might have a case in saying that there shouldn't be local restrictions placed on ftp or Usenet sites, anything that's a free public area. But if it's a commercial venture like a for-profit bulletin board, then the operator is responsible for what goes on the board and who accesses it.”
Carey Heckman, co-director of the Stanford Law and Technology Policy Center, thinks the Thomas' case may turn out to be a temporary setback on the road to what he calls “the death of geography.”
“Many of the regula-tions that have evolved in our society — everything from sales-tax rates and gambling laws to obscenity standards — are grounded on geographic divisions,” says Heckman. “But for computer networks, geography doesn't work. In a global village, we no longer have the ability to preserve geographic enclaves. That doesn't mean people should be forced to see and hear things they don't want to, or that you can't build safeguards into the system. But it's unreasonable to think that you can limit access to information on a large scale. I think what we're seeing now is an attempt to force new technologies to look and act like old technologies, and that approach has never been successful.”
Until this brave new world is sorted out, computer network operators will have to be more careful, not only about what kind of information they carry, but more importantly, where they allow access.
“Places like Tennessee are quickly becoming the end of the network,” notes Keith Henson. “They're putting up a big sign at the border that says, 'The information superhighway ends here.' Because no one's going to take the risk of going into those areas. And that will just make those places more backward than they already are.”
If nothing else, the case serves as a timely reminder that the First Amendment was designed to protect unpopular ideas, a high-minded ideal Robert and Carleen Thomas have done their sordid best to test to the limit. In the end, protecting the Thomas' right to freedom of expression on the network doesn't sanction what they say so much as their right to say it. Otherwise, everyone's free-speech rights in cyberspace may turn out to be more virtual than real.