This article is posted to www.michaelguth.com with the permission of Jurimetrics.

 

 

Copyright (c) 1997 American Bar Association

Jurimetrics

 

Spring, 1997

 

37 Jurimetrics J. 235

 

 

 

LENGTH: 8649 words

 

REFLECTIONS

 

PROSECUTION OF OBSCENITY ON COMPUTER NETWORKS

 

Michael A.S. Guth *

 

* Michael A.S. Guth is a Ph.D. economist and a third-year law school student at the University of Tennessee. He has published numerous articles on artificial intelligence and expert system designs.

 

CITATION: Michael A.S. Guth, Prosecution of Obscenity on Computer Networks, 37 Jurimetrics J. 235-249 (1997).

 

TEXT:

 [*235]  Thomas v. United States n1 is the first criminal prosecution for distributing pornography through a computer network. Prior to Thomas, the federal government only prosecuted persons shipping obscene materials by mail or other traditional means of interstate commerce. In Thomas, the Court of Appeals for the Sixth Circuit held that the pertinent federal criminal laws against obscenity encompassed downloading images from a computer bulletin board in California to a postal inspector in Tennessee. Unfortunately, the court expressed no concern for the chilling effects that prosecuting the operators of computer bulletin boards or networks can have on free speech.

 

n1 United States v. Thomas, 74 F.3d 701 (6th Cir. 1996), cert. denied, 117 S. Ct. 74 (1996).

Prosecutors can cite Thomas as authority for imposing broad criminal sanctions on persons posting sexually explicit pictures and messages on the Internet. Moreover, Thomas permits the least tolerant community to censor materials that can be downloaded to any jurisdiction from any computer network, including the Internet. n2

 

n2 When the Sixth Circuit announced the Thomas decision in February 1996, no federal district court or court of appeals had addressed the issue of prosecuting obscenity distributed on computer networks. The Supreme Court had not reviewed a case pertaining to the Internet prior to 1997, when the Court heard oral arguments on the constitutionality of the Communications Decency Act of 1996.

The Thomases established a Bulletin Board Service that was not strictly a part of the Internet, but a separate, stand-alone computer in California. The decision implicates the Internet because the Memphis postal inspector could have downloaded images from the Internet. See Brief of Amicus Curiae, American Civil Liberties Union Foundation, et al. at 5-8, Thomas v. United States, 74 F.3d 701 (6th Cir. 1996) (Nos. 94-6648, 94-6649) [hereinafter cited as ACLU Brief]. The brief notes that the Thomas case represents the first attempt to prosecute a person for interstate transmission of pornography over a computer system. Id. at 2-3.

 [*236]  Thomas demonstrates how far the government will reach to obtain a pornography conviction. The Thomases were a limited source of sexually graphic pictures that could be found in a variety of media. In fact, the Thomases operated a closed network only accessible to paid subscribers. The Thomases probably could have proven the material was not obscene in their home jurisdiction near San Francisco, n3 but the government denied them that opportunity. It forced the Thomases to defend the content in Memphis, Tennessee, a conservative jurisdiction far removed from their business and in which they had no knowledge of local customs or standards.

 

n3 Cf. United States v. Various Articles of Obscene Merchandise, Schedule No. 2102, 709 F.2d 132, 134, 137 (2d Cir. 1983) (upholding district court's conclusion that "detailed portrayals of genitalia, sexual intercourse, fellatio, and masturbation[,]" including the film "Deep Throat" and similar hardcore pornographic films and magazines are not obscene in light of the prevailing community standards in the New York metropolitan area). The Thomases could have shown a similar finding for the San Francisco area. Cf. infra note 5.

According to Thomas, any person posting material that can be downloaded from a computer network, which could include the Internet, into any jurisdiction assumes the risk and consequences of violating that jurisdiction's civil and criminal laws, including the federal obscenity law, which turns on local community standards. Thomas supports the general proposition that government has the right to scrutinize, determine the value of, and censor all images and messages viewed on interstate computer networks.

I. THE PROSECUTION

Robert and Carleen Thomas operated a computerized Bulletin Board Service (BBS) from their home in Milpitas, California, near San Francisco. n4 The BBS consisted of a computer with a large database that users could access using a modem and personal computer. The BBS offered its members electronic mail, a forum to post messages or advertisements, and the ability to view and download images of sexually explicit pictures.

 

n4 The facts contained in this case history section are drawn from Thomas, 74 F.3d at 705-06, as well as the ACLU Brief, supra note 2, at 5-7.

The Thomases limited membership to those who completed an application form and paid a $ 55 access fee. At trial, Robert Thomas testified that the membership process ensured that subscribers understood the nature of the  [*237]  material and helped prevent minors from accessing the system. Members received a password to link to the Thomases' computer.

The images on the Thomases' BBS came from sexually explicit magazines that Robert Thomas legally purchased in the San Francisco area and subsequently scanned into his computer system. n5 The Thomases stored the images in Graphic Interchange Format (GIF) files written in binary code on the computer. The GIF program translates pictures into a series of iota s and omicron s, which a computer equipped with a GIF-viewer could display as an image on the monitor. The ACLU's amicus brief emphasized that:

From the moment this stream of 1s and 0s left the Thomases' computer and traveled along the phone lines, it was not in a format that anyone could read. Someone tapping into the phone line along the way, without knowing the appropriate software that had been used to convert the image into computer data, would find the material incomprehensible. n6

Because the Thomases' BBS was fully automated, the Thomases did not have to be present for a user to access their system. In fact, after the pictures had been placed on the computer in California, the specific images could arrive in Tennessee without further action by the Thomases or anyone else in California. Thus, it is not accurate to describe the Thomases as sending pictures to others. Instead, individuals seeking the pictures remotely accessed the computer where the images were loaded. n7

 

n5 The fact that Robert Thomas legally purchased these pictures in San Francisco underscores the patchwork of obscenity standards that arose in the wake of Miller v. California, 413 U.S. 15 (1973). That decision expressly disapproved of national standards for determining what material is obscene and opened the door for individual communities to set widely varying standards on what constitutes "patently offensive" depictions of sex. The Thomases most likely could not have been convicted in the San Francisco area because the images found on their BBS were readily available in the San Francisco community and had never been deemed obscene. While the patchwork of varying community standards represents a triumph for federalism because each community decides for itself what amounts to obscenity, it can lead to a chilling effect on constitutionally protected speech. With global network transmission, the patchwork of standards permits the least tolerant community in America having access to the complete menu of Internet domains to impose its own decency standards on every Internet site.  But cf. 413 U.S. at 29-32 ("To require a State to structure obscenity proceedings around evidence of a national "community standard" would be an exercise in futility. . . . 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.").

n6 ACLU Brief, supra note 2, at 6 ("Thus, technologically, it is as though a book had been purchased in California and the buyer, while still in California, [encrypted] the entire book . . . to make the book incomprehensible. The buyer then took the [encrypted] book to Memphis, decoding it in his home there.").

n7 Thomas, 74 F.3d at 705.

In the summer of 1993, Agent David Dirmeyer, a U.S. Postal Inspector in Memphis, applied for membership in the Thomases' BBS. After the Thomases accepted his application, which Dirmeyer completed under false pretenses, he  [*238]  ordered six pornographic videotapes to be shipped to Memphis by United Parcel Service. Agent Dirmeyer dialed the Thomases' computer system via a long distance telephone connection, selected the images he wanted to retrieve, executed the computer commands to download the image files, and used his own GIF program to view the downloaded files.

Federal prosecutors in Memphis used the materials Dirmeyer obtained to charge the Thomases with violating 18 U.S.C. §  1462 for shipping the obscene videotapes through the mail, n8 18 U.S.C. §  1465 for transmitting the obscene images via computer systems and interstate telephone lines, 18 U.S.C. §  371 for conspiracy to violate federal obscenity laws, and 18 U.S.C. §  2252(a)(1) for interstate shipment of child pornography. n9 The jury found the Thomases guilty of all but the last offense. The district court sentenced Robert and Carleen Thomas to 37 months and 30 months of incarceration, respectively, n10 and the Thomases forfeited their computer system pursuant to 18 U.S.C. §  1467. The Court of Appeals for the Sixth Circuit affirmed the convictions, and the Supreme Court denied certiorari. n11

 

n8 This article does not address the validity of the Thomases' prosecution for shipment of pornographic videotapes through the U.S. mails.

n9 74 F.3d at 706; id. at 705 ("These GIF files depicted bestiality, oral sex, incest, sadomasochistic abuse, and sex scenes involving urination.").

n10 Cf. United States v. Guglielmi, 819 F.2d 451 (4th Cir. 1987), cert. denied, 484 U.S. 1019 (1987) (declining proportionality review of 25-year prison sentence for interstate transportation of obscene films, notwithstanding concern for consecutive sentencing on five paired counts based in part on separate shipments instigated by the Federal Bureau of Investigation).

n11 Thomas v. United States, 117 S. Ct. 74 (1996).

II. OVERREACHING BY THE GOVERNMENT

The Sixth Circuit held that the Thomases could be prosecuted in Tennessee for using an apparatus to enable the transmission of pornographic images across state lines, n12 because the Thomases reasonably could expect that their members would view and download the images. n13 Moreover, the court allowed the Thomases to be prosecuted without knowledge that specific images might be deemed obscene in a particular jurisdiction or even the destination of the transmissions, so long as they knew their computer was functioning as intended. n14

 

n12 Thomas, 74 F.3d at 709.

n13 Id. Furthermore, the court held the government need not prove that the Thomases knew about any specific transmission, but only that they knew that BBS members downloaded images from states other than California. Id.

n14 Id. at 710. But cf. Smith v. California, 361 U.S. 147, 151-55 (1959) (invalidating a California ordinance enabling the state to prosecute a bookstore owner in possession of an obscene book without showing he knew the contents of the book).

The Sixth Circuit failed to consider or did not care that Agent Dirmeyer took a series of affirmative steps amounting to overreaching behavior. After  [*239]  establishing his membership on their BBS, the Thomases did not take any affirmative actions to contact Agent Dirmeyer or to provide the images to him. Rather, Agent Dirmeyer gained access to the Thomases' BBS as someone interested in viewing adult entertainment, and he accessed the Thomases' database, viewed images, and chose specific ones to download to his computer. n15

 

n15 The process of downloading a file from a computer server leaves the original intact. Downloading copies the file from one computer system to another. Thus, the GIF files containing sexually explicit images never left the computer system in California.  Thomas, 74 F.3d at 710.

Although the government can prosecute persons in any jurisdiction into which pornography is sent, n16 the government stretched the notion of sending by having its agent accessing material in one jurisdiction and retrieving it in another. If retrieving is not sending, neither federal nor state officials could prosecute the Thomases in Tennessee. n17 Nevertheless, the Sixth Circuit determined that venue in pornography cases lies in "every judicial district which the material touches" or "any judicial district from, through, or into which the allegedly obscene material moves." n18 Thus, government agents can download sexually explicit materials from the Internet and subject the materials' publishers to criminal prosecution in the receiving jurisdiction together with every jurisdiction through which the signal passed.

 

n16 United States v. Bagnell, 679 F.2d 826, 830 (11th Cir. 1982) (affirming defendants' convictions for interstate transportation of obscene material under 18 U.S.C. §  1462 and §  1465).

n17 Not only did the Thomases fail to reach into Tennessee to commit a crime, their actions would not have met even the lesser standard of minimum contacts required for personal jurisdiction in civil cases.  Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985) (minimum contacts must have a basis in "some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.") (quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958)); Burger King, 471 U.S. at 475, ("Jurisdiction is proper . . . where the contacts proximately result from actions by the defendant himself that create a 'substantial connection' with the forum State.") (quoting McGee v. Int'l Life Ins. Co., 355 U.S. 220, 223 (1957)); Asahi Metal Indus. Co. v. Superior Ct., 480 U.S. 102, 108-09 (1987) (quoting Burger King).

Arguably, the Thomases did not purposefully avail themselves of the privilege of conducting activities within the forum State; neither did they seek protection from the laws of Tennessee; nor did they have any substantial connection to Tennessee. At least one BBS member resided in Tennessee, but that hardly constitutes minimum contacts on the part of the Thomases. If it did, then any store owner who sells an item to a customer would be subject to prosecution in that customer's forum state, a proposition the Supreme Court expressly rejected in Burger King. Ironically, even though the Due Process Clause would have prevented a Memphis court from asserting personal jurisdiction over the Thomases in civil litigation, the Thomases were subjected to criminal prosecution in Memphis.

n18 Thomas, 74 F.3d at 709, (quoting United States v. Bagnell, 679 F.2d 826, 830 (11th Cir. 1982) and United States v. Peraino, 645 F.2d 548, 551 (6th Cir. 1981)) (internal quotations omitted).

The Thomas court's broad venue authorization is impractical when applied to cyberspace. The computer transmissions at issue passed through dozens of  [*240]  communities from northern California to Memphis. The transmissions probably lingered less than a second in any "linking" community and caused no harm in that community. However, according to Thomas, any of those communities would have been a proper venue for criminal prosecutions under §  1465. This sweeping approach to venue violates the Due Process Clause, and the Thomas court should have reversed and remanded the case for prosecution in the Northern District of California.

Finally, against the advice of nearly a half-dozen amici curiae, n19 the Thomas court refused to interpret §  1465 to apply only to American citizens. Under Thomas, the criminal sanctions of §  1465 apply to any person, including a citizen of a foreign state, who posts obscene material that can be downloaded in Memphis. This holding has ominous implications for a global network like the Internet: n20

Nearly half of the Internet communications originate outside the United States, and some percentage of that figure, represents pornography. Pornography from, say, Amsterdam will be no less appealing to a child on the Internet than pornography from New York City, and residents of Amsterdam have little incentive to comply with [American statutes on content]. . . . Foreign pornographers could reap the benefit of unfettered access to American audiences. . . . American pornographers [might] relocate in foreign countries or at least use anonymous remailers from foreign servers. n21

The principles embraced in Thomas would allow other countries to impose censorship of any type. They could prosecute U.S. residents for political speech, for literature, or for art on the Internet.

 

n19 "If a Memphis resident obtains access to the Internet from a service such as Prodigy or America Online, and then simply reads messages . . . sent by a resident of Finland to a resident of Japan and the latter's responses, is American law going to attempt to make the behavior of the service or of any of the three people involved illegal? To describe this scenario is to suggest its impossibility. And beyond the practical, serious questions are raised by any attempt to require people throughout the world to conform to the moral and aesthetic standards of conservative American localities." ACLU Brief, supra note 2, at 26-27.

n20 But see ACLU v. Reno, 929 F. Supp. 824, 865 (E.D. Pa. 1996) (Dalzell, J., concurring) ("The Government could also completely ban obscenity and child pornography from the Internet. No Internet speaker has a right to engage in these forms of speech, and no Internet listener has a right to receive them.").

n21 Id. at 882-83.

III. LEAST TOLERANT COMMUNITIES AS CENSORS

By suggesting that every forum through which a computer transmission passes is a possible venue for criminal prosecution, Thomas empowers the least tolerant communities in America to censor sexually explicit material published on interstate computer networks, including the Internet. If this expansive view prevails, then the only way to prevent the most restrictive local standards from  [*241]  governing in all locales is to acknowledge the international scope of the Internet and to apply global, objective, and reasonable standards to evaluate cyberspace transmissions. In short, Congress should define precisely what images, pictures, and words constitute federal obscenity. n22

 

n22 Although on occasion, the Supreme Court has held that mere words can be obscene, e.g., Kaplan v. California, 413 U.S. 115, 118 (1973), usually obscenity prosecutions under §  1465 focus on pictures.

To satisfy the First Amendment, the government cannot treat material as obscene unless it appeals to the prurient interest of the viewer, is "patently offensive" as determined by "contemporary community standards," and lacks literary, artistic, political, or scientific value, as determined by an objective, reasonable person standard. n23 Jurors are expected to draw on knowledge of their community or vicinity, and the trial court may direct the jury to apply "community standards" without specifying which "community," or it may define the standard in more precise terms. n24

 

n23 Miller v. California, 413 U.S. 15, 24, 34 (1973) ("The First Amendment protects works which, taken as a whole, have serious literary, artistic, political, or scientific value, regardless of whether the government or a majority of the people approve of the ideas these works represent."); Smith v. United States, 431 U.S. 291, 301 (1977) (holding that "in a federal prosecution for mailing obscene materials, the first and second prongs of the Miller test -- appeal to prurient interest and patent offensiveness -- are issues of fact for the jury to determine applying contemporary community standards," but the literary, artistic, political, or scientific value of a work is judged according to an objective standard) (citing F. SCHAUER, THE LAW OF OBSCENITY 123-24 (1976)); Pope v. Illinois, 481 U.S. 497, 500-01, 501 n.3 (1987) ("The proper inquiry is not whether an ordinary member of any given community would find serious literary, artistic, political, or scientific value in allegedly obscene material, but whether a reasonable person would find such value in the material, taken as a whole. . . . The mere fact that only a minority of a population may believe a work has serious value does not mean the 'reasonable person' standard would not be met."). But see Pope, 481 U.S. at 511 (Stevens, J., dissenting):

The problem with this formulation is that it assumes that all reasonable persons would resolve the value inquiry in the same way. In fact, there are many cases in which some reasonable people would find that specific sexually oriented materials have serious artistic, political, literary, or scientific value, while other reasonable people would conclude that they have no such value. The Court's formulation does not tell the jury how to decide such cases.

n24 Hamling v. United States, 418 U.S. 87, 106 (1974); Jenkins v. Georgia, 418 U.S. 153, 158 (1974). But see United States v. Battista, 646 F.2d 237, 245-46 (6th Cir. 1981) (concerning the criminal prosecution in Memphis of distributors of the pornographic movie "Deep Throat").

Imagine the result if federal juries began to scrutinize the content of an Internet discussion group in a domain such as alt.sex.stories or alt.binaries. pictures.erotica. Arguably, many of the messages in these domains appeal to the prurient interest, would be patently offensive in some jurisdiction, and lack literary, artistic, political, or scientific value. In fact, the same could be said about many of the personal advertisements on the Internet, which often are little more than crudely worded invitations to engage in sex. n25

 

n25 The Communications Decency Act of 1996, 47 U.S.C. §  223(d)(1), applies to "any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs, regardless of whether use the user of such service placed the call or initiated the communication." See ACLU v. Reno, 929 F. Supp. at 829. The statute's wording clearly applies to electronic mail and other words posted to the Internet.

 [*242]  Indeed, a special three-judge district court that examined the constitutionality of the Communications Decency Act of 1996 in ACLU v. Reno concluded that the local community standard for determining patently offensive material might lead to censorship of (1) the Broadway play Angels in America, n26 (2) news articles pertaining to female circumcision, n27 (3) a travel magazine showing sculptures in India of couples copulating in various positions, (4) "a written description of a brutal prison rape," and (5) Francesco Clemente's painting "Labirinth [sic.]" n28

 

n26 Angels deals with AIDS and uses graphic language, yet earned two Tony Awards and a Pulitzer prize.

n27 "We have no assurance that these discussion of obvious interest and relevance to older teenage girls, will not be viewed as patently offensive -- even in context -- in some communities." ACLU v. Reno, 929 F. Supp. at 853.

n28 Id. at 852-53.

Although prosecution of pornographers can be politically popular, society gains little from shutting down a private BBS open only to paid members. n29 Access to the closed computer networks, as in Thomas, or open networks, such as the Internet, is not a license to censor. Even if we assume the noblest of intentions, local communities can abuse the power to prosecute obscenity on the Internet and chill protected speech:

 

Any test that turns on what is offensive to the community's standards is too loose, too capricious, too destructive of freedom of expression to be squared with the First Amendment. Under that test, juries can censor, suppress, and punish what they don't like, provided the matter relates to "sexual impurity" or has a tendency "to excite lustful thoughts." This is community censorship in one of its worst forms. It creates a regime where in the battle between the literati and the Philistines, the Philistines are certain to win. If experience in this teaches anything, it is that "censorship of obscenity has almost always been both irrational and indiscriminate." n30

Thomas creates the danger of a chilling effect on those who post material to a computer network. They will cease to post or will limit material posted out of  [*243]  fear that some community might find it patently offensive. n31 "Many speakers who display arguably indecent content on the Internet must choose between silence and the risk of prosecution." n32 This result could lead to public perceptions of the network as a regulated or policed forum, containing only sanitized material suitable for minors. n33 Forums for survivors of rape, incest, child abuse, or those concerned with teenage pregnancy and peer pressure might disappear:

It is difficult to characterize a criminal statute that hovers over each content provider, like the proverbial sword of Damocles, as a narrow tailoring. Criminal prosecution, which carries with it the risk of public obloquy as well as the expense of court preparation and attorneys' fees, could itself cause incalculable harm. No provider . . . is likely to willingly subject itself to prosecution for a miscalculation of the prevalent community standards or for an error in judgment as to what is indecent. A successful defense to a criminal prosecution would be small solace indeed. n34

 

 

n29 Similarly, sexually explicit messages and pictures are generally hidden from an Internet user, in the sense that the user must take several steps to search and find these sites. Cf.  id. at 844:

Communications over the Internet do not "invade" an individual's home or appear on one's computer screen unbidden. Users seldom encounter content "by accident." A document's title or a description of the document will usually appear before the document itself takes the step needed to view it, and in many cases the user will receive detailed information about a site's content before he or she need take the step to access the document. Almost all sexually explicit images are preceded by warnings as to the content. Even the Government's witness . . . testified that the "odds are slim" that a user would come across a sexually explicit site by accident.

n30 Roth v. United States, 354 U.S. 476, 512 (1957) (Douglas, J., and Black, J., dissenting).

n31 Cf. Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 52 (1988) (holding that to award damages to a public figure for a magazine parody would have a "chilling effect" on First Amendment protections of free speech). In anticipation of heightened censorship by the federal government, America Online, Inc., the largest retail Internet provider at the time in the United States, banned the use of the word "breast" in its new and existing member profiles. America Online tried to close the accounts of members violating this restriction. Consequently, many women who were breast cancer survivors were denied access to their accounts. After an onslaught of criticism, both from its members and outside critics, America Online hastily retracted its prohibition. Joe Kilsheimer, Law Arrives on the Internet Frontier, ORLANDO SENTINEL, Feb. 11, 1996. Similarly, in December 1995, the German federal government ordered the American retail Internet provider, CompuServe, to restrict access by German residents to alt. binaries Internet discussion groups that contained erotic pictures. CompuServe responded to the German directive by initially restricting all of its 4.5 million members from directly accessing the more than 200 alt. binaries discussion groups. After a storm of protest from American subscribers, CompuServe announced plans to screen German residents from having direct access to the alt. binaries discussion groups, while permitting its other worldwide subscribers access to all discussion groups. Id. In fact, a German CompuServe subscriber would need less than ten minutes to locate an alternative Usenet news reader, which a number of universities provide, thereby circumventing the CompuServe restriction.

n32 ACLU v. Reno, 929 F. Supp. at 849; id. at 878 ("Because the creation and posting of a Web site allows users anywhere in the country to see that site, many speakers will no doubt censor their speech so that it is palatable in every community. Other speakers will decline to enter the medium at all.").

n33 Cf.  id. at 879 (Dalzell, J., concurring):

As some speakers leave or refuse to enter the medium, and others bowdlerize their speech or erect the barriers the Act envisions, and still others remove bulletin boards, Web sites, and newsgroups, adults will face a shrinking ability to participate in the medium. Because much of the communication on the Internet is participatory, i.e., is a form of dialogue, a decrease in the number of speakers, speech fora, and permissible topics will diminish the worldwide dialogue that is the strength and signal achievement of the medium.

n34 Id. at 855-56.

Thomas' insistence that those who publish information on computer networks bear the burden of learning the standards of every community where their material travels does not adequately respond to concerns of censorship and  [*244]  chilling effects. The court glibly stated that the Thomases could limit their liability by controlling the destination of their material by limiting access to residents of their own community. n35 In reaching that conclusion, the Sixth Circuit relied upon the Supreme Court's decision in Sable Communications of California, Inc. v. FCC, n36 which held that the dial-a-porn company defendant was "free to tailor its messages, on a selective basis, if it so chooses, to the communities it chooses to serve." n37 Furthermore, if the Thomases feared prosecution by intolerant communities, then, according to the court, the Thomases should have incurred the costs necessary to develop and implement "a method for screening a customer's location and providing messages compatible with community standards." n38

 

n35 Thomas, 74 F.3d at 711.

n36 492 U.S. 115 (1989).

n37 Id. at 125.

n38 Thomas, 74 F.3d at 712 (quoting Sable Communications, 492 U.S. at 125) (internal quotation marks omitted).

To argue that the Thomases could know the law in every jurisdiction and screen their customers accordingly is absurd. Neither the Thomases nor anyone operating a World Wide Web page on the Internet can know the unwritten community standards of towns across America. No one can know whether a particular picture is patently offensive in a particular community until the government challenges that picture. Imputing as a matter of law knowledge of local standards to the publishers of interstate communications would have drastic implications for the Internet. If the Thomases could have selected customers by location, then so could Internet publishers. However, Internet publishers cannot screen users by location because the user domains often contain company names, such as America On-Line or CompuServe, without identifying the user's location. "Unlike other media, there is no technologically feasible way for an Internet speaker to limit the geographical scope of his speech (even if he wanted to), or to implement a system for screening the locale of incoming requests." n39 In theory, Internet publishers could require written confirmation of the customer's residence by mailing a reply form to subscribers' postal addresses. However, that procedure is impractical and likely would deter many users of Internet services, invade their privacy, and chill speech. n40 Few Internet users will sign up on-line to access a site, wait to receive written confirmation by mail, return the confirmation, and then access the site a week  [*245]  later. n41 This process would rob the Internet of its major virtue -- immediate access to information. Furthermore, the Thomas court's insistence that publishers can limit the output of data to a particular community displays an ignorance of cyberspace in that users can travel to less tolerant communities and download information while there.

 

n39 ACLU v. Reno, 929 F. Supp. at 878 (Dalzell, J., concurring) (quoting Sable Communications, 492 U.S. at 125) (internal quotations omitted).

n40 "Anonymity is important to Internet users who seek to access sensitive information . . . ." Id. at 849. Not only users of adult entertainment sites prefer anonymity, but also the "users of the Critical Path AIDS Project's Web site, the users, particularly gay youth, of Queer Resources Directory, and users of Stop Prison Rape (SPR). Many members of SPR's mailing list have asked to remain anonymous due to the stigma of prisoner rape." Id.

n41 Id. at 846 ("Dr. Olsen, the expert testifying for the Government, agreed that even a minute is an absolutely unreasonable delay. People will not put up with a minute. Plaintiff's expert Donna Hoffman similarly testified that excessive delay disrupts the flow on the Internet and stifles both hedonistic and goal-oriented browsing.") (internal quotations and punctuation omitted).

IV. IS BINARY COMPUTER CODE OBSCENE?

The Thomases, in their appeal, questioned whether computer encoded programs can be characterized as obscene material under the law. Although the federal obscenity laws are directed at the end product and not the medium used to transport it, the Thomases argued that computer code is not obscene and is too intangible to fall within §  1465. n42 Also, they argued that Congress did not intend to regulate computer transmissions under §  1465, as evidenced by the absence of words referring to computer technology in this statute n43 as opposed to the Communications Decency Act of 1996.

 

n42 Thomas, 74 F.3d at 706. See United States v. Carlin Communications, Inc., 815 F.2d 1367 (10th Cir. 1987) (intangible articles like pre-recorded telephone messages fall outside the scope of 18 U.S.C. § §  1462, 1465).

n43 Id. at 706.

The court rejected these contentions, relying on United States v. Gilboe, n44 which held that electronic impulses used to transfer bank account funds could be the subject of criminal prosecution for money obtained through fraud. The court reasoned that, like Gilboe where electronic transmissions were only the intangible means by which tangible money was transferred from one account to another, the electronic transmissions in Thomas served as a means of transporting a tangible obscene picture to another location. n45 By focusing on the tangible end result of an image that could be printed as a hard copy, the Thomas court also distinguished computer-line transmission of obscene images as "inherently different" from the intangible telephone conversations and prerecorded messages on commercial dial-a-porn businesses, n46 which the Supreme Court held were a form of speech entitled to limited protection under the First Amendment. n47

 

n44 684 F.2d 235, 238 (2d Cir. 1982).

n45 Thomas, 74 F.3d at 707 ("The transmissions began with computer-generated images in California and ended with the same computer-generated images in Tennessee. The manner in which the images moved does not affect their ability to be viewed on a computer screen in Tennessee or their ability to be printed out in hard copy in that distant location.").

n46 Id. at 706-07.

n47 Sable Communications of California, Inc. v. FCC, 492 U.S. 115, 119 (1989) (Congress may not totally ban dial-a-porn businesses thus denying adults, as well as children, access to sexually explicit messages).

 [*246]  V. THE EASE OF USE QUALIFICATION

In principle, one could write a book to supply raw binary data used by a GIF program to construct a digital image of a pornographic picture. A reader knowing how to create a GIF data file with access to a GIF viewing program could copy the code into a GIF file to construct an image. The reader might even avoid typing the code by using a scanner to "read" pages of the book into a computer file that could be used to generate a GIF image. Ordinarily, we would expect a book filled with computer code to fall outside the definition of obscenity. After all, computer code itself does not appeal to the prurient interests of viewers.

But a court relying on Thomas might reach a different result because Thomas instructs courts to focus on the end product, regardless of the effort required to generate a tangible image from encoded data. Courts should read Thomas narrowly by focusing on the ease with which one can view and obtain obscene material. Courts might consider an ease of use spectrum with electronic transfers of bank account funds -- which could be withdrawn and used immediately -- on one end, and a picture cut into a thousand pieces -- which would then be impossible to view -- on the other.

A book containing computer code necessary to generate pornographic images falls in the middle of this spectrum. If (1) the pages from the book could be scanned and downloaded as images, (2) the actual data on the pages could be retrieved into a computer file, and (3) that computer file could be used to view the pornographic image as a duplicate of the GIF file, then the obscene material could be reconstructed without much difficulty. The book could become the subject of prosecutions under §  1465. If the scanned images could not be converted into a computer file, then the effort required to retype each of the binary code numbers n48 into a file would exclude the book from material covered by §  1465.

 

n48 The code for a GIF file appears as characters in the extended ASCII character set (e.g., >SO>) when viewed through a word processor. Therefore, in principle, one could input the decimal values for the appropriate ASCII characters to duplicate a GIF file that could be viewed with a GIF viewer. In practice, this would be extremely tedious and time consuming.

The GIF files transmitted in the Thomas case fall closer to the bank account transfer side of the spectrum for a simple reason: the GIF image files are easy to view once loaded, and the GIF viewer programs are readily available and have been in use for many years. If the Thomases' pornographic images had been encrypted into computer code that was more difficult to decipher, the pictures would have fallen closer to the picture-cut-in-a-thousand-pieces side of the spectrum. Therefore, the Thomases' conviction implicitly rests on the fact that computer graphic files that were transmitted across state lines could be easily loaded into a GIF viewing program to generate pornographic images.

 [*247]  VI. VAGUENESS AND FAIR NOTICE

Thomas failed to recognize that until a community prosecutes a specific item, publishers cannot know whether that item violates that community's standards. The decision failed to clarify, define, or give adequate notice as to what material is obscene. This is hardly surprising since the Supreme Court often ignores the absence of notice in prosecutions of pornographers. n49 The problem is particularly acute in the computer network context, however. If local residents cannot discern when indecent material crosses the line into obscenity, n50 then computer network publishers living thousands of miles away cannot fathom those nebulous local standards either. Section 1465 fails to apprise the general public which sexually explicit materials are indecent but constitutionally protected, and which are obscene. If citizens of ordinary intelligence cannot know what constitutes obscenity under §  1465, then the courts should declare the statute void for vagueness. n51

 

n49 See, e.g., Miller, 413 U.S. 15, 37 (1973) (Douglas, J., dissenting) ("Today we leave open the way for California to send a man to prison for distributing brochures that advertise books and a movie under freshly written standards defining obscenity which until today's decision were never the part of any law."); Ginzburg v. United States, 383 U.S. 463, 476 (1966) (Black, J., dissenting) (Ginzburg "is now finally and authoritatively condemned to serve five years in prison for distributing printed matter about sex which neither Ginzburg nor anyone else could possibly have known to be criminal."); Pope v. Illinois, 481 U.S. 497, 515-16 (1987) (Stevens, J., dissenting) ("When petitioners Pope and Morrison accepted part-time employment as clerks in the bookstores, they could hardly have been expected to [know] which, if any, of the magazines being sold were legally 'obscene.' . . . It would have been quite reasonable for [Pope] to conclude that if sale of the magazines were indeed against the law, then the police would never allow the store to remain in operation, much less publicly advertise its goods."). That Miller, Ginzburg, and Pope were decided by 5-4 majorities underscores the tenuous nature of the Court's obscenity findings in each of those cases.

n50 Merely suggestive, erotic, or indecent material falls within the protection of the First Amendment. See Sable Communications of California, Inc. v. FCC, 492 U.S. 115, 126 (1989).

n51 See Pope v. Illinois, 481 U.S. 497, 515 (1987) (Stevens, J., dissenting).

A fair government, one that complies with both the spirit and the letter of due process, has two choices. Either Congress can enumerate precisely the images or words that violate §  1465, or the courts can require federal prosecutors to give publishers adequate notice of an alleged violation of §  1465 by first filing a civil suit against the publishers to declare their material obscene. The government could not file criminal charges against defendants, such as the Thomases, unless the government won the civil suit and the defendants continued to distribute their material to that community. The civil proceeding would provide fair and adequate notice to publishers that the material violates a community's obscenity standards. n52 Any subsequent criminal prosecution for  [*248]  continued sale or distribution of the material to that community would then satisfy the void-for-vagueness test.

 

n52 Miller, 413 U.S. at 41 (Douglas, J., dissenting); Report of the Commission on Obscenity and Pornography 70-71 (1970); Kingsley Books, Inc. v. Brown, 354 U.S. 436, 442-43 (1957) (determining that civil obscenity proceeding lodged prior to criminal prosecution constitutes fair notice and warning).

This vagueness argument has never garnered the support of more than two or three Supreme Court justices. However, the advent of the Internet has dramatically changed the environment in which the obscenity law must be applied. "The Internet may fairly be regarded as a never-ending worldwide conversation. The Government may not . . . interrupt that conversation. As the most participatory form of mass speech yet developed, the Internet deserves the highest protection from governmental intrusion." n53 Some say the government has no business at all regulating the content of the Internet.

 

n53 ACLU v. Reno, 929 F. Supp. 824, 883 (E.D. Pa. 1996) (Dalzell, J., concurring).

For the first time, computer network media have enabled individuals to participate fully in the news publishing business; the Internet is the functional equivalent of a printing press for each individual to express views to a worldwide audience. Citizens of limited means are no longer relegated to the passive role of watching television or reading newspapers. They can generate news by posting information, including sexually explicit pictures, to computer networks as they see fit. n54 No other communications medium has so vindicated the cherished freedoms at the core of the First Amendment.

 

n54 As Judge Dalzell explained,

Critics have attacked this much maligned "marketplace" theory of First Amendment jurisprudence as inconsistent with economic and practical reality. Most marketplaces of mass speech, they charge, are dominated by a few wealthy voices. . . . These voices dominate -- and to an extent, create -- the national debate. Individual citizens' participation is, for the most part, passive. . . . Because most people lack the money and time to buy a broadcast station or create a newspaper, they are limited to the role of listeners, i.e., as watchers of television or subscribers to newspapers. . . . Economic [competition] [limits] the number of speakers even further.

 Id. at 880 (Dalzell, J., concurring) (internal citations omitted).

If the government's uneven administration of §  1465, a vague, poorly defined, and arbitrarily invoked statute, curtails the uncensored, free expression found on computer network media today, it will be a tragedy. If the application of §  1465 has indeed created a hodge-podge of incoherent and incongruous obscenity standards, then the government should not inflict that body of law on computer network users.

* * *

Absent "some connection to minors" or some unsolicited intrusion upon those who wish to avoid pornography, n55 the government has no compelling or substantial interest in regulating the material of global or national computer networks. The government offends notions of due process and fair play when  [*249]  it obtains venue for criminal prosecutions in any remote jurisdiction where material can be downloaded from a computer network. In United States v. Thomas, however, the courts permitted the government to reach into one jurisdiction, download images from a computer network there, and then prosecute the network operators in a comparatively intolerant community thousands of miles away. Thomas leaves a wake of procedures and rules that open the door for the government to select the least tolerant communities in America as censors for the content of computer networks.

 

n55 Pope v. Illinois, 481 U.S. 497, 513 (1987) (Stevens, J., dissenting) (The "government may not constitutionally criminalize mere possession or sale of obscene literature, absent some connection to minors or obtrusive display to unconsenting adults.").

If the government can censor the sexual content of material on computer networks, the government also can censor materials in the realm of nonsexual subjects. For example, 18 U.S.C. §  1461, which prohibits "indecent" communications, defines "indecent" to "include matter of a character tending to incite arson, murder, or assassination." In time, the government may try to justify censorship of hate-speech, information about bombs and other incendiary devices, and possibly even fighting words. n56

 

n56 Id. at 882 (Dalzell, J., concurring) ("Some of the dialogue on [computer networks] surely test the limits of conventional discourse. [Pictures] . . . can be emotionally charged, sexually explicit, and vulgar. . . . But we should expect such speech to occur in a medium in which citizens from all walks of life have a voice. We should also protect the autonomy that such a medium confers to ordinary people as well as media magnates.").

The cyberspace community, those who use computer networks to post and glean information, exists in the realm of thought. A new part of that community can spring up whenever someone starts a discussion group on a given topic. Even with the noblest of intentions, the government lacks constitutional authority and the technological ability to regulate thoughts or communications on such computer networks. n57 No communication medium relies on the exercise of free speech rights more than these networks. Our government can either continue to support and nourish the development of cyberspace, or it can follow the direction of Thomas, selectively prosecuting a few pornographers and chilling the exercise of protected speech.

 

n57 Id. at 832 ("There is no centralized storage location, control point, or communications channel for the Internet, and it would not be technically feasible for a single entity to control all of the information conveyed on the Internet.") (emphasis added).