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United States v. Thomas, 74 F.3d 701 (6th Cir. 1996)(full-text).
Factual Background Edit
The Thomas' operated a computer bulletin board called the Amateur Action Computer Bulletin Board ("AABBS") from their home in Milpitas, California. It featured e-mail, chat lines, public messages, and files that members could access, transfer, and download to their own computers and printers.
The Thomases scanned sexually explicit pictures from magazines into GIF files. Those calling the AABBS system without a password could view the introductory screens, which contained brief, sexually explicit descriptions of the GIF files. However, access to the files was limited to members who received a password after they paid a membership fee and submitted a signed application form, which requested the applicant's age, address, and telephone number and required a signature.
In 1993, a U.S. Postal Inspector received a complaint about the AABBS from an individual in the Western District of Tennessee. He accessed the AABBS and signed up under an assumed name. Thomas called him at his undercover telephone number in Memphis, Tennessee, acknowledged receipt of his application, and authorized him to log-on with his personal password. Thereafter, the inspector called the AABBS from his computer/modem in Memphis and downloaded certain GIF files depicting images of bestiality, oral sex, incest, sado-masochistic abuse, and more.
The defendants were indicted by a grand jury and tried by a jury. Both defendants were found guilty on all counts relating to the bulletin board. The jury also found that the Defendants' interest in their computer system should be forfeited to the United States.
Appellate Court Proceedings Edit
Defendants' challenge to their convictions on two grounds: (1) the law does not apply to intangible objects like the GIF files, and (2) Congress did not intend to regulate the computer transmissions involved here, because the law does not expressly prohibit such conduct. The court rejected both grounds.
First, the court held that the decision in United States v. Gilboe persuasive. In Gilboe, the Second Circuit rejected the argument that the defendant's transmission of electronic impulses could not be prosecuted under a criminal statute prohibiting the transportation of money obtained by fraud, reasoning that:
|“||[e]lectronic signals in this context are the means by which funds are transported. The beginning of the transaction is money in one account and the ending is money in another. The manner in which the funds were moved does not affect the ability to obtain tangible paper dollars or a bank check from the receiving account.||”|
The court held that "[t]he 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."
Second, the court was unpersuaded by the defendants' argument that "the absence of the words 'including by computer' in Section 1465, despite Congress' addition of those words in other legislation, is evidence of its intent not to criminalize conduct, such as Defendants' that falls within the plain language and intent of Section 1465." The court relied upon the case of United States v. Maxwell,  where the defendant was convicted of transmitting obscene visual images electronically through the use of an on-line computer service. In that case, the court held that:
|“||[t]he use of the terms 'transports,' 'distribution,' 'picture,' 'image' and 'electrical transcription' leads us to the inescapable conclusion the statute is fully applicable to the activities engaged in by applicant. . . . It is clear Congress intended to stem the transportation of obscene material in interstate commerce regardless of the means used to effect that end.||”|
The court then turned to the question of proper venue for the prosecution. One of the major objections raised about this case by those involved in the Internet was the fact that it is impossible for a content provider on the Internet to know from where a user is calling. If a content provider wishes to insulate itself from liability, the argument goes, it will have to comply with the laws of the most restrictive jurisdiction in which its content may be downloaded and viewed. That, in turn, will have a chilling effect on the exercise of free speech rights.
The Thomases had argued that their obscenity charges should have been determined according to the community standards of their home jurisdiction, where the police and district attorney's office had already reviewed the material on their AABBS and had declined to prosecute them for obscenity. As a back-up argument, the Thomases claimed that the "community standards" by which they should be judged should be the "cyberspace" community and not the community standards of Tennessee. The court rejected this argument as well, stating:
|“||To establish a Section 1465 violation, the Government must prove that a defendant knowingly used a facility or means of interstate commerce for the purpose of distributing obscene materials. Contrary to Defendants' position, Section 1465 does not require the Government to prove that Defendants had specific knowledge of the destination of each transmittal at the time it occurred.||”|
The court took pains to make it clear, however, that this was not a case in which the Thomases had no knowledge of the fact that the postal inspector was downloading the images in Tennessee. Specifically, the court found that Thomas knew of, approved, and had conversed with an AABBS member in that state, who had their permission to access and copy GIF files that ultimately ended up there.
|“|| It is well-established that:
[v]enue for federal obscenity prosecutions lies 'in any district from, through, or into which' the allegedly obscene material moves, according to 18 U.S.C. section 3237. This may result in prosecutions of persons in a community to which they have sent materials which is obscene under that community's standards though the community from which it is sent would tolerate the same material.
However, the court did go out of its way to differentiate this case from the situation in which the content provider had no knowledge, nor the ability to determine the location of the viewer:
|“||Defendants' First Amendment issue, however, is not implicated by the facts of this case. This is not a situation where the bulletin board operator had no knowledge or control over the jurisdictions where materials were distributed for downloading or printing. Access to the Defendants' AABBS was limited. Membership was necessary and applications were submitted and screened before passwords were issued and materials were distributed. Thus, Defendants had in place methods to limit user access in jurisdictions where the risk of a finding of obscenity was greater than that in California. They knew they had a member in Memphis; the member's address and local phone number were provided on his application form. If Defendants did not wish to subject themselves to liability in jurisdictions with less tolerant standards for determining obscenity, they could have refused to give passwords to members in those districts, thus precluding the risk of liability.||”|
The court relied upon the U.S. Supreme Court decision in Sable Communications of Cal., Inc. v. F.C.C., where the Court rejected Sable's argument that it should not be compelled to tailor its dial-a-porn messages to the standards of the least tolerant community.
|“||The Court recognized that distributors of allegedly obscene materials may be subjected to the standards of the varying communities where they transmit their materials . . . and further noted that Sable was "free to tailor its messages, on a selective basis, if it so chooses, to the communities it chooses to serve." Id. at 125. The Court also found no constitutional impediment to forcing Sable to incur some costs in developing and implementing a method for screening a customer's location and "providing messages compatible with community standards." Id.||”|
Since the Thomases had actual knowledge of the user's location, the court refused to rule on the situation where the content provider had no knowledge of the location, and no reasonable ability to learn of the location. That issue will have to await another court and another case.