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Date: Fri, 08 Oct 1993 10:45:04 -0500
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From: ww3@fasttax.com (Wynn Wagner III)
Subject: Tony Davis got busted
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Status: OR
Here is a story that is in the October issue of Boardwatch. The writer is
Lance Rose, an attorney, and the author of "SYSLAW", the 'bible' on
electronic communication law.
TONY DAVIS & THE SHOW-BIZ COPS OF OKLAHOMA CITY
The arrest of Tony Davis was reported in last month's Boardwatch. Davis
operated the Oklahoma Information Exchange BBS in Oklahoma City. On August
17, 1993, he was formally arraigned in Oklahoma state court and allowed to
remain out of jail on $4500 bail. Since the first report, we looked into
this affair more closely. The closer one looks, the more absurd Davis'
plight gets.
The police investigation of Tony Davis culminated in two purchases of
allegedly obscene CD-ROMs from Davis by undercover police on June 4th and
July 12th, 1993. Shortly after the second purchase, on July 19, 1993, they
arrived in force at Tony Davis' office with a warrant and seized some adult
CD-ROMs from the stock he maintained in operating a CD-ROM retail business.
They did not stop there, however. They also grabbed his BBS computer
equipment and arrested Davis.
The event had little chance of passing unnoticed, as the police brought
along a professional video camera and videotaped the whole affair.
Afterwards they edited the tape, wrote a script, and with the help of the
local ABC affiliate turned it into a weekly installment of a "reality
television" program called "You're Busted". It was broadcast throughout the
Oklahoma City area on July 23rd, four days after the raid. For that extra
dose of reality, the episode was narrated by one of the policemen who
searched Davis' place and arrested him.
As the police burst in on Davis, the voiceover informed TV viewers they were
witnessing the control center for Davis' "international pornographic
network". Out of roughly 2,000 CD- ROMs Davis kept on hand for the CD-ROM
retail business he operated, the police confiscated 57. For purposes of
comparison, that's under 3% of Davis' total stock of CD-ROMs. A far smaller
percentage than the amount of hardcore adult material found in typical video
stores in most parts of our country. Later in the show, the cop with the
video camera focused on a computer screen showing the CD-ROM activity on
Davis' BBS. The names of BBS users could be seen as they downloaded files
from CD-ROMs. The narrating officer knowingly explained to the TV audience
that they were seeing BBS users "viewing the smut" right then and there (not
to spoil the fun, but the police were mistaken; users can't read image files
they are transferred to their own computers). At the end of the show, the
narrator belted out the show's theme: "Tony Davis, you're busted!" Davis did
not enjoy his 15 minutes of fame. According to Davis, "the You're Busted'
show was the most degrading thing I've seen done to anybody in my life."
The newspapers were thoroughly scooped but joined in spiritedly, passing
along police allegations that Tony Davis was running a "high-tech,
modern-day porno house". They noted that other investigations continued,
which might mean the police were investigating Davis' CD-ROM suppliers, his
customers, or both. To their credit, they also gave a number of column
inches to questions raised by Davis' defense attorney, William Holmes, about
the legality of the police actions.
Davis was charged with four obscenity-related counts at the arraignment, two
based on the CD-ROM purchases by undercover officers prior to the raid.
Another count charged Davis with criminal "possession" of obscenity, despite
the Supreme Court's declaration in the past that mere possession of obscene
material is perfectly legal. The addition of this bizarre claim indicates
either that the local police do not understand the Constitutional rights of
U.S. citizens, or do not care. The last count was for trafficking in obscene
images. According to Davis' attorney, this statute was originally enacted in
reaction to pornographic video games, and now seems to be directed at the
downloading of BBS files that the cops videotaped. All charges could have a
very hard time sticking if the defective search and seizure procedures used
by the police are closely scrutinized in court.
Those procedures do appear deeply defective. Federal protections for BBS's
and sysops were apparently ignored wholesale in the Davis raid, just as in
other BBS raids we've seen the past couple of years. The Electronic
Communications Privacy Act ("ECPA"), protects electronic messages against
government search or seizure. When the police took Davis' BBS, they
prevented messages traveling through the BBS from being delivered to their
ultimate addresses. About 150 messages went undelivered, according to Davis'
attorney. This interception violates the ECPA, even if the police resisted
the temptation to read e-mail on the seized computers back in their offices.
The Privacy Protection Act ("PPA"), prohibits seizure of materials being
kept or prepared for publication, unless the person holding them is
suspected of a crime involving those very materials (with a few narrow
exceptions). Davis' business activities included publishing the "Magnum"
series of CD-ROMS, none of which were included in the titles the police
thought obscene. By seizing computers containing the materials used by
Davis' in publishing his CD-ROMs, the police grossly violated the PPA. Since
Davis was not suspected or accused of any crime in relation to the Magnum
CD- ROMs he published, any associated materials simply should not have been
touched by the police.
Even plain vanilla 4th and 5th Amendment warrant requirements may have been
violated by the police in this case. According to sources, the Oklahoma
City police typically obtain a warrant based on an informal chat with the
magistrate. Afterwards, they perform the actions authorized by the warrant,
and only then submit a formal affidavit to support the warrant. If the
police followed this sloppy and deeply illegal procedure in Davis' case,
then his due process rights were grossly violated. As a further example of
official slop, neither the warrant under which the raid was conducted, nor
the police request for that warrant, mentioned Davis' computer bulletin
board at all. That fatal omission did not stop the cops from taking all the
computer equipment anyway.
Perhaps the Oklahoma City prosecutors believe the seizure was legal because
it is authorized under Oklahoma's own obscenity seizure statutes. If so,
they're dead wrong. Federal due process protections trump state seizure
laws. There was no emergency here to justify even a temporary abridgement of
Davis' full due process rights. The particular importance of the ECPA and
PPA should not be underestimated by Oklahoma state attorneys or anyone else.
The protections of these statutes are so important that Congress spelled
them out expressly, even though in a sense they merely clarify protections
already contained in the Constitution. The police cannot bat these
protections out of the way every time they threaten this week's episode of
"You're Busted."
Davis' lawyer, himself a former local prosecutor, appears fully aware of the
mess the police are making of the Davis matter. He sent them a letter a week
after the raid formally notifying them they are violating the ECPA and PPA
through their seizure and retention of Davis' computer equipment. In doing
so, he is trying to short circuit a possible future defense by the cops that
they did not know they were doing anything wrong by holding Davis'
equipment. Readers of Boardwatch may recall the lawsuit won by Steve Jackson
Games against the U.S. government in Austin, Texas a few months back. The
federal court held that the agents' naive BBS seizure violating the ECPA and
PPA could be excused, but the agents became obligated to return the wrongly
seized materials as soon as they found out about their privacy and
publishing aspects and the laws forbidding their seizure. The same should
certainly hold true here. Despite this precedent, as of August 19th the
police still did not return anything to Davis, almost a month after
receiving his lawyer's notifying letter.
Why did the police pick on Davis? It certainly wasn't due to their keen law
enforcement instincts. Despite the screaming newspaper headlines about porno
shop merchants, Davis is a well- known and respected business man. He runs a
telephone goods and services company, selling equipment and special services
like Centrex switching to local area businesses. He was operating Oklahoma
Information Exchange, a widely reputed and very busy BBS. He was one of the
founders of Fidonet, and was Region 19 coordinator for several years. In his
CD-ROM business, he sold many titles (with adult titles accounting for a
minute portion of his business), and produced his own Magnum CD-ROMs.
Davis also had a fairly extensive age verification scheme to assure only
adults were getting access to adult materials on his BBS. Memberships were
which to those who had credit cards. In addition, to get access to the adult
area users had to send Davis assigned letter stating they were over 21.
Despite these measures, when the dust cleared Davis' standing as a
businessman and his age verification procedures did nothing to slow down the
police.
After talking with Davis, his attorney and other local sources, the blame
for his troubles should be laid on the creepy little deal the Oklahoma City
police cooked up with the local ABC TV affiliate for the "You're Busted"
television program. The TV station gave the police a professional video
camera and the opportunity to shoot, script and narrate a TV program called
"You're Busted". The payoff to the police was 15 minutes of fame on a weekly
basis for individual cops, and great publicity and a high profile for police
department as a whole. In return, the TV station received a TV show in
hugely popular "reality television" format, an exclusive relationship with
the police not enjoyed by other local stations, and, it would appear, very
low production costs.
A great business deal for the police and the television station, but
terrible news for just about everyone else. For starters, the police end up
paying less attention to protecting the community and more to show biz.
On-the-scene arrests make the best TV, so the police will be more motivated
to obtain search and arrest warrants and less concerned about whether the
intrusion on peoples' lives is justified. In fact, the more individuals they
intrude on, the better the "You're Busted" episode.
The effect on the news media is just as bad. The local ABC affiliate falsely
presents the police-made footage as "reality", when in fact it's been
manufactured for TV just like all other TV fodder. The police may not be
conversant with the finer points of constitutional law, but they're smart
enough to know if they don't make a good show they'll be canned fast by the
station. Further, the media, the proud "fourth estate", lets itself become
no more than a flack for the local police. The public, as usual, is
victimized on both ends. Its gets prosecution of the most entertaining
instead of the most deserving, while the couch potatoes of Oklahoma City are
served up a desperately skewed view of law enforcement and who are the
criminals.
Without the cop/show biz connection, Tony Davis might never have been
busted. If the police had taken the trouble to investigate Davis' life a
bit, they would have discovered that the adult CD-ROMs were only a small
part of his business. Tony Davis is not a porn merchant, not the type of
person to hold up to others as a bad example. Yet with their constant need
to come up with new and exciting material on a TV production schedule, the
police overlooked the reality of Davis' business. It fit their agenda better
to bust Tony Davis with a bang with the whole world watching, than to
quietly give Davis a word to the wise about the police department's newly
formulated policies on digitized adult materials.
Indeed, the police departments' failure to give Davis a little advance
warning seems almost criminally negligent. According to assistant district
attorney Lori Nettleton, "This is the first time that charges have been
filed involving the use of computers in an obscenity case in Oklahoma
County." A quick look at the laws under which Davis was charged shows they
were on the Oklahoma statute books for almost ten years. Why did the police
not act under them until now?
One could argue the police themselves promoted the growth of the adult
computer file business through their own laissez-faire attitude toward
computer obscenity laws for the last ten years. Most people figure out
whether something's illegal by looking to see if the police are arresting
people for doing it. While this is no excuse for pursuing clearly criminal
activity, Davis' acts were, at worst, in a grey area of arguable
criminality. Now the police are overeager to make an example out of him,
after entirely failing to give any guidance on just what counts as criminal
conduct when it comes to adult materials.
In the overzealous police raid and arrest of Tony Davis, everyone loses.
Davis loses his freedom and his property, and he already lost much of his
reputation as a business man. The users of the Oklahoma Information Exchange
BBS lost. They trusted that they had rights of privacy from the government,
and the Oklahoma City police betrayed that trust. The police will lose as
well if they are held responsible for their gross violations of warrant
procedures. If anyone decides to sue them, maybe they'll be kind enough to
videotape it so we can watch it all later on TV.