Working out of their Northern California home, the Thomases operated a highly profitable bulletin board system (BBS). Through this system, online customers who registered and paid a membership fee were able to access sexually explicit pictures via a modem.
Responding to a complaint from a person in Tennessee, an undercover postal inspector signed on to the system and downloaded sexually explicit Graphic Interchange Format (GIF) files. Based primarily on that evidence, the Thomases were indicted in the U.S. District Court for the Western District of Tennessee and convicted under a variety of federal statutes. The U.S. Court of Appeals for the Sixth Circuit affirmed.
The decision to uphold the convictions for the counts that relate to the images brings to light unsettled cyberspace law issues. After all, the images that the defendants created never left Northern California. The Thomases simply scanned and converted pictures from adult magazines into GIF files, and placed these files on their computers in Milipitas. BBS members in other locations could choose to do so could then view, print, or download copies to their own personal computers.
The Sixth Circuit began its analysis by addressing what it acknowledged to be novel questions of statutory interpretation. Federal obscenity laws mandate -- in pertinent part -- criminal penalties for persons who "knowingly [transport] in interstate commerce or [use] a facility or means of interstate commerce for the purpose of transporting any obscene, lewd, lascivious, or filthy picture, image, electrical transmission, or any other matter of indecent or immoral character." 18 U.S.C. Sections 1462 and 1465. The defendants argued that these statutes do not apply to copies of computer files traveling through cyberspace. Such files, they claimed, were intangible objects. And U.S. v. Carlin Communications, Inc., 815 F.2d 1367 (10th Cir. 1987) held that Sections 1462 and 1465 only prohibit the interstate transportation of tangible objects, not intangible objects such as pre-recorded telephone messages.
Rejecting the defendants' argument, the court concluded that the appropriate focus was on the end result, not on the means by which the images were transferred. The court relied on the rationale from U.S. v. Gilboe, 684 F.2d 235 (2d Cir. 1982), a case which had concluded that a criminal statute prohibiting the transportation of money obtained by fraud did indeed apply to money that had been transferred via "electronic impulses." The important fact for the Second Circuit was that "the beginning of the transaction [was] money in one account and the ending [was] money in another."
The court turned next to the central and interrelated questions of jurisdiction and community standards.
Transborder issues in cyberspace trigger a variety of unresolved considerations. As a matter of course, items posted on a computer in one part of the world can be accessed by persons in other parts of the world where laws might be entirely different. Thus lawmakers and jurists must eventually determine under what circumstances and to what extent a person who creates something on his or her computer should be held responsible when statutes are subsequently violated in cyberspace, or in another part of the world, only because another person freely and voluntarily chooses to act in a certain way with regard to this "creation."
Such an inquiry necessarily begins with jurisdiction, since it is unclear whether a different state or a different country should even have jurisdiction over the original creator in this regard. And when the Thomases raised the issue, they had an additional factor working in their favor: the fact that the images may have been obscene in Tennessee but were arguably not obscene in Northern California.
Still, the Thomases may not have been the best defendants to help sort out this issue. They posted the pornographic images to make money from people in other geographic locations and required all "members" to register with the BBS, a process that included payment and the submission of a mailing address. Thus, the Sixth Circuit spent little time on the jurisdiction issue. "Federal obscenity laws," wrote the court, "by virtue of their inherent nexus to interstate and foreign commerce, generally involve acts in more than one jurisdiction...Furthermore, it is well-established that 'there is no constitutional impediment to the government's power to prosecute pornography dealers in any district into which the material is sent.'"
The court then moved on to the central question of contemporary community standards. Under the first prong of the three-part test for obscenity set forth in Miller v. California, 413 U.S. 15 (1973), courts inquire as to whether "the average person applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest."
Both defendants and attorneys who filed amicus briefs in this case argued that recent developments in technology require a new definition of community under the First Amendment, one based on "the broad-ranging connections among people in cyberspace." Without such a definition, they contended, there would be "an impossible chill on protected speech" because creators of materials in cyberspace cannot select who will access the created items, and will necessarily be forced to censor their materials so as not to run afoul of more restrictive community standards.
The Sixth Circuit, however, concluded that this constitutional question need not be reached, since defendants in this case had a registration process in place whereby they could indeed select or reject members from their applicant lists and they could choose, based on addresses submitted, whether or not they wanted to enroll persons who lived in a community that arguably heeded different standards.
Since most members of the online community are not pornography dealers, U.S. v. Thomas raises many questions and resolves very few. For example, what if private persons on the World Wide Web come across obscene images on the Internet? Web sites are different from commercial bulletin board systems in several key ways. Most of them are unrestricted, any person on the Internet can access the sites free of charge, pictures and text can be downloaded without permission, and no record of the process will typically be available.
Assume that three hypothetical defendants are indicted in Tennessee under relevant federal statutes. Defendant One, an adult in New York, posts the same images described in the Thomas case on a personal World Wide Web site, simply wishing to share them with others. Defendant Two, a student at the University of Chicago, accesses this web site, downloads the images, and e-mails them to a friend in Nashville. Defendant Three, a UCLA professor, creates a link on his own cyberspace law web site to provide a real-life hypothetical for his students.
Several initial distinctions can be ascertained between and among defendants. Defendant Two is likely to be considered the most culpable, since she intentionally transported the images to Tennessee via e-mail. Defendant One intentionally placed the images on the Internet, but she did not specifically intend that they be transported anywhere. Defendant Three is perhaps the least culpable, since his intentions were arguably the most noble. Moreover, he only set up links to another person's web site, which is conceivably not the same as creating the offensive site oneself.
For all three defendants, however, the same First Amendment analysis would arguably still apply to the same images. Under the Miller test as interpreted by Thomas, the images are certainly obscene in Tennessee. Unless a court in one of these three hypothetical cases is willing to reconsider the question of new community standards in cyberspace, defendants would all lose on this issue.
Yet all is not lost for Defendants One and Three, who can still attempt to challenge jurisdiction. It may actually be possible for these defendants to distinguish Thomas by arguing that they had neither knowledge nor intent that the images would be accessed in Tennessee. Both knowledge and intent were key factors in the Sixth Circuit finding against the Thomases on the jurisdiction issue. Prosecutors could counter, however, by asserting that anyone who places a file on the Internet or creates a link on a web page intends to share this material with anyone anywhere, and would be deemed to have constructive knowledge, at least, that anyone anywhere might in fact access it.
Another distinguishing factor which might work in favor of Defendants One and Three is the fact that the images merely appeared on computer screens in Tennessee, but were not actually downloaded to computer hard drives as they were in Thomas. In rejecting this distinction, prosecutors might wish to argue that appearance on a computer screen is analogous to receipt of a broadcast signal on radio or television.
In the end, U.S. v. Thomas certainly generates more questions than it resolves. But by beginning to sort out these very important freedom of expression issues, the Sixth Circuit does indeed set forth a useful framework that might provide the basis for an appropriate analysis in both criminal and civil trials down the road.
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