Chapter One Memphis Rules ACT I--The Sting Postal Inspector David Dirmeyer of Memphis, Tennessee, was trolling for pornographers. Dirmeyer was a lanky man with a Tennessee twang. He had 15 years of government service and a collection of genuine child pornography, seized by the Postal Service more than 10 years before. Dirmeyer had a tested routine. Using a pseudonym, he would contact pornographers, order material from them, and, via telephone conversations or the mail, attempt to interest them in some "action mags." If they expressed interest, he would mail them the magazines, and then perform what he called a "controlled delivery." Armed with a search warrant, Dirmeyer would show up at the suspect's house on the day the magazines were delivered, seize the contraband, and execute a search of the premises. Dirmeyer had received special training in combatting child pornography and obscenity, and had participated in approximately one dozen investigations of pornographers, of which about half had involved controlled deliveries. In July of 1993, Dirmeyer reeled in Robert and Carleen Thomas of Milpitas, California--his first computer pornographers. Robert Thomas has been married to Carleen for 21 years, and together they have two teenage sons. In early July 1995, serving time in a federal prison in Tennessee, Robert wrote a poignant appeal on behalf of his wife, then awaiting sentencing: "I'm requesting your assistance in helping my wife Carleen remain free on bond pending the outcome of the appeal process. . . . My wife and I have up until now, successfully attempted to raise two sons with the best education, values and hopes that can be. . . . Both boys have so far avoided every imaginable pitfall that faces growing up in this generation. . . . My greatest hope is that at the least my wife be allowed to be there to help them get through the important changes in their lives." Thomas concluded his letter, which was distributed in newsgroups on the Internet, with an appeal to readers to send letters in support of Carleen Thomas to her attorney, James Causey in Memphis. The conclusion stated, "No matter who you are or where you live on this earth, your thoughts are important and it can make things happen. Thank you all for listening." At the time of this emotional appeal, Thomas was serving three years in a Tennessee prison for serving up lewd graphic files on his California-based electronic bulletin board system ("BBS"). Dirmeyer first learned of the Thomases, Amateur Action bulletin board system ("AABBS") in late July 1993, when he was contacted by Earl Crawley of Gleason, Tennessee. Crawley was a hacker who had stumbled into the public section of the board. The Thomases had been running their electronic pornography store since 1991 and went to some trouble to run it carefully. It was a membership--only system; only one file, containing a text description of some 17,000 Graphic Interface Format ("GIF") files, was available to nonmembers. To join, a user printed a form from the BBS, filled it out and mailed it to the Thomases in Milpitas. The form included the user's address and telephone information. One of the Thomases, usually Robert, would then call and speak to the applicant before signing him up as a member. Generally, from the handwriting on the form and the applicant's voice on the telephone, Robert would be able to make a careful judgment of whether the applicant was over eighteen. He testified at trial that he frequently had refused membership on this basis. On AABBS's main menu, an option entitled "Legal Issues" pointed to a file directed at law enforcement officers who might be investigating the board. The file stated that the operation was legal, having been investigated and cleared by the San Jose police department in 1992. This file had been prepared by J. Keith Henson, a software developer and Internet activist who became involved with the Thomases after their high-tech operation's first confrontation with the law. Another legally prudent feature of AABBS was that no uploads were accepted. Robert Thomas was afraid that someone would upload something illegal, such as child pornography, on his system. The material he made available was carefully screened. Though many of the GIFs he captioned as involving pre-teens, Robert Thomas went to lengths to be sure that the women in the pictures were all 18 or older. He distributed a certain amount of "naturist" material--nudist camp footage of children in nonsexual situations--which at trial was acknowledged to be legal in all 50 states. But he was careful to stay away from any images of children in sexual situations. On the other hand, he knew what his customers wanted and would suggestively hint at underage sex and incest. At the same time, he openly solicited requests from his members, and made efforts to fulfill their graphics and video desires. Robert Thomas had found a pretty good formula for marketing explicit sexual materials on-line. Several membership plans were available, allowing users to spend a certain amount of time on the BBS, or download a certain number of files. The text was a tease for the GIFs, and the GIFs were primarily a come-on for the videos from which they were taken. In the first nine months of 1993, almost $240,000 had passed through one of the Thomases, bank accounts, and there may have been other accounts. The business was run from three locations: the house, where the computers, printers, and 32 modems were kept; a warehouse, where the videotapes, the duplication bank of 32 VCRs, the car and the boat were located; and a Mailboxes Etc. store that received their business mail. The Thomases had collected the full gamut of sexual images including bestiality, rape, torture, and incest. Many of the GIFs on AABBS were taken from publicly available videotapes. For the corresponding text descriptions, Robert Thomas often copied words from the box; other times he would set his imagination free. A video of an older man and woman having sex with people half their age, for example, became "She Sucks Her Son's Cock. Father is Fucking His Daughter." Images of very young-looking women would invariably be tagged with lewd, pedophilic descriptions. Robert Thomas was shrewd and thought he knew where the legal line was. Ironically, it was this kind of false advertising that attracted Dirmeyer's attention. Dirmeyer was specifically looking for child pornography--his favorite prosecutorial challenge. Though he was never able to uncover any on AABBS, he easily found enough vulgar material to shock the Tennessee court. Dirmeyer, who had not previously had much contact with computers, dialed into AABBS for the first time on a borrowed machine in his office in Memphis. At first look, he must have seen enough to rush the blood of even the most jaded porno-seeking postal inspector. The public files seemed to point to a slew of pictures of little girls and boys engaged in all kinds of illegal sex acts. Dirmeyer took no action for a couple of weeks, but on August 20 he called AABBS again, armed with a false name and a firm plan to go undercover. In his communications with the Thomases, Dirmeyer became Lance White, with a mail drop address in Cordova, Tennessee. He used the print screen command liberally to capture his sessions. first, he read and printed a message stating that subscribers to AABBS could download GIFs and obtain lists of videos, magazines, and novelty items available for sale by the Sysop. Dirmeyer promptly printed an application form, completed it as Lance White, and sent it to the Thomases, mail drop. His $55 money order bought him a six-month subscription to AABBS with a 90-minute time limit per day. Dirmeyer also maintained a telephone number and answering machine in the name of Lance White and six days later, he found a message on it from Robert Thomas, welcoming him to AABBS. Later that same day, Dirmeyer was logged onto AABBS when Thomas initiated chat mode and welcomed him to the system as the newest of about 3,500 users. Dirmeyer continued to hit his print screen button, capturing all kinds of material for his day in court--such as a list of "nudist" videos advertised as containing "tender young teens caught candid at nudist colony." Such material is legal in all 50 states, but Dirmeyer thought it had prosecutorial merit. The next day, Dirmeyer printed a partial list of the 17,000 GIFs available. Trained to seek out obscenity, he scanned in particular for lewd phrases evidencing underage sex. Dirmeyer then sent a $41 money order to the Milpitas mailing address, asking Thomas to pick a video for him from those referenced in the AABBS listing as K71 through K74. Thomas had assigned each video a letter and number, and the trial testimony later indicated that the letters were shorthand for the content. For instance, "K", for kinky, was the catch-all category in which Thomas placed everything which did not comfortably fit into a single topic heading, such as one with defecation and bestiality (e.g. "Mother and daughter with dog! Girls shitting and pissing!") In the cover letter in which he had asked Robert Thomas to pick some kinky videos for him, Dirmeyer planted the first seeds of his sting. At trial, he testified, "I also told Thomas, in the letter, that I had some material that he might be interested in. I did not specify the subject matter of my material at that time." Dirmeyer stated at trial that he liked to build up the sting slowly, and thought he might tip his hand if he was too eager at the outset. He was careful not to reveal his kiddie porn mags too quickly. Robert Thomas, recollections of his interactions with Dirmeyer differ greatly from the postal inspector's. Thomas claimed that he was not terribly interested in the magazines, did not remember the chat mode conversations and, in fact, never read the letter in which Dirmeyer finally disclosed the nature of his material. When Dirmeyer visited AABBS again on August 31, he found E-mail from Thomas waiting, in which, according to Dirmeyer, Thomas expressed a keen interest in his magazine collection. As Dirmeyer was responding to the e-mail, Thomas interrupted him in chat mode; Dirmeyer took the opportunity to express his desire to find some good "teen nudist material." Thomas obligingly showed the postal inspector how to do an automated search of the GIF descriptions using the keywords "teen" and "nudist." A few days later, Dirmeyer E-mailed Thomas, disclosing that his mysterious material consisted of "action mags." Dirmeyer believed that this phrase was a code with special significance in the world of pornography. Thomas later claimed it meant nothing to him. Around this time, the postal inspector spent hours working on his computer. He searched for and downloaded a wide variety of GIF files described as involving bestiality, kiddie porn, and mutilation including files tagged with the descriptions, "He Fucks a Pig! She Fucks a Dog and a Huge Pig! Kinky!" and "Hairless Pussy Nailed to a Table!" For a while in the fall he visited AABBS, every few days for new GIFs. Soon Dirmeyer found AABBS, master file with descriptions of all its videos--ALLVID.ZIP. When the postal inspector discovered this he skipped his print screen button and pulled the file down. It was essentially a grocery list of videos that featured sexually deviant activity. When video K74 arrived at Lance White's address, Dirmeyer dutifully watched it in its entirety, prepared a written description for later use, and wrote to Thomas again, ordering four more from the K series. In a video described in detail at the trial, a man breaks into a house and brutally rapes the young housewife and her girlfriend at gunpoint. The corresponding text description was "The girls scream with pain throughout the whole video! Excellent Action!" In the same order, Dirmeyer asked Thomas to select two teen nudist videos. In the cover letter, he again alluded to his "action mags." When the new order arrived in the mail, Dirmeyer again watched them and prepared written summaries. In October, Dirmeyer decided that the time was ripe to proceed to the next step in his sting operation and reveal the contents of his "action mags." Leaving his feigned subtlety aside,he finally specified that he had "hardcore sex magazines featuring young girls having sex with adults and other children." He wrote, "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." Though the correspondence was later found in his files, Thomas testified at trial that he never saw it. On November 3, Dirmeyer sent E-mail to Thomas, asking him to respond to the letter sent two weeks earlier about the "action mags." Six days later, Dirmeyer was again on the BBS when Thomas initiated chat mode, and, according to Dirmeyer, indicated he was interested in the magazines. He asked that they be sent two-day air, so he could scan them over the weekend. Dirmeyer wasn't ready to proceed. As he explained at trial, controlled deliveries of contraband must be made in such a way that little chance exists that the material will pass into circulation. If he simply mailed the magazines to Thomas, images placed on AABBS, might be disseminated to other computer systems and pass beyond Dirmeyer's reach before he got his magazines back. He needed to time the delivery to coincide with a trip to California and the obtaining of a search warrant. He therefore sent Thomas what he referred to as a lulling letter, stating that he had been unable to send the magazines due to personal problems and would ship them as soon as he could. At the end of October, Dirmeyer got in touch with the San Jose Police Department, Bureau of Investigations, and spoke to an investigator named Greg Gunsky. Gunsky told him that AABBS had been seized and searched in January of the prior year, and that no charges had been brought. Investigator Mark McIninch had joined AABBS in an undercover guise in 1991 and over time had made a number of purchases from Thomas. On January 20, 1992, McIninch had gone to the Thomas residence with a search warrant and had seized computers, VCRs, and videotapes. When no child pornography was found, the San Jose police came to the conclusion that the remaining materials--the same ones Dirmeyer had been purchasing--did not violate California community standards. They returned all the equipment, gave Thomas a letter confirming that they had found nothing illegal on the board, and left. What the California police found was crude, pornographic, and perhaps worth the effort of investigating, but it was nothing for which they could reasonably prosecute. At this point, Thomas was contacted by J. Keith Henson, a self-taught expert in computer law. Henson, a California-based software developer, had wide-ranging interests including planetary exploration, cryogenics, nanotechnology, and freedom on the Internet. Henson has been in the software business since 1972, but it was through his work with Alcor, a cryogenics foundation, that he acquired his expertise in laws pertaining to cyberspace. People sign up with Alcor either to have their entire body frozen in the hope of later revival, or, if they cannot afford the full treatment, have their severed heads preserved instead on the assumption that someday technology will permit the head to be revived and reattached to a body. In 1988, when an Alcor client died at Alcor's facility, she was promptly decapitated and her head frozen. No physician had ever signed a death certificate, and when the San Jose police were investigating a possible murder, they seized Alcor's computer systems. Board member Henson made himself an expert in the Electronic Communications Privacy Act ("ECPA"). This law, which Congress had passed the year before, provides financial penalties for the seizure of computer equipment if it impedes the transmission of electronic mail to the intended recipient. The police who seized Alcor's computers knew nothing about the ECPA and disregarded its constraints on them. Henson effectively backed them off, got the computers returned to Alcor, brought a pro se lawsuit against the authorities, and recovered a settlement of $30,000. When McIninch seized AABBS, he kept it for five weeks and interrupted the delivery of electronic mail. Five years after the passage of the ECPA, the San Jose police were apparently not any more familiar with the law. Henson discovered what was happening, contacted Robert Thomas, and informally helped him confront the authorities. Henson told McIninch and the prosecutor to contact Don Ingram, the county attorney who had taken a shellacking over the Alcor incident. According to Henson, they did, and after hearing Ingram's tale of woe, they returned the AABBS equipment to Thomas and gave him the written release. Henson contributed the Legal Issues file, accessible from the main menu of AABBS, which advised putative investigators that AABBS had already been seized and was found to be legal. An interesting question is whether Dirmeyer really proceeded several months into the AABBS investigation before contacting the San Jose authorities. After reading the Legal Issues file, or certainly no later than his conversation with the San Jose investigator, Dirmeyer must have been aware that, at least under California community standards, the BBS had been cleared. Yet he still pushed forward. He must have either felt certain that Tennessee standards were so much stricter he could get a conviction, or that kits controlled delivery of the "action mags" would make up for the lack of child pornography on AABBS. Perhaps the Thomas, text descriptions were so explicit that he simply felt compelled to shut them down. On November 16, Dirmeyer flew to Milpitas, California and drove by the Thomas residence, observing a handmade "UPS Pickup" sign in one of the windows. One can only imagine the excitement Dirmeyer must have felt to be close to his prey after so many months of E-mail. The following day, he visited the AABBS mail drop, Mail Boxes, Etc., and spoke to Tom Pennybacker, the owner. While Pennybacker was confirming that the Thomases rented mail box #284 from him, Dirmeyer unexpectedly had his first view of one of his suspects, "a white female, approximately 37 years old, 5 feet one inch in height, weighing approximately 100 lbs. with gray steaked black hair, entered the establishment." It was Carleen Thomas. She picked up a package, loaded it into her new sun-roofed Toyota and drove off. Dirmeyer returned to Tennessee and took no further recorded action on the Thomas case until January, when he returned to San Jose. The official purpose of this November surveillance was never revealed. Dirmeyer applied to federal magistrate Wayne D. Brazil in San Jose for a search warrant, filing a 27-page affidavit which summarized the history of his pursuit of the Thomases. Here he got an unpleasant surprise. The magistrate wouldn't give him a search warrant for the action mags. There were two possible reasons. The federal law Dirmeyer was proceeding under, which governed child pornography, had been held unconstitutional for vagueness by the federal appeals court which had jurisdiction over California. When an appeals court voids a law, its decision is only effective in the states over which it sits, so the same law was still effective in Tennessee. Second, California federal courts will not grant search warrants for a house when the "controlled delivery" is made to a post office box. In any event, Dirmeyer improvised a solution. On January 9, he returned to Mail Boxes, Etc. and initiated his controlled delivery by stuffing the package into the Thomases mailbox. The package container! three magazines, entitled "Lolita Color Special 6," "Lolita Color Special 18," and "Little Girls Fuck, Too." Dirmeyer confided in Pennybacker that he was setting up a surveillance, then waited outside the building for Robert or Carleen Thomas to pick up the package. He watched and waited. They never showed that day so he went back to the hotel. He arrived early the next day, set up, and waited again. They still didn't show. Finally, late in the day, he enlisted Pennybacker's help and had him call the Thomas residence. The Thomases later testified that Pennybacker was strange and rather insistent that they get their package, making up an excuse about inventory. Carleen Thomas finally responded to Pennybacker's pressure and came over to the store. Dirmeyer, assisted by San Jose police, followed Carleen back to her house. At five o'clock the same night, he rang the Thomases, doorbell. After six months, the postal inspector now met his quarry for the first time. He was accompanied by four San Jose police officers, including Officer Jim McMahon (the head of the high tech unit,) an Assistant District Attorney, and two local postal inspectors. Dirmeyer presented Thomas with an unsigned, undated search warrant which noted on its face that it had been issued by Magistrate Brazil. The search warrant listed the tapes that Dirmeyer had purchased, the GIFs he had downloaded, and the description files, and called for the seizure of all computer equipment. The warrant made no mention of the action mags. Dirmeyer found his magazines in the Thomases, bedroom, but he had no authority to seize them. Instead, it is necessary to get Robert Thomas, consent. According to Thomas, Dirmeyer said that if Thomas didn't cooperate, he would keep them locked up in the house for as many hours as it took him to drive to San Francisco and get a search warrant, and that he and his men would then "rip the house apart." He offered Thomas a "Consent to Search Form." Apparently, Dirmeyer and the San Jose police each carried a stack of these--you never know when you might need to search something. Thomas, who had not yet contacted an attorney, signed the form, but only after making Dirmeyer add some language to it. The form's boilerplate read: I, _______, have been informed by ______, who made proper identification as (an) authorized law enforcement officer(s) of the ______ of my CONSTITUTIONAL RIGHT not to have a search made of the premises and property owned by me and under my care, custody and control, without a search warrant. The form further acknowledges that the signer knowingly waives this right. In another blank, Dirmeyer hand-wrote a description of the property he was looking for, "namely priority mail package from Lance White addressed to Robert Thomas." Following this was the wording Thomas insisted on as a condition of his signing the consent, "sent without his knowledge." At this point, Thomas had no idea that Dirmeyer and Lance White were one and the same. In fact he thought that Dirmeyer might really be after this Lance White character, and AABBS had just been caught in the middle. Around eight o'clock, Thomas thought to call Henson, whom he had never met in person. Henson asked to talk to Dirmeyer. Dirmeyer apparently thought Henson was a lawyer and agreed to speak with him. Henson sternly asked him if he was familiar with the ECPA. According to Henson, Dirmeyer replied that he was in fact aware of the ECPA, and didn't think he had any problem with it because it was their intent to bring the system back within a few days without looking at any of the 2000 E-mail messages stored on the system. One of the policemen drew a sketch of the house; in addition, every room of the house thought to play a role in the business was photographed. The investigators, not sure where to stop, even got shots of the Atari game computer in one of the Thomas son's bedroom. McMahon, Dirmeyer, and Thomas then headed over to the warehouse. Here they ran into another problem. Dirmeyer was apparently unaware of the warehouse and had failed to include it in the search warrant. They again managed their way around this by asking Thomas to sign two more Consents to Search. This time Dirmeyer used a local form carried by McMahon, as Dirmeyer had no more left. Thomas signed one consenting to the seizure of "three pieces of lined notebook paper with writing by Lance White" and another agreeing to the seizure of the masters of the videotapes Dirmeyer had ordered. The officers photographed the banks of VCRs used for copying, a Ford Mustang, and a boat. On Tuesday, Dirmeyer again visited the Thomases, taking fingerprints and handwriting samples. As he left, he told Robert Thomas that if he wanted to get any consideration for cooperation, "it might be a good idea to keep the cover of Lance White intact." He was hoping to use AABBS to catch other users, and in fact had engaged in "a couple of transactions [with] one guy from Boston." Robert Thomas still had not put two and two together and apparently thought he was being warned not to talk about user Lance White, the subject of a separate investigation. Copying the electronic files took longer than expected, and it took the San Jose caps the rest of the week to back up AABBS. The system had so much hard drive space, it kept exceeding the capacity of whatever the police tried to download it onto. They, finally went out and borrowed a drive capacious enough. On Tuesday, Henson wrote up the whole episode and posted it to Usenet's Electronic Frontier Foundation ("EFF") newsgroup. EFF is an organization, founded by Mitch Kapor and John Perry Barlow, which specializes in the freedom of electronic communications. Henson continued to post reports to several newsgroups throughout the trial. Wednesday and Thursday, he spent some time briefing an attorney Thomas retained, Richard Williams of San Jose, on the ECPA and some of the prior cases, including Alcor and a similar, well-publicized government seizure of the computer systems at Steve Jackson Games in Austin, Texas. On Friday, just as Henson was about to meet Robert Thomas for the first time, Thomas called him. Carleen had found that the original "Lance White" registration form and Lance White's name printed on the "Permission To Search" looked identical. Henson tried dialing the phone number from the registration form, "to my ear, the answering machine's message which says it is Lance White's phone and the person I talked to who said he was Dirmeyer are the same person." Dirmeyer called Thomas on Friday and told him to come down to a postal facility in San Jose on Saturday morning at 8:30 to retrieve his computer equipment or he wouldn't be able to get it until the following Tuesday. Dirmeyer was leaving that morning to return to Tennessee. Thomas replied that he was sick, that it wasn't convenient for him to come down, and requested the government deliver his stuff back to him. Finally, the Thomases, two sons and a friend went to get the computers, accompanied by Henson. On crutches from an injury, Henson approached Dirmeyer and asked him if he was Lance White. Dirmeyer admitted it. Dirmeyer reminded Henson of a tall and gangly cousin of his, "given to putting on a hick act." A San Jose police officer, a McMahon subordinate, told Henson to stay out of the Thomas case, and that it was none of his concern. Henson said that "He advised me to butt out of being involved in any way. He asked if I had ever seen the material on that BBS (my answer was no), and expressed the opinion that I would be smeared by it and greatly regret getting involved." Henson testified at trail that the officer told him he would never hold his head up in church again. On Henson's way out of the post office, as he hobbled painfully on his crutches, he said that Dirmeyer and the officer "passed me, opened the doors, went through and let them swing shut in my face. I guess scum like me is below their notice." Copyright © 1996 Jonathan Wallace and Mark Mangan. All rights reserved.
