Computer underground Digest Thur Apr 14, 1994 Volume 6 : Issue 33
ISSN 1004-042X
Editors: Jim Thomas and Gordon Meyer (
[email protected])
Archivist: Brendan Kehoe
Archivist Le Grande: Stanton McCandlish
Shadow-Archivists: Dan Carosone / Paul Southworth
Ralph Sims / Jyrki Kuoppala
Ian Dickinson
Suspercollater: Shrdlu Nooseman
CONTENTS, #6.33 (Apr 14, 1994)
File 1--Search Warrant Affidavit in Amateur Action BBS Case
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----------------------------------------------------------------------
Date: Wed, 23 Feb 94 03:03:52 PST
From: hkhenson
Subject: File 1--Search Warrant Affidavit in Amateur Action BBS Case
((MODERATORS' NOTE: Robert Thomas, sysop of Amateur Action BBS was
arrested in January following a U.S. Postal Service "sting," and was
alleged to be running a BBS that carried child pornography. A
previous bust of AABBS by local law enforcement in Milpitas, Calif,
resulted in no charges being filed and the return of the equipment.
There was no indication at that time that any of the files were
illegal.
The current case resulted from a postal inspector's questionable
investigation and application for a warrant. Although the BBS is
located in California, Thomas was indicted in Memphis, Tenn., because
material downloaded in Tennessee was deemed to violate laws of that
state, rather than California.
The case raises interesting questions. In addition to the questionable
investigative procedures, the one most relevant to CuD readers is
this: If a text, gif, or other file is legal in one state, what are
the implications of such a file is accessed by someone from another
state where the file(s) may not be legal? Given the permeable borders
of cyberspace, can prosecutors apply local laws to other states and
thereby invoke federal law enforcement power? If so, this could mean
that the most restrictive laws in one jurisdiction are the de facto
threshold of legal tolerance universally.
The status of the case and the nature of the issues currently remain a
bit murky, and personnel in the Memphis US District Attorney's office
have not returned CuD's contact (we attempted to contact US Atty
General Veronica Coleman at (901) 544-4231).
Below is the affidavit for the search warrant served on AA BBS. We
will provide an update in the next week or two)).
=================================================
IN THE MATTER OF THE APPLICATION
FOR AND AFFIDAVIT IN SUPPORT OF
A WARRANT FOR THE SEARCH OF
A PREMISES KNOWN AS
475 TRAMWAY DRIVE,
MILPITAS, CALIFORNIA 95035
AFFIDAVIT IN SUPPORT OF SEARCH WARRANT
I, DAVID H. DIRMEYER, Affiant herein, being first duly sworn,
do hereby state as follows:
1, Affiant is currently employed as a United States Postal
Inspector at Memphis, Tennessee, and has been a resident of
Memphis, Tennessee for his entire life. My specific assignment is
as a Prohibited Mailing Specialist, a position which I have held
since December, 1991. 1 am also a child pornography/obscenity
specialist with duties to identify and investigate the activities
of persons suspected of trafficking in child pornographic materials
and obscenity through use of the United States mails. I have
attended training sessions addressing, generally, the matters of
pedophilia, child sexual abuse, and the use of the mails in the
transmission of child pornographic materials and obscenity.
2. Affiant's. general law enforcement background includes
approximately four years as a Postal Inspector. Most of this time
has been spent in the investigation of federal criminal violations.
I have participated in hundreds of criminal investigations
including child pornography and obscenity cases and have testified
in various types of judicial proceedings.
1
3. The following information is based upon my personal
knowledge and observations and my conversations with, and reports
from, other law enforcement officers.
4. On or about July 26, 1993, U.S. Postal Inspectors in >
Memphis received a complaint from a citizen residing in the Western
District of Tennessee . This citizen described himself as an avid
computer "hacker". He said he had encountered a computer bulletin
board system (BBS) offering photos and videos of nude children.
This citizen said the name of the bulletin board was Amateur Action
bulletin Board System (AABBS) and the telephone number was 408-263-
3396. Your Affiant is aware that area code "408" is a California
area code.
5. On or about July 10, 1993, Postal Inspectors in Memphis
contacted the abovesaid BBS by computer The operator of the BBS,
known as a "sysop" (SYStem OPerator), was offering to sell
photographic images of young girls via computer systems. Your
Affiant is aware that photographs and other images can be used to
create data that can be stored and used by computer systems. This
can be accomplished by using a device known as a "scanner". The
data from an individual image can be stored by a computer as an
individual "file". A file of such an image is generally known as
a "GIF" (Graphics Interchange Format). Computers are capable of
displaying this data as a facsimile of the original image on a
computer screen. Using a commonly available device known as a
"modem", one can transmit and receive computerized data,
interstate, over telephone lines between computers. Such
2
transmissions are known as "uploads" by the computer sending the
data, and "downloads" by the computer receiving it. GIF's are
suitable for such transmission.
6. on or about August 20, 1993, Postal Inspectors in -
Memphis, using a computer equipped with a modem, contacted the
telephone number provided by the aforesaid Tennessee citizen and
inquired about the procedure for subscribing to the AABBS. As this
information appeared on the computer screen, Postal Inspectors used
the "print screen" command, causing a printer to Produce a Paper
copy duplicating the information that was on the screen. The
message indicated that by subscribing to the AABBS, one could
download GIF's and obtain lists of videos, magazines, and "novelty"
items available for sale by the Sysop. Using the fictitious name
and address - Lance White, 1770 North Germantown Pkwy., Suite 166,
Cordova, Tennessee 38018, - your Affiant mailed a completed
application form to the address indicated, 142 N. Milpitas Blvd,
Suite 284, Milpitas, CA 95035. A six-month subscription cost
$55.00 with a 1.2 megabyte download limit and a time limit of 90
minutes per day. Your Affiant included postal money order -
#4910086213 for $55.00 with the AABBS membership registration form.
7. To become a member of AABBS, certain requirements must be
met, one of which is to furnish a legitimate street address. Post
Office (PO) box addresses are excluded. Your Affiant is aware that
United States Postal Service regulations do not allow individual
Post Offices to accept packages for delivery to PO boxes from
common carriers such as Federal Express or United Parcel Service.
3
It has been your Affiant's experience that individuals who traffic
in obscenity or child pornography often have such requirements to
avoid use of the United States mail to transport their merchandise.
8. on or about August 26, 1993, an individual identifying
himself as Robert Thomas left a message on an undercover telephone
line answering machine operated by Postal Inspectors in Memphis.
Thomas' message indicated that he had received the abovesaid
registration fee and would allow access to his BBS. Many bulletin
board systems have a feature commonly known as "chat" mode. This
feature allows the Sysop, or other person at the BBS, to type a
one-to-one conversation with a person at the calling computer. On
or about August 26, 1993, your Affiant was in contact with AABBS
when the sysop (Thomas) changed the system to chat mode. Thomas
thanked me for joining and welcomed me to the AABBS.
9. Another feature of AABBS is a "Bulletin Menu" that lists
various services/materials available. This menu notes that
"Visa Mastercard" is accepted for GIF and Video access. This menu
lists various categories of videos, magazines, and "GIF packs"
available. GIF packs are sets of diskettes containing numerous GIF
files pertaining to a particular subject. Entries appearing on
AABBS's bulletin menu, each time your Affiant has logged on and as
recent as December 14, 1993, include: "Amateur Action Kinky Videos!
Kinky, Nasty, Bizarre and Taboo!" "Amateur Action Nudist Videos!
Teenage and Family Nudism:"
4
10. On or about August 26, 1993, your Affiant used the print
screen command to obtain a list of nudist videos and GIF packs
available from AABBS. This list included 29 nudist videos. These
videos are described as containing "Tender young teens caught
candid at nudist colony" and "topless teenagers of all ages". The
nudist videos sell in packs of three for $99-00, or $35-00 each if
purchased separately. the GIF packs described on the list consisted
of five to six megabytes of GIF files featuring nude teen and
"junior teen" children. The selection included 27 GIF packs priced
at $24.00 each.
11. On or about August 27, 1993, your Affiant used the print
screen command to obtain a partial listing of the over 17,000 GIF
files available for download from AABBS. I noticed that many of
the file descriptions listed included terms such as "Firm body,
budding young breasts:::" (AA-135), "Closeup of this cute young
teen:' AA-138), "She has a young tender body and no tits at all!"
(AA-363).
12. On or about August 27, 1993, your Affiant mailed a letter
and postal money order #4910086921 in the amount of $41.00, to -
Robert Thomas, 142 N. Milpitas Blvd #284, Milpitas, CA 95035. 1
asked Thomas, in the letter, to select one video from the group of
videos referenced on the AABBS menu as "K71" thru "K74". This
group of videos was advertised on the BBS as "Mother and daughter
with dog! Girls shitting and pissing!" 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.
5
13. on or about August 31, 1993, your Affiant received an
electronic message (EM) from Robert Thomas on the BBS. Thomas
expressed an interest in the material I had alluded to when I
placed the first order on August 27, 1993. As I was responding to
Thomas's EM, he interrupted by going to chat mode. In the computer
conversation that followed, I again did not reveal the subject
matter of the material which I supposedly possessed. However, I
expressed an interest in the teen nudist material available on the
BBS. Thomas showed me how to execute an automated search of the
GIF files for material of a particular nature. Thomas used the key
words "teen" and "nudist" to identify GIFS that contain images of
nude children. I documented this interaction with Thomas, using
the print screen command.
14. on or about September 3, 1993, your Affiant left an EM
for Thomas thanking him for demonstrating the search technique. I
told him I am enjoying the material that I have downloaded. I went
on to say that the material mentioned in earlier correspondence
consisted of "action mags". The term "mags" is commonly used to
refer to pornographic;magazines. This message was recorded using
print screen.
15. on or about September 7, 1993, your Affiant received an
EM from Thomas. Thomas was asking for details about the magazines
I possessed. I recorded this message using print screen. I did
not respond to this inquiry at that time.
6
16. On or about September 14, 1993, your Affiant downloaded
a file from AABBS called "ALLVID.ZIP". This file contains detailed
descriptions of videos for sale by AABBS (Robert Thomas). Included
on the list are forty-two (42) videos featuring "bestiality"
(humans having sex with animals), thirty-three (33) videos
featuring "golden showers/scat" (people urinating/defecating on
each other), eighty-one (81) "kinky" videos, and others. The kinky
videos are described as containing "orgies" (groups of three or
more people simultaneously engaged in sexual activity), "gang
bangs" (one female having sex with multiple males), bestiality,
golden shower/scat, bondage, objects (dildos, vegetables, bottles,
and other objects inserted into the vagina), rape, torture and
other sexually deviant activity.
17. On or about September 17, 1993, your Affiant retrieved a
box, from my fictitious address in Cordova, Tennessee, that
contained a video cassette tape (VHS format) labeled "K74". The
package had been delivered by United Parcel Service (UPS) and the
package label indicated Robert Thomas as the sender. This material
was ordered on August 27, 1993. Your Affiant has personally viewed
the abovesaid video cassette tape entitled "K74" in its entirety
and has prepared a written description detailing the content of
said video, in its entirety. A copy of this written description is
attached hereto as Attachment C and fully incorporated herein by
reference.
7
18. On or about September 17, 1993, your Affiant mailed a
letter and postal money order # 4910087985, in the amount of
$204.00, to Robert Thomas, 142 N. Milpitas Blvd, Suite 284,
Milpitas, CA 95035. In the letter, I ordered "kinky" videos listed
on the AABBS menu as K17, K39, K40, and K47. These videos were
advertised on the AABBS using the following language:
K17 A masked man breaks into a house and ties up a
young housewife! He fondles her tits and pussy and
rips off her panty hose, panties, and bra! He
handcuffs her and she screams as he rapes her! Her
girlfriend arrives home and he holds a gun to her
head and forces her suck his thick cock! He rips
off her clothes and attaches electrical wires to
her hairless pussy and plugs the wires into a wall
socket! she screams in pain when he plugs in the
electricity He pulls out her tampon and stuffs it
in her girlfriend's mouth! He puts thumb tacks on
a table the' whore sit on them! He ties her up,
inserts a candle in her pussy, and lights it! He
pisses all over her cute face and then rapes her
while she screams! He makes her sit on a table and
then nails her hairless pussy to the table! The
girls scream with pain throughout the whole video!
Excellent Action!
K39 Shot "LIVE" on video in the USA! The nastiest
video in the world! A young slut gets
humiliated by a kinky guy! He slaps her face
and makes her lick his boots! He kicks her
boobs and slaps the sluts sexy ass! He squats
and shits on her and sits on her face and
makes her tongue his dirty shit covered
asshole! she licks his shit covered asshole
until it is clean! The slut has shit all over
her face, tits, and her pussy and legs! she
gags and vomits! Very kinky and nasty! she
vomits all over her hands and the floor! she
sits in the shit and in vomit! she gags,
coughs, and vomits again! she lays on the
floor covered with shit and he pisses in her
mouth and on her shit covered pussy! He
writes on her with red lipstick! He writes
"whore" on her tits, "toilet" on her ass, and
he writes the word "shit" on her too! This
video is excellent quality and very nasty!
8
K40 This is a very kinky and nasty hard bondage and
torture video! A cute slut gets heavy weights
clamped onto her hairless pussy lips! Super
stretched cunt lips! He pierces her stretched
pussy lips with needles! He pierces her pussy with
a long skewer! He inserts a needle into the rim of
her asshole! She gets over fifteen needles into
her hairless s cunt and asshole! He whips her ass
cheeks good and she screams with pain! He pulls
the needles out of her hairless pussy and it
bleeds! Lots of blood runs from her pussy onto her
asshole! He whips her sore bloody pussy and then
he inserts over two dozen needles into her hairless
pussy! He clamps the long needles and pulls on
them! This slut is in pain and she is screaming!
He pulls out the two dozen needles and her hairless
pussy is n sty and bloody! He whips her big tits
with a long stick and they are red and very sore!
He puts clamps her nipples and pulls on the big
clamps! Then he whips her big boobs! He hangs big
heavy weights from her nipple clamps! This whore
is in extreme pain! This is one of the best
bondage and torture videos that I have ever seen!
K47 Shot "LIVE" on video in the USA! A cute
brunette with cute pigtails goes into the
bathroom removes her top! She has super
pointed little boobs and puffy areolas! Her
mother tells her to take off her panties, then
she lubricates asshole and inserts a
thermometer! She lays her daughter over her
knees and she inserts the enema nozzle into
her daughter's tight asshole! Great close-ups
of the enema nozzle entering her virgin
asshole! The enema fluid is dripping on her
cute pink panties! She tells her daughter to
lay on the bathroom floor so she can insert
more enema fluid into her asshole. The young
girl is afraid that the enema nozzle will hurt
her ass hole so her mother keeps telling her to
just relax! Excellent close-up footage of her
young ass as she lays on the bathroom with her
cute pink .panties at her thighs! Excellent
close-ups of her asshole as her mother fingers
it! She sits on the toilet and you hear her
moan and 'groan as she shits! Lots of
excellent close-up footage of her smooth young
ass cheeks, puckered asshole, peach fuzz
twat, and her super pointed boobs and super
puffy areolas! This girl has an unbelievable
young body! Excellent!
9
19. Additionally, your Affiant asked Thomas, in the abovesaid
letter, to select two of his favorite teen nudist videos. I
requested videos showing "sweet young girls". The four (4) "K-
series" videos described above along with the two teen nudist
videos made a total of six (6) videos in the second order. I also
repeated to Thomas, in the letter, that I had "action mag's" that
he might be interested in.
20. On or about October 11, 1993, your Affiant retrieved two
boxes from my fictitious address in Cordova, Tennessee. Each of
these boxes had Robert Thomas' name and mail drop address as the
return address. The packages were delivered by United Parcel
Service (UPS). One of the boxes had a code number "CA 957-700"
affixed to it. Each of the two boxes contained three (3) video
cassette tapes (VHS format) entitled: K17, K39, K40, K47, PCI #1,
PCI #2. These are the six (6) videos ordered from Thomas on
September 17, 1993.
21. Your AfFiant has personally viewed each of the abovesaid
video cassette tapes, in their entirety, and has prepared a written
description of the video cassette tapes entitled "K17", "K39",
"K40" and "K47", detailing the content of each said video, in its
entirety. A copy of the written description of each said video is
attached hereto as Attachments D, E, F, and G, and are fully
incorporated herein by reference.
10
22. On or about October 114, 19993, your Affiant mailed a
letter and postal money order #s 49937716613 in the amount of $76 00
to Robert Thomas, 142 N. Milpitas Blvd, Suite 284, Milpitas CA
95035. I ordered two video cassette tapes described on the AABBS
menu as follows:
A35 Shot "Live",on video! A sexy blonde gets her
cunt eaten and then fucked by her horny dog!
A brunette slut jacks off a big horse cock!
Cute girls' engage in hot sex with their
boyfriends and then they suck and fuck a huge
dog. This big dog has a cock that is about as
big as a humans! Close-up penetration and
blowjob! This video contains very hot orgy
footage and kinky animal sex! Excellent!
PCI #3
Candid naked female teenagers and junior
teens! Excellent close-up footage!
23. Your affiant told Thomas, in this letter, that I had ".
. hardcore sex magazines featuring young girls having sex with
adults and other children." I proposed to let Thomas borrow these
magazines to scan and create GIF files. In exchange, I asked that
he return the magazines to me along with copies of the GIF files he
created.
24. On or about October 26, 1993, your Affiant retrieved a
box from my fictitious address in Cordova, Tennessee. The box was
sent via United Parcel service (UPS) by Robert Thomas, according to
its label. Inside the box I found two video cassette tapes (VHS
format) entitled: PCI #3 and A5. For unknown reasons, Thomas
substituted video A5 for the video I had ordered - A35. The video
cassette tape (VHS format) entitled "A5" was advertised on the
AABBs in the following language:
11
A5 - 2 lesbians play with huge rubber cocks and
another girl:brings in a great dane! These 3
girls fuck and suck this big dog! super close-
ups! This great dane cums in their mouths and
pussies many times! This dog has a thick cock
that is about the same size as a humans!
Excellent close-ups throughout this video!
Great!
25. Your Affiant has personally viewed each of the abovesaid
video cassette tapes, in their entirety, and has prepared a written
description of the video cassette tape entitled "A5", detailing the
content of said video', in its entirety. A copy of the written
description of said video is attached hereto as Attachment H and is
fully incorporated herein by reference.
26. On or about November 3, 1993, your Affiant left an EM for
Thomas on the AABBS. I asked Thomas to respond to my offer of
October 14, 1993, regarding child pornography. A copy of this
message was made using the print screen.
27. On or about November 9, 1993, Thomas (computer indicated
Your affiant was talking to Robert Thomas) interrupted your
affiant's session on the AABBS by invoking chat mode. Thomas
indicated he was interested in my magazines. He asked your affiant
to send them to him via "two-day air" so he could work on them
(scan them) over the weekend. Your affiant replied that I would
send them to him as soon as possible. I used the print screen to
record a portion of this conversation.
28. On or about November 12, 1993, your Affiant mailed Thomas
a "lulling" letter via Priority U.s. Mail. This letter was
intended to delay the delivery of the child pornography to allow
completion of the investigation of Thomas and his activities. The
12
letter explained to Thomas that I have been unable to send the
magazines as promised due to personal problems. Your Affiant told
Thomas I intended to send the magazines he requested as soon as
possible.
29. From on or about AugUst 26, 1993 to on or about November
3, 1993, your Affiant has "logged on" (gained access) to Amateur
Action BBS numerous :times. There appear to be over seventeen
thousand (17,000) GIF files available for download on AABBS.
According to AABBS categories, titles, and descriptions, the
subject matter of these GIF files is similar to the above-described
videos offered by AABBS, that is, teen nudist, preteen nudist,
bestiality, golden shower, scat, orgies, gangbangs, etc.
30, On or about the following dates, your Affiant downloaded,
from Thomas' AABBS computer to Affiant's computer, the following
described computer-generated images referred to as GraPhics
Interchange Format (GIF) tiles, A copy of each of these GIF files
is attached hereto as Attachments 1, J, K, L, M, N, 0, P, Q, R, S,
T, and U, and they are fully incorporated herein by reference:
(a) September 3, 1993 - (1) a computer-generated image
referred to as a Graphics Interchange Format ("GIF") file, entitled
"AA-L2209.GIF" and more particularly described as "HE FUCKS A PIG!
SHE FUCKS A DOG AND A HUGE PIG! KINKY", (2) a computer-generated
image, referred to as a Graphics Interchange Format ("'GIF") file<
entitled "AA-12217.GIF" and more particularly described as "KINKY!
HORNY GIRLS SUCK HORSES! BIG HORSE COCK IN HER TWAT!", and (3) a
computer-generated image, referred to as a Graphics Interchange
13
Format ("GIF") file, entitled "AA-8589.GIF" and more particularly
described as " SHE SUCKS HER SON'S COCK! FATHER IS FUCKING HIS
DAUGHTER! '
(b) September 7, 1993 - (1) a computer-generated image,
referred to as a Graphics Interchange Format ("GIF") file, entitled
"AA-8278. GIF" and more particularly described as " FULL SCREEN VIEW!
A HAIRLESS PUSSY NAILED TO A TABLE!", (2) a computer-generated
image, referred to as a Graphics Interchange Format ("GIF") file,
entitled "AA-7153.GIF" and more particularly described as "MOTHER
IS WATCHING HER DAUGHTER FUCK BIG COCK! NO TITS! ", ( 3 ) a
computer-generated image, referred to as a Graphics Interchange
Format ("GIF") file, entitled "AA-8682.GIF" and more particularly
described as "HE MAKES HIS DAUGHTER SUCK COCK! SHE IS FISTING HER
SISTER: ", and ( 4 ) a computer-generated image, referred to as a
Graphics Interchange Format ("GIF") file, entitled "AA-11935.GIF"
and more particularly described as "HE FUCKS HIS DAUGHTERS HAIRLESS
CUNT! SHE FISTS HER MOTHER! "
(c) September B, 1993 - a computer generated image, referred -
to as a Graphics Interchange Format ("GIF") file, entitled "AA-
15198.GIF" and more particularly described as "BLONDE LOLITA HAS NO
TITS! SUCKS HUGE COCK AND DRINKS SPERM! "
(d) September '13, 1993 - a computer-generated image,
referred to as a Graphics Interchange Format ("GIF") file, entitled
"AA-13216.GIF" and more particularly described as "PUSSY
PENETRATION! HORNY BRUNETTE GETS FUCKED BY A HORSE! "
14
(e) October 14, 1993 - (1) a computer-generated image,
referred to as a Graphics Interchange Format ("GIF") file, entitled
"AA-13517.GIF" and more particularly described as "HORNY BLONDE
JACKs OFF HORSE! HORSE CUM ON HER HAND!", (2) a computer-
generated image, referred to as a Graphics Interchange Format
("GIF") file, hair.led "AA-13521.GIF" and more particularly
described as "CLOSE-UP! BIG HORSE COCK IN HER CUNT! HORSE CUM ON
HER LEG", and (3) a computer-generated Image, referred to as a
Graphics Interchange Format ("GIF") file, entitled "AA-16587.GIF"
and more particularly described as a woman performing fellatio on
an animal.
(f) October 19, 1993 - a computer-generated image, referred -''
to as a Graphics Interchange Format ("GIF") file, entitled "AA-
17623.GIF" and more particularly described as a man urinating in
the mouth of a woman while she spreads her vagina with her fingers.
-DI. On the "Bulletin Menu" of AABBS, there appears an option
entitled "Legal Issues: Know Your Constitutional Rights". Included
in this section is a "Warning to law enforcement officers". In
this section, Thomas advises law enforcement officers who might be
investigating him that his operation is legal. Thomas goes on to
suggest that any investigating officer verify the legality of his
operation through the san Jose Police Department.
32. On or about October 27, 1993, your Affiant contacted the -
san Jose Police Department Bureau of Investigations. Investigator
Greg Gunsky provided me with a detailed report of an investigation
of Robert Thomas and AABBS conducted by investigator Mark McIninch
15
of the San Jose Police Department. This investigation began in
March 1991 and culminated in a search of the Thomas residence on
January 20, 1992.
33. Investigator Mclninch conducted an investigation similar
to the one conducted b U.S. Postal Inspectors as described in this
Affidavit. Mclninch gained access to the BBS and made several
undercover purchases from Thomas. The investigation determined
that Thomas operated the BBS from his home, 475 Tramway Drive,
Milpitas, California. When interviewed by Investigator Mclninch,
after being advised of his rights, Thomas admitted operating the
BBS and selling video cassette tapes. Thomas said he conducted all
his business from his house and maintained no outside shop or
storage space. Numerous video cassette tapes were found within
Thomas' residence at the time of the search. Thomas's wife,
Carleen Thomas, after first being advised of her rights, admitted
working with her husband. The San Jose Police Department seized
the computers and computer equipment used by Thomas to operate his
BBS as well as video cassette recorders and video tapes used to
duplicate the videos he advertises on his BBS. According to
Investigators Gunsky and Mclninch, because no child pornography was
found pursuant to the search and forensic examination of the
computers, no arrests were made and the property was returned to
Thomas.
16
34. On or about November 16, 1993, your Affiant traveled to
Milpitas, California. I drove by the last known address of Robert
Thomas, which is 475,Tramway Drive, Milpitas, California 95035.
The physical appearance of the residence is as described in Exhibit
A. Your Affiant noticed a handmade"'UPS PICKUP" sign in one of the
front windows of the house. This sign is consistent with the sign
described by Investigator Mclninch in his report of the San Jose
police Department's investigation of Thomas and the 475 Tramway
address.
35. on or about November 17, 1993, your Affiant went to 142
N. Milpitas Blvd in Milpitas California. (142 N. Milpitas Blvd
#s284 is the mailing address for AABBS.) Located at the address
142 N. Milpitas Blvd,Milpitas, CA is a business called Mail Boxes
Etc., USA, which is a commercial mail receiving enterprise. The
proprietor, Tom Pennybacker, told your Affiant that persons known
to him as Mr. and Mrs. Robert Thomas rent mail box #s284 from him.
Mr. Pennybacker provided me with photocopies of a Postal Service
Form 1583 and a Mail Box Etc., USA Mail Box Service Agreement
regarding,box #s284. Both documents are signed by a Mr. Thomas and
indicate 475 Tramway, Milpitas, California as permanent address.
The Mail Box Etc. USA Service Agreement is dated February 18, 1991.
36. on or about November 17, 1993, at approximately 10:00 AM
while your Affiant was interviewing Mr. Pennybacker inside his
business, Mail Box Etc., USA located at 142 N. Milpitas in
Milpitas, California a white female, approximately 37 years old,
5 feet I inch in height, weighing approximately 100 lbs with gray
17
streaked black hair, entered the establishment. Mr. Pennybacker
addressed the woman as "Mrs. Thomas". Mr. Pennybacker subsequently
informed your Affiant that he knows the woman as Mrs. Robert
Thomas. Mr. Pennybacker retrieved a large package from the rear of
the store and gave it to Mrs. Thomas. Your Affiant observed Mrs.
Thomas take the package and load it into a gray Toyota Camry with
a sunroof and "dealer tag" license plates. The above-described
Camry had been observed by your Affiant parked in the driveway of
475 Tramway approximately 15 minutes prior to this incident.
37. On or about November 17, 1993, your Affiant spoke to Mr.
Ken Johnson of United Parcel Service (UPS). Mr. Johnson advised me
that his company UPS, has a daily pickup of parcels from Robert
Thomas at 475 Tramway in Milpitas, California. Mr. Johnson stated
his records indicate that a package previously described in this
Affidavit for Search Warrant as being received by your Affiant on
or about October 11, 1993, bearing the code CA 957-700 (see
paragraph 20 above) was picked up by a UPS employee from 475
Tramway, Milpitas, California. .
38. Based upon the above facts, specifically including (a)
Thomas' computer bulletin board business was located in his
residence (475 Tramway, Milpitas, CA) in January, 1992, when the
San Jose police department executed their search; (b) there is
presently a "UPS Pickup" sign in the window of Thomas' residence
(as there was at the;time of the San Jose police search); (c)
your Affiant has been told by UPS representatives that daily
pickups of packages are presently being made by UPS from the
18
abovesaid Thomas residence; and (d) the computer bulletin board
business telephone numbers (408-263-3393 and 408-263-1868) are
numbers assigned to the abovesaid Thomas' residence; your Affiant
believes that Robert Alan Thomas is presently conducting his
computer bulletin board business from said residence.
39. Based upon my background and experience, my undercover
correspondence with Robert Thomas, and all other conduct described
herein, I believe, with regard to 475 Tramway Drive, Milpitas,
California (said premises being more fully described in Attachment
A to this Affidavit For Search Warrant, which is incorporated by
reference as if fully set forth herein), there is now concealed on
said premises, property designed and intended for use or which is
or has been used as a means of committing a criminal offense or
that constitutes evidence of the commission of a criminal offense,
in violation of Title 18, United States Code, Section 1462, and
Section 1465.
40. The property and evidence believed to be concealed on
these premises are listed in Attachment B to this Affidavit for
Search Warrant, which is incorporated by reference as if fully set
forth herein.
41. Your Affiant requests permission to search and seize any
computer systems and magnetic media found at the scene. Your
Affiant knows from his training and experience that computer
systems commonly consist of central processing units (CPU's), hard
disks, hard disk drives, floppy disk drives, tape drives, display
screens, keyboards, printers, modems (used to communicate with
19
other computers), electronic cables, cassette tapes, floppy disks,
and other forms of magnetic media containing computer information.
(a) Your Affiant knows from his training and experience that
such computers and magnetic media are used to store information.
Your Affiant believes that, based upon the information related
above, computers and magnetic media located at the place to be
searched contain evidence pertaining to the federal criminal
violations set forth above.
(b) Your Affiant requests permission to seize computer
systems and magnetic media found at the scene without first
conducting a detailed examination of each and every hard and floppy
disk to determine if such systems and media contain the items
requested by this affidavit.
(c) It is your Affiant's intent not to take the computers if
the computers and other magnetic media can be fully accessed, and
the appropriate copies can be made to tape, in a reasonable time
period Computer users frequently collect a great deal of software
on disks or other magnetic media. Searching those media within a
reasonable amount of,time to obtain material designated for seizure
within this Affidavit could be difficult and could risk destruction
of the evidence. Your Affiant may also need to examine at another
location any computer(s) found at the scene because most hard disks
contain so much data that an on site inspection is impractical.
The examination required to determine whether the hard disk
contains the items requested by this Affidavit could take days or
even weeks. Furthermore, Thomas may y maintain too many tapes and/or
20
disks to allow a thorough search of such disks within a reasonable
time. Thomas may also have encrypted (i.e., encoded with special
software) the information on his tapes, floppy or hard disk(s).
Decrypting (decoding) such information would require expert
assistance. Again, your Affiant could not begin to locate such an
expert until after the encryption was discovered. Since there are
many types of encryption, locating an expert within a short period
of time would be very difficult, if not impossible.
42. On September 3, 1993, your Affiant, while logged on to
AABBS, downloaded the "main menu" of AABBS. This menu apparently
lists all services/materials available to members of AABBS. A copy
of the AABBS "Main Menu" and "Bulletin Menu", as it appeared on
September 3, 1993, !is attached hereto as Attachment V , and
incorporated by reference herein. Your Affiant has viewed the
abovesaid "Main Menu" and "Bulletin Menu" of AABBS as recently as
December 14, 1993, and it remains unchanged from that appearing in
Attachment V.
43. On December 14, 1993, your affiant, while logged on to -
AABBS, downloaded the text from the "Legal Issues" section, under
the "Bulletins" menu, of the AABBS' main menu. Included in said
text is a "warning to law enforcement agents!". A copy of said
legal Issues" text is attached hereto as Attachment W, and
incorporated by reference herein. Your Affiant is aware that,
Prior to becoming a member of AABBS in his undercover capacity,
each time affiant Logged on to the AABBS, the first display on the
computer screen would be the text shown in Attachment W- Included
21
in said text is a reference to Title 42, United States Code,
Section 2000aa et seq. (Privacy Act of 1980) and Title 18, United
States Code, Section 2700 et seq. (Stored Electronic Communications
Access) Additionally, the said text alleges - "The San Jose Police
Department as well as the Santa Clara County District Attorney's
Office and the State of california agree that Amateur Action BBS is
operating in a legal manner. I encourage you to check with these
officers before accusing us of any illegal activities.'< Your
Affiant believes this is in reference to the search of Thomas'
residence at 475 Tramway Dr., Milpitas, california, on January 20,
1992, by california law enforcement agents (see Paragraphs 32 and
33 of this Affidavit above), and the subsequent written agreement
which Robert Alan Thomas and Carleen Thomas entered into with the
Santa clara District Attorney's Office. Your Affiant has seen a
copy of the abovesaid written agreement.
44. Your Affiant is aware that an individual, who has become
a member of AABBS, has the capability of communicating, via
electronic mail ("E-M il"), with other members. Also an individual
member can designate any communication as "public" (may be
disclosed to any and all other members) or "private" (directed to
a specified person).. Your Affiant, through Attachment B, has
specifically limited the requested search and seizure to only those
items which directly pertain to the criminal violations alleged
within this Affidavit and for which probable cause has been
established. As Affiant has stated in Paragraph 41 above, in
order to reasonably search for and retrieve those specific items
22
listed in Attachment B, it may be necessary to temporarily
interrupt the services available to AABBS members, even to the
extent of removing the entire computer system and media storage
devices from the Thomas residence/business address. It is your
Affiant's intent, however, to execute any authorized sears and
subsequent seizure of property in such a manner as to minimize any
period of interruption of services to AABBS members.
45. It is the intent of your Affiant that any stored E-mail,
as to any individual not be read by Affiant or any other law
enforcement agent. A II law enforcement agents who participate in
any authorized search or seizure, pursuant to this Affidavit, will
be so instructed.
46. Your Affiant is aware that there is a category on the
main menu styled "Newsletter". However, at various times
throughout the period of this investigation, your Affiant has
accessed the "Newsletter" menu to determine what type of
information, if any, is stored under this heading. Your Affiant
has consistently found that no newsletter is available, according
to the response on the screen.
47. Your Affiant believes that the federal criminal statutes
referred to within,this have been, and are presently
being violated. Because of the very nature of many of the items
sought to be searched for and seized as potential evidence in this
matter, specifically' with regard to the speed and ease in which
they might be destroyed, conceal e , or altered, your Affiant
contends that there is reason to believe that the giving of advance
23
notice to the Thomas', by way of subpoena or otherwise, would
result in such destruction, alteration, or concealment and thereby
jeopardize the success of any authorized search.
48, For the reasons and the circumstances set forth herein,
it is your Affiant' belief that evidence of the violation of
federal criminal statutes, specifically, Title 18, United States
Code, Sections 1462 nd 1465, is being kept and concealed at 475
Tramway Drive, Milpitas, California.
4g, Title 18, United States Code, Section 1462 reads, In
pertinent part, as follows:
Section 1462. Importation or transportation of obscene matters
Whoever . . . knowingly uses any express company or
other common carrier, for carriage in interstate or
foreign commerce -
(a) any obscene . . . book, pamphlet, picture, motion-
picture film, paper, letter, writing, print, or other
'matter . . .; or
(b) any obscene . . . phonograph recording, electrical
transcription, or other article or thing capable of
producing sound; or -
Whoever knowingly takes from such express company or
other common carrier any matter or thing the carriage of
which is herein made unlawful -
Shall be fined not more than $5,000 or imprisoned
not more than five years, or both, for the first such
offense and shall be fined not more than $10,000 or
imprisoned not more than ten years, or both, for each
such offense thereafter.
24
50. Title 18, United States Code, Section 1465 reads, in
pertinent part, as follows:
Section 1465. Transportation of obscene matters for sale or
distribution
Whoever knowingly transports in interstate or
foreign commerce for the purpose of sale or distribution,
or knowingly travels in interstate commerce, or uses a
facility or means of interstate commerce for the purpose
of transporting obscene material in interstate or foreign
commerce, any obscene . . . book, pamphlet, Picture>
film, paper, letter, writing, print, silhouette, drawing,
figure, image, cast, phonograph recording, electrical
transcription or other article capable of producing sound
or any other matter . . ., shall be fined not more than
$5,000 or imprisoned not more than five years, or both.
51. Your Affiant believes that each of the video cassette
tapes and each of the computer-generated images, referred to as
Graphics Interchange Format (GIF) files, which are described in
this Affidavit and attached to this Affidavit as Attachments C
through U, are obscene, as that term has been defined by the United
States Supreme Court in the case of Miller v. California, 413 U.S.
15 (1973). Your Affiant believes that said material is obscene
regardless of the community whose contemporary standards are
applied.
(a) As noted above, in establishing the probable cause upon
which this search warrant is based, your Affiant has referred to
the Constitutional legal definition of obscenity as defined by the
United States Supreme Court in the case of Miller v. California.
413 U.S. 15 (1973): In said case, the United States Supreme Court
set forth a tri-partite test for the determination of obscenity:
25
a. Whether the average person, applying
contemporary community standards, would find
that the work, taken as a whole, appeals to
the prurient interest.
b. Whether the work depicts or describes in
a patently offensive way, sexual conduct,
which may be specifically defined by
applicable state law and which may include but
not be limited to:
1, Patently offensive representations or
descriptions of ultimate sexual acts, normal
or perverted, actual or simulated.
2. Patently offensive representations or
descriptions of masturbation, excretory
functions and lewd exhibition of the genitals.
c. Whether the work taken as a whole lacks
serious artistic, political, literary, or
Scientific,value.
52. In accordance with United States v. Levinson, 991 F.2d
508 (9th cir. 1993), prongs (a) and (b) may be considered by
applying contemporary community standards of the Western District
of Tennessee (the district in which the video cassette tapes and
computer images (GlF's) were received) or the Northern District of
california (the district in which the video cassette tapes and
computer images (GlF's) originated)"' Prong (c) Is to be considered
by applying the reasonable person test, as set forth in Pope v.x
Illinois, 481 U.S. , 95 L.ed.2d 439 (1987).
26
53. In consideration of the foregoing, your Affiant
respectfully requests that this Court issue a search Warrant for
the subject premises as described in Attachment A and for property
specified in Attachment B, which are both attached to this
Affidavit For Search Warrant and incorporated herein for all
purposes.
DAVID H. DIRMEYER - Affiant
United State Postal Inspector
SWORN TO AND SUBSCRIBED BEFORE ME THIS 6TH DAY OF JANUARY
WAYNE D. BRAZIL
UNITED STATES MAGISTRATE-JUDGE
NORTHERN DISTRICT OF CALIFORNIA
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End of Computer Underground Digest #6.33
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