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Update: A Year Later, Seattle Police Department Continues to Fuel the Flame War. Details.

When is it a Felony to Talk about Olin Skis?

King County District Court Issues First-Ever Usenet Gag Order

Copyright © 1999 by Bert H. Hoff

 

Scott Abraham, Assistant WebMaster for MenWeb's section offering information and help for male survivors of childhood sexual abuse, is currently under a gag order from the King County District Court not to post about skiing in the internet's Usenet newsgroup rec. alpine.skiing. Here's the story.




When is it a Felony to Talk about olin skis?
King County District Court Issues First-Ever Usenet Gag Order
1999 by Bert H. Hoff. MenWeb News Services

Seattle, WA. 11/12/99

A King County District Judge today issued a far-reaching order that may be a first-ever precedent in cyber-space, banning a man from talking about olin skis, or any other skiing-related topic, in the Usenet newsgroup Rec. Skiing.Alpine. A motion to limit the order to ban off-topic posts was denied. The man known as "Two Buddha" in this Usenet group and on ski hills throughout the Western U.S. will be charged with a felony if he talks about skiing in a skiing newsgroup.

The order, which bars the respondent, Scott Abraham, from having any contact with petitioner David Hobbs for a year, also states: "Respondent [Abraham] is further restrained from making or responding to postings at the Internet site rec.skiing.alpine either directly or indirectly, in person or through others."

The judge is undertaking to moderate the Usenet group, by saying who can or cannot post there, to bring to an end a six-month "flame war." She admonished all parties involved to stay off the newsgroup, or at least to post only on-topic posts. She has also specifically banned a man from any posts to the Usenet Rec.Skiing.Alpine newsgroup for a period of one year (King County Dist. Ct. case 99-7536).In this, she has undertaken what no Internet Service Provider has been able to do. Internet service providers have feared to undertake the bold step taken by this King County District Court judge, for fear of lawsuits about censorship under the First Amendment to the United States Constitution. In this first-ever step, the District Court judge has issued a court order with far-reaching Constitutional dimensions.

 

Related:
Seattle Police Department Det. Leanne Shirey testifies that she, Department were "threatened."

Seattle Police Department intervenes in Usenet discussion
Deja.com Deja.com message: Fwd:RSA

Det. Shirey's strategy backfires
RSA response to Det. Shirey's request:
74 more flame posts!
Deja.com Deja.com message: Re: Fwd:RSA





Media coverage:
Wired.com
Usenet Ban a Slippery Slope?

Seattle Times
Nov. 17, 1999
Judge bars Seattle man from `talking' in online newsgroup

KIRO TV Eyewitness News (Channel 7, Seattle CBS affiliate)
Nov. 17, 1999
Seattle man banned from Internet newsgroup

National Public Radio
All Things Considered
November 17, 1999

Note: The individual segment is not identified on the Web page. You'll have to download and listen to the entire program.

The Seattle Police Department is also breaking new ground in constitutional law. Seattle Police Department Detective Luanne Shirey persuaded petitioner Edward C. ("Ted") Waldron to post to Rec.Skiing.Alpine on her behalf, requesting all the participants of Rec.Skiing.Alpine to limit their posting to on-topic posts and not to engage in flame wars. As is usual in Usenet newsgroups, this post was met with a flurry of responses, "Nobody in the police department or anywhere else will tell me when and where I post or what to say Detective Shirey can take her post and " Ah, the freedom of expression in Usenet, even when the language turns coarse!

David Hobbs and Edward C. ("Ted") Waldron, actively assisted at the hearing by Eric Leonard, sought anti-harassment orders under RCW 10.14.040, recently amended to add e-mail and newsgroup posts to the forms of harassment prohibited. When the law was amended in early 1999, concern was raised that it could lead to judicial restriction of freedom of speech in newsgroups.

There is no doubt that an ugly flame war was involved. All sides alleged that the other parties had made death threats and threats of physical violence. Here are the original petitions from David Hobbs and Ted Waldron. The judge pointed out that all parties had used uncivilized, disgusting language that should not appear in a newsgroup. Detective Shirey testified that the Seattle Police Department was concerned that the flame wars would escalate into real-world physical violence if the police department and the court did not intervene. The evidence in the case consisted mainly of Usenet posts. Det. Shirey testified that the Police Department had been monitoring the newsgroup for some time and had "a couple of 3-inch ring binders of posts." She stated that she and her superiors had made a judgement as to which side to take in the flame war, which threats to take seriously, and which to ignore. Petitioner Ted Waldron stated he had filed at the suggestion of Det. Shirey and others in the Seattle Police Department. The judge dismissed his complaint, stating that he had done a lot to stir things up rather than to defuse them. His posting private and personal information about the respondent and nominating him for an award in the Usenet group Alt. Usenet.Kooks, the judge pointed out, just goes to show that he created things that came back at him. In short, the bench came down on a different side in the flame war than did Det. Luanne Shirey and the Seattle Police Department.

 

Related:
Hawaii computer harassment law calls for forfeiture of equipment
Details

But, even where the court disagrees with the police department, do we want the courts and the police department monitoring our participation in Usenet?

Government is already involved in monitoring Usenet participation for reasons of "national security." If you post something in Usenet that could be considered a physical threat to the President of the United States, you may expect a call from the Secret Service. Recently there has been concern about the National Security Administration's involvement in Project Echelon. Project Echelon began in the 1980s, and is controlled largely by the U. S. National Security Agency (NSA) in coordination with at least four other countries, including Canada, the United Kingdom, Australia, and New Zealand. In a statement by Congressman R. Barr (GA), who has called for Congressional hearings about the project, he asserts that the system allows the government to intercept virtually any internationally transmitted phone conversation, fax, e-mail, or data transfer; the system reportedly monitors two million transmissions per hour, without any court order, oversight, or probable cause to believe the transmission is connected to any criminal activity. The project has come to light because of information leaked from the Government of Australia.

There is an irony here. An Australian government employee by the name of Anthea Kerrison forwarded posts from the Rec.Skiing.Alpine newsgroup to Seattle Police Department Det. Shirey, which Det. Shirey introduced into evidence in the Seattle hearing in a private dispute to ban a Seattle man from talking about skiing in a skiing Usenet newsgroup. In a phone conversation with the respondent prior to the hearing, Det. Shirey told the respondent that she was concerned about security at the World Trade Congress summit to be held in Seattle.

Who wins and who loses when police monitor Usenet posts and courts issue orders banning a citizen from participating in an open Usenet newsgroup? One of the petitioners won. He won a court order barring the defendant from contacting him or being within 1,000 feet of him. He also won an unprecedented order under Washington State's new electronic anti-harassment law, banning a man from talking about skiing in a skiing-oriented Usenet newsgroup.

Who loses? The respondent lost. He lost a community of friends he has been part of for several years, friends whom he has met on-line and with whom he has enjoyed ski trips. He lost financially as well. As an iconoclastic, flippant, intentionally obnoxious on-line persona "Two Buddha" he gave the "inside scoop" on Northwest-made ski products and on ski resorts throughout the Western U.S. He put U.S.-made skis under the boots of expert skiers, who then talked about them in the newsgroups and moderated discussions on manufacturers' Web sites. Through these connections he received "professional courtesy" equipment and ski lift tickets from time to time in return for users' reviews of the products involved. Because of a court order now making it a felony for him to talk about skiing in a skiing Usenet group, he can no longer commiserate with his on-line friends about skiing. It is a felony for him to talk about olin skis in a Usenet skiing newsgroup.

Who ultimately loses? Us. All of us who would like to talk in Usenet newsgroups without the Detective Shireys of the world looking over our shoulders. All of us who would like to say what we think without the Seattle Police Department of the National Security Agency compiling 3" ring binders of our Usenet posts in the name of "national security" or community security. All of us who do not want the Seattle Police Department or the King County District Court, or any police department or any court, to monitor Usenet newsgroups to protect us from ourselves. All of us who do not want a Politburo or a security agency or a police agency or a court to issue a gag order saying that a citizen cannot participate in an open Usenet newsgroup to find his voice and speak his Truth, even to say that his Revealed Truth is that Olin Sierra skis kick ass anywhere on the mountain.

Media Coverage











Wired.com
Nov. 16, 1999
Usenet Ban a Slippery Slope?

Seattle Times
Nov. 17, 1999
Judge bars Seattle man from `talking' in online newsgroup

KIRO TV Eyewitness News
(Channel 7, Seattle CBS affiliate)
Nov. 17, 1999
Seattle man banned from Internet newsgroup
AMY CLANCY
KIRO 7 EYEWITNESS NEWS

APBNews.com
Nov. 17, 1999
Judge Bars Man From Chat Group May Be First Time Someone Is Legally Banned From Site
By David Noack

November 25, 1999
NEWS WATCH

Judge in Seattle Bans Man From a Newsgroup

A county judge in Seattle has raised eyebrows among civil liberties groups by applying anti-harassment law to the realm of cyberspace. Last week, as part of a restraining order, the judge barred a man from posting messages to a public newsgroup.

The man, Scott Abraham, was accused of threatening another newsgroup participant, David Hobbs, on an online bulletin board called rec.skiing.alpine. The source of the dispute is unclear -- some reports suggest that it started over a squabble about ski passes. But messages lingering in the newsgroup's archives show that whatever the root of the problem, the electronic exchanges did get nasty: Vicious messages, from Abraham and from others acting anonymously, were riddled with veiled threats to take up arms or commit assaults.

Abraham has denied threatening Hobbs and says that he is the one who has been threatened. But on Friday, at Hobbs's request, Judge Pro Tempore Marcine Anderson of King County District Court issued a restraining order against Abraham.

The order is a three-page form, filled out and signed. Added to it, in longhand, are Judge Anderson's words: "Respondent is further restrained from making or responding to postings at the Internet site rec.skiing.alpine either directly or indirectly, in person or through others."

Some civil rights groups say that those words are the equivalent of barring Abraham from speaking freely in a public forum. "It's too broad," said Tara Lemmey, president of the Electronic Frontier Foundation. To halt Abraham from sending messages about his accusers is one thing, Ms. Lemmey said. "But what if he wanted to talk about skiing?" she asked.

Abraham was not available for comment, but a friend who has come to his defense, Bert Hoff, said that Abraham had not decided whether to appeal the order. The Washington office of the American Civil Liberties Union is also reviewing the case.    
LISA GUERNSEY


National Public Radio
All Things Considered
November 17, 1999

Note: The individual segment is not identified on the Web page. You'll have to download and listen to the entire program.

The cases are David Hobbs v. Scott Anderson, 88-7536 and Edward C. "Ted" Waldron v. Scott Abraham, 99-7537. They were heard by King County District Court Judge Pro-Tem Marcine Anderson. Ms. Anderson is currently also a deputy prosecutor with the King County prosecutor's office. Her Washington State Bar Association listing is:

Name: Anderson, Marcine
Address: 700 5th Ave Ste 3900 City, ST Zip: Seattle, WA 98104-5043
Country: UNITED STATES
Business Phone: (206) 296-8820
Fax: (206) 296-0420
E-Mail: marcine.anderson@metrokc.gov
WSBA Number: 19346
Status: ACTIVE

The record of the proceeding consists of the oiginal petitions, tapes of the proceedings, the order granting petitioner Hobbs relief, and the order denying Edward C. "Ted" Waldron relief. There is no "transcript" in District Court proceedings.

The tapes are available from the King County District Court. Tapes 99-4-247, 99-4-248 and 99-4-249. They cost $30, and take 2-3 days to produce, I am informed. The order can be viewed in the court file or on the court's public-access computer terminal in Room 327, King County Courthouse, 516 3rd Ave., Seattle, WA 98104. Presumably, a clerk in Room 327 will also take orders for the tape.

This article has generated a lot of interest. Here are some of the comments received. Please feel free to send us yours.

Update: A Year Later, Seattle Police Department Continues to Fuel the Flame War. Details.

Concerned? Comments? Reactions?

Feel free to E-mail us. Please feel free to distribute this story of Internet censorship as widely as possible, provided that your intent is to halt court intervention in freedom of speech in cyber-space, and that it is not used for commercial purposes for financial gain to you. We can also accept (non-tax-deductable) contributions to a legal defense fund to seek to remove the gag from our Assistant WebMaster and combat court attempts to moderate discussions in Usenet groups. If you use this item, please do us the courtesy of letting us know when and where it is used, and what responses were received.


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