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[NOTE: This case has been edited for classroom use by the omission of text, citations, and footnotes. See this alternate source for the full opinion.]
U.S. District Judge Sam Sparks
The issues remaining at trial in this lawsuit involves the Plaintiffs Steve Jackson Games, Incorporated, Steve Jackson, Elizabeth McCoy, Walter Milliken, and Steffan O'Sullivan's causes of action against the United States Secret Service and the United States of America pursuant to three statutes, "Private Protection Act", 42 U.S.C. § 2000aa et seq.; "Wire and Electronic Communications Interception and Interception of Oral Communication' Act, 18 U.S.C. § 2510, et seq.; and "Stored Wire and Electronic Communications and Transactional Records Access" Act, 18 U.S.C 2701, et seq. . . .
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The Plaintiff Steve Jackson started Steve Jackson Games in 1980 and subsequently incorporated his business. Steve Jackson Games, Incorporated, publishes books, magazines, box games, and related products.n1 More than 50 percent of the corporation's revenues are derived from its publications. In addition, Steve Jackson Games, Incorporated, beginning in the mid-1980s and continuing through this litigation, operated from one of its computers an electronic bulletin board system called Illuminati. This bulletin board posts information to the inquiring public about Steve Jackson Games' products and activities; provides a medium for receiving and passing on information from the corporation's employees, writers, customers, and its game enthusiasts; and, finally, affords its users electronic mail whereby, with the use of selected passwords, its users can send and receive electronic mail (E-mail) in both public and private modes. In February of 1990, there were 365 users of the Illuminati bulletin board.
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Importantly, prior to March l, 1990, and at all other times, there has never been any basis for suspicion that any of the Plaintiffs have engaged in any criminal activity, violated any law, or attempted to communicate, publish, or store any illegally obtained information or otherwise provide access to any illegally obtained information or to solicit any information which was to be used illegally.
In October of 1988, Henry Kluepfel, Director of Network Security Technology (an affiliate Bell Company), was advised a sensitive, proprietary computer document of Bell South relating to Bell's "911 program" had been made available to the public on a computer bulletin board in Illinois. . . . Kluepfel had previously worked with the Secret Service and was known as an expert and reliable informant on computer "hacking."n2 Thereafter, Kluepfel met Assistant U. S. Attorney William Cook in Chicago and thereafter communicated with Cook and Secret Service Agent Tim Foley. Agent Foley was in charge of this particular investigation.
Around February 6, l990, Kluepfel learned that the 911 document was available on a computer billboard entitled "Phoenix" which was operated by Loyd Blankenship in Austin, Texas. . . . While Kluepfel advised Agent Foley that Blankenship was an employee of Steve Jackson Games, Inc., and was a user and co-sysop of Illuminati, Kluepfel never had any information whereby he was suspicious of any criminal activity by any of the Plaintiffs in this cause. Kluepfel was, and is, knowledgeable in the operation of computers, computer bulletin boards, the publishing of materials and document by computers, the communications through computer bulletin boards (both public and private communications), and could have "logged" into the Illuminati bulletin board at any time and reviewed all of the information on the bulletin board except for the private communications referred to by the Plaintiffs as electronic communications or electronic mail, but did not do so. . . .
In February of 1990, Agent Foley was also knowledgeable about computer bulletin boards and he too could have "logged" into Illuminati, become a user and reviewed all public communications on the bulletin board, but did not do so.
By February 28, 1990, when the search warrant affidavit was executed, Agent Foley had received information from reliable sources [that] . . . there had been an unlawful intrusion on the Bell South computer program, the 911 Bell South document was a sensitive and proprietary document, and that computer hackers were attempting to utilize a decryption procedure whereby unlawful intrusions could be made to computer programs including the Defense Department, and these hackers were soliciting passwords so that the decryption procedure could become operational. . . . The only information Agent Foley had regarding Steve Jackson Games, Inc. and Steve Jackson was that he thought this was a company that put out games, but he also reviewed a printout of Illuminati on February 25, 1990, which read, "Greetings, Mortal! You have entered the secret computer system of the Illuminati, the on-line home of the world's oldest and largest secret conspiracy. 5124474449300/1200/2400BAUD fronted by Steve Jackson Games, Incorporated. Fnord." The evidence in this case strongly suggests Agent Foley, without any further investigation, misconstrued this information to believe the Illuminati bulletin board was similar in purpose to Blankenship's Phoenix bulletin board, which provided information to and was used by "hackers." Agent Foley believed, in good faith, at the time of the execution of his affidavit on February 28, 1990, there was probable cause to believe Blankenship had the 911 Bell South document and information relating to the decryption scheme stored in his computer at home or perhaps in computers, disks, or in the Illuminati bulletin board at his place of employment at Steve Jackson Games, Inc.; that these materials were involved in criminal activities; and that Blankenship had the ability to delete any information stored on any of these computers and/or disks.
Unfortunately, although he was an attorney and expressly represented this fact in his affidavit, Agent Foley was not aware of the Privacy Protection Act, 42 U.S.C. § 2000aa et seq., and he conducted no investigation about Steve Jackson Games, Incorporated, although a reasonable investigation of only several hours would have revealed Steve Jackson Games, Inc. was, in fact, a legitimate publisher of information to the public and Mr. Jackson would have cooperated in the investigation. Agent Foley did not know the individual Plaintiffs but did know they were users of Illuminati as he had a list of all users prior to February 28, 1990. Agent Foley did know and understand the Illuminati bulletin board would have users and probably would have stored private electronic communications between users. Notwithstanding the failure of any investigation regarding Steve Jackson Games, Agent Foley and Assistant U. S. Attorney Cook intended to seize and review all of the information and documents in any computer accessible to Blankenship, regardless of what other incidental information would be seized. These intentions were expressly stated in their application for a search warrant and the warrant itself.
Foley's affidavit, executed on February 28, 1990, was sufficient under the law for the issuance of a search warrant by the United States Magistrate Judge. The Court does not find from a preponderance of the evidence that the admitted errors in Foley's affidavit were intentional and so material to make the affidavit and issuance of the warrant legally improper. . . . The affidavit and warrant preparation was simply sloppy and not carefully done. Therefore, the Court denies the Plaintiff's contentions relating to the alleged improprieties involved in the issuance of the search warrant.
On March 1, 1990, Agents Foley and Golden executed the search warrant. At the time of the execution, each agent had available computer experts who had been flown to Austin to advise and review the stored information in the computers, the bulletin boards, and disks seized. These computer experts certainly had the ability to review the stored information and, importantly, to copy all information contained in the computers and disks within hours.
During the search of Steve Jackson Games and the seizure of the three computers, over 300 computer disks, and other materials, Agent Golden was orally advised by a Steve Jackson Games, Inc. Employee that Steve Jackson Games, Inc. was in the publishing business. Unfortunately, Agent Golden, like Foley, was unaware of the Privacy Protection Act and apparently attached no significance to this information. The evidence is undisputed that Assistant U. S. Attorney Cook would have stopped the search at the time of this notification had he been contacted.
By March 2, 1990, Agent Foley knew Steve Jackson Games, Inc. was in the publishing business and the seizure included documents intended for publication to the public, including a book and other forms of information. He also knew or had the ability to learn the seizure of the Illuminati bulletin board included private and public electronic communications and E-mail. By March 2, 1990, Agent Foley knew that Steve Jackson Games, Incorporated, and its attorneys in Dallas and Austin, were requesting the immediate return of the properties and information seized, that transcripts of publications and the back-up materials had been seized, and that the seizure of the documents, including business records of Steve Jackson Games, Inc., and their back-up was certain to economically damage Steve Jackson Games, Inc. While Agent Foley had a legitimate concern there might be some type of program designed to delete the materials, documents, or stored information he was seeking, he admits there was no valid reason why all information seized could not have been duplicated and returned to Steve Jackson Games within a period of hours and no more than eight days from the seizure. In fact, it was months (late June 1990) before the majority of the seized materials was returned. Agent Foley simply was unaware of the law and erroneously believed he had substantial criminal information which obviously was not present, as to date, no arrests or criminal charges have ever been filed against anyone, including Blankenship.
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. . . [T]he preponderance of the evidence, including common sense, establishes that the Secret Service personnel or its delegates did read all electronic communications seized and did delete certain information and communications in addition to the two documents admitted deleted. The deletions by the Secret Service, other than the two documents consented to by Steve Jackson, were done without consent and cannot be justified.
By March 2, 1990, Agent Foley, Agent Golden, and the Secret Service, if aware of the Privacy Protection Act, would have known that they had, by a search warrant, seized work products of materials from a person or entity reasonably believed to have a purpose to disseminate to the public a "book" or "similar form of public communication."
The failure of the Secret Service after March 1, 1990, to -- promptly -- return the seized products of Steve Jackson Games, Incorporated cannot be justified and unquestionably caused economic damage to the corporation.
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. . . The Court declines to find from a preponderance of the evidence that Steve Jackson personally sustained any compensatory damages as a result of the conduct of the United States Secret Service.
Elizabeth McCoy, Walter Milliken and Steffan O'Sullivan also allege compensatory damages. These Plaintiffs all had stored electronic communications, or E-mail, on the Illuminati bulletin board at the time of seizure. . . . It is clear, as hereinafter set out, that the conduct of the United States Secret Service violated two of the three statutes which the causes of action of the Plaintiffs are based and, therefore, there are statutory damages involved, but the Court declines to find from a preponderance of the evidence that any of the individual Plaintiffs sustained any compensatory damages.
a. PRIVACY PROTECTION ACT (First Amendment Privacy Protection), 42 U.S.C. § 2000aa et seq.
The United States Secret Service, by Agent Foley and Assistant United States Attorney Cox, sought and obtained an order from a United States Magistrate Judge to search for and seize and thereafter read the information stored and contained in "computer hardware . . . and computer software . . . and written material and documents relating to the use of the computer system . . . at the business known as Steve Jackson Games which constitute evidence, instrumentalities, and fruits of federal crimes, including interstate transportation of stolen property (18 U.S.C. § 2314) and interstate transportation of computer access information (18 U.S.C. § 1030(a)(6))." See, Warrant Application and Order.
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The evidence establishes the actual information seized, including both the primary source and back-up materials of the draft of Gurps Cyberpunk, a book intended for immediate publication (within days to weeks), drafts of magazine and magazine articles to be published, business records of Steve Jackson Games, Incorporated (including contracts and drafts of articles by writers of Steve Jackson Games, Incorporated), the Illuminati bulletin board and its contents (including public announcements, published newsletter articles submitted to the public for review, public comment on the articles submitted and electronic mail containing both private and public communications). . . .[T]he evidence is clear that on March 1, 1990, "work product materials," as defined in 42 U.S.C. § 2000aa-7(b), was [sic] obtained as well as materials constituting "documentary materials" as defined in the same provision. (F7)
The Privacy Protection Act, 42 U.S.C. § 2000aa, dictates: "Notwithstanding any other law, it shall be unlawful for a government officer or employee, in connection with the investigation . . . of a criminal offense to search for or seize any work product materials possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper, broadcast, or other similar form of public communication . . . ." See, 42 U.S.C. § 2000aa(a).
Assuming Agent Foley was knowledgeable of the Privacy Protection Act (which he was not), neither he nor Assistant United States Attorney Cox had any information which would lead them to believe that Steve Jackson Games, Incorporated published books and materials and had a purpose to disseminate to the public its publications. Their testimony is simply they thought it a producer of games. . . . [T]he Court declines to find from a preponderance of the evidence that on March 1, 1990, Agent Foley or any other employee or agent of the United States had reason to believe that property seized would be the work product materials of a person believed to have a purpose to disseminate to the public a newspaper, book, broadcast or other similar form of public communication.
During the search on March 1, and on March 2, 1990, the Secret Service was specifically advised of facts that put its employees on notice of probable violations of the Privacy Protection Act. It is no excuse that Agents Foley and Golden were not knowledgeable of the law. On March 2, 1990, and thereafter, the conduct of the United States Secret Service was in violation of 42 U.S.C. § 2000aa et seq. It is clear the Secret Service continued the seizure of property of Steve Jackson Games, Incorporated including information and documents through late June of 1990. Immediate arrangements could and should have been made on March 2, 1990, whereby copies of all information seized could have been made. The government could and should have requested Steve Jackson as chief operating officer of the corporation to cooperate and provide the information available under the law. The Secret Service's refusal to return information and property requested by Mr. Jackson and his lawyers in Dallas and Austin constituted a violation of the statute. Regarding any information seized that would constitute "documentary materials" (whereby the defensive theory of 42 U.S.C. § 2000aa(b)(3) might apply) there would have been no problem as the property was in the possession of the United States Secret Service and their experts and Steve Jackson were present to ensure no destruction, alteration or concealment of information contained therein. In any event, it is the seizure of the "work product materials" that leads to the liability of the United States Secret Service and the United States in this case. Pursuant to 42 U.S.C. § 2000aa-6, the Court finds from a preponderance of the evidence that Steve Jackson Games, Incorporated is entitled to judgment against the United States Secret Service and the United States of America for its expenses of $8,781.00 and its economic damages of $42,259.00. The Court declines to find from a preponderance of the evidence other damages of Steve Jackson Games, Incorporated or liability of the United States Secret Service or the United States of America to any other Plaintiff under the provisions of the Privacy Protection Act.
b. WIRE AND ELECTRONIC COMMUNICATIONS INTERCEPTION AND INTERCEPTION OF ORAL COMMUNICATIONS, 18 U.S.C. § 2510 et seq.
The Plaintiffs allege the United States Secret Service's conduct also violated 18 U.S.C. § 2510, et seq., as it constituted intentional interceptions of "electronic communication." . . .
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The Court declines to find liability for any Plaintiff against the Defendants pursuant to the Wire and Electronic Communications Interception and Interception of Oral Communications Act, 18 U.S.C. § 2510, et seq., and specifically holds that the alleged "interceptions" under the facts of this case are not 'interceptions contemplated by the Wire and Electronic Communications Interception and Interception of Oral Communications Act. It simply has no applicability to the facts of this case.
c. STORED WIRE AND ELECTRONIC COMMUNICATIONS AND TRANSACTIONAL RECORDS ACCESS, 18 U.S.C. § 2701 et seq.
Prior to February 28, 1990, Agent Foley, Assistant United States Attorney Cox, and the computer consultants working with them were cognizant of public computer bulletin boards and the use of electronic communications and E-mail through them. Each of the persons involved in this investigation, including Agent Foley, had the knowledge and opportunity to log into the Illuminati bulletin board, review its menu and user lists, obtain passwords, and thereafter review all information available to the public. In fact, Agent Foley erroneously thought Kluepfel had done this when a printout of Illuminati documents dated February 25, 1990, was recieved. When Foley applied for the search warrant on February 28, 1990, he knew the Illuminati bulletin board provided services to the public whereby its users could store public and private electronic communications. While Foley admits no knowledge of the Privacy Protection Act and its provisions protecting publishers of information to the public, he testified he was knowledgeable regarding the Wire and Electronic Communications Interception and Interception of Oral Communications Act. But, Foley never thought of the law's applicability under the facts of this case. Steve Jackson Games, Inc., through its Illuminati bulletin board services, was a "remote computing service" within the definition of Section 2711, and, therefore, the only procedure available to the Secret Service to obtain "disclosure" of the contents of electronic communications was to comply with this statute. See, 18 U.S.C. § 2703. Agent Foley and the Secret Service, however, wanted more than "disclosure' of the contents of the communication. As the search warrant application evidences, the Secret Service wanted seizure of all information and the authority to review and read all electronic communications, both public and private. A court order for such disclosure is only to issue if "there is a reason to believe the contents of a[n] . . . electronic communication . . . are relevant to a legitimate law enforcement inquiry." See, 18 U.S.C.§ 2703(d). Agent Foley did not advise the United States Magistrate Judge, by affidavit or otherwise, that the Illuminati bulletin board contained private electronic communications between users or how the disclosure of the content of these communications could relate to his investigation. Foley's only knowledge was that Blankenship had published part of the 911 document and decryption information in his Phoenix bulletin board, was employed at Steve Jackson Games, Inc., and could have the ability to store and delete these alleged unlawful documents in the computers or Illuminati bulletin board at Steve Jackson Games, Incorporated. . . . The procedures followed by the Secret Service in this case virtually eliminated the safeguards contained in the statute. For example, no Plaintiff was on notice that the search or seizure order was made pursuant to this statute and that Steve Jackson Games, Incorporated could move to quash or modify the order or eliminate or reduce any undue burden on it by reason of the order. See, 18 U.S.C. § 2703(d). The provisions of the statute regarding the preparation of back-up copies of the documents or information seized were never utilized or available. See, 18 U.S.C. § 2704. Agent Foley stated his concern was to prevent the destruction of the documents' content and for the Secret Service to take the time necessary to carefully review all of the information seized. He feared Blankenship could possibly delete the incriminating documents or could have programmed destruction in some manner. Notwithstanding that any alteration or destruction by Blankenship, Steve Jackson, or anyone else would constitute a criminal offense under this statute, Foley and the Secret Service seized -- not just obtained disclosure of the content -- all of the electronic communications stored in the Illuminati bulletin board involving the Plaintiffs in this case. This conduct exceeded the Government's authority under the statute.
The Government Defendants contend there is no liability for alleged violation of the statute as Foley and the Secret Service had a "good faith" reliance on the February 28, 1990, court order/search warrant. The Court declines to find this defense by a preponderance of the evidence in this case.
Steve Jackson Games, Incorporated, as the provider and each individual Plaintiffs as either subscribers or customers were "aggrieved" by the conduct of the Secret Service in the violation of this statute. While the Court declines to find from a preponderance of the credible evidence the compensatory damages sought by each Plaintiff, the Court will assess the statutory damages of $1,000.00 for each Plaintiff.
This is a complex case. It is still not clear how sensitive and/or proprietary the 911 document was (and is) or how genuinely harmful the potential decryption scheme may have been or if either were discovered by the Secret Service in the information seized on March 1, 1990. The fact that no criminal charges have ever been filed and the investigation remains "on going" is, of course, not conclusive.
The complexity of this case results from the Secret Service's insufficient investigation and its lack of knowledge of the specific laws that could apply to their conduct on February 28, 1990 and thereafter. It appears obvious neither the government employees nor the Plaintiffs or their lawyers contemplated the statute upon which this case is brought back in February, March, April, May or June of 1990. But this does not provide assistance to the defense of the case. The Secret Service and its personnel are the entities that citizens, like each of the Plaintiffs, rely upon and look to protect their rights and properties. The Secret Service conduct resulted in the seizure of property, products, business records, business documents, and electronic communications of a corporation and four individual citizens that the statutes were intended to protect.
It may well be, as the Government Defendants contend, these statutes relied upon by the Plaintiffs should not apply to the facts of this case, as these holdings may result in the government having great difficulties in obtaining information or computer documents -representing illegal activities. But this Court cannot amend or rewrite the statutes involved. The Secret Service must go to the Congress for relief. Until that time, this Court recommends better education, investigation and strict compliance with the statutes as written.
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1 While the content of these publications are not similar to those of daily newspapers, news magazines, or other publications usually thought of by this Court as disseminating information to the public, these products come within the literal language of the Privacy Protection Act.
2 A "hacker" is an individual who accesses another's computer system without authority.
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