NEWS! Steve Jackson case
hkhenson at cup.portal.com
hkhenson at cup.portal.com
Tue Feb 2 11:22:11 PST 1993
I pulled this off comp.org.eff.news. I imagine many of you on both
the extropian and cypherpunk list have been following this, but since
there was no mention . . . . It is related to extropians because Steve
is an Alcor member and Alcor once had similar problems (we sued the
county using the same statute because our BBS was taken without a
proper warrant and got $30k in an out of court settlement.) This is a
report of day three of the trial which ended last week. There is more
on the other two days posted in comp.org.eff.talk. Enjoy.
Thanks to wixer!pacoid at cs.utexas.edu (Paco Xander Nathan) for posting,
Joe Abernathy for excellent reporting, *many* thanks to EFF and
especially John Gilmore (EFF founder and owner of toad.com--home of the
cypherpunks list) and congratulations to Steve Jackson! Keith Henson
Steve Jackson Games/Secret Service wrapup
By JOE ABERNATHY
Copyright 1993, Houston Chronicle
AUSTIN -- An electronic civil rights case against the Secret Service
closed Thursday with a clear statement by federal District Judge Sam
Sparks that the Service failed to conduct a proper investigation in a
notorious computer crime crackdown, and went too far in retaining
custody of seized equipment.
The judge's formal findings in the complex case, which will likely set
new legal precedents, won't be returned until later.
A packed courtroom sat on the edge of the seat Thursday morning as
Sparks subjected the Secret Service agent in charge of the
investigation to a grueling dressing-down.
The judge's rebuke apparently convinced the Department of Justice to
close its defense after calling only that one of the several
government witnesses on hand. Attorney Mark Battan entered subdued
testimony seeking to limit the award of monetary damages.
Secret Service Special Agent Timothy Foley of Chicago, who was in
charge of three Austin computer search-and-seizures on March 1, 1990,
that led to the lawsuit, stoically endured Spark's rebuke over the
Service's poor investigation and abusive computer seizure policies.
While the Service has seized dozens of computers since the crackdown
began in 1990, this is the first case to challenge the practice.
"The Secret Service didn't do a good job in this case. We know no
investigation took place. Nobody ever gave any concern as to whether
(legal) statutes were involved. We know there was damage," Sparks said
in weighing damages.
The lawsuit, brought by Steve Jackson Games of Austin, said that the
seizure of three computers violated the Privacy Protection Act, which
provides First Amendment protections against seizing a publisher's
works in progress. The lawsuit further said that since one of the
computers was being used to run a bulletin board system containing
private electronic mail, the seizure violated the Electronic
Communications Privacy Act in regards to the 388 callers of the
Sparks grew visibly angry when it was established that the Austin
science fiction magazine and game book publisher was never suspected
of a crime, and that agents did not do even marginal research to
establish a criminal connection between the firm and the suspected
illegal activities of an employee, or to determine that the company
was a publisher. Indeed, agents testified that they were not even
trained in the Privacy Protection Act at the special Secret Service
school on computer crime.
"How long would it have taken you, Mr. Foley, to find out what Steve
Jackson Games did, what it was?" asked Sparks. "An hour?
"Was there any reason why, on March 2, you could not return to Steve
Jackson Games a copy, in floppy disk form, of everything taken?
"Did you read the article in Business Week magazine where it had a
picture of Steve Jackson -- a law-abiding, tax-paying citizen --
saying he was a computer crime suspect?
"Did it ever occur to you, Mr. Foley, that seizing this material could
harm Steve Jackson economically?"
Foley replied, "No, sir," but the judge offered his own answer.
"You actually did, you just had no idea anybody would actually go out
and hire a lawyer and sue you."
More than $200,000 has been spent by the Electronic Frontier
Foundation in bringing the case to trial. The EFF was founded by
Mitchell Kapor amid a civil liberties movement sparked in large part
by the Secret Service computer crime crackdown.
"The dressing-down of the Secret Service for their behavior is a major
vindication of what we've been saying all along, which is that there
were outrageous actions taken against Steve Jackson that hurt his
business and sent a chilling effect to everyone using bulletin boards,
and that there were larger principles at stake," said Kapor, contacted
at his Cambridge, Mass., office.
"We're very happy with the way the case came out," said Shari Steele,
who attended the case as counsel for the EFF. "That session with the
judge and Tim Foley is what a lawyer dreams about."
That session seemed triggered by a riveting cross-examination of Foley
by Pete Kennedy, Jackson's attorney.
Kennedy forced Foley to admit that the search warrant did not meet
even the Service's own standards for a search-and-seizure, and did not
establish that Jackson Games was suspected of being involved in any
"Agent Foley, it's been almost three years. Has Chris Goggans been
indicted? Has Loyd Blankenship been indicted? Has Loyd Blankenship's
computer been returned to him?"
The purported membership of Jackson Games employee Blankenship in the
Legion of Doom hacker's group triggered the raids that day on Jackson
Games, Blankenship's home, and that of Goggans, a Houstonian who at
the time was a University of Texas student. No charges have been
filed, although the computer seized from Blankenship's home --
containing his wife's dissertation -- never has been returned.
After the cross-examination, Sparks questioned Foley on a number of
key details before and after the raid, focusing on the holes in the
search warrant, why Jackson was not allowed to copy his work in
progress after it was seized, and why his computers were not returned
after the Secret Service analyzed them, a process completed before the
end of March.
"The examination took seven days, but you didn't give Steve Jackson's
computers back for three months. Why?" asked an incredulous Sparks.
"So here you are, with three computers, 300 floppy disks, an owner who
was asking for it back, his attorney calling you, and what I want to
know is why copies of everything couldn't be given back in days. Not
"That's what makes you mad about this case."
The Justice Department contended that Jackson Games is a manufacturer,
and that only journalistic organizations can call upon the Privacy
Protection Act. It contended that the ECPA was not violated because
electronic mail is not "intercepted" when a BBS is seized. This
argument rests on a narrow definition of interception.
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