By JOE ABERNATHY
Copyright 1993, Houston Chronicle

AUSTIN -- Plaintiff's attorneys wrested two embarrassing admissions from the United States Secret Service on the opening day of a federal civil lawsuit designed to establish the bounds of constitutional protections for electronic publishing and electronic mail.

In the first, Special Agent Timothy Foley of Chicago admitted that crucial statements were erroneous in an affidavit he used to conduct several search-and-seizure operations in a March 1990 crackdown on computer crime.

Foley later conceded that the Secret Service's special training for computer crime investigators overlooks any mention of the law that regulates the extent of permissible search-and-seizures at publishing operations.

The case, brought by Steve Jackson Games, an Austin firm, is being tried before United States District Judge Sam Sparks. Carefully nurtured over the course of three years by a group of electronic civil rights activists - at a cost of more than $200,000 - the case has been eagerly anticipated as a possible damper on what is seen as computer crime hysteria among federal police.

Plaintiffs hope to prove that the printed word exists just as surely on the computer screen as it does on a sheet of paper. The complaint also seeks to establish the right of computer users to congregate electronically on bulletin board systems - such as one called Illuminati that was taken from Steve Jackson Games - and to exchange private electronic mail on such BBSs.

"This lawsuit is just to stand up and say, at the end of the 20th Century, that publishing occurs as much on computers as on the printed page," said Jim George, of the Austin firm George, Donaldson & Ford, Jackson's law firm.

That issue came into sharp focus during George's questioning of Foley regarding the seizure of the PC on which Illuminati ran, and another computer on which was stored the word processing document containing a pending Steve Jackson Games book release, GURPS Cyberpunk.

"At the Secret Service computer crime school, were you, as the agent in charge of this investigation, made aware of special rules for searching a publishing company?" George asked Foley. He was referring to the Privacy Protection Act, which states that police may not seize a work in progress from a publisher. It does not specify what physical form such a work must take.

"No, sir, I was not," Foley responded.

"Did you just miss class the day that was taught?" George asked.

"No, sir. The United States Secret Service does not teach its agents about special rules regarding search and seizure at publishing companies," Foley said.

"Let the record clearly show that to be the case," George said.

Earlier, Foley admitted on the witness stand that his original affidavit seeking a judge's approval to raid Steve Jackson Games contained a fundamental error.

During the March 1990 raid - one of several dozen staged that day around the country in an investigation that the Secret Service called Operation Sun Devil at the time - agents were seeking copies of a document taken as a hacker trophy from BellSouth. Subsequently republished in an electronic magazine called Phrack, thousands of copies of the document were stored on bulletin board systems around the nation.

Neither Jackson nor his company were suspected of wrongdoing, and no charges have ever been filed against anyone targeted in several Austin raids. The alleged membership of Steve Jackson employee Loyd Blankenship in the Legion of Doom hacker's group - which was believed responsible for the break-in - led agents to raid the Austin game publisher at the same time that Blankenship's Austin home was raided.

Yet the only two paragraphs in the 42-paragraph indictment that established a connection between Blankenship's alleged illegal activities and Steve Jackson Games were shown to have been erroneously arrived at, when George produced a statement by Bellcore expert Henry Kluepfel disputing statements attributed to him in Foley's affidavit.

"Is it true that Mr. Kluepfel logged onto (Illuminati)?" George questioned.

"No, sir," Foley responded.

"But you state that in your affidavit," George said.

"That was a misattribution," Foley said.

"So you had no knowledge that anything was sent to my client?"

"No sir, not directly," Foley said.

"Indirectly?" George asked.

"No sir."

The Justice Department, in papers filed with the court, contends that only traditional journalistic organizations enjoy the protections of the Privacy Protection Act. It further contends that users of electronic mail have no reasonable expectation of privacy.

The trial was to resume at 8:30 a.m. It is expected to conclude on Thursday or Friday.

Steve Jackson Games/Secret Service Trial -- Day Two

By JOE ABERNATHY
Copyright 1993, Houston Chronicle

AUSTIN -- A young woman read aloud a deeply personal friendship letter Wednesday in a federal civil lawsuit intended to establish the human dimension and constitutional guarantees of electronic assembly and communication.

Testimony indicated that the letter read by Elizabeth Cayce-McCoy previously had been seized, printed and reviewed by the Secret Service.

Her correspondence was among 162 undelivered personal letters testimony indicated were taken by the government in March 1990 during a raid on Steve Jackson Games, which ran an electronic bulletin board system as a service to its customers.

Attorneys for the Austin game publisher contend that the seizure of the bulletin board represents a violation of the Electronic Communications Privacy Act, which is based on Fourth Amendment protections against unreasonable search and seizure.

"Because you bring such joy to my friend Walter's life, and also because I liked you when I met you, though I wish I could have seen your lovely face a little more, I'll send you an autographed copy of Bestiary," said McCoy, reading in part from a letter penned by Steffan O'Sullivan, the author of the GURPS Bestiary, a fantasy treatise on mythical creatures large and small.

Although the correspondence entered the public record upon McCoy's reading, the Chronicle obtained explicit permission from the principals before excerpting from it.

The electronic mail was contained on the game publisher's public bulletin board system, Illuminati, which allowed game-players, authors and others to exchange public and personal documents. After agents seized the BBS during a raid staged as part of a nationwide crackdown on computer crime, Secret Service analysts reviewed, printed and deleted the 162 pieces of undelivered mail, testimony indicated.

When the BBS computer was returned to its owner several months later, a computer expert was able to resurrect many of the deleted communications, including McCoy's friendship letter.

"I never thought anyone would read my mail," she testified. "I was very shocked and embarrassed.

"When I told my father that the Secret Service had taken the Steve Jackson bulletin board for some reason, he became very upset. He thought that I had been linked to some computer crime investigation, and that now our computers would be taken."

O'Sullivan, who is a free-lance game writer employed by Steve Jackson, followed McCoy to the stand, where he testified that agents intercepted - via the Illuminati seizure - a critical piece of electronic mail seeking to establish when a quarterly royalty check would arrive.

"That letter never arrived, and I had to borrow money to pay the rent," he said.

No charges were ever filed in connection with the raid on Steve Jackson Games or the simultaneous raid of the Austin home of Jackson employee Loyd Blankenship, whose reputed membership in the Legion of Doom hackers' group triggered the raids.

Plaintiffs contend that the government's search-and-seizure policies have cast a chill over a constitutionally protected form of public assembly carried out on bulletin boards, which serve as community centers often used by hundreds of people. More than 300 people were denied use of Jackson's bulletin board, called Illuminati, for several months after the raid, and documents filed with the court claim that a broader, continuing chill has been cast over the online community at large.

The lawsuit against the Secret Service seeks to establish that the Electronic Communications Privacy Act guarantees the privacy of electronic mail. If U.S. District Court Judge Sam Sparks accepts this contention, it would become necessary for the government to obtain warrants for each caller to a bulletin board before seizing it.

The Justice Department contends that users of electronic mail do not have a reasonable expectation to privacy, because they are voluntarily "disclosing" their mail to a third party - the owner of the bulletin board system.

"We weren't going to intercept electronic mail. We were going to access stored information," said William J. Cook, a former assistant U.S. Attorney in Chicago who wrote the affidavit for the search warrant used in the Steve Jackson raid.

The Justice Department attorneys did not substantially challenge testimony by any of the several witnesses who were denied use of Illuminati. They did, however, seek to prevent those witnesses from testifying - by conceding their interests - after Cayce's compelling appearance led off the series of witnesses.

Most of the Justice Department's energies were directed toward countering damage claims made by Steve Jackson, whose testimony opened the second day of the trial. Most of the day's testimony was devoted to a complex give-and-take on accounting issues. Some $2 million is being sought in damages.

Justice sought to counter the widely repeated assertion that Steve Jackson Games was nearly put out of business by the raid by showing that the company was already struggling financially when the raid was conducted. An accountant called by the plaintiffs countered that all of Jackson's financial problems had been corrected by a reorganization in late 1989.

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 Illuminati BBS.

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 illegal activity.

"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 months. Days.

"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.