NEWS! Steve Jackson case

[hkhenson@cup.portal.com]

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@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 

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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.