Date: Fri, 29 Jan 1993 11:12:43 GMT From: wixer!pacoid@cs.utexas.edu (Paco Xander Nathan) Subject: Steve Jackson Games - Day 3 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.
Lenny Foner Last modified: Thu May 18 02:57:31 1995