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Computer Undergroud Digest Vol. 07 Issue 66
Computer underground Digest Wed Aug 9, 1995 Volume 7 : Issue 66
ISSN 1004-042X
Editors: Jim Thomas and Gordon Meyer (TK0JUT2@MVS.CSO.NIU.EDU
Archivist: Brendan Kehoe
Shadow Master: Stanton McCandlish
Field Agent Extraordinaire: David Smith
Shadow-Archivists: Dan Carosone / Paul Southworth
Ralph Sims / Jyrki Kuoppala
Ian Dickinson
CONTENTS, #7.66 (Wed, Aug 9, 1995)
FIle 1--CINCINNATI ELECTRONIC BULLETIN BOARD SYSTEM USERS
FIle 2--Cincinatti Computer Connection Users lawsuit against Police
FIle 3--Cu Digest Header Info (unchanged since 19 Apr, 1995)
CuD ADMINISTRATIVE, EDITORIAL, AND SUBSCRIPTION INFORMATION APPEARS IN
THE CONCLUDING FILE AT THE END OF EACH ISSUE.
---------------------------------------------------------------------
Date: Tue, 08 Aug 1995 20:15:27 -0400
From: john.bailey@CCCBBS.CINCINNATI.OH.US(JOHN BAILEY)(by way of
Subject: File 1--CINCINNATI ELECTRONIC BULLETIN BOARD SYSTEM USERS
- - - - - - - - - P R E S S R E L E A S E - - - - - - - -
For IMMEDIATE Release 8/7/95 Contact: Scott T. Greenwood
Peter D. Kennedy
513/684-0101
Computer Users Fight Back:
CINCINNATI ELECTRONIC BULLETIN BOARD SYSTEM USERS
FILE CLASS ACTION LAWSUIT AGAINST SHERIFF SIMON LEIS
Seven subscribers to a Cincinnati electronic bulletin board system filed
a class action lawsuit today in federal court against Sheriff Simon L Leis,
Jr., and other law enforcement officials. On June 16, 1995, members of the
Hamilton County Computer Crimes Task Force raided the offices of the
Cincinnati Computer Connection BBS and seized the entire computer system,
including all the private electronic mail of the subscribers. This is the
first user class action challenging a government seizure of computer
material.
According to the search warrant used to justify the raid, the Task Force
was seeking 45 computer image files on a system that contained hundreds of
thousands of public and private messages.
The seven subscribers represent a class of thousands of users of the
Cincinnati Computer Connection electronic bulletin board. The lead
plaintiff is Steve Guest, a 36-year old computer system analyst who runs
his own business, in large part using the Cincinnati Computer Connection
BBS. Other plaintiffs include Denise and Ben Kelley, active bulletin board
users and grandparents of seven; Nelda Sturgill, a registered nurse who
used the bulletin board to keep up with medical news and to swap recipes;
and Randy Bowling, who suffers from a speech impediment caused by a head
injury, who used CCC BBS as his primary way to communicate and to study
computer science.
"The faces of the CCC subscribers were the faces of Greater Cincinnati -
working men and women, retirees, mothers, fathers, grandparents and
children, Republicans, Democrats and Independents," the lawsuit alleges.
The users of the system claim that the wholesale seizure of the computer
bulletin board system violated their constitutional right to free speech
and association and that the seizure of their private e-mail violated their
right to privacy and federal law.
"The Task Force used a drift net to troll for a tiny amount of supposed
'computer porn,'" said Cincinnati civil rights lawyer Scott T. Greenwood,
who represents the plaintiffs. "In the process, they netted an enormous
amount of entirely irrelevant material, and shut down a
constitutionally-protected forum for speech and association."
"We believe that the law prohibits the indiscriminate seizure of private
electronic communications," said Peter D. Kennedy, an Austin, Texas
attorney who also represents the plaintiffs, and who represented Steve
Jackson Games when that company sued the U.S. Secret Service for illegally
seizing its electronic bulletin board system in 1990. "It is a fundamental
principle of law that, even during legitimate investigations, the
government must limit its searches and seizures to things related to the
crime under investigation. Here, the Task Force took everything, including
thousands of innocent persons' private mail and public notices."
Greenwood added, "Whether the sheriff and the computer 'net police' like
it or not, the Bill of Rights is not optional just because they don't like
it or understand it. Shutting down a computer system and seizing people's
private communications makes a mockery of the First Amendment."
The lawsuit claims that Sheriff Leis and the Task Force violated the
First Amendment, the Fourth Amendment, several provisions of the federal
Electronic Communications Privacy Act of 1986, and Ohio common law privacy
rights, and seeks actual damages, statutory damages, and punitive damages
on behalf of the seven plaintiffs and the entire class.
For further information, contact:
Scott T. Greenwood Peter D. Kennedy
Greenwood & Associates George, Donaldson & Ford LLP
2301 Carew Tower, 441 Vine St 114 W. 7th Street, Suite 1000
Cincinnati, Ohio 45202 Austin, Texas 78701
(513) 684-0101 (512) 495-1400
stgrnwd@iac.net pkennedy@io.com
------------------------------
Date: Wed, 09 Aug 1995 22:18:15 -0400
From: pstemari@ERINET.COM(Paul J. Ste. Marie)
Subject: File 2--Cincinatti Computer Connection Users lawsuit against Police
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
STEVEN GUEST,
[home address removed] CIVIL ACTION NO.
and
DENISE B. KELLEY,
[home address removed]
and
BEN S. KELLEY,
[home address removed]
and
NELDA STURGILL,
[home address removed]
and
DEBORAH CUMMINGS,
[home address removed]
and
RANDY BOWLING,
[home address removed]
and
CLASS ACTION
RICHARD E. KRAMER, COMPLAINT
[home address removed] (JURY DEMAND
ENDORSED
and HEREON)
all others similarly situated,
Plaintiffs,
vs.
SIMON L. LEIS, JR.,
Hamilton County Justice Center
1000 Sycamore Street
Cincinnati, Ohio 45202
and
Hamilton County :
Sheriff's Department, :
Hamilton County Justice Center :
1000 Sycamore Street :
Cincinnati, Ohio 45202 :
:
and :
:
Hamilton County Regional :
Computer Crimes Task Force, :
Hamilton County Justice Center :
1000 Sycamore Street :
Cincinnati, Ohio 45202 :
:
and :
:
Dale Menkaus, :
Hamilton County Justice Center :
1000 Sycamore Street :
Cincinnati, Ohio 45202 :
:
and :
:
ROBERT SWISSHELM, :
Hamilton County Justice Center :
1000 Sycamore Street :
Cincinnati, Ohio 45202 :
:
and :
JANE/JOHN DOES 1 THROUGH 10, :
Addresses Presently Unknown :
:
Defendants. :
I. INTRODUCTION
1. The Plaintiffs bring this lawsuit on behalf of themselves and the
thousands of subscribers to the Cincinnati Computer Connection electronic
bulletin board system, in order to redress the violation of their civil
rights by Hamilton County Sheriff Simon L. Leis, Jr. and the other
Defendants.
2. On June 16, 1995, the Hamilton County Regional Computer Task Force
(the "Task Force") raided at least five electronic bulletin board systems
in the Cincinnati area, in a search for allegedly obscene materials.
3. During these raids, the Task Force seized the entire computer
network comprising the Cincinnati Computer Connection BBS, a computer
bulletin board service with thousands of subscribers in Southern Ohio,
Northern Kentucky, and beyond. Robert Emerson owns and operates the
Cincinnati Computer Connection BBS. The target of the raid was some 45
computer image files allegedly stored on the Cincinnati Computer Connection
BBS. According to the search warrant, the Task Force already had obtained
copies of these image files from the Cincinnati Computer Connection BBS.
4. In pursuit of these 45 image files, the Sheriff and Task Force
raided and seized the entire bulletin board system. In the process,
Sheriff Leis and his Task Force seized the private electronic mail and
communications of thousands of entirely innocent subscribers, they shut
down an active, thriving, electronic community of average citizens, and
they denied thousands of people access to their friends, neighbors, and
business associates.
5. The named Plaintiffs bring this lawsuit on behalf of themselves and
the thousands of subscribers to the Cincinnati Computer Connection and all
those whose electronic communications were seized and intercepted during
the raid, in order to remedy this violation of their civil rights
guaranteed by the First Amendment, the Fourth Amendment, the Fourteenth
Amendment, the Ohio Constitution, the Electronic Communications Privacy Act
of 1986 (18 U.S.C. 2510 et seq. and 2701 et seq.) and Ohio common law.
II. JURISDICTION
6. This action seeks to enforce rights guaranteed by the Constitution
and laws of the United States and is brought pursuant to 42 U.S.C. 1983
and 1985. Jurisdiction is based upon 28 U.S.C. 1331 and 1343(3). The
substantive federal claims are brought pursuant to 42 U.S.C. 1983 and
1985, and 18 U.S.C. 2707 and 2520. Declaratory relief is sought pursuant
to 28 U.S.C. 2201-2202. Authority to hear the pendent state claims is
conferred by the Court's supplemental jurisdiction under 28 U.S.C. 1367.
This action does not raise novel or complex issues of state law, and the
state law claims do not predominate over the federal law claims.
7. Venue is proper in the Southern District of Ohio, Western Division,
under 28 U.S.C. 1391(b), because at least one Defendant resides in this
District and Division and because a substantial part of the events or
omissions giving rise to the claims occurred within this District and
Division.
III. PARTIES
A. PLAINTIFFS
8. PLAINTIFF STEVEN GUEST is a thirty-six year old resident of
Clermont County, Ohio. Mr. Guest is a computer consultant who uses the
Cincinnati Computer Connection BBS to send and receive electronic
communications, to conduct his consulting business, to exchange files with
his business partners, to access shareware, and otherwise to engage in
expressive and associational activity.
9. PLAINTIFF DENISE KELLEY is a sixty-nine year old resident of
Hamilton County, Ohio. She is employed by the Hamilton County Department
of Human Services as an investigation coordinator and serves as the chief
union steward for AFSCME Local 1768. Mrs. Kelley, mother of three and
grandmother of seven, uses the Cincinnati Computer Connection BBS for
political discussion, to download shareware files, to play some games, to
send and receive electronic mail communications across the Internet, to
"chat" with users, to write stories in an on-line conference, and otherwise
to engage in expressive and associational activity.
10. PLAINTIFF BEN S. KELLEY is Mrs. Kelley's husband, a seventy-six
year old retired machinist who resides in Hamilton County, Ohio. Mr.
Kelley, father of three and grandfather of seven, uses the Cincinnati
Computer Connection BBS to send and receive electronic communications, play
games, to read the discussions going on in various conferences, and
otherwise to engage in expressive and associational activity.
11. PLAINTIFF NELDA STURGILL is a registered nurse in a local hospital
who resides in Hamilton County. In her thirties, Ms. Sturgill uses the
Cincinnati Computer Connection BBS to send and receive electronic
communications across the Internet, to access shareware programs, to keep
abreast of information through the use of the Usenet newsgroups, and
otherwise to engage in expressive and associational activity. Ms. Sturgill
particularly participates in the health-related conferences newsgroups, and
has exchanged recipes and ideas with people from Australia, England and the
United States.
12. PLAINTIFF DEBORAH CUMMINGS is a resident of Kenton County,
Kentucky. Ms. Cummings uses the Cincinnati Computer Connection BBS to send
and receive electronic communications, to conduct her business, and to
otherwise engage in expressive and associational activity.
13. PLAINTIFF RANDY BOWLING is a resident of Butler County, Ohio. Mr.
Bowling suffers from a head injury that makes speaking very difficult.
Mr. Bowling uses the Cincinnati Computer Connection BBS to send and receive
electronic communications, to supplement his limited ability to speak, and
to discuss his head injury and therapy, and to engage in the majority of
his expressive and associational activity. Mr. Bowling also uses the
Cincinnati Computer Connection BBS to facilitate his current study of
computer systems.
14. PLAINTIFF RICHARD KRAMER is a retired insurance agent who resides
in Butler County, Ohio. Mr. Kramer, who uses a wheelchair, uses the
Cincinnati Computer Connection BBS to send and receive electronic
communications, to supplement his sometimes restricted access to more
traditional fora for expressive and associational activity, to access
file-management and utility shareware, and to study computer systems.
15. Each named Plaintiff is a citizen of the United States.
16. At all times relevant herein, Plaintiffs were users of the
Cincinnati Computer Connection BBS.
Class Action Allegations
17. The named Plaintiffs are proper representatives of a class within
the meaning of Rule 23(a) and 23(b) (3) of the Federal Rules of Civil
Procedure.
18. The members of the class are so numerous that the joinder of all of
them is impractical. Upon information and belief, the class consists of at
least several thousand persons. The exact size of the class is unknown
because the Defendants have seized and failed to return the computer and/or
documentary records needed to determine the exact number and identity of
the class members.
19. The members of the class should be readily identifiable from
records seized by the Defendants.
20. There are questions of law and fact common to the class; their
class claims predominate over any individual claims. Each class member
shares the same federal and state constitutional protections of their right
to speak, publish and associate. Each class member shares the same federal
and state constitutional right to be free from unreasonable searches and
seizures. Each class member shares the same federal and state rights
protecting the privacy of their electronic communications and subscriber
records.
21. The claims of the named Plaintiffs are typical of the claims of the
class. All class members suffered a similar violation of their common
rights when the Defendants seized and shut down the Cincinnati Computer
Connection BBS, and, upon information and belief, reviewed their private
electronic communications and subscriber records. As alleged in greater
detail above, the Plaintiffs' uses of the Cincinnati Computer Connection
BBS typify the uses of the class members generally.
22. The named Plaintiffs will fairly and adequately protect the
interests of the class. As of June 16, 1995, each named Plaintiff was a
user of the Cincinnati Computer Connection BBS. The named Plaintiffs are
represented by counsel experienced in litigating federal and state civil
rights lawsuits, including class actions, and who are familiar with the
technology involved and experienced in litigating computer communications
cases. The representative Plaintiffs know of no conflict of interest among
class members. Plaintiffs will vigorously prosecute this action.
23. The class consists of all persons who, on June 16, 1995, were
users, subscribers, or customers of the Cincinnati Computer Connection
electronic bulletin board service, and all persons whose private electronic
communications were resident on the Cincinnati Computer Connection BBS when
it was seized by the Defendants, but not including the actual provider of
that electronic bulletin board service.
24. Plaintiffs do not propose class notice at this time, but belief
that class certification and notice can and should be achieved promptly.
B. DEFENDANTS
25. Defendant Simon L. Leis, Jr., is and was at all relevant times the
Sheriff of Hamilton County, Ohio. For the constitutional and common law
claims, Defendant Leis is sued in his official capacity with respect to the
declaratory and injunctive relief sought herein, and in his individual
capacity with respect to the request for damages and attorney's fees in
this action. For the federal statutory claims, Defendant Leis is sued in
his individual and official capacities.
26. Defendant Hamilton County Sheriff's Department is a sheriff's
department organized under the laws of the State of Ohio.
27. Defendant Hamilton County Regional Computer Crimes Task Force is a
division of the Hamilton County Sheriff's Department organized under Ohio
law to develop and use special skills and expertise in investigating
suspected computer crimes.
28. Defendant Dale Menkaus is and was at all relevant times the
Commander of the Regional Computer Crimes Task Force. For the
constitutional and common law claims, Defendant Menkaus is sued in his
official capacity with respect to the declaratory and injunctive relief
sought herein, and in his individual capacity with respect to the request
for damages and attorney's fees in this action. For the federal statutory
claims, Defendant Menkaus is sued in his individual and official
capacities.
29. Defendant Robert Swisshelm is and was at all times referred to
herein a member of the Regional Computer Crimes Task Force. For the
constitutional and common law claims, Defendant Swisshelm is sued in his
official capacity with respect to the declaratory and injunctive relief
sought herein, and in his individual capacity with respect to the request
for damages and attorney's fees in this action. For the federal statutory
claims, Defendant Swisshelm is sued in his individual and official
capacities.
30. Defendants Jane/John Doe 1-10 are private individuals; members,
representatives, or agents of the Regional Computer Crimes Task Force; or
individuals from other law enforcement agencies whose names are currently
unknown, but whom the Plaintiffs believe acted under color of state law or
clothed with official authority, and who violated or conspired to violate
the Plaintiffs' and the class members' civil rights. For the
constitutional and common law claims, Defendant Does are sued in their
official capacities with respect to the declaratory and injunctive relief
sought herein, and in their individual capacities with respect to the
request for damages and attorney's fees in this action. For the federal
statutory claims, Defendant Does are sued in their individual and official
capacities.
31. At all times relevant herein, each named individual Defendant was
acting under color of state law.
32. At all times relevant herein, Defendants, and each of them,
separately and in concert, acted under color of state law. At all times
relevant herein, Defendants, and each of them, separately and in concert,
engaged in the illegal and unconstitutional conduct described herein and
deprived Plaintiffs of the rights, privileges, and immunities secured to
Plaintiffs by the First, Fourth, and Fourteenth Amendments to the United
States Constitution, the laws of the United States, and the Constitution
and laws of the State of Ohio.
IV. FACTS
A. The Cincinnati Computer Connection Community.
33. On June 16, 1995, and for many years before that, the Cincinnati
Computer Connection ("CCC") was a thriving community. The bulletin board
system ("BBS") provided a forum for its users to speak and publish
privately and publicly, to debate, to associate and recreate, and to
exchange ideas and information. On June 16, 1995, the faces of the CCC
subscribers were the faces of Greater Cincinnati -- working men and women,
retirees, mothers, fathers, grandparents and children, Republicans,
Democrats and Independents. The CCC community even included subscribers
from around the United States and overseas.
34. Many of the subscribers to the CCC BBS have made personal
acquaintances through the bulletin board community. Subscribers have held
dinner get-togethers to meet personally, to socialize, and to discuss
matters of interest to the BBS community. These meetings were organized by
using the BBS itself.
35. On June 16, 1995, the CCC community included thousands of users and
subscribers. Because the CCC computers and subscriber records remain in
the hands of the Defendants, the exact number remains unknown.
36. At all relevant times, the CCC BBS affected and operated in the
stream of interstate commerce.
B. The Cincinnati Computer Connection BBS.
37. Each user or subscriber to the CCC BBS selected a private password,
which secured the privacy of his or her account. The subscriber contacted
the CCC BBS by using his or her personal computer, a modem, and a phone
line. The user's computer would call the CCC BBS over a phone line, and
after "logging in" by using the confidential password, the user was given
access to the CCC BBS. Once connected to the BBS, the subscriber could do
a whole range of things, including:
i. Private electronic mail or "e-mail."
38. The CCC BBS provided subscribers the ability to send and receive
private electronic communications, typically known as e-mail. A subscriber
could compose private electronic messages either before "logging on" to the
CCC, or while connected to the bulletin board system. Just like First
Class mail, e-mail messages are addressed to a specific person, and are
confidential.
39. E-mail was sent and received in two manners on the CCC BBS. E-mail
exchanged between persons who had accounts on the CCC BBS was sent within
the many conference areas on the BBS (see below). If the sender designated
a conference message "confidential," the message remained inaccessible to
any user except the designated recipient. The CCC BBS also provided an
"Internet mail gateway." This feature allowed subscribers to send and
receive confidential electronic communications from persons who did not
have an account on the CCC BBS, but who had an Internet address. This
Internet mail gateway allowed the users of the CCC BBS to send confidential
electronic communications to, and receive them from, tens of millions of
persons around the world.
40. This e-mail was not readily accessible to the public. The users of
the CCC BBS, and those who sent electronic mail to the CCC BBS from the
Internet, had a reasonable expectation of privacy in those communications.
41. When Defendant Leis and the other Defendants seized the CCC BBS,
they seized all of the private electronic communications contained on the
system, and cut off the subscribers' ability to send and receive e-mail.
ii. Conference areas.
42. In addition to e-mail, the Cincinnati Computer Connection provided
its subscribers access to thousands of "conferences." These conferences,
like the sections of a library, are the main organizational units of the
BBS. Each conference area had a name and a topic. For example, the CCC
BBS had conference areas dedicated to writers, game players, and computer
professionals. When a subscriber accessed the bulletin board system, he or
she could "enter" an conference area. Once in a conference area, the
subscriber could read all the public messages posted by other visitors to
the conference, post public reply messages or begin new public discussions
on new topics. The user could also send and receive private electronic
communications within the conference. The CCC BBS provided literally
thousands of conferences for its users, including:
a. Local conference areas.
43. These conferences were unique to the CCC BBS, and included
discussions and debates on topics ranging from local and national politics
to sports and computers. These conferences were the heart of the local CCC
community interaction.
b. Private local conference areas.
44. The CCC BBS also provided conference areas that were restricted to
particular users. These restricted conference areas were used by
subscribers for confidential business purposes, including exchanging
confidential information.
c. BBS network conferences.
45. On June 16, 1995, the CCC BBS also provided to its users "feeds"
from networks of similar dial-up bulletin board systems. These networks
provided dozens of additional conference areas, and allowed the users of
the CCC BBS to engage in discussion on topics with users of a whole network
of BBSs beyond the subscribers to the CCC BBS.
d. Usenet newsgroups.
46. The CCC BBS also received, via satellite feed, thousands of
additional conferences from an Internet network known as Usenet. Usenet is
essentially a bulletin board system for the Internet. Usenet is organized
into thousands of separate "newsgroups" where people from all around the
world can engage in discussion and debate on a huge variety of topics,
ranging from computer science, philosophy, and law to pop music. The CCC
subscribers could read and participate in these newsgroups.
47. When Defendant Leis and the other Defendants seized the CCC BBS,
they seized all of the contents of all of these thousands of conference
areas, and denied the subscribers to the CCC any access to the conferences.
iii. Live "chat."
48. The Cincinnati Computer Connection BBS also featured live chat
"channels." Similar to CB radio channels, the "chat" function allowed
subscribers to converse in "real time" with other subscribers who were
logged into the BBS. One subscriber could invite another person to chat,
and the two subscribers could exchange confidential messages by typing them
in sequence to each other.
49. When Defendant Leis and the other Defendants seized the CCC BBS,
they shut down any chat taking place on the board and seized any captured
chat file sessions.
iv. Games.
50. The game areas on the CCC were very popular. Subscribers could
play a variety of on-line games against the computer or against other
subscribers. Some "games" were more like interactive creative writing,
with different users of the BBS taking on personas and interacting with
each other in a fictional world.
51. The Defendants' seizure of the bulletin board system of course
included seizure of all the games, and cut off the subscribers' access to
the games.
v. File transfer.
52. The CCC BBS offered its subscribers the ability to "upload"
computer files from their home computer to the bulletin board system, and
to "download" computer files from the bulletin board to their home
computers. Computer files can consist of anything from computer programs
and other software, to the text of written material (such as this
Complaint), to picture files and sound files. The CCC BBS had an enormous
library of computer files for its users to access and use. The Defendants
seized this entire library of thousands of computer files when they seized
the 45 allegedly obscene images they were after.
vi. The restricted adult file area.
53. Among the thousands of conferences on the CCC, there was a single
conference area dedicated to adult-oriented computer image files. Access
to this area was extremely limited. In order to gain access to this
conference, a subscriber was required to verify his age and identity in
person to the CCC system operator, Mr. Emerson. After verifying the
subscriber's age, Emerson would configure that user's account to give that
subscriber access to the adult file area. Only after a subscriber's age
and identity was verified, and the subscriber's account given access to the
adult file area, would the existence of the adult file area even appear on
the user's screen when logged in to the CCC. The "menu" of choices
available to a subscriber who had not been verified and given access would
not even show that an adult file area existed.
54. Even for those with access to the restricted adult file area, the
adult image files could not be viewed "on-line." In order to view a file,
a subscriber with access would have to log onto the BBS, enter the
restricted adult area, designate a file for downloading, download that file
to the user's home computer, log off the system, and then run a separate
computer program on the home computer that interprets the image and
displays it on the user's home computer screen.
55. The restricted adult file area comprised a very small percentage of
the material on the CCC BBS -- no more than 3%, and upon information and
belief far less than that. The number of users with access to this area
was also very small -- no more than 3% of the subscribers, and upon
information and belief far less than that. Many, if not most, of the CCC
subscribers had no idea that an adult file area even existed.
56. Compared to the Cincinnati Computer Connection as a whole, the
adult file area was like a tiny, locked, and largely unknown private room
within a huge, bustling convention center.
C. Defendants Obtain A Search Warrant And Go Trolling for Computer
Porn.
57. On or about June 15, 1995, the Defendants applied to the Municipal
Court of Clermont Count for a search warrant for the premises containing
the CCC BBS computers. Municipal Court Judge James A. Shriver signed the
search warrant at 11:30 p.m. that evening. Upon information and belief,
Judge Shriver had never reviewed an application for the search or for the
seizure of an electronic communication system such as the CCC BBS, and had
never issued a search warrant for such a system. The search warrant itself
listed 45 particular image files, by name and description, that were the
target of the search.
58. The Defendants obtained an order sealing from public scrutiny the
search warrant affidavit that allegedly justified their application for the
search warrant. Plaintiffs have not obtained a copy of the affidavit or
affidavits that allegedly supported the search warrant. However, upon
information and belief, Plaintiffs allege that the Defendants failed to
inform Judge Shriver of the following material facts: (1) that the CCC BBS
was a forum for protected speech, publication and association, and that the
Defendants intended to shut down that forum and seize all the publications
contained on that forum; (2) that the CCC BBS contained thousands of
private electronic communications to and from the subscribers of the CCC
BBS, and that the Defendants intended to shut down that communication
system, and seize, intercept and read these private communications; (3)
that the electronic communications Defendants sought were protected by
federal and state law from interception, seizure and disclosure; and (4)
that the Defendants had no probable cause to believe that these private
communications of the thousands of subscribers to the CCC BBS were relevant
to any investigation of any alleged criminal activity.
D. Defendants Shut Down the Cincinnati Computer Connection BBS and
Indiscriminately Seize Everything On It.
59. On June 16, 1995, purportedly acting under the authority of the
search warrant signed by Judge Shriver, the Defendants seized the entire
CCC BBS. The Defendants made no effort to limit their seizure to materials
or information related to the alleged offense under investigation; rather,
they seized the entire system, shutting it down completely. If not for a
significant personal financial commitment by Mr. Emerson after the raid,
the CCC BBS would have been permanently shut down.
60. As of the date of this filing, the Defendants have made no effort
to return to the Plaintiffs or any other user of the CCC BBS their private
electronic communications, or to assure that such communications reach
their intended recipients. Upon information and belief, the Defendants
have already, or have every intention to, read the private electronic
communications of the CCC BBS subscribers.
61. The Defendants made no effort to limit the scope of their seizure.
Prior to the raid, the Defendants knew the exact file names of the computer
image files they were searching for. In fact, the Defendants had already
obtained those files prior to the raid. The Defendants consciously chose
not to use means at their disposal that would have allowed for a limited
search and seizure of evidence relevant to the alleged offense. The
Defendants consciously refused to use narrower means of obtaining their
investigative objectives that would have protected the privacy of the
subscribers' communications and the integrity of their forum.
62. The Defendants knew, or should have known, that the CCC BBS was a
forum for protected speech, publication and communication. The Defendants
knew, or should have known, that the CCC BBS contained materials being
published electronically that were protected by the First Amendment to the
U.S. Constitution and the Ohio Constitution. The Defendants knew, or
should have known, that the BBS contained the private electronic
communications of its users, and that such communications were not readily
accessible to the public. The Defendants knew, or should have known, that
the users of the CCC BBS had a reasonable expectation of privacy in their
electronic communications.
63. Reasonable law enforcement officers in the position of the
Defendants, with the information available to the Defendants, would have
known that the CCC BBS was a forum for speech, publication and
communication protected by the First Amendment and the Ohio Constitution,
and that the electronic communications on the CCC BBS were protected by the
Fourth Amendment, the Ohio Constitution and federal statutory law from
search and seizure and interception unless the officers had probable cause
to believe that those communications were relevant to the law enforcement
inquiry.
V. FIRST CLAIM - FIRST AMENDMENT
(FREEDOM OF SPEECH, PRESS, AND ASSOCIATION)
64. The allegations in paragraphs 1-63 are incorporated herein by
reference.
65. At all relevant times, the Cincinnati Computer Connection BBS
published, in electronic form, magazines, periodicals, non-fiction,
fiction, images and other materials protected by the First Amendment.
66. The Cincinnati Computer Connection BBS was a forum for speech,
publication and association protected by the First and Fourteenth
Amendments.
67. The Plaintiffs and the class members at all relevant times used the
Cincinnati Computer Connection BBS to exercise their constitutional rights
to speak, publish and associate.
68. The Defendants' search, seizure, and retention of the Cincinnati
Computer Connection BBS, and the materials contained on the BBS, violated
the Plaintiffs' and class members' clearly established constitutional
rights to speak, publish and associate.
69. The Defendants' seizure and retention of computer hardware and
software used by Cincinnati Computer Connection BBS constituted a prior
restraint on the Plaintiffs' constitutional rights of freedom of speech, of
the press, and of association.
70. Defendants knew or reasonably should have known that their conduct
violated the Plaintiffs' and the class members' clearly established First
Amendment rights of freedom of speech, freedom of the press, and freedom of
association.
71. Defendants acted with intent to violate, or with reckless
indifference to, the Plaintiffs and class members' clearly established
First Amendment rights to freedom of speech, freedom of the press, and
freedom of association.
72. At all relevant times, Defendants were acting under color of state
law.
73. The Defendants' actions have caused the Plaintiffs and class
members a real and palpable fear that their future electronic
communications will be seized and reviewed by law enforcement agents,
without justification or excuse. As a result, the Plaintiffs and class
members have suffered a distinct and actual diminution of their willingness
to speak, publish and associate freely and openly without fear of
government intrusion and reprisal.
74. As a direct result of Defendants' conduct, the Plaintiffs and class
members have suffered a distinct and actual restriction on their freedom of
speech, press and association.
75. As a direct result of the Defendants' conduct, the Plaintiffs have
suffered actual damages, attorneys' fees, and costs.
VI. SECOND CLAIM - OHIO CONSTITUTION ARTICLE I, SECTION 11
(FREEDOM TO SPEAK, WRITE, PUBLISH, AND ASSOCIATE)
76. The allegations in paragraphs 1-75 are incorporated herein by
reference.
77. In the same manner that the Defendants' actions violated the
Plaintiffs and the class members' rights under the First Amendment, the
Defendants' acts violated the Plaintiffs' and class members' clearly
established right to speak, write, publish, and associate guaranteed by
Article I, Section 11 of the Constitution of the State of Ohio.
78. The Defendants' actions have caused the Plaintiffs and class
members a real and palpable fear that their future electronic
communications and publications will be seized and reviewed by law
enforcement agents, without justification or excuse. As a result, the
Plaintiffs and class members have suffered a distinct and actual diminution
of their willingness to speak, publish and associate freely and openly
without fear of government intrusion and reprisal.
79. As a direct result of Defendants' conduct, the Plaintiffs and class
members have suffered a distinct and actual restriction on their freedom of
speech, press and association.
80. As a direct result of the Defendants' conduct, the Plaintiffs have
suffered actual damages, attorneys' fees, and costs.
VII. THIRD CLAIM - FOURTH AMENDMENT
(FREEDOM FROM UNREASONABLE SEARCHES AND SEIZURES)
81. The allegations in paragraphs 1-80 are incorporated herein by
reference.
82. The Plaintiffs and class members had a reasonable expectation of
privacy in their private electronic communications and subscriber records
resident on the Cincinnati Computer Connection BBS.
83. The Defendants' actions violated the Plaintiffs' and class members'
clearly established right to be free from unreasonable searches and
seizures as guaranteed by the Fourth Amendment and Fourteenth Amendments to
the United States Constitution and 42 U.S.C. 1983.
84. The search and seizure at the location of the Cincinnati Computer
Connection BBS was a illegal and unwarranted general search.
85. The search and seizure of the Cincinnati Computer Connection BBS
was not authorized by a valid warrant particularly describing the place to
be searched and the things to be seized.
86. The search warrant did not authorize the seizure of the Cincinnati
Computer Connection BBS or any of its contents, including the Plaintiffs'
and class members' private electronic communications and subscriber
records.
87. The search warrant failed to establish probable cause to believe
that any of the Plaintiffs' or the class members' private electronic
communications was relevant to a legitimate law enforcement inquiry.
88. The search warrant failed to establish probable cause to believe
that the Plaintiffs' and class members' private electronic communications
contained evidence of the offense listed in the search warrant, or any
offense, for that matter.
89. The Defendants knew, or reasonably should have known, that their
conduct violated the Plaintiffs' and class members' clearly established
constitutional right to be free from unreasonable searches and seizures.
90. The Defendants acted with intent to violate, or with reckless
indifference to, the Plaintiffs' and class members' clearly established
Fourth Amendment rights.
91. At all times relevant herein, Defendants were acting under color of
state law.
92. As a direct result of the Defendants' conduct, the Plaintiffs have
suffered actual damages, attorneys' fees, and costs.
VIII. FOURTH CLAIM - OHIO CONSTITUTION ARTICLE I, SECTION 11
(FREEDOM FROM UNREASONABLE SEARCHES AND SEIZURES)
93. The allegations in paragraphs 1-92 are incorporated herein by
reference.
94. In the same manner that the Defendants' actions violated the
Plaintiffs and the class members' rights under the Fourth Amendment, the
Defendants' acts violated the Plaintiffs' and class members' clearly
established right to be free from unreasonable searches and seizures
guaranteed by Article I, Section 11 of the Constitution of the State of
Ohio.
95. As a direct result of the Defendants' conduct, the Plaintiffs have
suffered actual damages, attorneys' fees, and costs.
IX. FIFTH CLAIM - ELECTRONIC COMMUNICATIONS PRIVACY ACT
(UNLAWFUL SEIZURE OF STORED COMMUNICATIONS,18 U.S.C. 2703 (a) & (b))
96. The allegations in paragraphs 1-95 are incorporated herein by
reference.
97. At all relevant times, Mr. Emerson and the Cincinnati Computer
Connection were the providers of an electronic communication service within
the meaning of 18 U.S.C. 2510(15) and 2707.
98. At all relevant times, Mr. Emerson and the Cincinnati Computer
Connection were the providers of a remote computing service within the
meaning of 18 U.S.C. 2711(2).
99. At all relevant times, Plaintiffs and the class members were
subscribers to, users of, or customers of the electronic communication
service and remote computing service provided by Mr. Emerson and the
Cincinnati Computer Connection, within the meaning of 18 U.S.C. 2510
and 2707.
100. At all relevant times, Plaintiffs and some or all of the class
members had electronic communications in electronic storage on the
Cincinnati Computer Connection that were not accessible to the general
public.
101. Upon information and belief, when Defendants applied for a warrant
to search and seize the computer operating the Cincinnati Computer
Connection BBS and all data stored thereon, they failed to inform the
issuing Judge that the computer contained stored electronic communications
that were not accessible to the general public and that were protected by
18 U.S.C. 2501, et seq. and 18 U.S.C. 2701, et seq.
102. The search warrant obtained by Defendants failed to state or be
supported by any probable cause to believe that the Plaintiffs or class
members' private electronic communications constituted evidence of any
offense named in the warrant, or any criminal offense whatsoever.
103. The search warrant obtained by Defendants failed to state, or be
supported by, reason to believe that the Plaintiffs or class members'
private electronic communications were relevant to a legitimate law
enforcement inquiry, in violation of 18 U.S.C. 2703(d).
104. Defendants, acting without a valid warrant, and without a court
order, subpoena or consent of the Plaintiffs or class members, and without
providing prior notice of their intentions, required Mr. Emerson and the
Cincinnati Computer Connection to disclose the contents of electronic
communications that were not accessible to the general public, in violation
of 18 U.S.C. 2703(a) & (b).
105. At all times relevant herein, Defendants were acting under color of
state law.
106. At all times relevant herein, Defendants acted knowingly and
intentionally.
107. At all times relevant herein, Defendants did not act in good faith.
108. As a direct result of the Defendants' conduct, the Plaintiffs have
suffered actual damages, attorneys' fees, and costs.
X. SIXTH CLAIM - ELECTRONIC COMMUNICATIONS PRIVACY ACT
(UNLAWFUL SEIZURE OF SUBSCRIBER RECORDS, 18 U.S.C. 2703)
109. The allegations in paragraphs 1-108 are incorporated herein by
reference.
110. At all relevant times, Mr. Emerson and the Cincinnati Computer
Connection had in electronic and hard-copy storage records and other
information pertaining to the Plaintiffs and the class members, within the
meaning of 18 U.S.C. 2703(c).
111. The search warrant obtained by Defendants failed to state or be
supported by any probable cause to believe that the Plaintiffs or class
members' subscriber records constituted evidence of any offense named in
the warrant, or any criminal offense whatsoever.
112. The search warrant obtained by Defendants failed to state, or be
supported by, reason to believe that the Plaintiffs or class members'
subscription records were relevant to a legitimate law enforcement inquiry,
in violation of 18 U.S.C. 2703(d).
113. Defendants, acting without a valid warrant, and without a subpoena,
court order or consent of the subscribers or customers, required Mr.
Emerson and the Cincinnati Computer Connection to disclose subscriber
records and information to the government, in violation of 18 U.S.C.
2703(c).
114. At all times relevant herein, Defendants were acting under color of
state law.
115. At all times relevant herein, Defendants acted knowingly and
intentionally.
116. At all times relevant herein, Defendants did not act in good faith.
117. As a direct result of the Defendants' conduct, the Plaintiffs have
suffered actual damages, attorneys' fees, and costs.
XI. SEVENTH CLAIM - ELECTRONIC COMMUNICATIONS PRIVACY ACT
(UNLAWFUL INTERCEPTION OF ELECTRONIC COMMUNICATIONS, U.S.C. 2511 et seq.)
118. The allegations in paragraphs 1-117 are incorporated herein by
reference.
119. At all relevant times, Plaintiffs and/or some or all of the class
members had electronic communications in transit on the Cincinnati Computer
Connection that were not accessible to the general public. Such
communications had been written, addressed, and sent, but not yet received
and read by the addressees.
120. Defendants intercepted, disclosed, or intentionally used such
electronic communications, without the consent of the Plaintiffs or the
class members, in violation of 18 U.S.C. 2510 et seq. and 2520.
121. Defendants intentionally intercepted, endeavored to intercept, or
procured others to intercept or endeavor to intercept, the Plaintiffs'
and/or class members' electronic communications, without the consent of the
Plaintiffs or the class members, in violation of 18 U.S.C. 2511(1)(a).
122. The warrant application was not authorized by the appropriate
federal or state law enforcement officials as required by 18 U.S.C. 2516.
123. The Defendants did not comply with the standards and procedures
prescribed in 18 U.S.C. 2518, or any procedures provided under state law
for the interception of electronic communications.
124. At all times relevant herein, Defendants were acting under color of
state law.
125. At all times relevant herein, Defendants acted knowingly and
intentionally.
126. At all times relevant herein, Defendants did not act in good faith.
127. As a direct result of the Defendants' conduct, the Plaintiffs have
suffered actual damages, attorneys' fees, and costs.
XII. EIGHTH CLAIM - COMMON LAW INVASION OF PRIVACY
128. The allegations in paragraphs 1-127 are incorporated herein by
reference.
129. The Defendants intercepted and seized, without legal justification
or right, the Plaintiffs' private electronic communications. Upon
information and belief, the Defendants reviewed and read some or all of
these private communications. The Defendants have failed and refused to
return any such private communications, and have failed to provide for the
delivery to the intended recipients of the electronic communications they
unlawfully seized.
130. The Defendants' acts constitute an invasion of the Plaintiffs' and
class members' privacy by intruding upon their seclusion.
131. At all times relevant herein, Defendants were acting under color of
state law.
132. At all times relevant herein, Defendants acted knowingly and
intentionally.
133. At all times relevant herein, Defendants did not act in good faith.
134. As a direct result of Defendants' conduct, Plaintiffs and the class
members suffered damages, attorneys' fees and costs.
XIII. DAMAGES
135. The allegations in paragraphs 1-134 are incorporated herein by
reference.
136. On account of the Defendants' actions and violations of their
rights as set forth above, the Plaintiffs and class members have suffered
actual damages and incurred attorney's fees and costs.
137. Plaintiffs are entitled to recover their damages, attorney's fees
and costs, liquidated damages as provided by statute, and punitive damages.
XIV. PRAYER FOR RELIEF
WHEREFORE Plaintiffs request that this Court:
A. Assume jurisdiction of this action;
B. Certify this lawsuit as a class action on behalf of the class as
defined above;
C. Declare that Defendants' actions violate the Constitution and Laws
of the United States and the Constitution and Laws of the State of Ohio;
D. Enter judgment against the Defendants and in favor of the
Plaintiffs and class members;
E. Enter an injunction ordering the Defendants to return all
electronic communications and subscriber records seized from the premises
of the Cincinnati Computer Connection, all copies and print-outs of such
data, and all computer files necessary to read and interpret such records;
46. Award the Plaintiffs and the class members their actual, liquidated
and punitive damages;
G. Award the Plaintiffs and each class member $1,000 statutory damages
per violation of their rights guaranteed under 18 U.S.C. 2703, et seq., or
their actual damages, whichever is greater, as provided in 18 U.S.C.
2707(c);
H. Award the Plaintiffs and each class member $10,000 statutory
damages per violation of their rights guaranteed under 18 U.S.C. 2511, et
seq., or their actual damages, whichever is greater, as provided in 18
U.S.C. 2520(c)(2)(B), plus punitive damages, as provided in 18 U.S.C.
2520(b)(2);
I. Award Plaintiffs all costs incurred in the prosecution of this
action, including reasonable attorney's fees under 42 U.S.C. 1988 and
other statutes; and
J. Enter such other and further relief as the Court deems just and
proper.
Scott T. Greenwood (0042558) Peter D. Kennedy
Trial Attorney for Plaintiffs (Texas Bar No. 11296650)
2301 Carew Tower Attorney for Plaintiffs
441 Vine Street 114 W. 7th Street, Suite 1000
Cincinnati, Ohio 45202 Austin, Texas 78701
(513) 684-0101 (512) 495-1400
(513) 684-0077 fax (512) 499-0094 fax
Internet: stgrnwd@iac.net Internet: pkennedy@io.com
Of Counsel:
GREENWOOD & ASSOCIATES
2301 Carew Tower
441 Vine Street
Cincinnati, Ohio 45202
(513) 684-0101
George, Donaldson & Ford
1000 Norwood Tower
114 W. 7th Street
Austin, Texas 78701
(512) 495-1400
DEMAND FOR TRIAL BY JURY
Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Plaintiffs,
individually and on behalf of a class of others similarly situated, hereby
demand a jury trial on all issues so triable.
Scott T. Greenwood (0042558)
Trial Attorney for Plaintiffs
Scott T. Greenwood Attorney
stgrnwd@iac.net Greenwood & Associates
(513) 684-0101 (voice) 2301 Carew Tower, 441 Vine Street
(513) 684-0077 (fax) Cincinnati, Ohio 45202
------------------------------
Date: Sun, 19 Apr 1995 22:51:01 CDT
From: CuD Moderators <cudigest@sun.soci.niu.edu>
Subject: File 3--Cu Digest Header Info (unchanged since 19 Apr, 1995)
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