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Computer Undergroud Digest Vol. 08 Issue 77
Computer underground Digest Sun Nov 3, 1996 Volume 8 : Issue 77
ISSN 1004-042X
Editor: Jim Thomas (cudigest@sun.soci.niu.edu)
News Editor: Gordon Meyer (gmeyer@sun.soci.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
Cu Digest Homepage: http://www.soci.niu.edu/~cudigest
CONTENTS, #8.77 (Sun, Nov 3, 1996)
File 1--Class Action Notice in CCC BBS lawsuit
File 2--Excerpts from the CCC BBS Lawsuit
File 3--Cu Digest Header Info (unchanged since 7 Apr, 1996)
CuD ADMINISTRATIVE, EDITORIAL, AND SUBSCRIPTION INFORMATION ApPEARS IN
THE CONCLUDING FILE AT THE END OF EACH ISSUE.
---------------------------------------------------------------------
Date: Sat, 19 Oct 1996 12:18:00 -0400
From: Pete Kennedy <PKENNEDY@gdf.com>
Subject: File 1--Class Action Notice in CCC BBS lawsuit
Editors -- I would appreciate it if you could include the following
notice in an upcoming edition of CUD. I believe this lawsuit is the
first of its kind -- a class action brought by users of a 5,500-user
BBS against the government officials who seized it in a pornography
raid on June 16, 1995. The Judge (at our suggestion) has ordered
that notice be distributed electronically, as there are some 500 plus
non-subscribers whose mail was seized from the BBS Internet gateway.
We have modelled this lawsuit after the Steve Jackson Games lawsuit
which I participated in back in 1993, but expanded it to a class
action on behalf of all users of the system.
--------------------------------------------------------------
Peter D. Kennedy George Donaldson & Ford, L.L.P.
pkennedy@gdf.com 114 West 7th Street, Suite 1000
(512) 495-1416 (voice) Austin, Texas 78701
(512) 499-0094 (fax) http://www.gdf.com
--------------------------------------------------------------
NOTICE OF CLASS ACTION LAWSUIT
TO: 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 or any
law enforcement agencies or personnel investigating
that electronic bulletin board service.
NOTICE IS HEREBY GIVEN that a lawsuit has been filed in this
court that may affect your legal rights. This case has been
certified by the Court as a class action. A class action is a
lawsuit in which one or more persons can sue on behalf of other
persons in the same or similar situation. If you are a person who
falls within the group of persons described above, you are a member
of the class that the named Plaintiffs represent. The Court has
ruled that the named Plaintiffs, Steven Guest, Denise Kelley, Ben
Kelley, Nelda Sturgill, Deborah Cummings, Randy Bowling and Richard
Kramer, may bring this lawsuit on behalf of all those persons
described in the group above.
YOU ARE NOT BEING SUED. THERE IS NO REQUIREMENT THAT YOU
ATTEND COURT, HIRE A LAWYER, OR PAY ANY OF THE COSTS OF
THIS LAWSUIT. IF YOU CHOOSE, HOWEVER, YOU MAY HIRE YOUR
OWN LAWYER, AND, IF YOU DO SO, YOU WILL BE RESPONSIBLE
FOR PAYING YOUR LAWYER'S FEES.
AS A MEMBER OF THE CLASS, YOU ARE HEREBY FURTHER GIVEN
NOTICE OF THE FOLLOWING MATTERS:
1. On December 5, 1995, the individual Plaintiffs, Steven
Guest, Denise Kelley, Ben Kelly, Nelda Sturgill, Deborah Cummings,
Randy Bowling and Richard Kramer, sought certification of this
lawsuit as a class action, against the following Defendants: Simon
L. Leis, Jr., Hamilton County (Ohio) Sheriff's Department, Hamilton
County (Ohio) Regional Electronics Computer Intelligence Task
Force, Dale Menkhaus, David Ausdenmoore, and James Nerlinger.
2. The named Plaintiffs have brought this action not only on
their own behalf, but on behalf of all the following group of
persons ("the Class"):
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 or any law enforcement agencies or
personnel investigating that electronic bulletin board
service.
3. The named Plaintiffs generally allege that the
Defendants' seizure, on June 16, 1995, of the Cincinnati Computer
Connection electronic bulletin board system violated the civil
rights of the subscribers and users of that system. This lawsuit
has been filed, alleging that the Defendants' seizure and retention
of the contents of the Cincinnati Computer Connection BBS violated
the Electronic Communications Privacy Act of 1986, the First
Amendment Privacy Protection Act of 1980, the First Amendment, the
Fourth Amendment, and Ohio law.
4. The Defendants have denied the Plaintiffs' allegations.
YOU ARE ADVISED THAT IF YOU ARE A MEMBER OF THE CLASS, and
that if you do not wish to be considered a member of this class and
represented by the above-named Plaintiffs, you may be excluded from
this lawsuit by notifying the Court in this cause in writing of
that wish, within 60 days of the date of this Notice. If you wish
exclusion, you should send written correspondence notifying the
Court of your wish to be excluded from the lawsuit to:
Kenneth J. Murphy
Office of the District Clerk
United States District Court
Southern District of Ohio
100 E. Fifth Street
Cincinnati, Ohio 45202
(513) 583-4210
Re: Guest, et al., v. Leis, et al., No. C-1-95-673; U.S.
District Court, Southern District of Ohio, Western
Division
If you are excluded from the class, you will not receive
payment from any settlement or judgment entered in this lawsuit.
You will not be bound by the terms of any settlement or judgment
entered in this lawsuit, and you will be free to pursue any legal
rights you may have on your own behalf.
YOU ARE FURTHER ADVISED THAT IF YOU ARE A MEMBER OF THE CLASS
and you do not elect to be excluded from the class, under Ohio and
federal law:
1. You will be bound by the terms of the judgment in this
cause, whether such judgment is favorable or not.
2. You may be subjected to a cross complaint or some other
affirmative action by the Defendants.
3. Although this action is pending, the Defendants are not
prevented in any way from exercising all remedies available to them
by contract or law.
4. The named Plaintiffs and the Class in this lawsuit are
represented by:
Scott T. Greenwood
Greenwood & Associates
2301 Carew Tower
441 Vine Street
Cincinnati, Ohio 45202
(513) 684-0101 (phone)
(513) 684-0077 (fax)
stgrnwd@iac.net (internet)
Peter D. Kennedy
George, Donaldson & Ford, L.L.P.
114 W. 7th Street, Suite 1000
Austin, Texas 78701
(512) 495-1400 (phone)
(512) 499-0094 (fax)
pkennedy@gdf.com (internet)
5. You may contact the attorneys for the Plaintiffs listed
above for further information concerning this action.
6. Be aware that the Court, by initially certifying this
lawsuit as a class action, has not expressed any option as to the
merits of this lawsuit.
SIGNED this 10th day of September, 1996.
_____________/S/____________________
JACK SHERMAN JR., UNITED STATES
MAGISTRATE JUDGE
------------------------------
Date: Sat, 19 Oct 1996 12:18:00 -0400
From: Pete Kennedy <PKENNEDY@gdf.com>
Subject: File 2--Excerpts from the CCC BBS Lawsuit
((MODTERATORS' NOTE: Following are some excerpts from the
complaint by Cincinnati Computer Connection BBS Lawsuit against
law enforcement officials. The full text can be found at:
http://www.soci.niu.edu/~cudigest/docs/cccsuit))
-1-
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
STEVEN GUEST,
1513 Denny Drive:CIVIL ACTION NO. C-1-95-673
Amelia, Ohio 45102
Judge Weber
and
Magistrate Judge Sherman
DENISE B. KELLEY,
2814 Topview Place
Cincinnati, Ohio 45251
and
BEN S. KELLEY,
2814 Topview Place
Cincinnati, Ohio 45251
and
NELDA STURGILL,
5629 Homer Avenue
Cincinnati, Ohio 45212
and
DEBORAH CUMMINGS,
912 Ravine Drive
Villa Hills, Kentucky 41017
and
RANDY BOWLING,
P.O. Box 13425
Hamilton, Ohio 45013
and CLASS ACTION
RICHARD E. KRAMER,:SECOND AMENDED
998 Highland Avenue:COMPLAINT
Hamilton, Ohio 45013:(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
ELECTRONIC Computer
INTELLIGENCE Task Force,
Hamilton County Justice Center
1000 Sycamore Street
Cincinnati, Ohio 45202
and
Dale MenkHaus,
Hamilton County Justice Center
1000 Sycamore Street
Cincinnati, Ohio 45202
and
DAVID L. AUSDENMOORE,
Hamilton County Justice Center
1000 Sycamore Street
Cincinnati, Ohio 45202
and
JAMES NERLINGER,
Hamilton County Justice Center
1000 Sycamore Street
Cincinnati, Ohio 45202
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 Electronic Computer
Intelligence 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.), the First Amendment Privacy Protection Act of
1980 ( 42 U.S.C. ' 2000aa 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, 18 U.S.C.
''2707 and 2520, and 42 U.S.C. ' 2000aa-7. 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-two 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 mem bers. 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 ELECTRONIC Computer INTELLIGENCE Task
Force was at all relevant times a division of the Hamilton County Sheriff's
Department purportedly organized to develop and use special skills and
expertise in investigating suspected computer crimes.
28.Defendant Dale MenkHaus is and was at all relevant times the Commander and
/or a member of the Regional Electronic Computer Intelligence Task Force. For
the constitutional and common law claims, Defendant Menkhaus 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 Menkhaus is sued in his individual and official capacities.
29.Defendant DAVID L. AUSDENMOORE is and was at all times referred to herein a
member of the Regional Electronic Computer Intelligence Task Force. For the
constitutional and common law claims, Defendant Ausdenmoore 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 Ausdenmoore is sued in his individual and official capacities.
30.Defendant JAMES NERLINGER is and was at all times referred to herein a
member of the Regional Electronic Computer Intelligence Task Force. For the
constitutional and common law claims, Defendant Nerlinger 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 Nerlinger is sued in his 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 the
subscribers 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 now obtained a copy of the single affidavit that was
used to support the application for search warrant.
59.The warrant filed in support of the application for search warrant was
signed by David L. Ausdenmoore. The affidavit was false and/or misleading in
at least the following respects:
a)The affidavit failed to inform Judge Shriver that the CCC BBS was a forum for
speech, publication and associated protected by the Privacy Protection Act of
1980, the First Amendment to the United States Constitution, and the Ohio
Constitution;
b)The affidavit failed to inform Judge Shriver that the Defendants intended to
shut down that protected forum, and seize all the publications on that forum;
c)The affidavit failed to inform Judge Shriver that the CCC BBS contained
thousands of private electronic communications to and from the subscribers of
the CCC BBS protected from unauthorized interception, seizure and disclosure by
the Electronic Communications Privacy Act of 1986;
d)The affidavit failed to inform Judge Shriver that the Defendants intended to
shut down this protected electronic communications system;
e)The affidavit failed to inform Judge Shriver that the Defendants intended to
seize, intercept and read these protected, private communications;
f)The affidavit failed to inform Judge Shriver that the Defendants had no
probable cause to believe that these private communications were relevant to
the investigation of any criminal activity, let alone the criminal activity
alleged in the Affidavit;
g)The affidavit failed to inform Judge Shriver that the Defendants had no
probable cause to believe that the public communications contained on the
system of the Plaintiffs were related to any criminal activity, let alone the
criminal activity alleged in the Affidavit;
h)The affidavit failed to inform Judge Shriver that far less intrusive means of
searching for the allegedly offending material were readily available to the
Defendants, means that would not have involved the seizure of either the
private electronic messages of the Plaintiffs or their publicly posted
messages;
i)The affidavit falsely stated and/or implied that the allegedly obscene
material on the CCC BBS was "concealed in violation of law," when, according to
the Affidavit itself, the Defendants had already obtained copies of the images
by accessing the CCC BBS themselves; and
j)The affidavit falsely stated that the images sought to be seized by the
Defendants were downloaded from the CCC BBS "as a regular user of the BBS,"
falsely implying that all users of the BBS had access to these images, rather
than a very small number of users.
D.Defendants Shut Down the Cincinnati Computer Connection BBS and
Indiscriminately Seize Everything On It.
60.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.
61.The Defendants 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.
62.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.
63.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, the Ohio Constitution, and the Privacy Protection Act. 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.
64.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.
65.The raid on the home of Bob Emerson, the seizure of the entire CCC BBS
system, and the examination and review of the contents of that system, were
conducted under the direction of Defendant Leis, who is the policymaker for the
Hamilton County Sheriff's Department, and/or pursuant to a policy or custom
authorized, permitted and tolerated by Defendants Leis, Hamilton County
Sheriff's Department, and the Task Force to, among other things:
a)indiscriminately seize and shut down entire electronic bulletin board systems
without legal authority or probable cause;
b)seize and intercept public and private electronic communications and other
private information of persons without legal authorization or probable cause;
c)deny innocent persons access to their public and private electronic
communications, without legal authorization or probable cause;
d)apply for and obtain search warrants purportedly authorizing the seizure of
computers, without informing the issuing magistrate or judge that the computer
system operates an electronic communication system, contains public and private
communications unrelated to the investigation, and that seizure of the system
will result in the seizure and interception of electronic communications and
the complete shutting down of an electronic communication system;
e)apply for and obtain search warrants purportedly authorizing the seizure of
computers operating electronic communications systems, without informing the
issuing magistrate or judge that the computers contain communications protected
by the Electronic Communications Privacy Act, the Privacy Protection Act of
1980, the First and Fourth Amendments to the United States Constitution, and
Ohio statutory and constitutional law;
f)exceed the authorization of search warrants in the seizure and examination of
seized BBSs;
g)seize and examine BBSs and computer systems in order to search for evidence
of suspected crimes without legal authorization or probable cause;
h)conduct searches and seizures outside the territorial jurisdiction of
Hamilton County without legal authority;
i)seize and shut down BBSs in order to prevent further publication and
distribution of materials presumptively protected by the federal and state
constitutions, without any adversarial determination of the legality of such
materials; and
j)knowingly fail and refuse to conduct investigations into suspected computer
crimes without intercepting, seizing, or denying access to, the private and
public communications and private information of innocent citizens.
66.The Class Members' injuries and deprivation of constitutional, statutory and
common law rights were proximately caused by Defendants Leis, Hamilton County
Sheriff's Department, and the Task Force's failure to adequately train their
officers in the proper manner of conducting investigations of alleged computer
crime, so that such investigations would be made without the violation of
innocent persons' rights, and such failure to train amounted to a deliberate
indifference to the Class Members' constitutional, statutory and common law
rights.
((The full text of the suit can be obtained at:
law enforcement officials. The full text can be found at:
------------------------------
Date: Thu, 21 Mar 1996 22:51:01 CST
From: CuD Moderators <cudigest@sun.soci.niu.edu>
Subject: File 3--Cu Digest Header Info (unchanged since 7 Apr, 1996)
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