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EFFector Online Volume 1 Number 04
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*** EFFector Online #1.04 (May 1, 1991) ***
*** (Formerly EFF News) ***
*** The Electronic Frontier Foundation, Inc. ***
*** Net address: eff@eff.org ***
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Editors: Gerard Van der Leun (gerard@eff.org)
Mike Godwin (mnemonic@eff.org)
REPRINT PERMISSION GRANTED: Material in EFFector Online may be reprinted if
you cite the source. Where an individual author has asserted copyright in
an article, please contact her directly for permission to reproduce.
E-mail subscription requests: eff-request@eff.org
Editorial submissions: eff@eff.org
AND NOW THE NEWS
The following press release was Faxcast to over 1,500 media
organizations and interested parties this afternoon:
EXTENDING THE CONSTITUTION TO AMERICAN CYBERSPACE:
TO ESTABLISH CONSTITUTIONAL PROTECTION FOR ELECTRONIC MEDIA AND TO
OBTAIN REDRESS FOR AN UNLAWFUL SEARCH, SEIZURE, AND PRIOR RESTRAINT
ON PUBLICATION, STEVE JACKSON GAMES AND THE ELECTRONIC FRONTIER
FOUNDATION TODAY FILED A CIVIL SUIT AGAINST THE UNITED STATES SECRET
SERVICE AND OTHERS.
On March 1, 1990, the United States Secret Service nearly
destroyed Steve Jackson Games (SJG), an award-winning publishing
business in Austin, Texas.
In an early morning raid with an unlawful and
unconstitutional warrant, agents of the Secret Service conducted a
search of the SJG office. When they left they took a manuscript
being prepared for publication, private electronic mail, and several
computers, including the hardware and software of the SJG Computer
Bulletin Board System. Yet Jackson and his business were not only
innocent of any crime, but never suspects in the first place. The
raid had been staged on the unfounded suspicion that somewhere in
Jackson's office there "might be" a document compromising the
security of the 911 telephone system.
In the months that followed,
Jackson saw the business he had built up over many years dragged to
the edge of bankruptcy. SJG was a successful and prestigious
publisher of books and other materials used in adventure role-playing
games. Jackson also operated a computer bulletin board system (BBS)
to communicate with his customers and writers and obtain feedback and
suggestions on new gaming ideas. The bulletin board was also the
repository of private electronic mail belonging to several of its
users. This private mail was seized in the raid. Despite repeated
requests for the return of his manuscripts and equipment, the Secret
Service has refused to comply fully.
Today, more than a year after that raid, The Electronic
Frontier Foundation, acting with SJG owner Steve Jackson, has filed
a precedent setting civil suit against the
United States Secret Service, Secret Service Agents Timothy Foley and
Barbara Golden, Assistant United States Attorney William Cook, and
Henry Kluepfel.
"This is the most important case brought to date,"
said EFF general counsel Mike Godwin, "to vindicate the
Constitutional rights of the users of computer-based communications
technology. It will establish the Constitutional dimension of
electronic expression. It also will be one of the first cases that
invokes the Electronic Communications Privacy Act as a shield and
not as a sword -- an act that guarantees users of this digital
medium the same privacy protections enjoyed by those who use the
telephone and the U.S. Mail."
Commenting on the overall role of the Electronic
Frontier Foundation in this case and other matters, EFFs
president Mitch Kapor said, "We have been acting as an organization
interested in defending the wrongly accused. But the Electronic
Frontier Foundation is also going to be active in establishing
broader principles. We begin with this case, where the issues are
clear. But behind this specific action, the EFF also believes that
it is vital that government, private entities, and individuals who
have violated the Constitutional rights of individuals be held
accountable for their actions. We also hope this case will help
demystify the world of computer users to the general public and
inform them about the potential of computer communities."
Representing Steve Jackson and The Electronic Frontier
Foundation in this suit are Harvey A. Silverglate and Sharon L. Beckman
of Silverglate & Good of Boston; Eric Lieberman and Nick Poser of
Rabinowitz, Boudin, Standard, Krinsky & Lieberman of New York;
and James George,Jr. of Graves, Dougherty, Hearon & Moody of Austin,
Copies of the complaint, the unlawful search warrant,
statements by Steve Jackson and the Electronic Frontier Foundation, a
legal fact sheet and other pertinent materials are available by
request from the EFF.
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Also made available to members of the press and electronic media on
request were the following statement by Mitchell Kapor and a legal
fact sheet prepared by Sharon Beckman and Harvey Silverglate of
Silverglate & Good, the law firm central to the filing of this
lawsuit.
WHY THE ELECTRONIC FRONTIER FOUNDATION IS BRINGING SUIT ON BEHALF OF
STEVE JACKSON.
With this case, the Electronic Frontier Foundation begins a new
phase of affirmative legal action. We intend to fight for broad
Constitutional protection for operators and users of computer
bulletin boards.
It is essential to establish the principle that computer bulletin
boards and computer conferencing systems are entitled to the same
First Amendment rights enjoyed by other media. It is also critical
to establish that operators of bulletin boards -- whether
individuals or businesses -- are not subject to unconstitutional,
overbroad searches and seizures of any of the contents of their
systems, including electronic mail.
The Electronic Frontier Foundation also believes that
it is vital to hold government, private entities, and individuals
who have violated the Constitutional rights of others accountable
for their actions.
Mitchell Kapor,
President, The Electronic Frontier Foundation
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LEGAL FACT SHEET: STEVE JACKSON GAMES V. UNITED STATES SECRET
SERVICE, ET AL
This lawsuit seeks to vindicate the rights of a small, successful
entrepreneur/publisher to conduct its entirely lawful business, free
of unjustified governmental interference. It is also the goal of
this litigation to firmly establish the principle that lawful
activities carried out with the aid of computer technology, including
computer communications and publishing, are entitled to the same
constitutional protections that have long been accorded to the print
medium. Computers and modems, no less than printing presses,
typewriters, the mail, and telephones -being the methods selected by
Americans to communicate with one another -- are all protected by our
constitutional rights.
Factual Background and Parties:
Steve Jackson, of Austin, Texas, is a successful small businessman.
His company, Steve Jackson Games, is an award- winning publisher of
adventure games and related books and magazines. In addition to its
books and magazines, SJG operates an electronic bulletin board system
(the Illuminati BBS) for its customers and for others interested in
adventure games and related literary genres.
Also named as plaintiffs are various users of the Illuminati BBS.
The professional interests of these users range from writing to
computer technology.
Although neither Jackson nor
his company were suspected of any criminal activity, the company was
rendered a near fatal blow on March 1, 1990, when agents of the
United States Secret Service, aided by other law enforcement
officials, raided its office, seizing computer equipment necessary to
the operation of its publishing business. The government seized the
Illuminati BBS and all of the communications stored on it, including
private electronic mail, shutting down the BBS for over a month. The
Secret Service also seized publications protected by the First
Amendment, including drafts of the about-to-be-released role playing
game book GURPS Cyberpunk. The publication of the book was
substantially delayed while SJG employees rewrote it from older
drafts. This fantasy game book, which one agent preposterously
called "a handbook for computer crime," has since sold over 16,000
copies and been nominated for a prestigious game industry award. No
evidence of criminal activity was found.
The warrant application,
which remained sealed at the government's request for seven months,
reveals that the agents were investigating an employee of the company
whom they believed to be engaged in activity they found questionable
at his home and on his own time. The warrant application further
reveals not only that the Secret Service had no reason to think any
evidence of criminal activity would be found at SJG, but also that
the government omitted telling the Magistrate who issued the warrant
that SJG was a publisher and that the contemplated raid would cause a
prior restraint on constitutionally protected speech, publication,
and association.
The defendants in this case are the United States
Secret Service and the individuals who, by planning and carrying out
this grossly illegal search and seizure, abused the power conferred
upon them by the federal government. Those individuals include
Assistant United States Attorney William J. Cook, Secret Service
Agents Timothy M. Foley and Barbara Golden, as well Henry M. Kluepfel
of Bellcore, who actively participated in the unlawful activities as
an agent of the federal government.
These defendants are the same
individuals and entities responsible for the prosecution last year of
electronic publisher Craig Neidorf. The government in that case
charged that Neidorf's publication of materials concerning the
enhanced 911 system constituted interstate transportation of stolen
property. The prosecution was resolved in Neidorf's favor in July of
1990 when Neidorf demonstrated that materials he published were
generally available to the public.
Legal Significance:
This case is about the constitutional and statutory rights of
publishers who conduct their activities in electronic media rather
than in the traditional print and hard copy media, as well as the
rights of individuals and companies that use computer technology to
communicate as well as to conduct personal and business affairs
generally.
The government's wholly unjustified raid on SJG, and
seizure of its books, magazines, and BBS, violated clearly
established statutory and constitutional law, including:
. The Privacy Protection Act of 1980, which generally prohibits
the government from searching the offices of publishers for work
product and other documents, including materials that are
electronically stored;
. The First Amendment to the U. S. Constitution, which guarantees
freedom of speech, of the press and of association, and which
prohibits the government from censoring publications, whether in
printed or electronic media.
. The Fourth Amendment, which prohibits unreasonable governmental
searches and seizures, including both general searches and searches
conducted without probable cause to believe that specific evidence of
criminal activity will be found at the location searched.
. The Electronic Communications Privacy Act and the Federal
Wiretap statute, which together prohibit the government from seizing
electronic communications without justification and proper
authorization.
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For more information, contact Gerard Van der Leun at 617-864-1550.
END OF EFFECTOR ONLINE 1.04
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