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Pure Bollocks Issue 22_059
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* C Y B E R S P A C E * A N D * I T ' S *
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L E G A L * I M P L I C A T I O N S *
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STEVE JACKSON WINS CASE AGAINST US SECRET SERVICE
Report compiled by Genie
A games publisher has won a lawsuit against the U.S. Secret Service and the
federal government in a groundbreaking case involving computer publications
and electronic-mail privacy. In a decision announced Friday, March 12, Judge
Sparks of the federal district court for the Western District of Texas
announced that the case of Steve Jackson Games et al. versus the U.S. Secret
Service and the United States Government has been decided for the plaintiffs.
Judge Sparks awarded more than $50,000 in damages to the plaintiffs, citing
lost profits for Steve Jackson Games, violations of the Electronic
Communications Privacy Act, and violations of the Privacy Protection Act of
1980. The judge also stated that plaintiffs would be reimbursed for their
attorneys' fees.
The judge did not find that Secret Service agents had "intercepted" the
electronic communications that were captured when agents seized the Illuminati
BBS in an early-morning raid in spring of 1990 as part of a computer-crime
investigation. The judge did find, however, that the ECPA had been violated by
the agents' seizure of stored electronic communications on the system.
Judge Sparks also found that the Secret Service had violated Steve Jackson
Games's rights as a publisher under the Privacy Protection Act of 1980, a
federal law designed to limit the ability of law-enforcement agents to engage
in searches and seizures of publishers.
It was also noted that: "prior to March l, 1990, and at all other times,
there has never been any basis for suspicion that any of the Plaintiffs have
engaged in any criminal activity, violated any law, or attempted to
communicate, publish, or store any illegally obtained information or otherwise
provide access to any illegally obtained information or to solicit any
information which was to be used illegally." This is a clear indication that
the publicity from the law enforcement agencies, which implied that Jackson's
bbs, Illuminati, had some involvement with hacking, had no basis in fact.
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The story started when in October of 1988, Henry Kluepfel, Director of Network
Security Technology (an affiliate Bell Telephone Company), was advised "a
sensitive, proprietary computer document of Bell South relating to Bell's '911
program' " had appeared on a bbs in Illinois. This was the infamous issue of
Phrack that contained an E911 document downloaded from a hacked Bell computer.
Kluepfel, who had previously worked with the Secret Service and was known
as an expert and reliable informant on hacking, met Assistant U. S. Attorney
William Cook in Chicago and thereafter communicated with Cook and Secret
Service Agent Tim Foley. Agent Foley was in charge of this particular
investigation.
Around February 6, l990, Kluepfel learned that the Phrack issue with the
911 document was available on the bbs "Phoenix" which was operated by Loyd
Blankenship in Austin, Texas. Then Kluepfel found out that Blankenship not
only operated the Phoenix bulletin board, but he was a user of the Illinois
bulletin board wherein the 911 document was first disclosed, was an employee of
Steve Jackson Games, Inc., and a user of the Steve Jackson Games, Inc.'s bbs
"Illuminati.". Even worse, he determined that Blankenship was a "co-sysop" of
the Illuminati bulletin board, which means that he had the ability to review
anything on the Illuminati bulletin board and, importantly, maybe able to
delete anything on the system. So, the Secret Services put two and two
together, and came up with five.
The judgement criticises Kluepfel's lack of evidence: "Kluepfel was, and
is, knowledgeable in the operation of computers, computer bulletin boards, the
publishing of materials and document by computers ... and could have "logged"
into the Illuminati bulletin board at any time and reviewed all of the
information on the bulletin board .... but did not do so." Similarly, Agent
Foley, the best known anti-hacker agent in the US, did not check Illuminati for
the E911 document. The only information Agent Foley had regarding Steve Jackson
Games, Inc. and Steve Jackson was that he thought this was a company that put
out games, but he also reviewed a printout of Illuminati on February 25, 1990,
which read, "Greetings, Mortal! You have entered the secret computer system of
the Illuminati, the on-line home of the world's oldest and largest secret
conspiracy. 5124474449300/1200/2400BAUD fronted by Steve Jackson Games,
Incorporated. Fnord." Judge Sparks said that "The evidence in this case
strongly suggests Agent Foley, without any further investigation, misconstrued
this information to believe the Illuminati bulletin board was similar in
purpose to Blankenship's Phoenix bulletin board, which provided information to
and was used by 'hackers'." He also notes that "Agent Foley was not aware of
the Privacy Protection Act.... , and he conducted no investigation about Steve
Jackson Games, Incorporated, although a reasonable investigation of only
several hours would have revealed Steve Jackson Games, Inc. was, in fact, a
legitimate publisher of information to the public" The judge also criticised
Foley's search warrant: "The affidavit and warrant preparation was simply
sloppy and not carefully done."
During the search of Steve Jackson Games and the seizure of the three
computers, over 300 computer disks, and other materials, Agent Golden was
advised by a Steve Jackson Games, Inc. Employee that Steve Jackson Games, Inc.
was in the publishing business. Unfortunately, Agent Golden, like Foley, was
unaware of the Privacy Protection Act and apparently attached no significance
to this information. They were acting illegaly.
In court, Foley admitted there was no valid reason why all information
seized could not have been duplicated and returned to Steve Jackson Games
within a period of hours and no more than eight days from the seizure. In fact,
it was months (late June 1990) before the majority of the seized materials was
returned. Agent Foley (an attorney) simply was unaware of the law and
erroneously believed he had substantial criminal information which obviously
was not present, as to date, no arrests or criminal charges have ever been
filed against anyone, including Blankenship. Judge Sparks adds that Foley "must
have known his seizure of computers, printers, disks and other materials and
his refusal to provide copies represented a risk of substantial harm to Steve
Jackson Games, Inc. - under circumstances where he had no reason to believe the
corporation or its owner was involved in criminal activity." Agent Foley, it
appears, in his zeal to obtain evidence for the criminal investigation, simply
concluded Steve Jackson Games, Incorporated was somehow involved in
Blankenship's alleged activities because of the wording of the Illuminati
bulletin board menu.
Initially the Secret Service denied that it had read private email messages
and made deletions to messages. However, it came out in court that they had
done this, and that, said Sparks "cannot be justified".
Sparks also dismisses the arguments that he might be undermining the fight
against computer crime, saying: "This Court cannot amend or rewrite the
statutes involved. The Secret Service must go to the Congress for relief. Until
that time, this Court recommends better education, investigation and strict
compliance with the statutes as written."
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Mike Godwin, legal services counsel for the Electronic Frontier Foundation,
which has underwritten and supported the case since it was filed in 1991, said
he is pleased with the decision. "This case is a major step forward in
protecting the rights of those who use computers to send private mail to each
other or who use computers to create and disseminate publications."
"Judge Sparks has made it eminently clear that the Secret Service acted
irresponsibly," Godwin said. "This case should send a message to law-
enforcement groups everywhere that they can't ignore the rights of those who
communicate by computer."
According to the EFF, the US law enforcement agencies overreact in their
fight against computer crime. John Quaterman, of EFF-Austin, gives as an
example an article in the Austin American-Statesman in which a security agent
is quoted as saying "Giving their kids a computer and a modem is like giving
them a loaded gun." John disagrees: "There are people who use computers to
commit crimes, just as there are hit-and-run drivers. That doesn't make
everyone modem owner a criminal, anymore than every car owner is a criminal.
Most people use computers and modems for work and amusement, just as they use
automobiles."
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