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Steve Jackson Games/Secret Service Lawsuit -- Day One
By JOE ABERNATHY
Copyright 1993, Houston Chronicle
AUSTIN -- Plaintiff's attorneys wrested two embarrassing
admissions from the United States Secret Service on the opening day of a
federal civil lawsuit designed to establish the bounds of constitutional
protections for electronic publishing and electronic mail.
In the first, Special Agent Timothy Foley of Chicago admitted that
crucial statements were erroneous in an affidavit he used to conduct
several search-and-seizure operations in a March 1990 crackdown on
computer crime.
Foley later conceded that the Secret Service's special training
for computer crime investigators overlooks any mention of the law that
regulates the extent of permissible search-and-seizures at publishing
operations.
The case, brought by Steve Jackson Games, an Austin firm, is being
tried before United States District Judge Sam Sparks. Carefully nurtured
over the course of three years by a group of electronic civil rights
activists -- at a cost of more than $200,000 -- the case has been
eagerly anticipated as a possible damper on what is seen as computer
crime hysteria among federal police.
Plaintiffs hope to prove that the printed word exists just as
surely on the computer screen as it does on a sheet of paper. The
complaint also seeks to establish the right of computer users to
congregate electronically on bulletin board systems -- such as one
called Illuminati that was taken from Steve Jackson Games -- and to
exchange private electronic mail on such BBSs.
"This lawsuit is just to stand up and say, at the end of the 20th
Century, that publishing occurs as much on computers as on the printed
page," said Jim George, of the Austin firm George, Donaldson & Ford,
Jackson's law firm.
That issue came into sharp focus during George's questioning of
Foley regarding the seizure of the PC on which Illuminati ran, and
another computer on which was stored the word processing document
containing a pending Steve Jackson Games book release, GURPS Cyberpunk.
"At the Secret Service computer crime school, were you, as the
agent in charge of this investigation, made aware of special rules for
searching a publishing company?" George asked Foley. He was referring to
the Privacy Protection Act, which states that police may not seize a
work in progress from a publisher. It does not specify what physical
form such a work must take.
"No, sir, I was not," Foley responded.
"Did you just miss class the day that was taught?" George asked.
"No, sir. The United States Secret Service does not teach its
agents about special rules regarding search and seizure at publishing
companies," Foley said.
"Let the record clearly show that to be the case," George said.
Earlier, Foley admitted on the witness stand that his original
affidavit seeking a judge's approval to raid Steve Jackson Games
contained a fundamental error.
During the March 1990 raid -- one of several dozen staged that day
around the country in an investigation that the Secret Service called
Operation Sun Devil at the time -- agents were seeking copies of a
document taken as a hacker trophy from BellSouth. Subsequently
republished in an electronic magazine called Phrack, thousands of copies
of the document were stored on bulletin board systems around the nation.
Neither Jackson nor his company were suspected of wrongdoing, and
no charges have ever been filed against anyone targeted in several
Austin raids. The alleged membership of Steve Jackson employee Loyd
Blankenship in the Legion of Doom hacker's group -- which was believed
responsible for the break-in -- led agents to raid the Austin game
publisher at the same time that Blankenship's Austin home was raided.
Yet the only two paragraphs in the 42-paragraph indictment that
established a connection between Blankenship's alleged illegal
activities and Steve Jackson Games were shown to have been erroneously
arrived at, when George produced a statement by Bellcore expert Henry
Kluepfel disputing statements attributed to him in Foley's affidavit.
"Is it true that Mr. Kluepfel logged onto (Illuminati)?" George
questioned.
"No, sir," Foley responded.
"But you state that in your affidavit," George said.
"That was a misattribution," Foley said.
"So you had no knowledge that anything was sent to my client?"
"No sir, not directly," Foley said.
"Indirectly?" George asked.
"No sir."
The Justice Department, in papers filed with the court, contends
that only traditional journalistic organizations enjoy the protections
of the Privacy Protection Act. It further contends that users of
electronic mail have no reasonable expectation of privacy.
The trial was to resume at 8:30 a.m. It is expected to conclude on
Thursday or Friday.