In October of , Henry Kluepfel, Director of Network Security Technology an affiliate Bell Company , was advised a sensitive, proprietary computer document of Bell South relating to Bell's " program" had been made available to the public on a computer bulletin board in Illinois. Kluepfel reported this information to Bell South and requested instructions, but received no response. In April of , Kluepfel confirmed the Bell document was available on the Illinois computer bulletin board and learned the document was additionally available without any proprietary notice on at least another computer bulletin board and had been or was being published in a computer bulletin board newsletter in edited form.
In July of , Kluepfel was finally instructed by Bell South to report the "intrusion" of its computer network to the Secret Service and that the document taken was "sensitive" and "proprietary. Agent Foley was in charge of this particular investigation.
Around February 6, , Kluepfel learned that the document was available on a computer billboard entitled "Phoenix" which was operated by Loyd Blankenship in Austin, Texas. Kluepfel "downloaded" the document to put in readable form and then advised these facts to the Secret Service. Prior to February 26, , Kluepfel learned that Blankenship not only operated the Phoenix bulletin board, but he was a user of the Illinois bulletin board wherein the document was first disclosed, was an employee of Steve Jackson Games, Inc.
Blankenship's bulletin board Phoenix had published "hacker" information and had solicited "hacker" information relating to passwords, ostensibly to be analyzed in some type of decryption scheme. By February 26, , Kluepfel determined that the Phoenix bulletin board was no longer accessible as he could not "dial" or "log into" it.
He reported this to Agent Foley. Kluepfel was, and is, knowledgeable in the operation of computers, computer bulletin boards, the publishing of materials and documents by computers, the communications through computer bulletin boards both public and private communications , and could have "logged" into the Illuminati bulletin board at any time and reviewed all of the information on the bulletin board except for the private communications referred to by the Plaintiffs as electronic communications or electronic mail, but did not do so.
Kluepfel had legitimate concerns, both about the document stolen from Bell South and the possibility of a decryption system which could utilize passwords in rapid fashion and could result in intrusions of computer systems, including those of the Bell System. By February 28, , when the search warrant affidavit was executed, Agent Foley had received information from reliable sources Kluepfel, Williams, Spain, Kibbler, Coutorie, and Niedorf, and possibly others [3] there had been an unlawful intrusion on the Bell South computer program, the Bell South document was a sensitive and proprietary document, and that computer hackers were attempting to utilize a decryption procedure whereby unlawful intrusions could be made to computer programs including the Defense Department, and these hackers were soliciting passwords so that the decryption procedure could become operational.
In addition, Agent Foley was advised Loyd Blankenship had operated his Phoenix bulletin board from his home, had published the Bell South document in edited form, and had published and communicated that a decryption strategy was available and other "hackers" should submit selective passwords to finalize the decryption scheme for intrusions into computer systems by using a rapid deployment of passwords.
Agent Foley was also advised that Blankenship was an employee of Steve Jackson Games and had access to the Illuminati bulletin board as a user and a co-sysop and he may well and in fact did have the ability to delete any documents or information in the Steve Jackson Games computers and Illuminati bulletin board.
You have entered the secret computer system of the Illuminati, the on-line home of the world's oldest and largest secret conspiracy. Unfortunately, although he was an attorney and expressly represented this fact in his affidavit, Agent Foley was not aware of the Privacy Protection Act, 42 U. Jackson would have cooperated in the investigation. Agent Foley did not know the individual Plaintiffs but did know they were users of Illuminati as he had a list of all users prior to February 28, Agent Foley did know and understand the Illuminati bulletin board would have users and probably would have stored private electronic communications between users.
Attorney Cook intended to seize and review all of the information and documents in any computer accessible to Blankenship, regardless of what other incidental information would be seized. These intentions were expressly stated in their application for a search warrant and the warrant itself.
The Court does not find from a preponderance of the evidence that the admitted errors in Foley's affidavit were intentional and so material to make the affidavit and issuance of the warrant legally improper.
See, Franks v. Delaware, U. The affidavit and warrant preparation was simply sloppy and not carefully done.
Therefore, the Court denies the Plaintiffs contentions relating to the alleged improprieties involved in the issuance of the search warrant. On March 1, , Agents Foley and Golden executed the search warrant. At the time of the execution, each agent had available computer experts who had been flown to Austin to advise and review the stored information in the computers, the bulletin boards, and disks seized. These computer experts certainly had the ability to review the stored information and, importantly, to copy all information contained in the computers and disks within hours.
During the search of Steve Jackson Games and the seizure of the three computers, over computer disks, and other materials, Agent Golden was orally advised by a Steve Jackson Games, Inc. Employee that Steve Jackson Games, Inc.
Unfortunately, Agent Golden, like Foley, was unaware of the Privacy Protection Act and apparently attached no significance to this information. The evidence is undisputed that Assistant U. Attorney Cook would have stopped the search at the time of this notification had he been contacted.
He also knew or had the ability to learn the seizure of the Illuminati bulletin board included private and public electronic communications and E-mail.
By March 2, , Agent Foley knew that Steve Jackson Games, Incorporated, and its attorneys in Dallas and Austin, were requesting the immediate return of the properties and information seized, that transcripts of publications and the back-up materials had been seized, and that the seizure of the documents, including business records of Steve Jackson Games, Inc. While Agent Foley had a legitimate concern there might be some type of program designed to delete the materials, documents, or stored information he was seeking, he admits 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 before the majority of the seized materials was returned. Agent Foley 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.
In addition, Agent 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. The Secret Service denies that its personnel or its delegates read the private electronic communications stored in the seized materials and specifically allege that this information was reviewed by use of key search words only.
Additionally, the Secret Service denies the deletion of any information seized with two exceptions of "sensitive" or "illegal" information, the deletion of which was consented to by Steve Jackson. However, the preponderance of the evidence, including common sense [5] , establishes that the Secret Service personnel or its delegates did read all electronic communications seized and did delete certain information and communications in addition to the two documents admitted deleted.
The deletions by the Secret Service, other than the two documents consented to by Steve Jackson, were done without consent and cannot be justified. By March 2, , Agent Foley, Agent Golden, and the Secret Service, if aware of the Privacy Protection Act, would have known that they had, by a search warrant, seized work products of materials from a person or entity reasonably believed to have a purpose to disseminate to the public a "book" or "similar form of public communication.
The failure of the Secret Service after March 1, , topromptlyreturn the seized products of Steve Jackson Games, Incorporated cannot be justified and unquestionably caused economic damage to the corporation.
By March 1, , Steve Jackson Games, Incorporated was apparently recovering from acute financial problems and suffering severe cash flow problems. The seizure of the work product and delays of publication, whether by three weeks or several months, directly impacted on Steve Jackson Games, Incorporated.
Eight employees were terminated because they could not be paid as revenues from sales came in much later than expected. However, it is also clear from a preponderance of the evidence that after the calendar year , the publicity surrounding this seizure and the nature of the products sold by Steve Jackson Games, Incorporated had the effect of increasing, not decreasing, sales. In fact, Steve Jackson Games, Incorporated developed a specific game for sale based upon the March 1, , seizure.
The Court declines to find from a preponderance of the evidence there was any economic damage to Steve Jackson Games, Incorporated after the calendar year as a result of the seizure of March 1, The personnel at this corporation had to regroup, rewrite, and duplicate substantial prior efforts to publish the book Gurps Cyberpunk and other documents stored in the computers and the Illuminati bulletin board, explain to their clientele and users of the bulletin board the difficulties of their continuing business to maintain their clientele, to purchase or lease substitute equipment and supplies, to re-establish the bulletin board, and to get the business of Steve Jackson Games, Inc.
The Court has reviewed the evidence regarding annual sales and net income of Steve Jackson Games, Incorporated for and the years before and after and finds from a preponderance of the evidence there was a 6 percent loss of sales in due to the seizure and related problems.
The evidence was undisputed that there was a 42 percent profit on sales of publications of Steve Jackson Games, Incorporated. Regarding damages to Steve Jackson, personally, his own testimony is that by he was becoming more active in the management of Steve Jackson Games, Incorporated, and spending less time in creative pursuits such as writing.
See F. The Senate Report explains:. Section a 3 of the [ECPA] amends the definition of the term "intercept" in current section 4 of title 18 to cover electronic communications. The definition of "intercept" under current law is retained with respect to wire and oral communications except that the term "or other" is inserted after "aural.
For example, it is illegal to intercept the data or digitized portion of a voice communication. Needless to say, when construing a statute, we do not confine our interpretation to the one portion at issue but, instead, consider the statute as a whole.
See, e. McCord, 33 F. Title II generally proscribes unauthorized access to stored wire or electronic communications. Section a provides:. The Secret Service does not challenge this ruling. We find no indication in either the Act or its legislative history that Congress intended for conduct [] that is clearly prohibited by Title II to furnish the basis for a civil remedy under Title I as well.
Indeed, there are persuasive indications that it had no such intention. First, the substantive and procedural requirements for authorization to intercept electronic communications are quite different from those for accessing stored electronic communications.
For example, a governmental entity may gain access to the contents of electronic communications that have been in electronic storage for less than days by obtaining a warrant. But there are more stringent, complicated requirements for the interception of electronic communications; a court order is required.
Second, other requirements applicable to the interception of electronic communications, such as those governing minimization, duration, and the types of crimes that may be investigated, are not imposed when the communications at issue are not in the process of being transmitted at the moment of seizure, but instead are in electronic storage.
For example, a court order authorizing interception of electronic communications is required to include a directive that the order shall be executed "in such a way as to minimize the interception of communications not otherwise subject to interception". Title II of the ECPA does not contain this requirement for warrants authorizing access to stored electronic communications.
The purpose of the minimization requirement is to implement "the constitutional obligation of avoiding, to the greatest possible extent, seizure of conversations which have no relationship to the crimes being investigated or the purpose for which electronic surveillance has been authorized". James G. Obviously, when intercepting electronic communications, law enforcement officers cannot know in advance which, if any, of the intercepted communications will be relevant to the crime under investigation, and often will have to obtain access to the contents of the communications in order to make such a determination.
Interception thus poses a significant risk that officers will obtain access to communications which have no relevance to the investigation they are conducting. That risk is present to a lesser degree, and can be controlled more easily, in the context of stored electronic communications, because, as the Secret Service advised the district court, technology exists by which relevant communications can be located without the necessity of reviewing the entire contents of all of the stored communications.
For example, the Secret Service claimed although the district court found otherwise that it reviewed the private E-mail on the BBS by use of key word searches. Next, as noted, court orders authorizing an intercept of electronic communications are subject to strict requirements as to duration. An intercept may not be authorized "for any period longer than is necessary to achieve the objective of the authorization, nor in any event longer than thirty days".
There is no such requirement for access to stored communications. Finally, as also noted, the limitations as to the types of crimes that may be investigated through an intercept, see 18 U. In light of the substantial differences between the statutory procedures and requirements for obtaining authorization to intercept electronic communications, on the one hand, and to gain access to the contents of stored electronic communications, on the other, it is most unlikely that Congress intended to require law enforcement officers to satisfy the more stringent requirements for an intercept in order to gain access to the contents of stored electronic communications.
As discussed in notes , supra, it is clear that Congress intended to treat wire communications differently from electronic communications. Access to stored electronic communications may be obtained pursuant to a search warrant, 18 U. It was one of a series of fantasy role-playing game books SJG published. In addition to the statutory claims, appellants also claimed violations of the First and Fourth Amendments to the United States Constitution.
And, in September , they added state law claims for conversion and invasion of privacy. Prior to trial, the claims against the individuals were dismissed, and appellants withdrew their constitutional and state law claims. And, prior to briefing, the Secret Service dismissed its cross-appeal. A the radio portion of a cordless telephone communication that is transmitted between the cordless telephone handset and the base unit;.
A large amount of equipment was seized, including four computers, two laser printers, some loose hard disks and a great deal of assorted hardware.
One of the computers was the one running the Illuminati BBS. In their diligent search for evidence, the agents also cut off locks, forced open footlockers, tore up dozens of boxes in the warehouse, and bent two of the office letter openers attempting to pick the lock on a file cabinet. The next day, accompanied by an attorney, Steve Jackson visited the Austin offices of the Secret Service. He had been promised that he could make copies of the company's files. As it turned out, he was only allowed to copy a few files, and only from one system.
Still missing were all the current text files and hard copy for this book, as well as the files for the Illuminati BBS with their extensive playtest comments. In the course of that visit, it became clear that the investigating agents considered GURPS Cyberpunk to be "a handbook for computer crime. A repeated comment by the agents was "This is real. Over the next few weeks, the Secret Service repeatedly assured the SJ Games attorney that complete copies of the files would be returned "tomorrow.
On March 26, almost four weeks after the raid, some but not all of the files were returned. It was June 21, nearly four months later, when most but not all of the hardware was returned.
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