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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.