🚀 go-pugleaf

Gene Spafford writes:

>There is no evidence that the SJG system was confiscated "just because
>they publish a Cyberpunk role-playing game."  (Of course, there has
>been no evidence that that was not the reason, either.)  If you are
>going to be objective and fair about this, you can say "it APPEARS to ME
>that the system was confiscated because...."

Well, we *are* fortunate enough to know for certain that some law
enforcement agents believed the game was a handbook for computer 
crime. I've known Steve Jackson for years; his account of conversations
he had with the Secret Service when he tried to get the game manuscript
back is far more frightening even than his account of the Secret Service's
search and shut-down of his office.

I find it hard to believe, however, that when the warrant becomes
unsealed, and it becomes apparent that there was no reason to regard
GURPS Cyberpunk as a handbook for computer crime (it contains less
useful hacker-type information even than Clifford Stoll's CUCKOO'S
EGG, as Gene would already know if he had bothered to look at the game),
Gene will go so far as to admit that the government overreacted.

Spafford also writes:

>Three key things about this one incident (and related) that should be
>considered before making statements about such seizures:
>
>    1)  The presentations made to the judges leading to the issue of 
>    search warrants have often been sealed.  Therefore, it is not clear why
>    the agencies involved felt they needed to confiscate the systems (and
>    why the judge went along with them).

Gene, it is perfectly clear why the judge "went along with them"; as is
common knowledge to those who study criminal law and procedure,
the magistrate who reviews an application for a search warrant is making
a determination of whether the application meets the formal requirements
of such a warrant. That is, the magistrate looks to see whether probable
cause has been properly *alleged*, not at whether there actually *is*
probable cause for the search.

I hope you are not under the impression that magistrate review of 
the search-warrant application is any more of a filter of frivolous
or misguided prosecutions than the grand jury is.

>    2)  The law enforcement people involved have not (and in most cases
>    cannot, because the cases are still pending) make public statements
>    about the facts of these cases.

On the other hand, as I noted above, they did make statements to 
Steve Jackson, who can be trusted to give an accurate account of his
conversations.

>    3)  It often takes many months to do a thorough analysis of
>    confiscated equipment, gather further evidence, and present an
>    indictment.

Right. And, in the meantime, what happens to Steve Jackson and his
company, which were never the targets of the investigation? Does he
even have a remedy? At this point, it seems unclear, but I suspect
he will find it difficult to recover from the government for his losses
given the immunity provisions of the Federal Tort Claims Act.

Moreover, what about the chilling effect on lawful associations such
damaging seizures have? Steve Jackson's only offense seems to have 
been his association with a retired hacker who helped author a 
roleplaying game. Jackson is, in effect, being punished for his association,
which is lawful in itself. And what does the Steve Jackson Games
incident (which also involved seizure of the company BBS) tell other
law-abiding people about the respect the government gives to the
First Amendment-guaranteed right of freedom of association (see
NAACP v. Alabama, 1958)? How many Unix system and BBS operators
have limited or eliminated public access to their systems in the
fear of such evidentiary seizures? (Hint: several.)

Finally, I have to admit that I was suckered in by you, Gene, in an
earlier exchange. When you asked me about the hypothetical newsletter
that published my credit-card number and urged people to commit 
credit-card fraud, I gamely defended such a hypothetical entity,
applying some standard Constitutional Law principles.

Then I realized that this is how you want to characterize PHRACK.
I've read bunches of issues of PHRACK, however, and I have yet
to see a single credit-card number published there. Do you suppose
Craig Neidorf should sue you for libel?   :-)




--Mike



Mike Godwin, UT Law School  |    "We need a new cosmology.
mnemonic@ccwf.cc.utexas.edu |     New Gods. New Sacraments. 
(512) 346-4190              |     Another drink."
                            |          --Patti Smith