************************************************************ ************************************************************ *** EFFector Online #1.04 (May 1, 1991) *** *** (Formerly EFF News) *** *** The Electronic Frontier Foundation, Inc. *** *** Net address: eff@eff.org *** ************************************************************ ************************************************************ Editors: Gerard Van der Leun (gerard@eff.org) Mike Godwin (mnemonic@eff.org) REPRINT PERMISSION GRANTED: Material in EFFector Online may be reprinted if you cite the source. Where an individual author has asserted copyright in an article, please contact her directly for permission to reproduce. E-mail subscription requests: eff-request@eff.org Editorial submissions: eff@eff.org AND NOW THE NEWS The following press release was Faxcast to over 1,500 media organizations and interested parties this afternoon: EXTENDING THE CONSTITUTION TO AMERICAN CYBERSPACE: TO ESTABLISH CONSTITUTIONAL PROTECTION FOR ELECTRONIC MEDIA AND TO OBTAIN REDRESS FOR AN UNLAWFUL SEARCH, SEIZURE, AND PRIOR RESTRAINT ON PUBLICATION, STEVE JACKSON GAMES AND THE ELECTRONIC FRONTIER FOUNDATION TODAY FILED A CIVIL SUIT AGAINST THE UNITED STATES SECRET SERVICE AND OTHERS. On March 1, 1990, the United States Secret Service nearly destroyed Steve Jackson Games (SJG), an award-winning publishing business in Austin, Texas. In an early morning raid with an unlawful and unconstitutional warrant, agents of the Secret Service conducted a search of the SJG office. When they left they took a manuscript being prepared for publication, private electronic mail, and several computers, including the hardware and software of the SJG Computer Bulletin Board System. Yet Jackson and his business were not only innocent of any crime, but never suspects in the first place. The raid had been staged on the unfounded suspicion that somewhere in Jackson's office there "might be" a document compromising the security of the 911 telephone system. In the months that followed, Jackson saw the business he had built up over many years dragged to the edge of bankruptcy. SJG was a successful and prestigious publisher of books and other materials used in adventure role-playing games. Jackson also operated a computer bulletin board system (BBS) to communicate with his customers and writers and obtain feedback and suggestions on new gaming ideas. The bulletin board was also the repository of private electronic mail belonging to several of its users. This private mail was seized in the raid. Despite repeated requests for the return of his manuscripts and equipment, the Secret Service has refused to comply fully. Today, more than a year after that raid, The Electronic Frontier Foundation, acting with SJG owner Steve Jackson, has filed a precedent setting civil suit against the United States Secret Service, Secret Service Agents Timothy Foley and Barbara Golden, Assistant United States Attorney William Cook, and Henry Kluepfel. "This is the most important case brought to date," said EFF general counsel Mike Godwin, "to vindicate the Constitutional rights of the users of computer-based communications technology. It will establish the Constitutional dimension of electronic expression. It also will be one of the first cases that invokes the Electronic Communications Privacy Act as a shield and not as a sword -- an act that guarantees users of this digital medium the same privacy protections enjoyed by those who use the telephone and the U.S. Mail." Commenting on the overall role of the Electronic Frontier Foundation in this case and other matters, EFFs president Mitch Kapor said, "We have been acting as an organization interested in defending the wrongly accused. But the Electronic Frontier Foundation is also going to be active in establishing broader principles. We begin with this case, where the issues are clear. But behind this specific action, the EFF also believes that it is vital that government, private entities, and individuals who have violated the Constitutional rights of individuals be held accountable for their actions. We also hope this case will help demystify the world of computer users to the general public and inform them about the potential of computer communities." Representing Steve Jackson and The Electronic Frontier Foundation in this suit are Harvey A. Silverglate and Sharon L. Beckman of Silverglate & Good of Boston; Eric Lieberman and Nick Poser of Rabinowitz, Boudin, Standard, Krinsky & Lieberman of New York; and James George,Jr. of Graves, Dougherty, Hearon & Moody of Austin, Copies of the complaint, the unlawful search warrant, statements by Steve Jackson and the Electronic Frontier Foundation, a legal fact sheet and other pertinent materials are available by request from the EFF. @+@+@+@+@+@+@+@+@+@+@+@+@+@+@+@+@+@+@ Also made available to members of the press and electronic media on request were the following statement by Mitchell Kapor and a legal fact sheet prepared by Sharon Beckman and Harvey Silverglate of Silverglate & Good, the law firm central to the filing of this lawsuit. WHY THE ELECTRONIC FRONTIER FOUNDATION IS BRINGING SUIT ON BEHALF OF STEVE JACKSON. With this case, the Electronic Frontier Foundation begins a new phase of affirmative legal action. We intend to fight for broad Constitutional protection for operators and users of computer bulletin boards. It is essential to establish the principle that computer bulletin boards and computer conferencing systems are entitled to the same First Amendment rights enjoyed by other media. It is also critical to establish that operators of bulletin boards -- whether individuals or businesses -- are not subject to unconstitutional, overbroad searches and seizures of any of the contents of their systems, including electronic mail. The Electronic Frontier Foundation also believes that it is vital to hold government, private entities, and individuals who have violated the Constitutional rights of others accountable for their actions. Mitchell Kapor, President, The Electronic Frontier Foundation @+@+@+@+@+@+@+@+@+@+@+@+@+@+@+@+@+@+@ LEGAL FACT SHEET: STEVE JACKSON GAMES V. UNITED STATES SECRET SERVICE, ET AL This lawsuit seeks to vindicate the rights of a small, successful entrepreneur/publisher to conduct its entirely lawful business, free of unjustified governmental interference. It is also the goal of this litigation to firmly establish the principle that lawful activities carried out with the aid of computer technology, including computer communications and publishing, are entitled to the same constitutional protections that have long been accorded to the print medium. Computers and modems, no less than printing presses, typewriters, the mail, and telephones -being the methods selected by Americans to communicate with one another -- are all protected by our constitutional rights. Factual Background and Parties: Steve Jackson, of Austin, Texas, is a successful small businessman. His company, Steve Jackson Games, is an award- winning publisher of adventure games and related books and magazines. In addition to its books and magazines, SJG operates an electronic bulletin board system (the Illuminati BBS) for its customers and for others interested in adventure games and related literary genres. Also named as plaintiffs are various users of the Illuminati BBS. The professional interests of these users range from writing to computer technology. Although neither Jackson nor his company were suspected of any criminal activity, the company was rendered a near fatal blow on March 1, 1990, when agents of the United States Secret Service, aided by other law enforcement officials, raided its office, seizing computer equipment necessary to the operation of its publishing business. The government seized the Illuminati BBS and all of the communications stored on it, including private electronic mail, shutting down the BBS for over a month. The Secret Service also seized publications protected by the First Amendment, including drafts of the about-to-be-released role playing game book GURPS Cyberpunk. The publication of the book was substantially delayed while SJG employees rewrote it from older drafts. This fantasy game book, which one agent preposterously called "a handbook for computer crime," has since sold over 16,000 copies and been nominated for a prestigious game industry award. No evidence of criminal activity was found. The warrant application, which remained sealed at the government's request for seven months, reveals that the agents were investigating an employee of the company whom they believed to be engaged in activity they found questionable at his home and on his own time. The warrant application further reveals not only that the Secret Service had no reason to think any evidence of criminal activity would be found at SJG, but also that the government omitted telling the Magistrate who issued the warrant that SJG was a publisher and that the contemplated raid would cause a prior restraint on constitutionally protected speech, publication, and association. The defendants in this case are the United States Secret Service and the individuals who, by planning and carrying out this grossly illegal search and seizure, abused the power conferred upon them by the federal government. Those individuals include Assistant United States Attorney William J. Cook, Secret Service Agents Timothy M. Foley and Barbara Golden, as well Henry M. Kluepfel of Bellcore, who actively participated in the unlawful activities as an agent of the federal government. These defendants are the same individuals and entities responsible for the prosecution last year of electronic publisher Craig Neidorf. The government in that case charged that Neidorf's publication of materials concerning the enhanced 911 system constituted interstate transportation of stolen property. The prosecution was resolved in Neidorf's favor in July of 1990 when Neidorf demonstrated that materials he published were generally available to the public. Legal Significance: This case is about the constitutional and statutory rights of publishers who conduct their activities in electronic media rather than in the traditional print and hard copy media, as well as the rights of individuals and companies that use computer technology to communicate as well as to conduct personal and business affairs generally. The government's wholly unjustified raid on SJG, and seizure of its books, magazines, and BBS, violated clearly established statutory and constitutional law, including: . The Privacy Protection Act of 1980, which generally prohibits the government from searching the offices of publishers for work product and other documents, including materials that are electronically stored; . The First Amendment to the U. S. Constitution, which guarantees freedom of speech, of the press and of association, and which prohibits the government from censoring publications, whether in printed or electronic media. . The Fourth Amendment, which prohibits unreasonable governmental searches and seizures, including both general searches and searches conducted without probable cause to believe that specific evidence of criminal activity will be found at the location searched. . The Electronic Communications Privacy Act and the Federal Wiretap statute, which together prohibit the government from seizing electronic communications without justification and proper authorization. #### For more information, contact Gerard Van der Leun at 617-864-1550. 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