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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS AUSTIN DIVISION

STEVE JACKSON GAMES INCORPORATED, et al.,

   Plaintiffs,

v.

UNITED STATES SECRET SERVICE, UNITED STATES OF AMERICA, et al., Defendan

                           _Opinion_
                           I. Facts

The issues remaining at trial in this lawsuit involves the Plaintiffs Steve Jackson Games, Incorporated, Steve Jackson, Elizabeth McCoy, Walte Milliken, and Steffan O'Sullivan's causes of action against the United States Secret Service and the United States of America pursuant to three statutes, "Private Protection Act", 42 U.S.C. 2000aa _et seq_.; "Wire an Electronic Communications Interception and Interception of Oral Communication' Act, 18 U.S.C. 2510, et seq.; and "Stored Wire and Electronic Communications and Transactional Records Access" Act, 18 U.S. 2701, _et seq_. All other issues and parties have been withdrawn by agreement of these remaining parties.

The individual party plaintiffs are residents of the states of Texas and New Hampshire, and the corporate plaintiff is a Texas corporation with i principal place of business in Austin, Texas.

The Plaintiff Steve Jackson started Steve Jackson Games in 1980 and subsequently incorporated his business. Steve Jackson Games, Incorporate publishes books, magazines, box games, and related products F1. More tha 50 percent of the corporation's revenues are derived from its publications. In addition, Steve Jackson Games, Incorporated, beginning the mid-1980s and continuing through this litigation, operated from one its computers an electronic bulletin board system called Illuminati. Thi bulletin board posts information to the inquiring public about Steve Jackson Games' products and activities; provides a medium for receiving and passing on information from the corporation's employees, writers, customers, and its game enthusiasts; and, finally, affords its users electronic mail whereby, with the use of selected passwords, its users c send and receive electronic mail (E-mail) in both public and private modes. In February of 1990, there were 365 users of the Illuminati bulletin board.

Steve Jackson was both the owner and employee of Steve Jackson Games, Incorporated, and authored many of its publications; he used both Illuminati's public and private programs for electronic mail and his use ranged from business records of the corporation, contracts with his writers, communication with his writers regarding articles which were intended to be published by the corporation, to private communications with his business associates and friends. Elizabeth McCoy's use of the Illuminati bulletin board involved her participation as a game player, h critiques as to the games and publications of the corporation, and her private communications with associates and friends. William Milliken's u of the Illuminati bulletin board was apparently limited to private communicates to associates and friends. Steffan O'Sullivan's use of the Illuminati bulletin board included writings for publication by Steve Jackson Games, Inc., his business dealings with the corporation, and public and private communications with associates and friends.

Importantly, prior to March l, 1990, and at all other times, there has never been any basis for suspicion that any of the Plaintiffs have engag in any criminal activity, violated any law, or attempted to communicate, publish, or store any illegally obtained information or otherwise provid access to any illegally obtained information or to solicit any informati which was to be used illegally.

In October of 1988, 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 "911 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 1989, Kluepfel confirmed the 911 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 bulleti board newsletter in edited form. In July of 1989, 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. Kluepfel had previously worked with the Secret Service and was known as an expert and reliable informant on computer "hacking." F2 Thereafter, Kluepfel met Assistant U. S. Attorney William Cook in Chicago and thereafter communicated with Cook and Secret Service Agent T Foley. Agent Foley was in charge of this particular investigation.

Around February 6, l990, Kluepfel learned that the 911 document was available on a computer billboard entitled "Phoenix" which was operated 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, 1990, Kluepfel learned that Blankenship not only operated the Phoenix bulletin board, but he was a user of the Illinois bulletin board wherein the 911 document was first disclosed, was an employee of Steve Jackson Games, Inc., and a user of the Steve Jackson Games, Inc.'s bulletin board "Illuminati." Kluepfel's investigation also determined that Blankenship was a 'co-sysop" of the Illuminati bulletin board, which means that he had the ability to review anything on the Illuminati bulletin board and, importantly, maybe able to delete anythin on the system. Blankenship's bulletin board Phoenix had published "hacke information and had solicited "hacker" information relating to passwords ostensibly to be analyzed in some type of decryption scheme. By February 26, 1990, 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. While Kluepfel advised Agent Foley that Blankenship was an employee of Steve Jackson Games, Inc., and was a user and co-syso of Illuminati, Kluepfel never had any information whereby he was suspicious of any criminal activity by any of the Plaintiffs in this cause. Kluepfel was, and is, knowledgeable in the operation of computers computer bulletin boards, the publishing of materials and document 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 informatio on the bulletin board except for the private communications referred to the Plaintiffs as electronic communications or electronic mail, but did not do so. Kluepfel had legitimate concerns, both about the 911 document stolen from Bell South and the possibility of a decryption system which could utilize passwords in rapid fashion and could result in intrusions computer systems, including those of the Bell System.

In February of 1990, Agent Foley was also knowledgeable about computer bulletin boards and he too could have "logged" into Illuminati, become a user and reviewed all public communications on the bulletin board, but d not do so.

By February 28, 1990, 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 F3) there had been an unlawful intrusion on the Bell South computer program, the 911 Bell South document was a sensitive and proprietary document, an



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