3/18/93 Court Ruling Gives Laws On Privacy A Hi-Tech Edge
By Bob Ortega
A recent ruling by a federal judge in Austin, Texas, pushed privacy laws a
bit further into the technology age, The Wall Street Journal reported.
For the first time, say attorneys, a federal court has explicitly ruled
that the Privacy Protection Act, which mandates subpoenas in many cases, applies to electronically stored information, and that computer bulletin boards and electronic mail are safeguarded by federal wiretap laws against government eavesdropping.
The case stemmed from a U.S. Secret Service raid three years ago on Steve
Jackson Games, an Austin-based publisher of role-playing games and books. The raid, one of many the service conducted in search of electronic documents believed stolen from BellSouth, resulted in the seizure of some of the company's computers and masses of electronically stored information.
Though the ruling isn't binding on other federal courts, and still faces a
possible appeal, attorneys say Judge Sam Sparks's opinion has broad implications for privacy law and its restraints on law-enforcement investigations. Last week's decision, they noted, could strengthen the legal protections available both to traditional news-gathering concerns and publishers and to the users of fast-growing computer services such as electronic mail and computer bulletin boards.
"It's a highly visible case in the computer world," said Marc Rotenberg, an
attorney for Computer Professionals for Social Responsibility. "The judge has recognized and uplifted values that are taken for granted in the nonelectronic world."
At the same time, some law-enforcement officials see the decision as a
threat to their ability to investigate hackers and computer crime. And Dorothy Denning, computer science chairwoman at Georgetown University, says past cases have shown hackers can do great damage. "I don't think the government's fear was misplaced," she said.
In recent decades, federal law and court rulings haven't kept pace with the
rapid changes in technology, say attorneys schooled in First Amendment and privacy cases. The Privacy Protection Act of 1980, for example, generally safeguards newspapers, broadcasters and publishers from unreasonable government search or seizure, by forcing law-enforcement officials to get a subpoena before they can demand "work product," such as a reporter's notes. That process gives the target of the subpoena a chance to contest the government's demands.
But "these days, even traditional publishers do all their work on
computers," says Mike Godwin, counsel for the Electronic Frontier Foundation, a computer-user civil rights group; and until now, no federal court has said that electronically stored files and information in computers are specifically protected under the act.
Also significant is Judge Sparks's rejection of the Justice Department's
claim that the Privacy Protection Act didn't apply to records it seized "inadvertently," while carting off more than 300 floppy disks, two computers and the computer on which a bulletin board was run. "If they could seize all that from these guys legally, why not seize records at the New York Times?" says Jane Kirtley, executive director of the Reporters Committee for Freedom of the Press.
Godwin says the ruling also extends protections enjoyed by traditional
publishers and news organizations to the growing number of nontraditional publishers such as Steve Jackson Games. Further, the ruling makes clear that, just as the government can't wiretap or rummage through the post office for an individual's mail without court permission, it can't monitor electronic mail, says Jim George, an Austin attorney who represented the publishing company.
He says he believes this ruling is the first step toward treating
electronic mail and bulletin boards like more traditional means of communication. "The concept of privacy in communications shouldn't depend on the medium of delivery," he says.
The Secret Service and the Justice Department declined comment on the
ruling. In court, however, a federal attorney argued strenuously against applying the privacy and wiretap laws in this case, saying that so doing would make it very hard for the government to get information or computer documents representing criminal activity.
In his opinion, Judge Sparks noted that the Secret Service had legitimate
concerns about intrusions into computer systems, including those of telephone systems and the Defense Department. But in its rush to raid, the Secret Service didn't care what other information it seized "incidentally," or what impact its actions had on the company, he said.
Don Delaney, a senior investigator for computer crime and
telecommunications fraud with the New York State Police, says Judge Sparks's opinion is sure to be closely studied by law-enforcement agencies around the country. "Whether it's binding here or not, any decision that's logical, and complies with what the law says, will be looked at for guidance," he says.
The search and seizure at Steve Jackson Games in March 1990 was part of a
wider crackdown on computer hacking provoked by widely reported computer viruses. Agents, saying they believed Loyd Blankenship, an employee of Steve Jackson Games, might have stored a copy of telephone documents on a company-run bulletin board, used a search warrant to seize several computers and large amounts of electronically stored data, including more than 160 electronic messages, and an electronically stored book and game the company was about to publish.
As it turned out, the allegedly sensitive data in the telephone document
was publicly available for about $13 from another Bell company. No charges of any kind have ever been filed against Blankenship, Jackson or his company.
Further, there was "no valid reason" not to copy and return all the seized
material within hours or days, Judge Sparks said. Jackson said the four months' delay forced him to lay off eight employees.
By keeping its search warrant and seizure order secret, the Secret Service
disregarded the safeguards in federal laws that should have given Steve Jackson Games a chance to contest or modify the seizure order, the judge said. And, despite government denials, Judge Sparks said evidence showed the agency read and destroyed messages in violation of federal wiretap laws.
Jackson was overjoyed with the ruling. But he had already taken a small
measure of revenge: He wrote and sold nearly 6,000 copies of a new game, Hacker, that satirized bumbling Secret Service agents and, he says, the kind of evil, rogue hackers "that exist mostly in the imagination of the Secret Service."