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Steve Jackson Games/Secret Service Lawsuit – Day One

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.