Index: Day Three of the Steve Jackson Games/Secret Service Lawsuit. The judge spent time straight reprimanding a Agent of the Secret Service for the behavior regarding the raid and subsequent investigation of Steve Jackson Games. Report by Joe Abernathy of Houston Chronicle.
Paco X Nathan: Steve Jackson Games - Day 3 Fri, 29 Jan 1993 11:12
Steve Jackson Games/Secret Service wrapup
By JOE ABERNATHYCopyright 1993, Houston Chronicle
AUSTIN -- An electronic civil rights case against the Secret
Service closed Thursday with a clear statement by federal District Judge Sam Sparks that the Service failed to conduct a proper investigation in a notorious computer crime crackdown, and went too far in retaining custody of seized equipment.
The judge's formal findings in the complex case, which will
likely set new legal precedents, won't be returned until later.
A packed courtroom sat on the edge of the seat Thursday morning
as Sparks subjected the Secret Service agent in charge of the investigation to a grueling dressing-down.
The judge's rebuke apparently convinced the Department of
Justice to close its defense after calling only that one of the several government witnesses on hand. Attorney Mark Battan entered subdued testimony seeking to limit the award of monetary damages.
Secret Service Special Agent Timothy Foley of Chicago, who was
in charge of three Austin computer search-and-seizures on March 1, 1990, that led to thelawsuit, stoically endured Spark's rebuke over the Service's poor investigationand abusive computer seizure policies. While the Service has seized dozens of computers since the crackdown began in 1990, this is the first case to challenge the practice.
"The Secret Service didn't do a good job in this case. We know
no investigation took place. Nobody ever gave any concern as to whether (legal) statuteswere involved. We know there was damage," Sparks said in weighing damages.
The lawsuit, brought by Steve Jackson Games of Austin, said that
the seizure of three computers violated the Privacy Protection Act, which provides First Amendment protections against seizing a publisher's works in progress. The lawsuit further said that since one of the computers was being used to run a bulletin board system containing private electronic mail, the seizure violated the Electronic Communications Privacy Act in regards to the 388 callers of the Illuminati BBS.
Sparks grew visibly angry when it was established that the
Austin science fiction magazine and game book publisher was never suspected of a crime, and that agents did not do even marginal research to establish a criminal connectionbetween the firm and the suspected illegal activities of an employee, or to determine that the company was a publisher. Indeed, agents testified that they were not even trained in the Privacy Protection Act at the special Secret Service school on computer crime.
"How long would it have taken you, Mr. Foley, to find out what
Steve Jackson Games did, what it was?" asked Sparks. "An hour?
"Was there any reason why, on March 2, you could not return to
Steve Jackson Games a copy, in floppy disk form, of everything taken?
"Did you read the article in Business Week magazine where it had
a picture of Steve Jackson – a law-abiding, tax-paying citizen – saying he was a computer crime suspect?
"Did it ever occur to you, Mr. Foley, that seizing this material
could harm Steve Jackson economically?"
Foley replied, "No, sir," but the judge offered his own answer.
"You actually did, you just had no idea anybody would actually
go out and hire a lawyer and sue you."
More than $200,000 has been spent by the Electronic Frontier
Foundationin bringing the case to trial. The EFF was founded by Mitchell Kapor amid a civil liberties movement sparked in large part by the Secret Service computer crimecrackdown.
"The dressing-down of the Secret Service for their behavior is a
major vindication of what we've been saying all along, which is that there were outrageous actions taken against Steve Jackson that hurt his business and sent a chilling effect to everyone using bulletin boards, and that there were larger principles at stake," said Kapor, contacted at his Cambridge, Mass., office.
"We're very happy with the way the case came out," said Shari
Steele, who attended the case as counsel for the EFF. "That session with the judge and Tim Foley is what a lawyer dreams about."
That session seemed triggered by a riveting cross-examination of
Foley by Pete Kennedy, Jackson's attorney.
Kennedy forced Foley to admit that the search warrant did not
meet even the Service's own standards for a search-and-seizure, and did not establish that Jackson Games was suspected of being involved in any illegal activity.
"Agent Foley, it's been almost three years. Has Chris Goggans
been indicted? Has Loyd Blankenship been indicted? Has Loyd Blankenship's computer been returned to him?"
The purported membership of Jackson Games employee Blankenship
in the Legion of Doom hacker's group triggered the raids that day on Jackson Games, Blankenship's home, and that of Goggans, a Houstonian who at the time was a University of Texas student. No charges have been filed, although the computer seized from Blankenship's home – containing his wife's dissertation – never has been returned.
After the cross-examination, Sparks questioned Foley on a number
of keydetails before and after the raid, focusing on the holes in the search warrant,why Jackson was not allowed to copy his work in progress after it was seized, and why his computers were not returned after the Secret Service analyzed them, aprocess completed before the end of March.
"The examination took seven days, but you didn't give Steve
Jackson's computers back for three months. Why?" asked an incredulous Sparks. "So here you are, with three computers, 300 floppy disks, an owner who was asking for it back, his attorney calling you, and what I want to know is why copies of everything couldn't be given back in days. Not months. Days.
"That's what makes you mad about this case."