STEVE JACKSON GAMES WINS LAWSUIT AGAINST U.S. SECRET SERVICE
A games publisher has won a lawsuit against the U.S. Secret Service and the federal government in a ground-breaking case involving computer publications and electronic mail privacy.
In a decision announced in Austin, Texas, on March 12, Judge Sam Sparks of the federal district court for the Western District of Texas announced that the case of Steve Jackson Games et al. versus the U.S. Secret Service and the United States Government has been decided for the plaintiffs.
The plaintiffs, which include Steve Jackson, the company he founded, and three users of the company's bulletin board system (BBS), sued the government on claims that their statutory rights to electronic mail privacy had been violated when the BBS and other computers, disks and printouts were seized by the Secret Service as part of a computer crime investigation. These rights are protected under the Electronic Communications Privacy Act (ECPA), which extended most of the protections of the federal Wiretap Act ("Title III") to electronic mail.
Jackson and his company also claimed violations of the Privacy Protection Act of 1980, a federal law designed to limit searches of publishers in order to protect their First Amendment rights.
Mitch Kapor, founder and chairman of the board for the Electronic Frontier Foundation, the public interest/civil liberties organization that has underwritten and supported the case since it was filed in 1991, said he is pleased with the decision. "This decision vindicates our position that users of computer bulletin board systems are engaging in Constitutionally protected speech," Kapor said.
"This decision shows that perseverance pays off," he added. "We've been at this for almost three years now, and we still don't know if it's over – the Justice Department might appeal it." Nevertheless, Kapor said he is optimistic about the case's ultimate outcome.
Judge Sparks awarded more than $50,000 in damages to Steve Jackson Games, citing lost profits and violations of the Privacy Protection Act of 1980. In addition, the judge awarded each plaintiff $1,000 under the Electronic Communications Privacy Act for the Secret Service seizure of their stored electronic mail. The judge also stated that plaintiffs would be reimbursed for their attorneys's fees.
The judge did not find that Secret Service agents had "intercepted" the electronic communications that were captured when agents seized the Illuminati BBS in an early morning raid in the spring of 1990 as part of a computer crime investigation. The judge did find, however, that the ECPA had been violated by the agents's seizure of stored electronic communications on the system.
The case was tried in Austin, Texas, by the Austin-based media law firm George, Donaldson & Ford, with case assistance provided by the Boston, Massachusetts, law firm of Silverglate & Good.
Pete Kennedy, the lawyer from George, Donaldson & Ford who litigated the case, calls the decision "a solid first step toward recognizing that computer communications should be as well-protected as telephone communications." Kennedy also said he believes the case has particular significance for those who use computers to prepare and distribute publications. "There is a strong indication from the judge's decision that the medium of publication is irrelevant," he said, adding that "electronic publishers have the same protections against law enforcement intrusions as traditional publishers like newspapers and magazines. All publishers that use computers should be heartened by this decision. It indicates that the works-in-progress of all types of publications are protected under the Privacy Protection Act.
"The case also demonstrates that there are limits on the kinds of defenses law enforcement agents can use, Kennedy said, noting that "the judge made it very clear that it is no excuse that the seizure of draft material for publication held on a computer was incidental or accidental."
Mike Godwin, an attorney for the Electronic Frontier Foundation who has worked on the case since 1990, said he is pleased with the scope of the decision. "This case is a major step forward in protecting the rights of those who use computers to send private mail to each other or who use computers to create and disseminate publications."
Press contact: Mike Godwin Work: 617-576-4510 Pager: 1-800-SKYPAGE, 595-0535