Steve Jackson Games appeals definition of e-mail "interception";
EFF and other organizations file amicus curiae brief

March 11, 1994

In a move that could have significant ramifications for the proposed
"information superhighway," Steve Jackson of Austin, Texas, and his
company, Steve Jackson Games Incorporated -- together with three users of
the company's electronic bulletin board system (BBS) -- are asking a
federal appeals court to rule on how federal wiretap laws apply to
electronic mail.

In an appeal filed in the United States Court of Appeals for the Fifth
Circuit in New Orleans, the plaintiffs seek a ruling that a seizure of
electronic mail (e-mail) before the addressee receives it qualifies as an
"interception" under the Electronic Communications Privacy Act (ECPA).

The appeal follows a court victory last year for Steve Jackson Games, a
small roleplaying-games book publisher in Austin, Texas.  On March 1, 1990,
United States Secret Service Agents seized the company's BBS and three
computers containing the company's business records and all copies of an
upcoming publication.  On March 12, 1993, Judge Sam Sparks of the U.S.
District Court for the Western District of Texas found that Secret Service
agents involved with the raid had violated the Privacy Protection Act of
1980, which is designed to protect publishers.  Steve Jackson Games was
awarded $51,040 in damages under that claim.

In addition, the trial judge held that the seizure of electronic mail on
the company's electronic bulletin board system was a violation of the
stored communications provisions of the ECPA and awarded each of the
plaintiffs $1,000 in statutory damages.

On a third, independent claim, however, the trial judge ruled against the
plaintiffs, holding that electronic mail that had not yet been accessed by
its intended recipient is not "intercepted" under the ECPA.  Judge Sparks
held that an interception can occur when a only communication is acquired
at the same time it is occurring -- in other words, in real time as the
message is actually travelling over the wires.

Plaintiffs base their appeal on Congress' intention in creating separate
statutory provisions for "intercepted" communications and on the plain
meaning of the term "interception."  "As any defensive back knows," states
the plaintiffs' brief, "this is the classic definition of an
'interception,' and one comfortably within the statute's definition."

Three organizations interested in electronic communications, the Electronic
Frontier Foundation, The Society for Electronic Access and InterCon Systems
Corporation, filed a friends of the court brief to support Plaintiffs'
definition of "interception" under ECPA.  "For purposes of intercepting the
contents of an electronic mail message, the time the message actually
travels through the wire between computers is a technical detail of the
delivery process that should not be relevant to the law."

The Justice Department has 30 days to reply.