IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

                        

No. 93-8661
                        


STEVE JACKSON GAMES INCORPORATED, STEVE JACKSON,
ELIZABETH MCCOY, WALTER MILLIKEN
AND STEFFAN O'SULLIVAN,

                Appellants,

v.

UNITED STATES SECRET SERVICE
AND THE UNITED STATES OF AMERICA,

                Appellees.


ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

                        

BRIEF FOR AMICUS CURIAE
ELECTRONIC FRONTIER FOUNDATION, INC.
THE SOCIETY FOR ELECTRONIC ACCESS
INTERCON SYSTEMS CORPORATION
                        

                                        Shari Steele
                                        ELECTRONIC FRONTIER FOUNDATION
                                        Suite 950 East
                                        1001 G Street, N.W.
                                        Washington, DC  20001
                                        (202) 347-5400
                                        Internet:  ssteele@eff.org
MARCH 7, 1994

INTERESTED AMICUS CURIAE

The following amicus curiae have an interest in the outcome of this case:

Shari Steele
ELECTRONIC FRONTIER FOUNDATION
Suite 950 East
1001 G Street, N.W.
Washington, DC  20001
(202) 347-5400
Internet:  ssteele@eff.org


Steven Barber
THE SOCIETY FOR ELECTRONIC ACCESS
P.O. Box 7081
New York, NY  10116-7081
(212) 592-3801
Internet:  sea@sea.org


Michaela Barry
INTERCON SYSTEMS CORPORATION
950 Herndon Parkway, #420
Herndon, Virginia  22070
(703) 709-5500
Internet: mikki@intercon.com

INTEREST OF THE AMICUS CURIAE

        The Electronic Frontier Foundation, Inc., is a privately funded
nonprofit organization concerned with the civil liberties, technical and
social issues raised by the applications of new computing and
telecommunications technology.  Its founders include Mitchell Kapor, a
leading pioneer in software development who was the first CEO of the Lotus
Development Corporation and developed the Lotus 1-2-3 spreadsheet software;
and John Perry Barlow, an author and lecturer interested in digital
technology and society.
        The Society for Electronic Access (SEA) is a nonprofit membership
organization concerned with the civil liberties in and public access to
electronic communications media.  SEA's membership is composed of United
States citizens who recognize the increasingly central role of electronic
communications in our society and economy.
        InterCon Systems Corporation is a corporation concerned with
Internet connectivity and the many privacy issues surrounding it.  Michaela
Barry, one of the founders of InterCon, was Editor-in-Chief of the
Georgetown Journal of Law and Technology.  InterCon has been vocal
regarding the privacy and individual rights of users of electronic
technology since 1988.
        The Amicus Curiae limit their comments here to the one issue that,
if interpreted incorrectly, would have devastating effects on the future of
electronic communications.  That issue is the proper definition of
"interception" under the Electronic Communications Privacy Act.
        Computer communications are still in their infancy, but we already
know that they implicate long-standing speech and privacy issues under the
Constitution.  The precedents we set today may radically affect the course
of the computer networks of the future, and with it the fate of an
important tool for the exchange of ideas in a democratic society.  When the
law limits or inhibits the use of new technologies, or when it fails to
provide the same degree of protection for a new communications technology
that it provides for older methods of communicating, it creates a grave
risk of compromising speech and privacy interests protected by the Bill of
Rights.  In this brief, the Amicus Curiae respectfully ask this Court to
make the determination that all communications that are seized before they
are received by the intended recipient are "interceptions" under Sections
2501 and 2511(1)(A) of the Electronic Communications Privacy Act.

TABLE OF CONTENTS
INTERESTED AMICUS CURIAE . . . . . . . . . . . .. . . . . . . . . . . . . 2
INTEREST OF THE AMICUS CURIAE . . . . . . . . . . . . . . . . . . . . . . 3
STATEMENT OF THE ISSUE . . . . . . . . . . . . . . . . . . . . . . . . . .6
SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . .. . .6
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . 7
CONCLUSION . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . 14
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . .. . . 16


TABLE OF CASES, STATUTES AND OTHER AUTHORITY

STATUTES

18 U.S.C.  2501 et seq. . . . . . . . . . . . . . . . . . . . . . 4, 7
18 U.S.C.  2510 et seq. . . . . . . . . . . . . . . . . . . . . . 9
18 U.S.C.  2511(1)(A) . . . . . . . . . . . . . . . . . . . . .. . 4, 5, 7
18 U.S.C.  2701 et seq. . . . . . . . . . . . . . . . . . . . . . 8

OTHER AUTHORITY

J. Podesta & M. Sher, Electronic Mail Association, Protecting 
        Electronic Messaging:  A Guide to the Electronic 
        Communications Privacy Act (1990) . . . . . . . . . . . . . 8, 9, 10

S. Rep. No. 541, 99th Cong., 2nd Sess. (1986) . . . . . . . . .. . .8

Ed Krol, The Whole Internet (1992) . . . . . . . . . . . . .. . . . 10

Bernard Aboba, The Online User's Encyclopedia:  Bulletin 
        Boards and Beyond (1993) . . . . . . . . . . . . . . . .. . 11

131 Cong. Rec. 11,795 (1985) (statement of Sen. Leahy). . . . . . . 11-12


STATEMENT OF THE ISSUE
DOES THE WHOLESALE SEIZURE OF ELECTRONIC MAIL THAT HAS BEEN WRITTEN,
ADDRESSED AND SENT OVER AN ELECTRONIC COMMUNICATIONS NETWORK, BUT NOT YET
ACCESSED BY THE INTENDED RECIPIENT, CONSTITUTE AN "INTERCEPTION" PROHIBITED
BY 18 U.S.C.  2511(1)(A)?

SUMMARY OF THE ARGUMENT
        Many different companies, large and small, offer a variety of
communications services.  The Electronic Communications Privacy Act was
designed to ensure that all providers of electronic communications were
subject to the protections and requirements of the federal Wiretap Act.  As
the National Information Infrastructure comes closer to becoming a reality,
more and more communications are using complex electronic messaging routes
to reach their intended destinations.  A single, networked electronic mail
message can stop to rest on many different computers as it travels from the
sender to the intended recipient.  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.  To interpret
"interception" as capturing a message only as it travels through a wire
would mean that the privacy interests of individuals engaged in electronic
message communications change constantly during the course of transmission,
depending on the accident of whether the message happens to be in a wire or
in computer memory or disk at the time of capture.  This kind of arbitrary
alteration of privacy interests and penalties cannot be what Congress
intended when it passed the Electronic Communications Privacy Act.


ARGUMENT

THE DISTRICT COURT ERRED IN FAILING TO ENTER JUDGMENT FOR THE PLAINTIFFS ON
THEIR CLAIMS UNDER 28 U.S.C.  2501, SINCE THE WHOLESALE SEIZURE OF
ELECTRONIC MAIL THAT HAS BEEN WRITTEN, ADDRESSED AND SENT OVER AN
ELECTRONIC COMMUNICATIONS NETWORK, BUT NOT YET ACCESSED BY THE RECIPIENT,
CONSTITUTES AN "INTERCEPTION" PROHIBITED BY 18 U.S.C.  2511(1)(A).

        The Electronic Communications Privacy Act (ECPA) was passed by
Congress in 1986 to prohibit anyone from intentionally intercepting, using
and/or disclosing electronic communications without the creator's
permission.  In addition, Congress passed the ECPA specifically to prohibit
government officers from accessing private messages without legal
authorization.
        ECPA was passed to extend the protections of Title III of the
Omnibus Crime Control and Safe Streets Act of 1968,  the federal Wiretap
Act, to non-voice communications that were transmitted over wires and/or
airwaves that were not necessarily transmitted by the telephone company or
other common carrier.  Congress specified two different levels of
protection for electronic communications:  accessing stored communications
required a warrant, and violations carried a $1,000 maximum statutory
penalty; while intercepting communications required a court order, and
violations carried a stiffer, $10,000 penalty.
        The Electronic Communications Privacy Act has two essential
purposes:  to ensure that the privacy rights of individuals using new forms
of electronic communications are protected, and to protect the providers of
all electronic communications systems.   As the Senate Report accompanying
the ECPA explained, "Today we have large-scale electronic mail operations,
computer-to-computer data transmissions, cellular and cordless telephones,
paging devices, and video teleconferencing.  A phone call can be carried by
wire, by microwave or fiber optics.  It can be transmitted in the form of
digitized voice, data or video.  Since the divestiture of AT&T and
deregulation, many different companies, not just common carriers, offer a
wide variety of telephone and other communications services."   ECPA was
designed to ensure that all providers of new communications technologies
were given the protections and requirements of the federal Wiretap Act. 
        Two provisions of ECPA were considered by Judge Sparks in this
case.  The first provision involved Stored Wire and Electronic
Communications and Transactional Records Access.   Under this section,
Judge Sparks found that Secret Service Agents had violated the ECPA when
they seized the electronic mail stored on the Steve Jackson Games computer.
 "As the search warrant application evidences, the Secret Service wanted
seizure of all information and the authority to review and read all
electronic communications, both public and private. . . .  This conduct
exceeded the Government's authority under the statute."  R.E. at 24-25
(emphasis by the court).  Judge Sparks held that the electronic mail on the
Steve Jackson Games computer constituted stored communications and was,
therefore, protected under this section.
        The second provision considered by Judge Sparks was the Wire and
Electronic Communications Interception and the Interception of Oral
Communications provision of the Electronic Communications Privacy Act.  
This provision involves electronic communications, such as electronic mail,
that are intentionally intercepted.  Applying the interception provisions
of ECPA, Judge Sparks found that Steve Jackson and three users of the
Illuminati BBS did have messages they had not yet read that were seized. 
However, the Court "specifically holds that the alleged 'interceptions'
under the facts of this case are not 'interceptions' contemplated by [ECPA.
 This section of the statute] simply has no applicability to the facts of
this case."  R.E. at 22.
        Under "the facts of this case," the Secret Service prevented 162
pieces of electronic mail from ever reaching the people to whom they were
addressed.  Because the Secret Service read and deleted the waiting mail,
the private messages Steve Jackson, Elizabeth McCoy, Walter Milliken and
Steffan O'Sullivan sent were never received by their intended recipients. 
Surely such a disruption in the delivery of their messages constitutes an
interception of those messages.  Any other finding defies basic common
sense and the obvious definition of the word "interception."
        Interception of electronic communications does not require
wiretapping.  A well-regarded publication on the ECPA published by the
Electronic Mail Association  uses examples of potential interceptions of
electronic mail that do not involve wiretaps.   Judge Sparks held, however,
that the interception clause of ECPA would only apply only when law
enforcement officers were tapping in to a communication as that
communication was traveling over the wires.
        Perhaps most troubling to those who use electronic communications
are the serious technical implications to Judge Sparks's interpretation of
the statute, whether one is communicating on a small computer network or on
the national "information superhighway."  The Steve Jackson Games case
centers on a single BBS, where electronic mail was simply sent between
users, who each dialed in to the same computer and accessed that part of
the BBS disk where the messages were stored.  But in larger networks, a
single networked electronic mail message can stop to rest on many different
computers as it travels from the sender to the receiver.
        Electronic mail is not an end-to-end service:  the sending and
receiving machines need not be able to communicate directly with each
other.  Rather, electronic mail is a store-and-forward service.  Mail is
passed from one machine to another until it finally arrives at its intended
destination.  This is analogous to the way the U.S. Postal Service delivers
mail:  you address a message and put it into a mailbox.  The message is
picked up and sent to another place.  This step is repeated until it
arrives at the recipient's mailbox. 
        A big difference between electronic communications and tangible
letters, however, is that electronic messages traveling through
communications networks are broken down into individual "packets," which
are transmitted to the destination computer and then reassembled into the
original message.  A single message may become many packets when
transmitted through a communications network, and these packets often take
different routes to their final destination.   Furthermore, this process of
breaking down and reassembling messages can take place at many locations
along the route and at different levels in the network protocol hierarchy. 
This is true of telephone conversations as well as electronic mail.
        To a computer user sending an electronic mail message, this process
is mostly invisible, much as we do not know (or care) whether First Class
Mail is routed via truck, airplane, or a combination of both, or how many
stops it made enroute.  For purposes of intercepting the contents of an
e-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.  To interpret "interception" as Judge Sparks
interprets it would mean that the privacy interests of individuals engaged
in electronic message communications change constantly during the course of
transmission, depending on the accident of whether they happen to be in a
wire or in computer memory or disk at the time of capture.  This kind of
arbitrary alteration of privacy interests and penalties cannot be what
Congress intended when it passed the Electronic Communications Privacy Act.
        In fact, in his statement when he introduced the Electronic
Communications Privacy Act on September 19, 1985, Senator Patrick Leahy
made it clear that the purpose of the ECPA was to give Americans confidence
that their electronic communications would be private:  "From the beginning
of our history, first-class mail has had the reputation for preserving
privacy, while at the same time promoting commerce.  Both of these
important interests must continue into our new information age.  We cannot
let any American feel less confident in putting information into an
electronic mail network than he or she would in putting it into an envelope
and dropping it off at the Post Office." 
        While an electronic message is awaiting transport through the
network, it often comes to rest on computer systems along its route.  There
it sits and waits for its first opportunity to continue on its way.  This
waiting area is called a system's buffer.  Under Judge Sparks's
interpretation of "interception," messages sitting in a system's buffer
would be subject to the stored provisions of the ECPA, rather than the
interception provisions.
        This is an important point.  Applying the stored provisions, law
enforcement officers could tap electronic messages, including telephone
conversations, with only a warrant, rather than a court order.  The
government could understand an electronic message by repeatedly reading the
messages in the buffers while a telephone conversation is taking place,
completely defeating the distinctions between interception and storage that
Congress intended to create in the ECPA.  Accessing buffered messages is
akin to wiretapping the trunk of a telephone company, where many
conversations wait microseconds on their way to the proper caller's
telephone receiver, with merely a warrant.
        Telecommunications technologies rely more and more on buffered
communications in order to best use available resources.  With the coming
National Information Infrastructure, interpreting a law designed to enhance
privacy protections in a way that actually takes them away is a very
serious problem.  Instead, our legal system should dedicate itself to
preserving the confidence of individuals using electronic communications. 
Random seizure of undelivered messages destroys the integrity of networked
communications.  And random fluctuations of privacy interests during the
course of a transmission create uncertainty and doubt on the part of
citizens as to the extent to which the law protects their communications
privacy.  We ask the Court to reaffirm the distinction that Congress has
already made in the Electronic Communications Privacy Act -- unauthorized
interception of electronic communications by law enforcement officers is a
greater crime than mere seizure of stored communications.  And messages
that have been seized before reaching their final destination have been
intercepted.

CONCLUSION
        For the foregoing reasons, Amicus Curiae Electronic Frontier
Foundation, Inc., and The Society for Electronic Access respectfully asks
this Court to reverse the District Court's judgment that 18 U.S.C.  2501
et seq. offers the Plaintiffs no relief and to remand for entry of judgment
of $10,000 statutory damages against Defendants in favor of each Plaintiff.

Respectfully submitted,

                                        Shari Steele
                                        ELECTRONIC FRONTIER FOUNDATION
                                        Suite 950 East
                                        1001 G Street, N.W.
                                        Washington, DC  20001
                                        (202) 347-5400
                                        Internet:  ssteele@eff.org


                                        By:                                     
                                                Shari Steele

                                        ATTORNEY FOR AMICUS CURIAE
                                        ELECTRONIC FRONTIER FOUNDATION



                                        Steven Barber
                                        THE SOCIETY FOR ELECTRONIC ACCESS
                                        P.O. Box 7081
                                        New York, NY  10116-7081
                                        (212) 592-3801
                                        Internet:  sea@sea.org


                                        By:                                     
                                                Steven Barber

                                        ATTORNEY FOR AMICUS CURIAE
                                        THE SOCIETY FOR ELECTRONIC ACCESS



                                        Michaela Barry
                                        INTERCON SYSTEMS CORPORATION
                                        950 Herndon Parkway, #420
                                        Herndon, Virginia  22070
                                        (703) 709-5500
                                        Internet:  mikki@intercon.com


                                        By:                                     
                                                Michaela Barry

                                        ATTORNEY FOR AMICUS CURIAE
                                        INTERCON SYSTEMS CORPORATION

CERTIFICATE OF SERVICE
        I hereby certify that a true and correct copy of the foregoing
BRIEF FOR AMICUS CURIAE ELECTRONIC FRONTIER FOUNDATION, INC., AND THE
SOCIETY FOR ELECTRONIC ACCESS has been sent by messenger to the following:


        Barbara L. Herwig
        Scott R. McIntosh
        Civil Division, Room 3127
        Department of Justice
        10th & Pennsylvania Avenue, N.W.
        Washington, D.C. 20530

        I hereby certify that a true and correct copy of the foregoing
BRIEF FOR AMICUS CURIAE ELECTRONIC FRONTIER FOUNDATION, INC., AND THE
SOCIETY FOR ELECTRONIC ACCESS has been mailed, certified mail, return
receipt requested, to the following:

        R. James George, Jr.
        Peter D. Kennedy
        GEORGE, DONALDSON & FORD, L.L.P.
        Suite 1000
        114 West 7th Street
        Austin, TX  78701


on this the 7th Day of March, 1994.



                                        By:                                     
                                                Shari Steele