UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
STEVE JACKSON GAMES
STEVE JACKSON, ELIZABETH
MCCOY, WALTER MILLIKEN, and
STEFFAN O'SULLIVAN,
Plaintiffs, Docket No. A 91 CA 346
v.
UNITED STATES SECRET SERVICE,
UNITED STATES OF AMERICA,
WILLIAM J. COOK, TIMOTHY M. FOLEY,
BARBARA GOLDEN, and HENRY M.
KLUEPFEL,
Defendants.
______________________________________________________________
REVISED MEMORANDUM OF LAW IN SUPPORT PLAINTIFFS'
OPPOSITION TO THE UNITED STATES' MOTION TO
DISMISS OR IN THE ALTERNATIVE FOR SUMMARY JUDGMENT
Sharon L. Beckman
Andrew Good
Harvey Silverglate
Silverglate & Good
89 Broad St., 14th Floor
Boston, MA 02110
Eric Lieberman
Nicholas Poser
Rabinowitz, Boudin, Standard, Krinsky
& Lieberman, P.C.
740 Broadway, at Astor Place
New York, NY 10003-9518
R. James George, Jr.
Peter D. Kennedy
Graves, Dougherty, Hearon & Moody
2300 NCNB Tower
515 Congress Avenue
Austin, TX 78701
DATED: October 2, 1991
TABLEOFCONTENTS
[page numbers deleted due to the fact they're
irrelevant here -rmr]
INTRODUCTION
I. THE GOVERNMENT'S MOTION TO
DISMISS MUST BE DENIED
II. THE GOVERNMENT'S MOTION FOR SUMMARY
JUDGMENT ON THE BASIS OF A
GOOD FAITH DEFENSE MUST BE DENIED
A. Good Faith is Not a Defense to an
Action Against the United States
under the Privacy Protection Act
B. Plaintiffs Have Raised Genuine
Issues of Material Fact in
Support of their Allegation that
the Government Aqents Did Not
Reasonably Rely on the Search Warrant
1. Plaintiffs have raised genuine issues
of material fact concerning whether
the government's agents submitted a
false and misleading warrant
affidavit deliberately or with
reckless disregard for the truth
(a) The government's agentknew or
recklessly failed to discover that
SJG was a publisher of books,
magazines, and adventure games.
(b) The government's agents knew or
recklessly failed to discover that
the Electronic Bulletin Board
System Operated by SJG was a forum
for constitutionally protected speech
and association and not an
instrument of criminal activity
(c) The government's agents knew or
1recklessly failed to discover
that the BBS operated by SJG
contained private electronic mail
(d) The government's agents knew or
recklessly failed to discover
that Loyd Blankenship was not
a computer programmer at SJG
(e) The government's agents knew or
recklessly failed to discover that
the information published in Phrack
was not a "program" or "source code"
(f) The government's agents knew or
recklessly failed to discover
that the information published
in Phrackdid not contain
any proprietary warning
(g) The government's agents knew or
recklessly should have known that
the information published in Phrack
was not "highly proprietary" or
"sensitive," but was readily
accessible to the public in
published material, including
material published by
BellSouth and Bellcore
(h) The government's agents knew or
recklessly failed to discover that
the information published in
Phrackwas not worth $79,000
(i) The government's agents knew or
recklessly failed to discover that
Loyd Blankenship was not engaged
in any interstate
"password hacking" scheme
2. Plaintiffs have raised genuine issues
of material fact concerning whether
the government's agents reasonably
relied on a warrant that was so lacking
in indicia of probable cause as to render
official reliance on it unreasonable
(a) The government's agents did
not reasonably rely on a warrant
devoid of facts indicating that
evidence of criminal activity would
be found at the offices of SJG
(b) The government's agents did not
reasonably rely on the warrant,
which failed to establish probable
cause to believe that Loyd Blankenship
was engaged in criminal activity
3. Plaintiffs have raised genuine issues
of material fact concerning whether
the government's agents reasonably
relied upon a general warrant
that failed to particularize the
things to be seized
4. Plaintiffs have raised genuine issues
of material Fact in Support of Their
Allegation that the Search and Seizure
at SJG Exceeded the Scope of the
Warrant, and Violated the First Amendment
III. THE GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT
ON COUNT V MUST BE DENIED BECAUSE PLAINTIFFS HAVE
RAISED GENUINE ISSUES OF MATERIAL FACT
IN SUPPORT OF THEIR ALLEGATION THAT
GOVERNMENT AGENTS INTERCEPTED THEIR
PRIVATE ELECTRONIC COMMUNICATIONS
CONCLUSION
_____________________________________________________
INTRODUCTION
On March 1, 1990, government agents executed a warrant
authorizing the search of Austin publisher Steve Jackson
Games Incorporated ("SJG") and the wholesale seizure of
computer hardware, software, and data therefrom. They found
not a shred of evidence of criminal activity, but their
search, seizure, and retention of equipment and data nearly
ruined SJG.
The government agents seized -- and then refused to
return -- the text and research materials relating to an
about-to-be released fantasy game book, causing SJG to miss
its publication deadline and to spend numerous hours
reconstructing the book from prior drafts. They also seized
and shut down the Illuminati BBS -- an electronic
conferencing system featuring public conferences and private
electronic mail, used by SJG employees, writers, artists, and
customers to discuss SJG books and games and related literary
genres. The search and seizure, and subsequent retention of
SJG property deprived the users of the Illuminati BBS of a
unique forum for constitutionally protected speech and
association, and left SJG so far behind and so much in debt
that it was forced to lay off half of its valued employees.
In the year and a half that has passed since the raid on
SJG, the government has acknowledged that neither SJG nor
Jackson were targets of its investigation. Moreover, in two
other cases, UnitedStatesv.Riggsand UnitedStatesv.
Neidorf, the government has moved to dismiss indictments
arising from this same investigation on the ground that the
activity under investigation did not amount to a federal
offense.
Plaintiffs have sued the government for violating their
rights under the Privacy Protection Act and the Electronic
Communications Privacy Act.(l) In moving this court for
summary judgment, the government has not denied much of the
account set out above, but simply asserts that its agents did
notrealizethat they were badly mistaken: They did not know
that SJG was a publisher. They did not know that what they
described as a "highly proprietary" and "sensitive" stolen
"program" was actually just a text file of bureaucratic
information readily available to the general public in public
libraries, book stores, and publications issued by Bellcore
and BellSouth.(2)
While its agents had a copy of the stolen text file they
were searching for, the government argues it was "impossible"
for them to particularize the things to be seized. Moreover,
the government maintains its agents reasonably relied upon a
***FN1 Plaintiffs have also sued the individuals who
planned and executed the search and seizure under color of
federal law for violating their rights under the First and
Fourth Amendments and the Electronic Communications Privacy
Act. Complaint at 87-122.
***FN 2 The government's motion to dismiss or for summary
judgment does not include any affidavit from Henry M.
Kluepfel, a private individual who participated in the events
giving rise to this law suit as a federal official acting
under color of federal law.
warrant application that stated only that evidence,
instrumentalities, and fruits of criminal activity would be
found at the home of Loyd Blankenship orat the home of Chris
Goggans,orat SJG.
In the face of all of these mistakes, the government
asks this Court to conclusively determine, without discovery
or trial, that this lawsuit must be dismissed because its
officers acted in "good faith". This opposition, and
supporting declarations and affidavits, demonstrate the
existence of genuine issues of material fact regarding the
officers' good faith, and for that reason, summary judgment
should be denied.
I. GOVERNMENT'8 MOTION TO DISMI58 MUST BE DENIED.
Although the government's motion is styled as a motion
under Federal Rule 12(b)(6) to dismiss for failure to state a
claim under which relief can be granted, its only challenge
to the complaint is its claim that "plaintiffs have failed to
allege that electronic communications were intercepted within
the meaning of the ECPA." Government Memo ("GM") 12. This
claim is frivolous. Count V of the Complaint, which is
titled in bold type "Interception of Electronic
Communications," expressly alleges that "[d]efendants
intercepted, disclosed, or intentionally used plaintiffs'
electronic communications in violation of 118 U.S.C. 2510
etseqand 2520," and further alleges that the
"[d]efendants intentionally intercepted, endeavored to
intercept, or procured others to intercept or endeavor to
intercept, plaintiffs' electronic communications in violation
of 18 U.S.C. 2511(1)(a). Complaint at 114-115. Since
the government has not demonstrated any infirmity in the
complaint, its motion to dismiss should be summarily denied.
II. THE GOVERNMENT'8 MOTION FOR SUMMARY JUDGMENT
ON THE BASI8 OF A GOOD FAITH DEFENSE MUST BE DENIED.
The Government's motion for summary judgment based on the
alleged good faith of its agents fails for two reasons.
First, as discussed in Part II.A., below, there is no good
faith defense to the Privacy Protection Act. Second, as
discussed in Part II.B, below, the government fails to
acknowledge the stringent standards imposed on summary
judgment motions in civil rights cases and fails to meet
those standards.
A. Good Faith is Not a Defense to an Action Against
theUnitedStatesunderthePrivacyProtectionAct.
Count I of the Complaint alleges that the search and
seizure at SJG violated the Privacy Protection Act of 1980
(PPA), 42 U.S.C. 2000aa, which requires law enforcement
officers to obtain evidence possessed by innocent third
parties "reasonably believed to have a purpose to disseminate
to the public a newspaper, book, broadcast, or other similar
form of public communication" by means of a subpoena or
voluntary compliance rather than by search and seizure.
Congress enacted the PPA in 1980 to provide "persons engaged
in first amendment activities" with protection from
unreasonable search and seizure beyond the protections
provided by the Fourth Amendment.(3)
The PPA expressly dictates that
[t]he United States ... may not assert as a defense
to a claim arising under this chapter the immunity
of the officer or employee whose violation is
complained of or his reasonable good faith belief
in the lawfulness of his conduct.
2000aa-6(c). The legislative history of the PPA reveals
that Congress intentionally prohibited the United States from
asserting a good faith defense to assure compensation to
innocent victims of governmental overreaching and to deter
searches and seizure from publishers:
In the past, the good faith defense has often
precluded the recovery for unlawful searches and
seizures. Prohibiting the use of this defense when
the government unit is the defendant in a suit
brought under this statute is not only a fair means
of assuring compensation for damages resulting from
unlawful governmental searches, it will also
enhance the deterrent effect of the statute.
***FN3 Congress enacted the PPA in direct response to the
Supreme Court's opinion in Zurcherv.StanfordDaily, 436
U.S. 547 (1978), which declined to establish a heightened
probable cause standard for searches and seizures of
publishers. The legislative history demonstrates that
Congress enacted the PPA because of its concern "that the
search warrant procedure in itself does not sufficiently
protect the press and other innocent third parties." Senate
Report No. 874, at 4, reprintedinU.S. Code Cong. & Ad. News
at 3950-3951.
S. Rep. 874, at 15,reprintedin1980 U.S. Code Cong. & Ad.
News at 3961.(4)
Recognizing that the PPA precludes it from asserting a
good faith defense, the government argues that language in
the Electronic Communications Privacy Act operates as an
implied repeal of the PPA "in the context of searches
encompassing electronic communications." GM at 32. Summary
judgment should be denied for three reasons.
First, while the government's good faith argument is
limited to the context of "searches encompassing electronic
communications," the affidavits submitted by both parties
raise a genuine issue of material of fact in support of
plaintiffs' allegation that the search and seizure in this
case encompassed far more than electronic communications.
The factual record this case reveals that the federal
agents searched theentireSJG office and warehouse and, in
additiontoseizingprivateelectroniccommunications,seized
otherformsofworkproductanddocumentarymaterial.
includingelectronicallystoredtextsanddraftsofbooksin
progress in electronic and hard copy form. (5) Since the
***FN 4 The PPA creates a cause of action only against the
government, and not against the individual federal officials,
for violations of its provisions under color of federal law.
This narrowing of remedies further indicates that the absence
of a governmental good faith defense is the result of careful
balancing of competing policies by Congress.
***FN5 Declarations of Steve Jackson 21, 28, 29, 30, 31;
Loyd Blankenshlp 14, 17; Walter Milliken 7, 12;
Elizabeth McCoy 7; Steffan O'Sullivan 10; Affidavits of
government does not even allege a good faith defense to its
search and seizure of these materials, summary judgment on
the PPA claim should be denied.
Second, the express terms of the PPA dictate that the
government may not assert a good faith defense. The
government's claim that the PPA's express provisions
eliminating the good faith defense have been repealed by
implication is without merit. As the government concedes,
"repeals by implication are strongly disfavored ... so that a
later statute will not be held to have implicitly repealed an
earlier one unless there is a clear repugnancy between the
two."UnitedStatesv.Fausto, 484 U.S. 439, 108 S. Ct. 668,
676 (1988); Kremer v. Chemical Construction Corp., 456 U.S.
461, 466 (1982) (reaffirming "cardinal principle of statutory
construction that repeals by implication are not favored"); M
Corp.FinancialInc.v.BoardofGovernorsFederalReserve
System, 900 F.2d 852, 855-856 (5th Cir. 1990). "[T]his
'cardinal rule' means that '[i]n the absence of some
affirmative showing of an intention to repeal, the only
permissible justification for a repeal by implication is when
the earlier and later statutes are irreconcilable."'
TennesseeValleyAuthorityv.Hill, 437 U.S. 153, 190 (1978),
(quotingMortonv.Mancari, 417 U.S. 535, 550 (1974).
Implied repeal is prohibited here because the government
cannot show either that it was intended by Congress or that
the statutory provisions in question are irreconcilable.
Neither the language nor the legislative history of the
Electronic Communications Privacy Act (ECPA) reveal any
intent by Congress to repeal the express statutory text of
PPA removing the good faith shield from the government.(6)
The ECPA amended the Omnibus Crime Control and Safe Streets
Act of 1968 to prohibit the unauthorized interception of
electronic communications under 18 U.S.C. section 2520 and to
add section 2707, prohibiting unauthorized seizure or
disclosure of stored electronic communications. The
government's implied repeal argument rests on the premise --
unstated but implied in its memorandum at 31 -- that the
statutory language extending the good faith defense under the
1968 Wiretap statute to "any other law" was added in 1986,
afterthe 1980 enactment of the PPA. This premise is false:
the phrase "any other law" was actually added in 1970, long
before either the PPA or the ECPA were enacted. 18 U.S.C.A.
***FN 6 UnitedStatesv.Fausto, 487 U.S. 439 (1988), quoted
in the government's brief, does not support its argument.
Fausto emphasized the distinction between implied repeal of
"a legal disposition implied by a statutory text," which is
fairly common, and "[r]epeal by implication of an express
statutory text," which is "strongly disfavored." 108 S. Ct.
at 676. The Court reaffirmed that "it can be strongly
presumed that Congress will specifically address language on
the statute books that it wishes to change." Id., (citing
Mortonv.Mancari, 417 U.S. 535 (1974). In contrast to the
implied repeal of the judicial interpretation involved in
Fausto, in this case the government is seeking the repeal of
the express statutory text of the PPA.
2520 Historical and Statutory Notes. The language was
added as a "conforming amendment" designed to harmonize
section 2520(d) with the parallel wiretap provision Congress
added to the District of Columbia Code as part of the
District of Columbia Court Reform and Criminal Procedure Act
of 1970. Pub. L. No. 91-358, 84 Stat. 473. The 1970 Act
added a parallel wiretap statute to the District of Columbia
Code that also provided a good faith defense "to an action
brought under this section or any other law." Codification
of Title 23 of the District of Columbia Code, 23-554(c),
reprintedin1970 U.S. Code Cong. & Ad. News 551, 735.
Placed in its proper historical context, it is clear that the
phrase "or any other law" was meant to ensure that the good
faith defense applied to both the federal and District of
Columbia wiretap statutes, (7) and not, as the government
implies, to any section of the United States Code affecting
electronic communications. There being no contrary
indicaation in the legislative history of the ECPA, Congress'
incorporation of this language in section 2707 should
similarly be construed to encompass parallel statutory
***FN7 At its broadest, the phrase "or any other law" could
be interpreted to encompass other parallel state wiretap laws
enacted contemporaneously with 2520. See.e.g., Gershman,
ElectronicSurveillance 805[2] & n.131 (1990).
provisions of the District of Columbia and the states but not
to repeal other sections of the United States Code. (8)
The conduct of the government officials in this case --
conducting a search and seizure at a publisher's office
without a valid warrant -- violates both the PPA and the
ECPA. The fact that the United States may assert a good
faith defense under the ECPA but not under the PPA does not
result in the type of "positive repugnancy" necessary to
support a claim of implied repeal:
It is not enough to show that the two statutes
produce differing results when applied to the same
factual situation, for that no more than states the
problem. Rather 'when two statutes are capable of
co-existence, it is the duty of the courts ... to
regard each as effective."
Radzanowerv.ToucheRoss&Co., 426 U.S. 148, 155 (1976)
(citingMortonv.Mancari, 417 U.S. at 551); UnitedStatesv.
Batchelder, 442 U.S. 114 (1979) (passage of criminal statute
carrying 2-year maximum sentence did not repeal by
implication earlier criminal statute carrying 5-year maximum
sentence for the same conduct); M.Corp.FinancialInc.v.
***FN8 The references set out on page 32 of the
government's memorandum are not helpful because none of them
involve the good faith defense in issue here. Moreover, the
government's argument that federal statutory provisions not
explicitly mentioned in the legislative history of the ECPA
are therefore repealed, improperly reverses the long-
established presumption against implied repeals.
Board of Governors Federal Reserve System, 900 F. 2d 852, 855-
856 (5th Cir. 1990). (9)
In any event, as set out in Part II.B., below, summary
judgment is inappropriate because plaintiffs have raised
genuine issues of material fact regarding the good faith of
the government agents who planned and executed the search and
seizure at SJG.
B. Plaintiffs Have Raised Genuine Issues
of Material Fact in Support of their
Allegation that the Government Agents
DidNotReasonablyRelyontheSearchWarrant.
Under Rule 56(c), a motion for summary judgment may be
granted only when "the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law." The government, as moving
party, bears the burden of demonstrating the absence of a
genuine triable issue of fact. CelotexCorp.v.Catrett, 477
***FN9 Interpreting the ECPA's general reference to "other
laws," to repeal the PPA's specific refusal of defense to the
federal government in the context of governmental searches
and seizures of publishers, would violate the basic principle
of statutory construction nolding that a statute dealing with
a narrow, precise, and specific subject is not submerged by a
later enacted statute covering a more generalized spectrum."
Mortonv.Mancari, 417 U.S. 535, 550-51 (1974).
Moreover, interpreting the "other law" language to
insert a good faith defense into every other federal civil or
criminal action would violate the rule of statutory
construction that statutes should be construed to avoid
absurd or unreasonable results. AmericanTobaccoCo.v.
Patterson, 456 U.S. 63, 71 (1982); United States v. Mendoza,
565 F2d 1285, 1288-90 (5th Cir. 1978).
U.S. 316, 323 (1986). (10) Moreover, since "credibility
determinations, the weighing of evidence and the drawing of
legitimate inferences from the facts are jury functions," the
evidence presented by the plaintiffs "is to be believed," and
all justifiable inferences must be drawn in their favor.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 255
(1986); Pollerv.ColumbiaBroadcastingSystem, 368 U.S. 464,
473 (1962).
Summary judgement is particularly inappropriate in civil
rights cases, where, as here, the state of mind of government
agents is in issue. (11). The Fifth Circuit has emphaqsized that
in civil rights cases challenging the validity of a warrant,
"[t]the issue of officers' truthfulness and intent at the
time they applied for the warrant" is "a classic issue of
historical fact central to the substantive issues" determined
at trial. Hindman v. City of Paris, 746 F.2d 1063, 1067 (5th
***FN 10 The standard for summary judgment mirrors the
directed verdict standard. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 250 (1986).
***FN 11 UnitedStatesPostalServiceBoardofGovernorsv.
Aikens, 460 U.S. 711, 716-717 (1983); Adickesv.S.H.Kress,
398 U.S. 144, 153-156 (1970) (summary judgment denied law
enforcement officers who submitted affidavits denying
involvement in civil rights violations); Blankenshipv.Kerr
County, 878 F.2d 895 (Sth Cir. 1989) (qualified immunity
issue in civil rights case should not have been decided on
summary judgment); Brawnerv.CityofRichardson, 855 F.2d
187 (1988) (government was not entitled to summary judgment
on civil rights claims arising under First Amendment); Hayden
v.FirstNationalBank, 595 F.2d 994, 997 (5th Cir. 1979)
("granting summary judgment is especially questionable" in
"cases which involve delving into the state of mind of a
party").
Cir. (1984)(12) Similarly, the Fifth Circuit has recognized
that in a civil rights action where the facts relied upon to
show probable cause to issue a warrant are controverted, they
must be resolved by the fact finder after trial before
controlling legal principles are applied. Garrisv. Rowland,
678 F.2d 1264, 1270 (5th Cir.), cert.denied, 459 U.S. 864
(1982).
Plaintiffs have alleged that the government's agents
could not reasonably have relied upon the warrant authorizing
the search and seizure at SJG because (l) the government's
agents submitted a warrant affidavit containing material
omissions and false information deliberately or with
reckless disregard for the truth; (2) the warrant affidavit
utterly failed to establish probable cause to believe
evidence of criminal activity would be found at SJG; (3) the
***FN12 The government's argument, at 15-16 of its
memorandum, suggesting that the evidentiary burden imposed
upon criminal defendants seeking to suppress evidence from
criminal trials should be imposed on plaintiffs in civil
rights suits, was rejected by the Fifth Circuit in Hindmanv.
CityofParis, 746 F.2d 1063 (Sth Cir. 1984). In that case,
the district court directed a verdict in a 1983 case based
on its conclusion that the plaintiff had not met the Franks
v.Delaware standard for demonstrating the defendant police
officers' bad faith. The Fifth Circuit reversed, reasoning
that, in contrast to a preliminary ruling on the
admissibility of evidence in a criminal case, "in a civil
suit attacking the legality of an arrest, a Franks v.
Delawarefactual dispute ... presents a classic issue of
historical fact central to the substantive issues" that must
be decided after trial by the ultimate fact finder. 746 F.2d
at 1067. While Hindmaninvolved a directed verdict rather
than a summary judgment, the Supreme Court has held that the
standards for both are the same. undersonv.LibertyLobby
Inc., 477 U.S. 242, 250 (1986).
facts relied upon in the warrant affidavit were stale; and
(4) the warrant was a facially invalid general warrant that
failed to particularize the items to be seized and (5) the
search and seizure exceeded the scope of the warrant.
Complaint at27-40, 49.
The Government's good faith defense is based on the
affidavits of some of the individual defendants, who allege
that they did not know some of the material information that
was omitted from the affidavit, and did not know that
material information in the warrant affidavit was false.(l3)
Plaintiffs have responded with affidavits indicating that
defendants either knew that the warrant affidavit contained
material falsehoods and material omissions or submitted it to
this Court with reckless disregard for the truth. The
government's additional allegations concerning the scope of
the search and seizure are either not supported by affidavit,
***FN13 Declarations of Defendants Cook 4, 5, Foley
4, 5, and Golden 13.
The government has not submitted any affidavit from
defendant Kluepfel. Plaintiffs allege that Kluepfel's
conduct must be attributed to the government because he
participated in the planning and execution of the search and
seizure of SJG as a federal officer under color of federal
authority. Complaint at 20,22-23, 84,92,99, 109, 199.
See., e.g., Schowengerdt v. General Dynamics Corp, 823 F.2d
1328 (9th Cir. 1987) (security investigator for private
company who participated with federal defendants in search
was federal actor acting under color of federal law for
purposes of Bivens liability). Kluepfel's status as a
federal official is amply demonstrated, not only by his
investigative activities giving rise to this lawsuit as
recounted in the Warrant Aff. 3b, 24-28, 31-32, and 35,
but also by the fact that he is represented before this Court
by the Justice Department.
or contradicted by affidavits submitted in opposition. Under
the standards set out above, this case involves genuine
issues of material fact that preclude summary judgment.
1. Plaintiffs have raised genuine issues
of material fact concerning whether the
government'sagents submitted a false
and misleading warrant affidavit deliberately
or with reckless disregard for the truth.
The government is not entitled to cloak itself in
immunity based on a warrant that its agents obtained based on
information that they knew to be false or misleading, or
would have known was false or misleading but for their
reckless disregard of the truth. Hindmanv.CityofParis,
746 F.2d 1063, 1067 (5th Cir. 1984). Cf. United States v.
Leon, 468 U.S. 867, 923 (1984) (citingFranks v.Delaware,
438 U.S. 154 (1978). "The issue of the officers'
truthfulness and intent at the time they applied for tthe
warrant is one of fact." uHindman, 746 F.2d at 1067. "If the
facts omitted from an affidavit are 'clearly critical' to a
finding of probable cause, then recklessness may be inferred
from the proof of the omission itself. Halev.Fish, 899
F.2d 390, 300 (5th Cir. 1990).
The plaintiffs have alleged that the individual
defendants in this case, all acting as federal officials
under color of federal law, intentionally or recklessly
submitted a warrant affidavit containing material omissions
and false and misleading information. Plaintiffs have raised
substantial issues of material fact in support of this
allegation, as demonstrated below.
(a) The government's agents knew
or recklessly failed to discover
that SJG was a publisher of
books,magazines,andadventuregames.
SJG, established in 1980 and incorporated in Texas in
1984, is an award-winning publisher of books, magazines, and
adventure games.(14) SJG books and games create imaginary
worlds whose settings range from prehistoric to futuristic
times and whose form encompass various literary genres. The
magazines published by SJG contain news, information, and
entertainment relating to the adventure game industry and
related literary genres.(15) SJG games and books are carried
by wholesale distributors throughout the United States and
abroad, and are sold by national retail chain stores
including B. Dalton, Bookstop, and Waldenbooks. SJG is not,
and has never been, in the business of selling computer
games, computer programs, or other computer products. Id. 4
Like other publishers of books or magazines, and like
newspaper publishers, SJG relied heavily on computers in
composing, storing, and preparing for publication the text of
its books, magazines, and games. SJG stored notes, source
***FN14 Jackson Decl. 3, 6.
***FN 15 The January 1990 DirectMailCatalogue of SJG
books, games, and newsletters is attached as Exhibit 1 to the
Jackson Decl.
materials, and other work product and documentary materials
relating to SJG publications on its computers. Id. 8,
9.(16)
The government does not deny that these material(l7)
facts demonstrating that SJG is a publisher are true or that
they were omitted from the warrant affidavit. Rather, the
government alleges that some of its agents simply "did not
know that Steve Jackson Games held itself out as a publisher"
and "believed that Steve Jackson Games was involved with the
manufacture of computer or video games. (18) However, the
record in this case raises several genuine issues of material
fact in support of plaintiffs' allegation that the
***FN16 Moreover, like many businesses, SJG used computers
to create and store business records such as correspondence,
contracts, address directories, budgetary and payroll
information, and personnel information. Id. 10.
***FN17 The government's failure to inform the magistrate
that SJG was a publisher is material both because the PPA
expressly prohibits governmental searches and seizures of
innocent third-party publishers, 42 U.S.C. 2000aa etseq,
and because the Fourth Amendment particularity requirement is
to be applied with particular care when materials protected
by the First Amendment could accidentally be swept up in the
search for contraband.
***FN18 Declarations of Cook 5, Foley 5, and Golden
13. These declarants have not stated why or how they came to
falsely believe that SJG produced computer or video games.
Mere speculation and conjecture does not demonstrate good
faith. If there were any basis for their belief, however,
they should have communicated it to the magistrate, for the
creation of video and computer games is also protected by the
First Amendment.
Defendant Kluepfel, who investigated SJG as a federal
agent acting under color of federal law, has not submitted
any affidavit evidencing good faith.
government's failure to inform the magistrate that SJG was a
publisher was deliberate or, at the very least, reckless.
First, since much of the discussion on the BBS at the
time of the search and seizure involved SJG publications, and
since the BBS itself contained texts of SJG publications, (19)
it is difficult to believe that Kluepfel, who logged onto the
BBS and made observations there, (20) did not realize that SJG
was a publishing business.
Second, since the Secret Service had an Austin-based
staff of agents, and since the government enlisted the
investigative assistance of local law enforcement officers
(including both the University of Texas police and the Austin
Police) in this investigation,(2l) and since Foley himself was
in Austin the week before the search and seizure at SJG,(22)
it is difficult to believe that none of the government's
agents visited the premises of SJG, which were open to the
public. Had they visited the premises, they would have
observed the unmistakable characteristics of a publishing
house -- shelves lined with SJG books; framed SJG book covers
***FN l9 Declarations of Jackson 13, 15, Milliken 6,
7, McCoy 5 and O'Sullivan 6, 8.
***FN20 Warrant Aff35.
***FN21 Warrant Aff. 33, 36-37; Kerry Havas Aff.,
Lambard Aff., Bennett Aff., Kunze Aff., Chris McCubbin Aff.,
and Don Arburn Aff.
***FN22 Warrant Application; Izenberg Warrant Application
(Exhibit 1 to Declaration of Gia Barresi).
on the walls; a wall chart prominently labeled "STEPS IN
EDITING A MANUSCRIPT," indicating the status of SJG books in
progress; several desks each bearing a complete set of SJG
books, along with style manuals and dictionaries; a
typesetting room labeled as such, as so on -- all in plain
view.(23) Only by sheer recklessness could the government
have failed to learn that SJG was a publisher.
Moreover, none of the government agents deny knowing
that SJG was a publisher atthetimeofthesearch. Indeed,
SJG employees report that they specifically told the
investigating officers that they were "writer[s]", "print-
buyer[s]", "production artist[s]", "managing editor[s]", and
that SJG had "major books on deadline." (22) Had the agents
been acting in good faith, they would have terminated the
search plans upon learning of their mistake. Instead, as set
out in Part II.B.4, below, the agents conducted a wide-
ranging general search of the SJG offices, seizing not only
SJG's work product, but also its "printing press." (25)
***FN23 Havas Aff., Lambard Aff., Bennett Aff., Kunze Aff.,
McCubbin Aff., and Arburn Aff.
***FN24 McCubbin Aff., Havas Aff., Arburn Aff., Blankenship
Decl. 12, and Lambard Aff.
***FN 25 L. Tribe, AmericanConstitutionalLaw1009 (1988)
(As computer terminals become ubiquitous and electronic
publishing expands, the once obvious boundaries between
newspapers and television, telephones and printing presses,
become blurred.)
(b) The government's agents knew or
recklessly failed to discover
that the Electronic Bulletin
Board System ("BBS") Operated by
SJG was a forum for constitutionally
protected speech and association and
notaninstrumentofcriminalactivity.
Since 1986, SJG has used a computer to operate an
electronic bulletin board system ("BBS") (26) dedicated to
communication of information about SJG adventure games, the
game industry, related literary genres, and to association
among individuals who share these interests. The BBS, named
"Illuminati" after the company's award-winning game of the
***FN26 An electronic bulletin board system ("BBS"), is a
computerized conferencing system that permits communication
and association between and among its users. A systems
operator ( "sysop" ) manages the BBS on a computer system that
is equipped with appropriate hardware and software to store
text files and communications and make them accessible to
users. Users of the BBS gain access to the system using
their own computers and modems and normal telephone lines.
Bulletin board systems commonly feature multiuser
conferences in which users engage in an ongoing exchange of
ideas, archives of text files, and an electronic mail service
facilitating the delivery, receipt, and storage of mail sent
between users.
Bulletin board systems may be maintained as private
systems or may permit access to the general public. They
range in size from small systems operated by individuals
using personal computers in their homes to world-wide
networks of interconnected computers.
SeeComplaint at 5-6; Jackson Decl. 11, 13, 14, 15,
Milliken Decl. 5, 6, 7, 11; McCoy Decl. 6; O'Sullivan
Decl. 6, 8 9. SeealsoJensen, AnElectronicSoapbox:
ComputerBulletinBoardsandtheFirstAmendment, 39 Fed.
Comm. L.J. 217, 218-219 (1988); Becker,TheLiability of
ComputerBulletin BoardOperatorsforDefamationPostedby
Others, 22 Conn. L. Rev. 203, 203-204 (1989).
same name, (27) provided its users with (1) a library of text
files ranging from articles on adventure game and game-
related humor to drafts of forthcoming SJG publications, (2)
public and private conferences for discussions of SJG books
and games and related literature and humor, and (3) a private
electronic mail service. SJG and its employees used the
Illuminati BBS in the course of their publishing business to
communicate with customers, retailers, writers, and artists;
to provide customer service; to obtain feedback on games; to
obtain general marketing information; to advertise; and to
establish good will within the adventure game community. The
BBS was also used by SJG customers, retailers, writers,
artists, competitors, writers of science fiction and fantasy,
and others with an interest in SJG games, the adventure game
industry, or related literary genres.(28)
The government neither denies that these material facts
about the nature of the Illuminatiati BBS are true nor provides
any explanation for why the true nature of the Illuminati BBS
was not conveyed to the magistrate. These omissions from the
warrant affidavit are particularly egregious in light of the
***FN27 The Illuminati game, described on page 19 of the
SJG DirectMailCatalogue, was awarded the Origins Award for
Best Science Fiction Boardgame and the Games Designers' Guild
Select Award in 1983. The game was on the Games 100 list for
1984-1986. The licensed Illuminati play-by-mail game was
awarded the PBM Association Award and Best PBM Game of the
Year in 1986. Jackson Decl. 7.
***FN28 Jackson Decl. 13-17; Milliken Decl. 4-7, 9-
11; McCoy Decl. 4, 6; and O'Sullivan Decl. 5, 8, 9.
fact that Kluepfel had actually logged onto the BBS, where he
had access to all of the general text files and all of the
public conferences on the BBS, evidencing its true nature as
a forum for discussion of SJG books, the adventure game
industry, and related literary genres. Yet the warrant
affidavit informed the magistrate only of Kluepfel's claim
that the BBS identified Blankenship as its systems
operator -- which was false (29) -- and his unsupported,
conclusory allegation that the BBS was frequented by
"individuals involved with the unauthorized access of
computer systems." Warrant Aff. 35, 6. Given that the
Illuminati BBS was accessible to and indeed accessed by the
government, the submission of a warrant affidavit drafted so
as to mislead the magistrate into thinking that the BBS was a
hotbed of criminal activity appears to have been intentional,
or at the very least, the result of inexplicable
recklessness.
(c) The government's agents knew or
recklessly failed to discover
that the BBS operated by SJG
containedprivateelectronicmail.
The government apparently concedes that its agents knew
that the Illuminati BBS contained private electronic
communications which they intended to seize and read. GM at
17; Warrant Aff. q 42. Moreover, the government cannot deny
***FN29 The BBS identified "Fearless Leader" as the systems
operator. "Fearless Leader" was the user id of SJG employee
Creede Lambard. Jackson Decl. 18.
that the warrant affidavit failed to inform the magistrate
that the Illuminati BBS -- or any BBS -- contained private
electronic communications. To the contrary, the warrant
affidavit indicated only that the messages left on electronic
bulletin boards are "readable by others with access to the
bulletin board." Warrant Aff. 7. While the affidavit
defined electronic mail, it never informed the magistrate
either that electronic mail is private or that it is stored
on a BBS. Id. at 9.
Because of these omissions, the warrant affidavit failed
to place the magistrate on notice that issuance of the
warrant would result in the seizure and reading of private
communications between individuals with absolutely no
connection to the government's investiqation. As a result,
the magistrate issued a warrant that is the functional
equivalent of a warrant authorizing the seizure of all of the
mail contained in a post office. Since the warrant affidavit
reveals that the government agents knew enough about
electronic bulletin board systems to understand that they
often stored electronic mail, (30) and since defendant Kluepfel
accessed the Illuminati BBS where he would have discovered
that the BBS provided an electronic mail service, material
facts indicate that the government's failure to inform the
magistrate of its intention to seize and read the private
***FN30Warrant Aff. 1-3, 6-12.
electronic communications of innocent parties with no
connection to its investigation, was deliberate or, at the
very least, reckless.
(d) The government's agents knew or
recklessly failed to discover
that Loyd Blankenship was not
acomputerprogrammeratSJG.
The warrant affidavit falsely alleges that Loyd
Blankenship was employed as a computer programmer at SJG.
Warrant Aff. 33. The false information is attributed to
University of Texas investigator Larry Coutourie without any
statement of his basis of knowledge. Blankenship, who was
the Managing Editor at SJG at the time of the search and
seizure, has never been employed as a computer programmer
there. Jackson Decl. 19, Blankenship Decl. 2, 3.
The materiality of this false statement is demonstrated
by the government's attempt to use it to link Blankenship
with the computers at SJG, and to attribute to him -- without
a shred of factual support -- the expertise of a "proficient
hacker." GM at 21. Since Blankenship's work product as a
writer and editor -- including his work on the then-
forthcoming book GURPSCyberpunk -- was prominently displayed
on the Illuminati BBS for Kluepfel to observe, (31) the false
statement in the warrant affidavit appears to have been
deliberate or, at the very least, reckless.
***FN31Blankenship Decl. 8; Milliken Decl. 7.
(e) The government's agents knew or
recklessly failed to discover
that the information published in
Phrackwasnot a"program"or"sourcecode."
The government does not deny that the statements in the
warrant affidavit describing the BellSouth text file as a
"program" (32) and as "source code" (33) were both material and
false. Moreover, neither of the drafters of the warrant
affidavit deny that these false statements were deliberately
made. (34) Examination of the original text file copied from
BellSouth (35)and the edited version published in Phrack(36) --
which the government possessed but did not present to the
magistrate (37) -- plainly reveals that the text f ile could not
reasonably have been mistaken for a computer program or
***FN32 Warrant Aff. 8, 14 & 17 .
***FN33 Warrant Aff 38.
***FN 34 In the prosecution of Craig Neidorf, the college
student charged with interstate transportation of stolen
property and other charges in connection with his publication
of the edited text file in his electronic newsletter Phrack,
Agent Foley acknowledged he made the same false statement in
a January 25, 1990, hearing before the grand jury
investigating Neidorf . Foley testified that Assistant U. S .
Attorney Cook asked him for "the value of the computer
program that was stolen from the Atlanta office" to which
defendant Foley replied " [t]hat has been valued by Southern
Bell at seventy-nine thousand and I believe four hundred
forty-nine dollars." UnitedStatesv.Neidorf, No. 90-CR-70
(N. D. Ill . 1990), Trial Transcript, at 416-417 (attached as
Exhibit 2 to Barresi Decl. ) . At trial, Foley explained that
he had made a mistake "in the terminology. " Id. at 417.
***FN35 Decl. of John Nagle 7.
***FN 36 Barresi Decl., Exhibit 2.
***FN 37 Warrant Aff. 20 & 23.
computer source code. These mistakes could not have been
made in good faith by defendants Cook or Foley, who, in a
separate warrant affidavit filed in this Court a week before
the SJG search and seizure revealed that they had spent the
previous three months investigating a theft of "source code,"
which they defined as follows:
Source code is a high level computer language which
frequently uses English letters and symbols for
constructing computer programs. Programs written
in source code can be converted or translated by a
'compiler' program into object code for use by the
computer.
Izenberg Warrant Aff. (Barresi Decl., Exhibit l) Rather, the
repeated misstatements in the warrant affidavit evidence a
deliberate attempt to mislead the magistrate into thinking
that a bureaucratic memorandum that had been published for
over a year "around the United States" withoutincident was
actually a highly"sensitive" computer program, that
"constituted a threat" to the emergency 911 system.(38).
(f) The government's agents knew or
recklessly failed to discover that
the information published in Phrack
didnotcontainanyproprietarywarning.
In paragraph 23 of the warrant affidavit, defendant
Foley states that he has
personally examined the Phrack newsletter number 24
and observed that the newsletter does in fact
contain a slightly edited copy of the stolen Bell
South E911 Practice text file with the warning:
NOTICE: NOT FOR USE OR DISCLOSURE
OUTSIDE BELLSOUTH OR ANY OF ITS
SUBSIDIARIES EXCEPT UNDER WRITTEN
AGREEMENT.[WHOOPS].
This allegation is material because it was used to create an
inference that Blankenship should have realized that the
Phrack newsletter contained stolen property.
Examination of the material actually published in
Phrack, (39) however, reveals that it contains no nondisclosure
notice and no references whatsoever to BellSouth. At the
Neidorftrial, Agent Foley testified that on January 18, 1990
-- just a little over a month before he and Cook drafted and
submitted the warrant affidavit in this case -- Craig Neidorf
provided him with a copy of the Phrackissue containing the
edited text file and specifically told Foley that, before he
published the text file in Phrack, he had deleted "all
references to Florida, or Bell, or anything in the document
which might alert the phone company or BellSouth that a
hacker was in their system." (40)This evidence suggests that
the misleading description in the warrant affidavit of the
***FN39 Barresi Decl., Exhibit 3.
***FN40 NeidorfTr., at 317-318, 326, 322 (attached as
Exhibit 2 to Barresi Decl.)
Neidorf's statement to Foley that he edited all
locations and references to BellSouth out of the text file,
together with the fact that the version of the text file
appearing in Phrack is 13 pages shorter than the original,
NeidorfTr., at 285, also demonstrates the falsity of Foley's
allegation that the text file was only "slightly" edited.
Warrant Aff. 23.
information published in Phrack, and allegedly observed on
Loyd Blankenship's home BBS by Kluepfel, (41) was submitted
intentionally, or with reckless disregard for the truth.
(g) The government's agents knew or
recklessly should have known that
the information published in Phrack
was not "highly proprietary" or "sensitive,"
but was readily accessible to the public
in published material, including
materialpublishedbyBellSouthandBellcore.
The warrant affidavit alleged that the information
published inPhrack24 was "highly proprietary" and
"sensitive." Warrant Aff. 13, 14, 22. The government's
agents do not deny that these allegations are materially
false, but allege that, at the time the warrant affidavit was
submitted, they "did not know that much of the proprietary
information contained in the stolen E911 text file had
arguably been disclosed to civic organizations in Ohio by
Ohio Bell, "and that they "first learned of this possible
disclosure . . . during the trial of Craig Neidorf. " Cook Decl.
4; Foley Decl. 4.
The declaration of John Nagle, however, reveals that all
of the technical information contained in the 911 text file
was readily accessible to the public in a variety of public
documents, including documents published by BellSouth and
Bellcore that could be ordered from a Bellcore Catalogof
TechnicalInformationfor $13 and $21, respectively. See
***FN 41 Warrant Aff . 25 .
Nagle Decl. 9&10; Barresi Decl., Exhibits 6&7. The Nagle
declaration further reveals that Mr. Nagle expressly
communicated this information to defendant Cook and showed
Cook the BellSouth and Bellcore documents containing the
information. SeeNagle Decl. 14, 15. Moreover, the fact
that the information had been widely published was admitted
on cross-examination by Billie Williams, the BellSouth
employee who testified for the government at the Neidorf
trial,Neidorf Tr. 288-302 (Barresi Decl., Exhibit 2). Based
on this information, the government moved to dismiss
Neidorf's indictment.(42) Neidorf's motion for expungement
and sealing of his indictment records was subsequently
granted by the District Court.(43) The failure of the
government's agents, even now, to admit that the information
published in Phrackwas not secret evidences the same willful
blindness they exhibited in drafting and submitting the
warrant affidavit.
The government argues that its agents reasonably relied
on false information provided by representatives of the
alleged victims Bellcore and BellSouth, but that argument is
inapplicable where, as here, the representative relied upon -
***FN 42 UnitedStatesv.Riggs, No. l:90-CR-31 (N.D. Ga.
1990), Sentencing Information Filed on Behalf of the Northern
District of Illinois United States Attorney's Office, at 7
(Barresi Decl., Exhibit 4).
***FN 43 Barresi Decl., Exhibit 5.
- Kluepfel (44) had an interest in the case and was
functioning as an agent of the government. Seesupra n.2.
Defendant Foley has acknowledged that "the over-all
investigation" in the E911 text file matter was "a joint
effort between . . . [the] Bell Companies and the Secret
Service and the U.S. Attorney's Office all working together."
NeidorfTr., at 367 (Barresi Decl., Exhibit 2). Foley
further indicated that he believed that "some of the Bell
people [were] made special agents of the grand jury to help
in this investigation." Id. Plaintiffs have raised a
substantial issue of material fact in support of the
allegation that the government agents were reckless in
relying on defendant Kluepfel and other Bellcore or BellSouth
employees, since those employees were acting as agents for
the government in connection with a "joint" investigation and
were not comparable to victims who have no connection with
the accused and no motive to lie. SeeHalev.Fish, 899 F.2d
390 (5th Cir. 1990); UnitedStatesv. Jackson, 818 F.2d 345
(5th Cir. 1987).
***FN 44 In the Neidorftrial, Foley testified that Kluepfel
was the one who told him that the text file was "closely held
and highly proprietary." Neidorf Tr., at 373 (Barresi Decl.,
(h) The government's agents knew or
recklessly failed to discover that
the information published in
Phrackwasnotworth$79.000.
The government does not dispute the material falsehood
of the claim in the warrant affidavit that the text file was
"worth approximately $79,000." Warrant Aff. 4. Indeed,
the government sought dismissals of the interstate
transportation of stolen property charges against Riggs and
Neidorf because the market value of the information in the
text file was worth less than the $5000 jurisdictional
minimum.(45)
Defendants Cook and Foley assert that they relied upon a
January 10, 1990, letter from Kimberly M. Megahee to
defendant Cook, in concluding that the text file was "worth
approximately $79,000.(46) However the January 10, 1990,
letter from Megahee to Cook that is attached as Exhibit C to
the Government's Motion, does notstate that the text file
was worth $79,000.(47)Rather the letter refers to an
"attached . . . breakdown of the costs associated with the
production" of the text file, "per [Cook's] request." The
***FN45 Sentencing Information Filed on Behalf of the
Northern District of Illinois United States Attorney's
Office,UnitedStatesv.Riggs, No. 90-CR-31 (N.D. Ga. 1990),
(Barresi Decl., Exhibit 4).
***FN46 Cook Decl.4; Foley Decl. 4; Warrant Aff. 4.
***FN47Neither Cook nor Foley has stated that the Megahee
letter assigned a $79,000 value to the text file. Cook
Decl.; Foley Decl.
cost breakdown includes, not only the costs of researching,
writing, printing, and mailing the text file, but also the
purchasepriceandmaintenancecostsofanentiremainframe
computer hardware and software system. Id. (48) The
allegation in the warrant affidavit that the text file was
"worth approximately $79,000" is not supported by the Megahee
letter, which reveals that the bulk of that sum represents
the value, not of a text file, but rather of an entire
computer mainframe system. The allegation is so obviously
false that no reasonable person could have believed it was
true. The allegation is particularly reckless in light of
the fact that the market value of the information contained
in the text file -- somewhere between $13 and $21 -- could
easily have been determined by reference to the materials
listed in Bellcore's CatalogueofTechnicalInformation.
Nagle Decl. 10, 11; Barresi Decl., Exhibits 6, 7.
(i) The government's agents knew or
recklessly failed to discover that
Loyd Blankenship was not engaged in
anyinterstate"passwordhacking" scheme.
The warrant affidavit falsely alleges that Loyd
Blankenship indicated his involvement in criminal activity by
***FN 48While there is a handwritten calculation on the
bottom right-hand corner of the Megahee letter erroneously
adding up the costs detailed in the attachments to the
Megahee letter, the declarations of Foley and Cook do not
reveal who wrote the calculations on the letter or when.
Exhibit C to Government's Motion; Cook Decl. 4; Foley Decl.
4. It is interesting to note that Exhibit C is not
attached to any declaration or affidavit and is not
authenticated in any way.
answering a question about a transfer protocol on the Phoenix
Project BBS. (49) Blankenship's declaration states that he has
never posted a message on the Phoenix BBS indicating his
involvement in a decryption scheme, that he has never been
involved in such a scheme, and that Kluepfel's description of
the messages posted by him and Goggans omits material facts
and is misleading. Blankenship Decl. 10. The conflict
between Blankenship's declaration and the warrant affidavit
gives rise to a genuine issue of fact material to the issues
of good faith and probable cause.
2. Plaintiffs have raised genuine issues of
material fact concerning whether the
government's agents reasonably relied
ona warrant that was so lacking in
indicia of probable cause as to render
official reliance on it unreasonable.
The law is clearly established that a search warrant is
invalid unless the warrant affidavit upon which it was based
establishes probable cause to believe that a crime has been
committed and that evidence of that crime will be found at
the particular place sought to be searched.Illinoisv.
Gates, 462 U.S. 213, 238 (1983). The Supreme Court has
emphasized that law enforcement officers are not shielded
from liability simply because a magistrate has made a finding
of probable cause. Malleyv.Briggs,475 U.S. 335, 346
***FN 49 The warrant affidavit contains no facts indicating
that Blankenship or anyone else had commenced any password
decryption scheme or possessed any password decryption
software or unauthorized passwords.
(1986). Rather, government officials who authorize or
execute a warrant without probable cause lose the shield of
immunity if the "warrant application is so lacking in indicia
of probable cause as to render official belief in its
existence unreasonable." Malley, 475 U.S. at 344-45 (citing
UnitedStatesv. Leon, 468 U.S. 897, 923 (1984).
Plaintiffs have alleged that the government is not
entitled to a good faith defense under this standard and have
raised substantial issues of material fact in support of that
allegation, including the following:
(a) The government's agents did not
reasonably rely on a warrant
devoid of facts indicating that
evidence of criminal activity
wouldbefoundattheofficesofSJG.
It is settled law that a warrant affidavit must
"establish[] a sufficient nexus between (l) criminal
activity, and (2) the things to be seized, and (3) the place
to be searched. LaFave, 2 SearchandSeizure3.7(d) at 101
(1987). Plaintiffs have raised several factual issues in
support of their allegation that the warrant affidavit in
this case established nonexustoSJG, and that reliance cn
the warrant was therefore unreasonable.
First, the warrant affidavit never even expressly
allegedthat there was probable cause to believe evidence of
criminal activity would be found at SJG. Rather, the
affidavit alleged only that evidence would be found atoneof
threelocations: at Loyd Blankenship's home, orat SJG,or
at Chris Goggans' home. Warrant Aff. 38.
Second, of the "probable cause" items listed in the
government's brief at 21, only two -- numbers (7) and (8) --
refer to SJG. While item (7) alleges that "Blankenship's
activities [implying *illegal*activities] included his use of
computers and the BBS at Steve Jackson Games," the warrant
affidavit contains absolutely no facts suggesting that Loyd
Blankenship engaged in any illegal activity at SJG. The
affidavit alleges only that, according to University of Texas
investigator Larry Coutourie, Blankenship "is employed at
Steve Jackson Games, 2700-A Metcalfe Road, Austin, Texas
where he is a computer programmer and where he uses a
bulletin board service connected to telephone number 512-447-
4449." Warrant Aff. 33.
Moreover, the warrant affidavit fails to establish Mr.
Coutourie's basis for alleging that Blankenship was a
computer programmer. This failure is material because the
information provided by Mr. Coutourie connecting Loyd
Blankenship with SJG computers is false: the declaration of
Steve Jackson reveals that Loyd Blankenship is employed as
Managing Editor, not as computer programmer, at SJG. The
warrant affidavit suggests no reason why Mr. Coutourie, an
investigator with the University of Texas, would have reason
to know anything about Loyd Blankenship (who has never been
affiliated with the University(51)), much less what
Blankenship did on bulletin board systems or what he did at
SJG. Plaintiffs, who have alleged that the warrant affidavit
is deliberately false and misleading, are entitled to
discovery to explore the factual basis for the allegations
attributed to Mr. Coutourie.
Similarly without basis is allegation (8) in the
government's memorandum, asserting that "other known computer
hackers were listed along with Blankenship as users of the
computer bulletin board at Steve Jackson Games." First, it
is important to note that the warrant affidavit failed even
to allegethat an electronic bulletin board system was run
from the premises of SJG. The allegation attributed to
Coutourie that Blankenship used a bulletin board system while
he was at work does not establish the physical location of
the bulletin board system, since users of bulletin board
systems gain access via telephone lines from remote
locations. Seesupra n. 26.; Warrant Aff. 7.
Second, while the warrant affidavit states that
defendant Kluepfel advised that "the user list f [the BBS at
512-447-4499]" includes "the name of Loyd Blankenship and
identify the "others" known to Kluepfel as "hackers" or what
factual basis he had for accusing them and Blankenship of
***FN50 Blankenship Decl. 4.
being "involved with the unauthorized access of computer
systems." Warrant Aff. 6, 35. These omissions are
material since, as the declarations of plaintiffs Jackson,
Milliken, McCoy, and O'Sullivan demonstrate, the users of the
Illuminati BBS were SJG writers, editors, customers, and game
hobbyists -- not criminals. Moreover, the warrant affidavit
contains no information revealing when defendant Kluepfel
allegedly made these observations. Plaintiffs, who have
alleged that the warrant affidavit was deliberately false and
misleading, as well as stale, are entitled to discovery to
explore the factual basis, if any, for the allegations
attributed to defendant Kluepfel.
(b) The government's agents did not
reasonably rely on the warrant,
which failed to establish probable
cause to believe that Loyd
Blankenshipwasengagedincriminalactivity.
Plaintiffs have raised issues of material fact concerning
the governments' reliance on a warrant issued without any
showing of federal criminal activity by its target Loyd
Blankenship. First, the warrant affidavit does not state
sufficient facts to establish probable cause to believe that
Loyd Blankenship knowingly or intentionally transported
stolen property valued at more than $5,000. The facts set
out in the warrant affidavit suggest that, a year before the
search and seizure in this case, a copy of the electronic
newsletter Phrack containing an editedversion of a text file
bulletin board system run from Blankenship's home as well as
to other locations throughout the United States. The facts
alleged in support of the implication that Blankenship was
somehow involved with stolen property -- that the
information published in Phrackcontained a proprietary
warning; that the information was a "program" or "source
code"; that the information was "sensitive"; that the
information was "worth approximately $79, 000" -- are all
false, and are issues on which plaintiffs have raised genuine
issues of material fact, and on which plaintiffs are entitled
to discovery.
Second, there are issues of fact concerning whether any
reasonable officer would have thought that the warrant
affidavit contained facts establishing probable cause to
believe that Loyd Blankenship was involved in violations of
18 U.S.C. 1030(a) (6), which prohibits trafficking in
passwords of a computer "used by or for the Government of the
United States" or affecting interstate commerce. The
affidavit does not allege that Blankenship possessed any
decryption software or that any password trafficking
occurred. Rather, the warrant affidavit indicates only that
Blankenship answered a question posed on the Phoenix Project
BBS about a routine transfer protocol. Warrant Aff. 27.
Moreover, while the warrart affidavit also contains
Kluepfel's conclusory allegation that Blankenship thereby
"indicated] his involvement in the decryption scheme, " the
declaration of Loyd Blankenship raises a genuine issue of
fact concerning whether that allegation was deliberately or
materially false and misleading.(51)SeeBlankenship Decl.
10.
As set out above, plaintiffs have raised genuine issues
of material fact in support of their allegation that no
reasonable officer could have believed that the warrant
affidavit established probable cause to believe that evidence
of criminal activity would be found at SJG. Even if one were
to credit the government's claim that "E911 source code and
text file and the decryption software program [were] to be
found in the computers located at "Blankenship's home, "or"
Goggans' home, "or" the business premises of SJG, Warrant
Aff. 38, it is still the case that no reasonable officer
could have relied on the warrant because, as set out below,
the warrant was a facially invalid general warrant that
failed to particularize the things to be seized.
3. Plaintiffs have raised genuine issues of material
fact concerning whether the government's agents
reasonably relied upon a general warrant that
failed to particularize the things to be seized.
The government agrees, as it must, that it is
Fourth Amendment. Marylandv.Garrison, 480 U.S. 79 (1987);
Daliav. UnitedStates, 441 U.S. 238, 255 (1979); Andresenv.
Maryland, 427 U.S. 463 (1976).
By limiting the authorization to search to the specific
areas and things for which there is probable cause to
search, the requirement ensures that the search will be
carefullytailored to its justifications, and will not
take on the character of the wide-ranging exploratory
searches the Framers intended to prohibit.
Marylandv.Garrison, supraat 84 (emphasis added). The
presence or absence of this required "careful tailoring"
constitutes a genuine issue of material fact.
Defendants' reliance upon the warrant does not clothe
them with good faith.
[A] warrant may be so facially deficient -- i.e., in
failing to particularize the place to be searched or the
things to be seized -- that the executing officers
cannot reasonably presume it to be valid.
UnitedStatesv.Leon, supra, 468 U.S. at 923; seealso
UnitedStatesv.Fucillo, 808 F.2d. 173, 178 (lst Cir. 1987).
The government's contention that the warrant's
greater particularity was impossible, or even that the
affiant believed in good faith that greater particularity was
impossible. The reason for the absence of such a sworn
statement is clear -- at all material times right up to the
present, the defendants knew perfectly well that they could
easily have been more specific. (52).
The government admits that one of things the agents were
searching for was "an illegally possessed copy of an E911
text file stolen from BellSouth". (53) GM at 23. Thus, a
specific, and uniquely identifiableitem of contraband was to
be seized. The government actually possessed a copy of this
text file, Warrant Aff. 20, 23, but did not attach it,
describe it, or even nameit in the description of items
sought to be seized.
The failure to include the readily available specific
description of the stolen E911 file invalidated this warrant.
The use of a generic term or a generic description in a
warrant, however, is acceptable to the judicial officer
issuing the warrant only when a more specific
description of the things to be seized is
unavailable....Failure to employ the specificity
availablewillinvalidateageneraldescriptionina
warrant.
UnitedStatesv.Cook, 657 F.2d 730, 733 (5th Cir. 1981). In
Cook, the "telling factor" was the failure of the agents to
**FN52 Certainly, the government's mere contention in its
legal memorandum that it was impossible to be more specific
is inadequate to foreclose discovery and a trial on that
purely factual issue. The Court should deny the government's
motion for summary judgment due to its failure to support
this factual contention by affidavit. At a minimum, a
material issue of fact exists as to whether it was impossible
to describe the items to be seized with greater
particularity.
***FN53 The description in the Government's Memorandum of
this readily and uniquely identifiable item as a "textfile"
constitutes an admission which is highly probative of the
defendants' bad faith. See II.B.l(e) supra.
employ or refer to a catalogue of "pirated motion pictures"
in the warrant's description of things to be seized, even
though the catalogue was available to them prior to applying
for the warrant. 657 F.2d at 734. In this case, the agents
had a copy of the stolen text file, but did not even mention
it in the description of items to be seized.
MontillaRecordsv.Morales, 575 F.2d 324 (lst Cir.
1978) and UnitedStatesv.Klein, 565 F.2d 183 (lst. 1977)
(cited with approval in Cook) permit the use of general
descriptions only if two tests are satisfied (neither of
which were met here):
...first, the degree to which the evidence presented to
the magistrate establishes reason to believe that a
large collection of similar contraband is present on the
premises to be searched, and, second, the extent to
which, in view of the possibilities, the warrant
distinguishes, or provides the executing agents with
criteria for distinguishing, the contraband from the
rest of an individual's possessions.
UnitedStatesv.Fucillo, 808 F.2d 173, 176 (lst Cir. 1987);
seealso, UnitedStatesv.Leary, 846 F.2d 592, 605 (lOth
Cir. 1988); UnitedStatesv.Stubbs, 873 F.2d 210 (9th Cir.
1989); UnitedStatesv.Spilotro, 800 F.2d 959 (9th Cir.
1986).
The principles set forth in the Cookopinion and the
cases cited therein govern in this case. In Cook, the Court
found the warrant description unconstitutional because it
authorized the seizure of "illegally obtained films...not
limited to the motion pictures described in the affidavit"
without providing an available criterion which the executing
officers could use to distinguish the illegally obtained
materials from lawfully possessed property.
Here, by the government's own account, the items to be
seized could have been specifically described by referring to
the E911 text file, computer passwords used on Prime and Unix
software systems, or programs utilized for their decryption.
GM at 5, 23. Yet, the warrant's description of things to be
seized sweeps far beyond that category, and includes:
[c]omputer hardware (including, but not limited to,
central processing unit(s), monitors, memory devices,
modem(s), programming equipment, communication
equipment, disks, and prints) and computer software
(including, but not limited to, memory disks, floppy
disks, storage media) and written material and documents
relating to the use of the compuer system(including
networking access files), documentation relating to the
attacking of computers and advertising the results of
computer attacks (including telephone numbers and
location information), and financial documents and
licensing documentation relative to the computer
programs and equipment at the business known as Steve
Jackson Games which constitute evidence,
instrumentalities and fruits of federal crimes,
including interstate transportation of stolen property
(18 USC 2314) and interstate transportation of computer
access information (18 USC 1030(a)(6)). This warrant is
for the seizure of the above described computer and
computer data and for the authorization to read
information stored and contained on the above described
computer and computer data.
***FN54 Where the agents are to search for contraband, and
generic description of things to be seized would allow the
agents to seize legal items, the cases have required the
agents and the magistrate to assure that the warrant "informs
the law enforcement agent as to how he should distinguish
between illegal paraphernalia and items that are held
legally." UnitedStatesv.Morisse, 660 F.2d 132, 136 n.l
(5th Cir. 1981).
Only one category of materials to be seized --
"documentation" -- was limited to those "relating to the
attacking of computers and advertising the results of
computer attacks (including telephone numbers and location
information". The unconstitutionally vague terms "attacking
of computers" and "computer attacks" have no source in law
and are completely devoid of any meaning as a criterion for
the conduct of a search for violations of any federal law. (55)
The limiting phrase which supposedly qualified and
limited the categories of materials to be seized was
completely boundless: materials which, "constitute evidence,
instrumentalities and fruits of federal crimes, including
interstate transportation of stolen property (18 USC 2314)
and interstate transportatlon of computer access information
(18 USC 1030(a)(6))." Under the terms of this facially
invalid warrant, materials which constituted evidence,
instrumentalities and fruits of any federalfederal crime could be
seized.
Even if the warrant were limited to the illustrative,
non-inclusive federal crimes mentioned (which it is not), it
***FN55 The vague limiting description involving "computer
attacks" did not even apply to any of the other, extremely
broad categories of materials to be seized: (l) "computer
hardware", (2) "computer software", (3) "written material and
documents relating to the use of the computer system
(including networking access files)", or (4) "financial
documents and licensing information relative to the computer
programs and equipment at the business known as Steve Jackson
games".
would have been without any limiting criterion which could be
used by the executing agents. 18 U.S.C. 2314 is one of the
broadest statutes in the federal criminal code, encompassing
an extremely wide range of involvement in every kind of
interstate theft scheme. Similarly, the mere citation to 18
U.S.C. 1030(a)(6) was of no assistance to executing agents.
Under the principles set forth in uCook, mere citations to
federal criminal laws do not place constitutional limits on a
search warrant. Vossv. Bergsgaard, 774 F.2d 402, 405 (lOth
Cir. 1985); UnitedStatesv.Roche, 614 F.2d 6 (lst Cir.
1980); UnitedStatesv.Cardwell, 680 F.2d 75 (9th Cir.
1982).
The warrant is also overbroad in that it contained no
temporal limitation, but rather, swept in everything no
computer hardware, software, and related documentation, and
unrelated by subject matter or time period to the
investigation being conducted.
failing also violated the particularity requirement, which
4.Plaintiffs have raised genuine issues of material
Fact in Support of Their Allegation that the
Search and Seizure at SJG Exceeded the Scope
of the Warrant, and Violated the First Amendment.
Even if the warrant limited the search and seizure to
evidence relating to the government's investigation -- which
it did not -- the range of materials purportedly seized under
this warrant went far beyond the warrant's authorization.
The overbroad seizure is important proof of the unguided
discretion afforded by this warrant, and is bound up with
several genuine issues of material fact, including (l) the
defendants' good faith belief in the lawfulness of the
warrant; (56) and, (2) the unconstitutional breadth of the
executed search and seizure. Creamerv.Porter, 754 F.2d
1311 (5th Cir. 1985).
Computer hardware, computer software, stored computer
text files, and paper documents were seized even though the
seizure as contraband or evidence, fruits or
instrumentalities of any crime. Jackson Decl. 28-31.
The government does not even assert that, at the time of
the seizures, the items seized were determined to have a
nexus to any federal crime. Rather, the government asserts
that it used an unconstitutionally broad criterion not even
***FN56 Seizures of materials that were not described in the
warrant is evidence of the bad faith of the executing
officers. UnitedStatesv. Fucillo, 808 F.2d 173, 177-78
(lst Cir. 1987).
mentioned in the warrant -- computers and other items under
the "control" of Loyd Blankenship. GM at 25-26; Golden Decl.
4-5.
Plaintiffs maintain that a far broader search than is
reflected in the Golden declaration was conducted, and that
items were seized which were not under Blankenship's
"control". (57) This is not surprising, because the government
does not indicate how its agents could have known whichitems
at SJG were under Blankenship's control. By the government's
own admission, the seizure went beyond even the overbroad
warrant because, manifestly, not everything under Loyd
Blankenship's "control" at SJG was authorized to be seized.
Certainly, matters concerning the scope of the itemsseized
and the execution of the search constitute genuine issues of
material fact.
Defendants incorrectly maintain that this case presents
no First Amendment issue, because the search and seizures
were supposedly sharply focussed on the character, not the
content, of expressive materials. GM at 24-26. In this
case, among the items seized were the printing press of a
book publisher, book drafts -- including allcurrent drafts
of an about-to-be published book -- and an entire electronic
conferencing system. Jackson Decl. 32. Congress has
expressly prohibited searches of third-party publishers. 42
***FN57 See, e.g., Jackson Decl.28-31, 33; Blankenship
Decl. 14-17; Bennett Aff.; Lambard Aff.; Stephens Aff.
U.S.C. 2000aa. In addition, the Supreme Court has
recognized that failure to adhere strictly to the
requirements of probable cause and particularity would lead
to serious invasions of First Amendment rights, where a
third-party search is directed at a First Amendment
institution, such as a newspaper. The Court presumed that
adherence to Fourth Amendment requirements would obviate the
danger of First Amendment violations.
There is no reason to believe, for example, that
magistrates cannot guard against searches of the type,
scope and intrusiveness that would actually interfere
with the timely publication of a newspaper. Nor, if the
requirements of specificity and reasonableness are
properly applied, policed, and observed, will there be
any occasion or opportunity for officers to rummage at
large in newspaper files or to intrude into or to deter
normal editorial and publication decisions.
Zurcherv.StanfordDaily, 436 U.S. 547, 567, 98 S.Ct. 1970,
1982 (1978). The warrant in this case and the executing
officials fell far short of the Supreme Court's expectations
and assurances. The overbroad warrant and unbridled
rummaging by the officers actually interfered with the timely
publication of a book, and seriously interfered with the
normal editorial process at SJG.(58)
***FN58 By its enactment of the Privacy Protection Act, 42
U.S.C. 2000aa, Congress expressed its unwillingness to
presume, as did the Zurcher Court, that adherence to
generally applicable Fourth Amendment warrant standards would
provide adequate protection for First Amendment rights.
However, both the Supreme Court and Congress have recognized
that First Amendment injuries occur when an innocent third-
party publisher is subjected to an unreasonable search and
seizure.
III. THE GOVERNMENT'S MOTION FOR 8UMMARY JUDGMENT ON
COUNT V MU8T BE DENIED BECAUSE PLAINTIFFS HAVE
FAILED GENUINE ISSUES OF MATERIAL FACT IN SUPPORT
OF THEIR ALLEGATION THAT GOVERNMENT AGENT8
INTERCEPTED THEIR PRIVATE ELECTRONIC COMMUNICATIONS.
Count V of the complaint alleges that the government's
agents "intercepted, endeavored to intercept, or procured
others to intercept" plaintiffs' electronic mail in violation
of 18 U.S.C. 2510 etseq. The government does not deny
that its agents seized plaintiffs' private electronic
communications, but claims that these private communications
were not "intercepted" within the meaning of section 2510.
Summary judgment is inappropriate because plaintiffs have
raised substantial issues of material fact to refute this
claim.
The government would have this Court believe that its
examination of plaintiffs' private electronic mail was
limited to Mr. Boothby's use of Norton Utilities "to
electronically sweep through the bulletin board contentsfor
key words." (59) While that admission in and bof itself
constitutes "interception" within the meaning of section
***FN59 Declaration of Laurence Boothby 3 (emphasis
added). Defendants Cook, Foley, Golden, and Boothby have
each filed declarations stating that they did not *personally*
read plaintiffs' electronic mail. None of them have stated
that they did not cause other government agents to do so,
however. In addition, defendant Kluepfelhas not denied
reading plaintiffs' electronic mail.
2510(4),(60) the government's examination of the contents of
plaintiffs' private communications was even more intrusive
than that. An examination of the electronic mail files from
the Illuminati BBS by Wayne Bell, the expert who designed the
BBS software, reveals that on March 20, 1990 -- while the BBS
was in the possession of the United State Secret Service --
someone systematically read and deleted all of the private
electronic mail on the BBS, including electronic mail to
which each of the plaintiffs was a party. Declaration of
Wayne Bell 9.[61] The declarations of the individual
plaintiffs, together with the declaration of Mr. Bell,
establish that each of the plaintiffs was a party to
electronic mail that had not yet been received by the
addressee at the time the BBS was seized by the government,
and at the time all of the electronic mail on the BBS was
systematically read and deleted.(62)
***FN 60 Under section 2510 (4), "'intercept' means the
aural or other acquisition of the contents of any wire,
electronic, or oral communication throughtheuseofany
electronicmechanical orotherdevice." (Emphasis added)
***FN61 Mr. Bell, who has considerable experience in
methods of data recovery and the use of disk-examination
programs such as Norton Utilities, states that the Norton
Utility procedure described in Mr. Boothby's declaration
would not have left the traces he discovered on the
electronic mail files and would not have deleted the
electronic mail. Bell Decl. 10.
***FN62 Walter Milliken declares that he sent an electronic
mail message to the Illuminati BBS user with the user id
"Thrinn Tu" between January 31, 1990, and February 8, 1990.
Milliken Decl. 13. However, since "Thrinn Tu" did not log
onto the Illuminati BBS between January 31, 1990, and March
plainly prohibit the "intercept[ion]" of electronic
communications, including communications stored on a BBS
"incidental to the electronic transmission thereof."
2510 (17), 2511.(63) UnitedStatesv.Turk, 526 F. 2d 654
(1976), is not to the contrary. The government agents in
Turkdid not intercept private communications that were in
the process of transmission, but rather, seized from a
suspect's car a cassette tape containing a conversation
between the suspect and the defendant which the suspect had
previously recorded. The court reasoned that, while the
initial recording of the phone conversation was an
"interception" (albeit not an illegal one because it was done
by a party to the conversation), the agents' subsequent
*** 1, 1990, Bell Decl 8, he could not have received the
message at the time the government seized the BBS.
Elizabeth McCoy declares that she sent an electronic
mail message to the Illuminati user with the user id
"Gremlyn" on or about February 25, 1990. McCoy Decl 8.
However, since "Gremlyn" did not log onto the Illuminati BBS
between February 25 and March 1, 1990, she could not have
received McCoy's message before the government's seizure of
the BBS.
Steffan O' Sullivan declares that he sent an electronic
mail message on the Illuminati BBS to Steve Jackson shortly
before the March 1, 1990, shut down of the BBS thanking
Jackson for an advance payment Jackson had sent him for a SJG
book he was writing. O'Sullivan Decl. 11. However, Steve
Jackson declares that he never received this message.
Jackson Decl. 22 .
***FN63 As the government concedes, stored electronic
communications are also protected under 18 U.S.C. 2707. GM
at 13.
replaying of the previously recorded conversation was not.(64)
In contrast, in this case, plaintiffs allege that the
government intercepted communications while they were in the
process of transmission. Because plaintiffs have raised
substantial factual support for their allegation of
interception, summary judgment must be denied.
Summary judgment under section 2518(4) must also be
denied. Plaintiffs have demonstrated that the government
accomplished its interception of their private electronic
communications by seizing the entire electronic
communications service run by SJG. The fact that the
government chose to convert SJG's property rather than to
carry out its investigation in a less intrusive fashion does
release the government from liability under section 2518(4).
***FN64 The court held only that "[w]hatever the precise
temporal parameters under Title II of an 'aural acquisition'
(and thus of an interception), we conclude that no new and
distinct interception occurs when the contents of a
communication are revealed through the replaying of a
previous recording." 526 F.2d at 659. This narrow holding
concerning the meaning of "aural acquisition" predated the
ECPA amendments by a decade and is irrelevant to the issues
in this case.
CONCLUSION
For the reasons given above, the government's motion for
summary judgment should be denied.
Respectfully submitted
by their attorneys,
Sharon L. Beckman
Andrew Good
Harvey Silverglate
Silverglate & Good
89 Broad St., 14th Floor
Boston, MA 02110
(617) 542-6663
Eric Lieberman
Nicholas Poser
Rabinowitz, Boudin, Standard, Krinsky
& Lieberman, P.C.
740 Broadway, at Astor Place
New York, NY 10003-9518
(212) 254-1111
R. James George, Jr.
Peter D. Rennedy
Graves, Dougherty, Hearon & Moody
2300 NCNB Tower
515 Congress Avenue
Austin, TX 78701
(512) 480-5600
DATED: October 2, 1991
