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



    TABLE  OF  CONTENTS 

[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 agent knew 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 Phrack did 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
       Phrack was 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, United States v. Riggs and United States v. 
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
not realize that 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 particularizôe the things to be seized. Moreover,
the government maintains its agents reasonably relied upon a
 ­ 
 ***FN 1 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 or at the home of Chris
Goggans, or at 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. Ą 2510
et seq and 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. ĄĄ 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
 the United States under the Privacy Protection Act.
 ­ 
  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. Ą 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.
 ­ 
 ***FN 3  Congress enacted the PPA in direct response to the
          Supreme Court's opinion in Zurcher v. Stanford Daily, 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, reprinted in U.S. Code Cong. & Ad. News
          at 3950-3951.


S. Rep. 874, at 15, reprinted in 1980 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 the entire SJG office and warehouse and, in 
addition to seizing private electronic communications, seized
other forms of work product and documentary material. 
including electronically stored texts and drafts of  books in 
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.
 ­ 
 ***FN 5 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." United States v. 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. Financial Inc. v. Board of Governors Federal Reserve 
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."'
Tennessee Valley Authority v. Hill , 437 U.S. 153, 190 (1978),
(quoting Morton v. 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,
after the 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 United States  v.  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
       Morton v.  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),
reprinted in 1970 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
 ­ 
 ***FN 7 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,
       Electronic Surveillance  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."
 ­ 
Radzanower v. Touche  Ross &  Co., 426 U.S. 148, 155 (1976)
(citing Morton v. Mancari, 417 U.S. at 551); United  States v.  
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. Financial Inc. v.  
 ­ 
 ***FN 8  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
    Did Not Reasonably Rely on the Search Warrant.
 ­ 
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. Celotex Corp. v. Catrett, 477

 ***FN 9 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."
       Morton v. 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. American Tobacco Co. 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); Poller v. Columbia Broadcasting System, 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 United States Postal Service Board of Governors v.  
       Aikens, 460 U.S. 711, 716-717 (1983); Adickes v. 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); Blankenship v. Kerr  
       County, 878 F.2d 895 (Sth Cir. 1989) (qualified immunity
       issue in civil rights case should not have been decided on
       summary judgment); Brawner v. City of Richardson, 855 F.2d
       187 (1988) (government was not entitled to summary judgment
       on civil rights claims arising under First Amendment); Hayden
       v. First National Bank, 595 F.2d 994, 997 (5th Cir. 1979)
       ("ügranting 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. Garris v. 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

 ***FN 12  The government's argument, at 15-16 of its
       memorandum, suggestiÜng 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 Hindman v. 
       City of Paris, 746 F.2d 1063 (Sth Cir. 1984). In that case,
       the district court directed a verdict in a Ą 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.
       Delaware factual 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 Hindman involved a directed verdict rather
       than a summary judgment, the Supreme Court has held that the
       standards for both are the same. underson v. Liberty Lobby 
       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 at 27-40, 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,

 ***FN 13 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.  Hindman v. City of Paris,
746 F.2d 1063, 1067 (5th Cir. 1984). Cf. United States v.
Leon, 468 U.S. 867, 923 (1984) (citing Franks 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.  Hale v. 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,  and  adventure  games.
 ­ 
 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
 ­ 
 ***FN 14 Jackson Decl. 3, 6.
 ­ 
 ***FN 15 The January 1990 Direct Mail Catalogue   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

 ***FN 16 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.
 ­ 
 ***FN 17  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 et seq,
       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.
 ­ 
 ***FN 18 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.
 ­ 
 ***FN 20 Warrant Aff 35. 
 ­ 
 ***FN 21 Warrant Aff. 33, 36-37; Kerry Havas Aff.,
       Lambard Aff., Bennett Aff., Kunze Aff., Chris McCubbin Aff.,
       and Don Arburn Aff.
 ­ 
 ***FN 22  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 at the time of the search. 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)
 ­ 
 ***FN 23 Havas Aff., Lambard Aff., Bennett Aff., Kunze Aff.,
       McCubbin Aff., and Arburn Aff.
 ­ 
 ***FN 24 McCubbin Aff., Havas Aff., Arburn Aff., Blankenship
       Decl. 12, and Lambard Aff.
 ­ 
 ***FN 25 L. Tribe, American Constitutional Law 1009 (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
     not an instrument of criminal activity.
 ­ 
 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

 ***FN 26 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.

       See Complaint at 5-6; Jackson Decl.  11, 13, 14, 15,
       Milliken Decl. 5, 6, 7, 11; McCoy Decl. 6; O'Sullivan
       Decl. 6, 8 9. See also Jensen, An Electronic  Soapbox:
       Computer Bulletin Boards and the First Amendment, 39 Fed.
       Comm. L.J. 217, 218-219 (1988); Becker,The Liability of  
       Computer Bulletin Board  Operators for Defamation Posted by
       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

 ***FN 27 The Illuminati game, described on page 19 of the
      SJG Direct Mail Catalogue, 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.
 ­ 
 ***FN 28  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
      contained private electronic mail.
 ­ 
 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
 ­ 
 ***FN 29  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
 ­ 
 ***FN 30  Warrant 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
       a computer programmer at SJG.
 ­ 
 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 GURPS Cyberpunk -- 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.
 ­ 
 ***FN 31 Blankenship Decl. 8; Milliken Decl. 7.

  (e) The government's agents knew or
      recklessly failed to discover
      that the information published in
       Phrack was not a "program" or "source code."
 ­ 
 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

 ***FN 32 Warrant Aff. 8, 14 & 17 .
 ­ 
 ***FN 33 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."  United States  v. 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.
 ­ 
 ***FN 35 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" without incident 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  
      did not contain any proprietary warning.
 ­ 
 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
Neidorf trial, 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 Phrack issue 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

 ***FN 39  Barresi Decl., Exhibit 3.
 ­ 
 ***FN 40  Neidorf Tr., 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,
       Neidorf Tr., 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
      material published by BellSouth and Bellcore.
 ­ 
  The warrant affidavit alleged that the information
published in Phrack 24 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 Catalog of  
Technical Information for $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.  See Nagle 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 Phrack was 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 United States v. 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.  See supra  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."
Neidorf Tr., 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. See Hale v. Fish, 899 F.2d
390 (5th Cir. 1990); United States v. Jackson, 818 F.2d 345
(5th Cir. 1987).
 ­ 
 ***FN 44  In the Neidorf trial, 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
      Phrack was not worth $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 not state that the text file
was worth $79,00Ç0.(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
 ­ 
 ***FN 45 Sentencing Information Filed on Behalf of the
       Northern District of Illinois United States Attorney's
       Office, United States  v. Riggs, No. 90-CR-31 (N.D. Ga. 1990),
       (Barresi Decl., Exhibit 4).
 ­ 
 ***FN 46 Cook Decl.4; Foley Decl. 4; Warrant Aff. 4.
 ­ 
 ***FN 47 Neither 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  
purchase price and maintenance costs of an entire  mainframe 
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 Catalogue of Technical Information.
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
      any interstate "password hacking" scheme.
 ­ 
The warrant affidavit falsely alleges that Loyd
Blankenship indicated his involvement in criminal activity by

 ***FN 48 While 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
      on a 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 pĆrobable 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. Illinois  v. 
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. Malley v. 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
United States v. 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
      would be found at the offices of SJG.
 ­ 
  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  Search  and Seizure 3.7(d) at 101
(1987). Plaintiffs have raised several factual issues in
support of their allegation that the warrant affidavit in
this case established  no nexus to SJG, and that reliance cn
the warrant was therefore unreasonable.

  First, the warrant affidavit never even expressly
alleged that 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 at one of 
three locations: at Loyd Blankenship's home, or at 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 allege that 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.  See  supra  n. 26.; Warrant Aff.  7.

 Second, while the warrant affidavit states that
defendant Kluepfel advised that "the user list íf [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
 ­ 
 ***FN 50 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
      Blankenship was engaged in criminal activity.
 ­ 
 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 edited version 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 Phrack contained 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) See Blankenship 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. Maryland  v. Garrison, 480 U.S. 79 (1987);
Dalia v. United States, 441 U.S. 238, 255 (1979);  Andresen v. 
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
carefully tailored to its justifications, and will not
take on the character of the wide-ranging exploratory
searches the Framers intended to prohibit.
 ­ 
 Maryland v. Garrison, supra at 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.
 ­ 
United States v. Leon, supra, 468 U.S. at 923;  see also  
United States  v. 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 identifiable item 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  name it 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
  available will invalidate a general description in a
  warrant.  
 ­ 
United States v. Cook, 657 F.2d 730, 733 (5th Cir. 1981). In
Cook, the "telling factor" was the failure of the agents to

  **FN 52 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.
 ­ 
 ***FN 53 The description in the Government's Memorandum of
       this readily and uniquely identifiable item as a "text file"
       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.
Montilla Records v.  Morales, 575 F.2d 324 (lst Cir.
1978) and United States  v.  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.
 ­ 
United States v.  Fucillo, 808 F.2d 173, 176 (lst Cir. 1987);
see  also, United States v. Leary  , 846 F.2d 592, 605 (lOth
Cir. 1988); United States v. Stubbs § , 873 F.2d 210 (9th Cir.
1989); United States v. Spilotro, 800 F.2d 959 (9th Cir.
1986).
 The principles set forth in the Cook opinion 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.
 ­ 
 ***FN 54 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 É paraphernalia and items that are held
       legally." United States  v. 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  federal federal crime could be 
seized.

  Even if the warrant were limited to the illustrative,
non-inclusive federal crimes mentioned (which it is not), it
 ­ 
 ***FN 55 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  u Cook § , mere citations to
federal criminal laws do not place constitutional limits on a
search warrant. Voss v. Bergsgaard, 774 F.2d 402, 405 (lOth
Cir. 1985); United States v. Roche, 614 F.2d 6 (lst Cir.
1980); United States v. 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. Creamer v. 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
 ­ 
 ***FN 56 Seizures of materials that were not described in the
       warrant is evidence of the bad faith of the executing
       officers. United  States v. 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 which items
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 items seized
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 all current 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
 ­ 
 ***FN 57 See, e.g., Jackson Decl. 28-31, 33; Blankenship
       Decl. 14-17; Bennett Aff.; Lambard Aff.; Stephens Aff.

U.S.C. Ą2000aa. 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.
 ­ 
Zurcher v. Stanford Daily, 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)

 ***FN 58 By its enactment of the Privacy Protection Act, 42
       U.S.C. Ą 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  et seq. 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 contents for
key words." (59)  While that admission in and  b of itself
constitutes "interception" within the meaning of section

 ***FN 59 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 Kluepfel has 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 through the use of any  
       electronic  mechanical or  other device." (Emphasis added)
 ­ 
 ***FN 61 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.
 ­ 
 ***FN 62 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) United States v. Turk, 526 F. 2d 654
(1976), is not to the contrary. The government agents in
Turk did 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 .
 ­ 
 ***FN 63 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).
 ­ 
***FN 64  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