UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXASÿ
AUSTIN DIVISIONÿ

STEVE JACKSON GAMES INCORPORATED
STEVE JACKSON, ELIZABETHÿ
McCOY, WALTER MILLIKEN, and
STEFFAN O'SULLIVAN,

    Plaintiffs,ÿ                       Docket No. A 91 CA 346

ÿÿÿÿv.
ÿðÿ
UNITED STATES SECRET SERVICE,
UNITED STATES OF AMERICA,
WILLIAM J. COOK, TIMOTHY M. FOLEY,
BARBARA GOLDEN, and HENRY M.
KLUEPFEL,

   ÿDefendants.

____________________________________________________________________

ÿðÿ
PLAINTIFFS' OPPOSITION TO THE UNITED STATES' MOTION
TOÿDISMISSÿORÿINÿTHEÿALTERNATIVEÿFORÿSUMMARYÿJUDGMENTÿÿ

The plaintiffs hereby oppose the United States' motion
to dismiss or in the alternative for summary judgment. The
grounds for this opposition, as fully set forth more fully in
the attached affidavits and declarations and in the
supporting Memorandum of Law filed herewith, are the
following:
ÿðÿ
ÿI. The government's motion to dismiss is frivolous,
because the complaint does not contain the defect
alleged by the government.
ÿðÿ
ÿII. The government's motion for summary judgmet should
be denied because the government is not entitled to
a good faith defense under the Privacy Protection Act
and because plaintiffs have raised genuine issues of
material fact in support of their allegation that the
government's agents did not act in good faith.
ÿðÿ
ÿA. 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 agents 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.
ÿðÿ
   ÿ(a) The government's agents knew or
        recklessly failed to discover that
        SJG was a publisher of books,
        magazines, and adventure games.
ÿðÿ
ÿ   (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.
ÿðÿ
ÿÿÿÿ(c) The government's agents knew or
        recklessly failed to discover
        that the BBS operated by SJG
        contained private electronic mail.
ÿðÿ
ÿ ÿÿ(d) The government's agents knew or
        recklessly failed to discover
        that Loyd Blankenship was not
        a computer programmer at SJG.
ÿðÿ
ÿÿÿÿ(e) The government's agents knew or
        recklessly failed to discover that
        the information published in Phrackÿÿ
        was not a "program" or "source code."
ÿðÿ
ÿÿÿÿ(f) The government's agents knew or
        recklessly failed to discover
        that the information published
        inÿPhrack did not contain
       ÿany proprietary warning.

 ÿ(g) The government's agents knew or
      recklessly should have known that
      the information published in phrackÿ
      was not "highly proprietary" or
ÿ     "sensitive," but was readily
      accessible to the public in
      published material, including
      material published by
      BellSouth and Bellcore.
ÿðÿ
ÿÿ(h) The government's agents knew or
      recklessly failed to discover that
      the information published in
ÿ    ÿPhrack was not worth $79,000.
ÿðÿ
ÿÿ(i) The government's agents knew or
      recklessly failed to discover that
      Loyd Blankenship was not engaged
      in violations any interstate
      "password hacking" scheme.
ÿðÿ
ÿ2. 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.
ÿðÿ
 ÿ(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.
ÿðÿ
ÿÿ(b) The government's agents did not
      reasonably rely on the warrant,
      which failed to establish probable
      cause to believe that Loyd B1ankenship
      was engaged in criminal activity.
ÿðÿ
ÿ3. 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.
ÿðÿ
ÿ4. Plaintiffs have raised genuine issues
   ÿof 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. Summary Judgment on Count V would
be improper because Plaintiffs Have
Raised Genuine Issues of Material Fact
In Support of their Allegation that
Government Agents Intercepted their
Private Electronic Communications
ÿðÿ
For these reasons, set out more fully ln the supporting
memorandum of law, the United States' motion to dismiss or,
in the alternative for summary judgment, should be denied in
full.
ÿðÿ
Respectfully submitted
by their attorneys,
ÿðÿ
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
Peter D. Kennedy 
Graves, Dougherty, Hearon & Moody
2300 NCNB Tower
515 Congress Avenue
Austin, TX 78701
(512) 480-5600


DATED:  September 25, 1991