IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 93-8661
STEVE JACKSON GAMES INC., STEVE JACKSON,
ELIZABETH MCCOY, WALTER MILLIKEN,
AND STEFFAN O'SULLIVAN,
Appellants,
UNITED STATES SECRET SERVICE,
AND THE UNITED STATES OF AMERICA,
Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
BRIEF FOR APPELLANTS
R. James George, Jr.
Peter D. Kennedy
GEORGE, DONALDSON & FORD, L.L.P.
114 W. 7th Street, Suite 1000
Austin, Texas 78701
(512) 495-1400
FEBRUARY 14, 1994
CERTIFICATE OF INTERESTED PARTIES
The undersigned, counsel of record for Appellants, certifies that
the
following persons have an interest in the outcome of this case. This
representation is made in order that the Judges of the Court may
evaluate
possible disqualification or recusal.
1. Steve Jackson Games Inc.
2. Steve Jackson
3. Elizabeth McCoy
4. Walter Milliken
5. Steffan O'Sullivan
6. The United States of America
7. The United States Secret Service
8. The lawyers and law firms involved in this appeal on behalf of
Appellants are:
R. James George, Jr.
Peter D. Kennedy
George, Donaldson & Ford, L.L.P.
9. Lawyers and law firms involved in this action before the District
Court on behalf of Plaintiffs were:
R. James George, Jr.
Peter D. Kennedy
George, Donaldson & Ford, L.L.P.
(formerly of Graves, Dougherty, Hearon & Moody)
Harvey Silverglate
Andrew Good
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
Sharon Beckman
(formerly of Silverglate & Good)
Peter D. Kennedy
STATEMENT REGARDING ORAL ARGUMENT
Appellants respectfully requests [sic] that oral argument be heard in
this
case, because oral argument would help the Court in understanding and
deciding the unique and important issues presented by this case,
including
the unique communication technology involved.
TABLE OF CONTENTS
CERTIFICATE OF INTERESTED PARTIES ................... i
STATEMENT REGARDING ORAL ARGUMENT ................... iii
TABLE OF CASES, STATUTES AND OTHER AUTHORITY ................. v
STATEMENT OF JURISDICTION ................... 1
STATEMENT OF THE ISSUES ................... 2
STATEMENT OF THE CASE ................... 3
SUMMARY OF THE ARGUMENT ................... 11
ARGUMENT ................... 12
CONCLUSION ................... 18
CERTIFICATE OF SERVICE ................... 20
TABLE OF CASES, STATUTES AND OTHER AUTHORITY
CASES
Manufacturas Intern. v. Mfrs. Hanover Trust Co.,
792 F. Supp. 181 (E.D.N.Y. 1992) ................... 15
United States v. Turk,
526 F.2d 654 (5th Cir. 1976) ................... 11, 14, 15
CONSTITUTIONS AND STATUTES
18 U.S.C. Section 2703(a) ................... 11, 18, 19
Section 2501 ................... 3, 14, 15, 18
Section 2510(4) ................... 13
Section 2511 ................... 13, 15, 16
Section 2511(1) ................... 13
Section 2511(1)(a) ................... 11-13
Section 2511(2)(a)(i) ................... 5
Section 2520(c)(2)(A) ................... 17
Section 2703 ................... 12, 16
Section 2703(d) ................... 11
Section 2520 ................... 13, 16
28 U.S.C. Section 2518(1) ................... 16
Section 2701 ................... 2, 3
Sections 1331 and 1346 ................... 1
Section 2501 ................... 1, 2
Section 1291 ................... 1
Sections 2520(d)(1); 2707(d) ................... 16
42 U.S.C. Section 2000aa ................... 3, 10
ED. R. APP. P., Rule 4(a)(1) ................... 1, 4
OTHER AUTHORITIES
S. Rep. No. 541, 99th Cong., 1st Sess. 1,
reprinted in 1986 U.S.C.C.A.N. 3555 ................... 15
Webster's Ninth New Collegiate Dictionary at 630 (1991)
................... 14
STATEMENT OF JURISDICTION
1. The Plaintiffs sued the Defendants for violating, among other
statutes and
constitutional rights, their rights under 28 U.S.C. Section 2501, et
seq. The
district court had federal question subject matter jurisdiction over
the
Plaintiffs' claims pursuant to 28 U.S.C. Section 1331 and 1346.
2. This is an appeal from a final judgment of the district court
disposing
of all claims with respect to all parties, and falls within this
Court's
appellate jurisdiction under 28 U.S.C. Section 1291. The district court
entered
final judgment on July 26, 1993. Appellants filed a notice of appeal
September 17, 1993, which was timely filed under Rule 4(a)(1), Fed. R.
App.
P., governing appeals of cases where the United States is a party.
STATEMENT OF THE ISSUES
1. DID THE DISTRICT COURT ERR IN FAILING TO ENTER JUDGMENT
FOR PLAINTIFFS ON THEIR CLAIMS UNDER 28 U.S.C. Section 2501?
2. DID THE DISTRICT COURT CLEARLY ERR IN THE AMOUNT OF
DAMAGES IT AWARDED STEVE JACKSON INDIVIDUALLY?
3. DID THE DISTRICT COURT ERR IN FAILING TO ENTER JUDGMENT
FOR STEVE JACKSON GAMES INC. FOR ITS VIOLATION OF 28 U.S.C.
Section 2701?
STATEMENT OF THE CASE
A. Course of Proceedings and Disposition below by the District Court.
The Plaintiffs filed this lawsuit to redress the violation of
their
federal statutory and constitutional rights resulting from an illegal
search and seizure conducted by the United States Secret Service on
March
1, 1990, at the premises of Steve Jackson Games Inc., in Austin, Texas.
The
lawsuit originally named several individuals as defendants. These
individual defendants were voluntarily dismissed before trial, and the
case
proceeded against the United States Secret Service and the United
States on
the federal statutory claims alone.
The parties tried the case to the bench from January 26-28,
1993,
before Judge Sam Sparks of the Western District of Texas. The District
Court issued an Opinion dated March 12, 1993, and entered Final Judgment
on
July 26, 1993. R.E. 2, 3, respectively.
Judge Sparks held that the Secret Service's search and seizure
of
Steve Jackson Games Inc. violated the Privacy Protection Act of 1980,
42
U.S.C. Section 2000aa, et seq., which prohibits the seizure of materials
held for
the purpose of publication. The Court awarded Steve Jackson Games
$51,040
in damages, plus interest, on that claim. Judge Sparks further held
that
the Secret Service violated 28 U.S.C. Section 2701, et seq., as amended
by the
Electronic Communications Privacy Act of 1986 (regulating the forced
disclosure of electronic communications). The Court awarded $1,000
statutory damages, plus interest, in favor of Plaintiffs Steve Jackson,
Elizabeth McCoy, Walter Milliken and Steffan O'Sullivan on that claim.
Judge Sparks held that a second provision of the Electronic
Communications
Privacy Act of 1986, 18 U.S.C. Section 2501, et seq. (prohibiting the
interception of electronic communications), did not apply as a matter
of
law, and
held the Plaintiffs were entitled to recover nothing on that claim.
Upon
agreed motion, the Court awarded Plaintiffs $195,000 in attorneys' fees
and
$57,405.54 in costs.
Plaintiffs timely appealed from the adverse portion of this
judgment on September 17, 1993. Fed. R. App. P. 4(a)(1). The Secret
Service
filed a notice of appeal, but later moved to dismiss their appeal.
B. Statement of Facts.
1. Steve Jackson Games and the Illuminati BBS.
Steve Jackson Games Inc. ("SJ Games") is an award-winning
publisher
of imaginative role-playing games. The company publishes games in book
form
and boxed form, as well as magazines, a book about game theory, and
other
related products. (Despite some public misconception, the company's
games
are not played on computers, but with dice, a game book or books, and
lots
of imagination.) R.E. 2 at 1-2; Tr. 103-119.
SJ Games uses computers in its offices for the usual office
tasks,
as well as drafting and typesetting its publications. For years, it has
also run an electronic bulletin board system ("BBS") from a personal
computer in the editorial room. The company's BBS is called
"Illuminati,"
after one of its successful games. R.E. 2 at 2.
The Illuminati BBS runs on a personal computer dedicated to its
use, and (as configured in 1990) was connected to a single dedicated
telephone line. The BBS computer runs 24 hours a day, and runs software
that allows persons outside the company's building to contact the BBS.
In
1990, the Illuminati BBS ran bulletin board software called "WWIV,"
written
by a computer programmer named Wayne Bell. The typical caller uses a
personal computer and modem to "call" the BBS computer and make a
connection, or "log on." Tr. 119-147.
Callers to the BBS can do a variety of things, including (1)
read
public messages "posted" by previous callers that are available to be
read
by all callers; (2) "post" public messages for other callers to read;
(3)
read public messages and articles that the BBS operator, SJ Games,
publishes for the callers to read; and (4) "download" in computerized
form,
files that contain longer articles, role-playing game books, and other
textual and non-textual materials. Id.
Most relevant to the issue on appeal, "Illuminati" has also
always
provided its callers with the ability to send private electronic mail
("e-mail"). A caller to the Illuminati BBS can draft a personalized
message
to any other user of the Illuminati BBS. By way of unique, confidential
passwords, that e-mail message can be read only by the person to whom
it
was addressed.1 R.E. 2 at 2; Tr. 131-32.
After an electronic mail message is written by the caller, the
caller addresses the message to a particular addressee. The message is
located on the Illuminati BBS computer's hard disk drive temporarily --
until the addressee next calls the BBS and reads his or her mail. After
reading mail, the recipient then can choose whether to store the mail
on
the BBS's hard drive, or to delete it. Tr. 131-134.
SJ Games used the Illuminati BBS to publish information about
its
business, its games and publications and the role-playing game hobby in
general, as well as other things. The company also used Illuminati to
facilitate play-testing of games being developed, a crucial step
lTechnically, the systems operator of the Illuminati BBS had the
capability
of reading private e-mail, similar to a phone company's ability to
monitor
telephone conversations. Tr. 282. Under the ECPA, the provider of an
electronic communications system has this authority when needed "as a
necessary incident to the rendition of service." 18 U.S.C. Section
2511(2)(a)(i) .
As a matter of practice, SJ Games kept its users electronic mail
confidential.
in publishing a role-playing game. The company used all the BBS's
capabilities, including private e-mail, to communicate with its
customers and freelance writers.
The BBS had the capacity for an almost unlimited number of user
accounts, although the system only allowed one user to dial in at a
time.
At the time of the Secret Service raid on SJ Games, Illuminati had
three
hundred sixty-five users. Tr. 121, 274.2
Three of the individual plaintiffs, Elizabeth McCoy, Walter
Milliken and Steffan O'Sullivan, were frequent users of the Illuminati
BBS
in 1990 and before. Milliken and O'Sullivan lived in New England, and
McCoy
lived in Austin. They called in remotely to send and receive private
e-mail, and to participate in the public areas of the BBS. R.E. 2 at 2-
3.
As of March 1, 1990, each had electronic mail stored on the llluminati
BBS.
R.E. 4. The Illuminati BBS had a total of 162 individual items of
private
electronic mail when it was seized by the Secret Service. Tr. 276. Much
of
this mail was in transit -- sent but not yet read -- including a
message
sent by Milliken to another user, and a message sent by O'Sullivan to
Steve
Jackson concerning a late royalty payment the company owed him. Tr.
256,
258.
2. The Secret Service raid of Steve Jackson Games.
2The number of BBS users is extraordinarily large. Bell testified that
over
two thousand BBSs were using the software he designed to run electronic
bulletin boards, and that these boards averaged 50 to 100 users.
Boardwatch
magazine estimates there are 60,000 bulletin board systems nationwide.
John
Schwartz, "Communicating Online: The Dizzying Array of Choices,"
Washington
Post, Nov. 28, 1993, at A26. Recent articles have noted the
extraordinary
growth of commercial bulletin board systems such as CompuServe, Prodigy,
and America Online, estimating that they have 4 million users. John
Schwartz, Caution: Children at Play on Information Highway," Washington
Post, Nov. 28, 1993 at Al. (This Court even runs its own BBS, although,
as
far as Appellants' counsel can determine, it does not offer electronic
mail
services.)
In October 1988, a private security officer for Bellcore, Henry
Kluepfel, began an investigation into the unauthorized duplication and
distribution of a computerized text file from a Bell South computer in
Atlanta. R.E. 2 at 3.3 Kluepfel learned that the text file was available
on
a public-access computer in Illinois. R.E. 2 at 3. This text file
contained
information about the bureaucratic procedures associated with the
telephone
company's E911 emergency call system. R.E. 2 at 3. Kleupfel learned in
April of 1989 that this text file was still available on the Illinois
computer, and that it was being distributed in an edited form in a
computer
"hacking" newsletter called "Phrack." R.E. 2 at 3. In July of 1989, the
Secret Service was finally notified. R.E. 2 at 4.
Continuing his investigation, Kluepfel located a copy of the
edited
version of the Bell South text file on a BBS in Austin, Texas, called
"The
Phoenix Project." R.E. 2 at 4. One of the two system operators
("sysops")
of the Phoenix Project BBS was Loyd Blankenship. R.E. 2 at 4. The
Phoenix
Project BBS had discussions of issues of interest to computer "hackers."
Kluepfel believed that discussions taking place on the Phoenix Project
BBS
concerned an alleged scheme to "decrypt" passwords, and told the Secret
Service so. R.E. 2 at 4-5.
Kluepfel told Agent Foley of the Chicago office of the U.S.
Secret
Service that Blankenship was an employee of SJ Games, and was a user
and
co-sysop of the Illuminati BBS. R.E. 2 at 5. Kluepfel gave the Secret
Service no information of any suspected or actual illegal activity at
SJ
Games or on the Illuminati BBS. R.E. 5. Kluepfel had no information to
suggest any criminal activity by any of the Plaintiffs in this case.
Id.
Kluepfel could have "logged on"
3The facts surrounding the investigation of the Bell South text file
have
long been in dispute. This statement of facts is derived from Judge
Sparks'
opinion and uncontested trial evidence.
to the Illuminati BBS at any time, and reviewed all of the information
on
the board, except for the private e-mail, but did not do so. R.E. 2 at
5.
Reed Newlin, an investigator working for Southwestern Bell
telephone company, did log onto the Illuminati BBS shortly before the
Secret Service raid. He found nothing of interest whatsoever on that
BBS.
Court Exhibit 2 at 68.
Agent Foley, too, could have logged onto the Illuminati BBS,
become
a user, and reviewed its public contents before the raid; he understood
computer BBSs and had the equipment. Nevertheless, he did not even try.
R.E. 2 at 5. Agent Foley conducted no investigation about Steve Jackson
Games Inc., or the Illuminati BBS, "although a reasonable investigation
of
only several hours would have revealed Steve Jackson Games Inc. was, in
fact, a legitimate publisher of information to the public and Jackson
would
have cooperated in the investigation." R.E. 2 at 7. Agent Foley "did
know
and understand the Illuminati bulletin board would have users and
probably
would have stored private electronic communications between users."
R.E. 2
at 8.
The Secret Service stipulated that there was never any grounds
to
suspect Steve Jackson, or Steve Jackson Games of any criminal activity
whatsoever. R.E. 4 at 9.
"Notwithstanding the failure of any investigation regarding
Steve
Jackson Games, Agent Foley and U. S. Attorney Cook intended to seize
and
review all of the information and documents in any computer accessible
to
Blankenship, regardless of what other incidental information would be
seized." R.E. 2 at 8.
The search warrant for SJ Games issued February 28, 1990. R.E.
5.
The warrant purported to authorize the seizure of:
Computer 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 computer 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 data and for the authorization to read information stored and
contained on the above described computer and computer data.
R.E. 5. The warrant made no reference to electronic bulletin boards or
electronic communications.
In the early morning of March 1, 1990, the Secret Service, led
by
Agent Barbara Golden, searched the business premises of SJ Games. The
Secret Service conducted a thorough search of the entire office,
including
boxes in its warehouse. Tr. 82-85. The Secret Service seized several
computers, hundreds of floppy disks, and other materials. R.E. 2 at 9.
Most damaging for the company, the Secret Service seized the
entire
computer containing the Illuminati BBS, back-up files and computers and
floppy disks containing the company's soon-to-be released game book,
GURPS
Cyberpunk. Judge Sparks found that the company lost over $50,000 on
account
of the raid. R.E. 2 at 12-13. Eight SJ Games employees lost their jobs
because of cash-flow shortages caused by the raid. R.E. 2 at 12.
On March 2, Steve Jackson personally visited the Secret Service
office in Austin in an attempt to retrieve copies of files from the
seized
computers and disks. He was denied all access to the Illuminati BBS
computer. Tr. 166-168. The Secret Service shipped the company's
computers and other materials to Chicago, Illinois. The computers were
reviewed the week of March 20, 1990, but not returned until mid-June.
Tr.
51.
While the Secret Service denied reading the e-mail on the BBS
they
seized, Judge Sparks found otherwise. He found that the Secret Service
personnel or its delegates did read all electronic communications
seized
and did delete those communications. R.E. 2 at 11. Judge Sparks'
finding
was amply supported at trial by the testimony of Wayne Bell, the author
of
the WWIV software used by the Illuminati BBS. Bell examined the BBS
computer files after they were eventually returned by the Secret
Service,
and conclusively proved from the state of those files that on March 20,
1990, while the computer was in the Secret Service's hands, each
individual
piece of electronic mail was systematically read and deleted. Tr. 278-
80.
The Secret Service, despite repeated requests by Steve Jackson
and
his attorneys, refused to return any of the seized equipment until June
1990, after both Texas Senators intervened. R.E. 2 at 10.
3. Judge Spark's Decision.
Judge Sparks found that the Secret Service, in seizing drafts
of
materials to be published by SJ Games, including its soon-to-be-
published
book GURPS Cyberpunk, and materials available to the public on
Illuminati
BBS, violated the Privacy Protection Act of 1980, which prohibits the
seizure of such materials from persons holding them with the purpose of
disseminating them to the public. See 42 U.S.C. Section 2000aa, et seq.
Under
this provision, Judge Sparks entered the award of actual damages for SJ
Games's lost profits and costs. R.E. 2 at 19-20.
Judge Sparks also found that the Secret Service violated 18
U.S.C.
Section 2703(a) by obtaining the seizure of stored communications
without
complying with the provisions of the statute to obtain such forced
disclosure. That is, the Secret Service's seizure, reading and deletion
of
the e-mail was unauthorized because the warrant made no mention of the
Plaintiffs' electronic communications, let alone established "reason to
believe the contents of a wire or electronic communication ... [were]
relevant to a legitimate law enforcement inquiry." 18 U.S.C. Section
2703(d).
R.E. 2 at 23-26.
However, although he found that the Secret Service seized, read
and
deleted the Illuminati's electronic mail without authority, Judge
Sparks
held, based upon his reading of the Fifth Circuit opinion in United
States
v. Turk, 526 F.2d 654 (5th Cir.), cert. denied, 429 U.S. 823 (1976),
that
the Secret Service did not affect an "interception" of the mail on the
BBS.
R.E. 2 at 20-22. From this decision, the Plaintiffs appeal.
SUMMARY OF THE ARGUMENT
The District Court erred in holding that the Secret Service's
wholesale seizure, reading, and deletion of the electronic mail on the
Illuminati BBS was not an "interception" prohibited by 18 U.S.C.
Section
2511(1)(a). The Illuminati BBS had mail that had been written and
addressed, but not read by their intended recipients. The Secret
Service's
seizure and deletion of this mail prevented it from being delivered.
Logic,
the language of the statute, and the legislative history all indicate
that
such a physical interference with the delivery of BBS electronic mail
is an
"interception" under 18 U.S.C. Section 2511(1)(a). Because the Secret
Service
admittedly did not obtain a court order as required for such an
interception, it violated that provision, and therefore the Plaintiffs
were
each entitled to a judgment of $10,000 statutory damages for that
violation.
The District Court erred by not finding that Steve Jackson
personally suffered lost royalties on lost sales. Because the District
Court found that Steve Jackson Games Inc. lost over $100,000 in sales,
and
because Jackson testified without contradiction that he personally
receives
royalties from sales, the District Court's failure to award him
royalties
on lost sales was clear error.
Finally, the District Court erred in not awarding the company,
Steve Jackson Games Inc., damages for the seizure of its e-mail under
18
U.S.C. Section 2703. Judge Sparks found that the Secret Service violated
this
provision. The uncontradicted testimony indicated that the company used
and
had e-mail stored at the time of the seizure. Therefore, the company
was
entitled to a finding that its rights had been violated, and an award
of
$1,000 statutory damages.
ARGUMENT
THE DISTRICT COURT ERRED IN FAILING TO ENTER JUDGMENT FOR
THE PLAINTIFFS ON THEIR CLAIMS UNDER 28 U.S.C. Section 2501.
Once the facts are understood, the legal question presented by
this
appeal is quite simple -- does the wholesale seizure of electronic mail
that has been written, addressed and "sent" on an electronic bulletin
board, but not yet read by the recipient, constitute an "interception"
prohibited by 18 U.S.C. Section 2511(1)(a)? The Plaintiffs' claims under
this
section concern a subset of the electronic mail that was seized by the
Secret Service -- those electronic communications that never made it to
their intended recipients because the agents walked off with the BBS
and
later erased the mail it contained.
Section 2511(1)(a) of Title 18 provides that anyone who
"intentionally intercepts, endeavors to intercept, or procures any
other
person to intercept or endeavor to intercept, any
wire, oral, or electronic communication" violates the law, unless the
interception is authorized by court order, or warranted by specific
enumerated circumstances not relevant here. 18 U.S.C. Section
2511(1)(a). Persons
whose electronic communications are intercepted in violation of Section
2511 may
bring a civil action against the interceptor for actual damages, or
statutory damages of $10,000 per violation or $100 per day of the
violation, whichever is greatest. 18 U.S.C. Section 2520.
Judge Sparks found that the Secret Service's seizure, reading
and
deletion of the stored Illuminati BBS e-mail was unauthorized by the
warrant and not made in good faith reliance on the search warrant. R.E.
2
at 23-26. The Secret Service has chosen not to appeal this finding.
But what about the Illuminati BBS electronic mail that was in
transit? For that mail, the Secret Service not only seized, read and
deleted it, the Service prevented it from ever reaching its destination.
As
any defensive back knows, this is the classic definition of an
"interception," and one comfortably within the statute's definition.
The
Act defines "intercept" to mean
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.
Section 18 U.S.C. Section 2510(4). This is just what the Secret
Service's seizure
of the Illuminati BBS mail did -- it "acquired" the "contents" of the
electronic communications by seizing and using the BBS computer itself.
The Secret Service's seizure of the computer was just like
walking
off with a blue mailbox on the street, or like all the private mailboxes
in
a post office -- the letters were addressed and waiting to be picked up
and
read, but the Secret Service raid prevented them from ever being
delivered.
This reading of Section 2511(1) is consistent with both the statutory
history,
the definition, and the common understanding of the term. Webster
defines
"intercept" as meaning
to "prevent," "hinder," "stop, seize, or interrupt in progress or
course or
before arrival," to "interrupt communication or connection with," or
"to
gain possession of. " Webster's Ninth New Collegiate Dictionary at 630
(1991).
Judge Sparks believed he was constrained [by] a 1976 decision
by
the Fifth Circuit, United States v. Turk, 526 F.2d 654 (5th Cir.),
cert.
denied, 429 U.S. 823 (1976). In Turk, the government seized from a
suspect's car an audio tape of a past conversation between the suspect
and
the defendant, Turk. The agents later replayed this recorded
conversation,
and Turk claimed that this "aural acquisition" was an "interception" of
his
telephone conversation.
This Court quite understandably held that such an after-the-fact
replaying of the tape recording was not an "interception." The
conversation
had already occurred and the police's replaying the tape did not
interfere
with the conversation. In reality, the police simply did the electronic
equivalent of reading a letter the defendant had already received and
read.
In reaching this conclusion, this Court held narrowly 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.
Turk says nothing about government action that both acquires the
communication prior to its delivery, and prevents that delivery.
Turk was decided prior to the amendments wrought in 1986 to
Section 2501,
et seq., by the Electronic Communications Privacy Act (the "ECPA"). The
ECPA was specifically designed to
update and clarify Federal privacy protections and standards in light
of
dramatic changes in new computer and
telecommunications technologies.
S. Rep. No. 541, 99th Cong., 1st Sess. 1, reprinted in 1986 U.S.C.C.A.N.
3555. The growth of computer communications, including electronic mail
carried through BBSs prompted Congress to broaden the protections of
Section
2501, et seq., to cover these new ways people communicate.
"Today we have large-scale electronic mail operations, computer-to-
computer
data transmissions, cellular and cordless telephones, paging devices,
and
video teleconferencing. A phone call can be carried by wire, by
microwave
or fiber optics. It can be transmitted in the form of digitized voice,
data
or video."
Id. at 3556.
Congress specifically intended to include e-mail carried by
bulletin board systems in these expanded protections.
"The statute as amended now prohibits the interception of "electronic
communications" as well as oral and wire communications. It applies to
a
wide range of new technologies, including electronic mail and bulletin
boards, computer-to-computer communications [and] remote computer
services
...."
Manufacturas Intern. v. Mfrs. Hanover Trust Co., 792 F. Supp. 181
(E.D.N.Y.
1992) (citing to 1986 U.S.C.C.A.N. at 3562-65) (citing 1986 U.S.C.C.A.N.
at
3562-65).
Judge Sparks took the "contemporaneous" language from Turk, but
missed the important fact that Turk predates the ECPA, and that the
ECPA
specifically contemplated preventing the interception of BBS e-mail.
Judge
Sparks' reasoning would result in a strange anomaly -- Section 2511
would protect
BBS e-mail only during the few short seconds the mail is being sent by
the
author to the BBS computer and during the moment it is received by the
addressee. During the period when the mail is in transit, it would be
immune from "interception."
This reading of course would do violence to the purpose of the
ECPA's inclusion of bulletin board communications within its scope, and
the
plain meaning of the statute. Judge
Sparks has in effect held that this Court in Turk judicially amended
Section 2511
to include the added element "contemporaneous interception."4
A "good faith reliance on a court warrant or order" is an
affirmative defense for both the unlawful "disclosure" and
"interception"
of electronic communications. See 28 U . S . C . Section Section
2520(d)(1); 2707(d) .
Judge Sparks has already found that the Secret Service failed to prove
that
its seizure of the Illuminati BBSs' electronic mail was in good faith,
R.E.
2 at 25, a finding that was not appealed. Furthermore, the only way to
legally intercept an electronic communication is by court order, 28
U.S.C.
Section 2518(1), and it is uncontested that this provision was not
followed. Even
if the search warrant had specified the electronic mail as a target of
the
search, Agent Foley knew the procedures required to intercept electronic
communications, R.E. 2 at 23, Tr. 37-38, and could not claim a "good
faith"
reliance on the lesser authorization of a warrant.
Therefore, the state of the record requires a remand with
instructions to enter judgment on behalf of Plaintiffs for damages
available under 18 U.S.C. Section 2520. Judge Sparks found that the
Plaintiffs
suffered no compensable damages from the seizure of the e-mail on the
Illuminati
4 The government's acceptance of Judge Sparks's ruling that the Secret
Service violated Section 2703 does not make the question of whether
there was
also an illegal "interception" under 28 U.S.C. Section 2511 moot or
academic. The
statutory damages are greater for an interception, reflecting the
greater
intrusion involved in intercepting a communication, rather than seizing
a
completed message. Further, counsel is aware of indications that some
government agents are reading Judge Sparks' opinion (the only published
precedent) states a "don't look, don't erase" rule as to BBS e-mail.
That
is, government agents believe that as long as they do not read and
delete
the e-mail, as the Secret Service did, they are free to seize electronic
bulletin boards without a court order, and without any suspicions
regarding
whether the private communications are relevant to the investigation.
This
interpretation leaves the delivery of in transit electronic mail
entirely
unprotected from disruption by the seizure of BBSs, contrary to the
intention of the ECPA.
BBS, thus leaving the statutory damages remedy. Title 18, Section
2520(c)(2)(A)
provides for statutory damages of $10,000, and therefore this Court
should
reverse Judge Sparks' holding that Section 2511 was not violated, and
remand for
entry of judgment for each Plaintiff in the amount of $10,000.
II. THE DISTRICT COURT ERRED IN FAILING TO AWARD DAMAGES TO
STEVE JACKSON PERSONALLY FOR LOST ROYALTIES.
The District Court found that the Secret Service's illegal
search
and seizure caused Steve Jackson Games to suffer $100,617.00 in lost
sales
during 1990. R.E. 2 at 13. The government has not appealed the award of
damages. Steve Jackson testified at trial, without contradiction, that
he
personally received 3 % royalties on sales made by Steve Jackson Games
on
his products. Tr. 184-185. The District Court did not accept the
Plaintiffs' theory of business damages, based upon calculations of
Jackson's value as the creative mind behind the company's success.
However,
the Court did find, under its own theory, lost sales of $100,617.00.
Based
upon Jackson's testimony, and the District Court's own conclusions as
to
lost sales, Jackson suffered lost royalty income of $3,018.51 on these
sales. The District Court offered no reason to explain its inconsistent
finding of lost sales for the company, but no lost royalties to Jackson
personally. Because the Court's finding is inconsistent with the
uncontradicted testimony, its failure to find damages for lost royalties
is
clear error.
The Plaintiffs therefore ask this Court to remand the case for
entry of a supplemental judgment for Steve Jackson for $3,018.51 lost
royalties for the Defendants' violation of the Privacy Protection Act.
III. STEVE JACKSON GAMES INC. IS ENTITLED TO JUDGMENT FOR THE
SECRET SERVICE'S VIOLATION OF 18 U.S.C. Section 2703(a).
Judge Sparks found that the Secret Service's seizure of the
Illuminati BBS violated 18 U.S.C. Section 2703(a) because the government
had no
reason to suspect the Plaintiffs of any crime, and there was no reason
to
believe the contents of the Plaintiffs' electronic mail was relevant to
the
government's investigation. R.E. 2. at 23-24. The government has not
appealed this holding.
There was uncontradicted evidence, and Judge Sparks found, that
the
Plaintiff company, Steve Jackson Games Inc., used the Illuminati BBS
electronic mail capabilities for its business purposes. R.E. 2 at 2-3;
Tr.
131, 156-58. Steve Jackson, as president of SJ Games, sent electronic
mail
for both private and business correspondence. Despite clear evidence of
such use, and such mail being present on the board when it was seized,
Judge Sparks failed to enter judgment on behalf of the company for
statutory damages for the violation he found of 18 U.S.C. Section
2703(a). The
monetary damages awarded the company were expressly restricted to the
actual damages recovered under the Privacy Protection Act. This Court
should remand to Judge Sparks for the entry of a judgment in favor of
SJ
Games for $1,000 statutory damages under this provision.
IV. CONCLUSION.
For the foregoing reasons, this Court should (a) reverse the
District Court's judgment that Plaintiffs take nothing on their claims
under 18 U.S.C. Section 2501, et seq., and remand for entry of judgment
of
$10,000 statutory damages against Defendants in favor of each Plaintiff;
(b) remand for entry of judgment for Steve Jackson against Defendants
for
lost royalties of no
less than $3,018.85, and (c) remand for entry of judgment on behalf of
Steve Jackson Games Inc. for $1,000 on its claim under 18 U.S.C.
Section 2703(a).
Respectfully submitted,
R. James George, Jr.
Peter D. Kennedy
GEORGE, DONALDSON & FORD
114 West Seventh, Suite 1000
Austin, Texas 78701
(512) 495-1400
(512) 499-0094
(fax) gdf@well.sf.ca.us (Internet)
By
R. James George, Jr.
Peter D. Kennedy
ATTORNEYS FOR APPELLANTS
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing
BRIEF FOR APPELLANTS has been mailed, certified mail, return receipt
requested to the following:
Barbara L. Herwig
Scott R. McIntosh
Civil Division, Room 3127
Department of Justice
10th & Pennsylvania Avenue, N.W.
Washington, D.C. 20530
on this the 14th day of February, 1994.
R. James George, Jr.
Peter D. Kennedy
