IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 93-8661
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STEVE JACKSON GAMES INC., STEVE JACKSON,
ELIZABETH MCCOY, WALTER MILLIKEN,
AND STEFFAN O'SULLIVAN,
Appellants,
v.
UNITED STATES SECRET SERVICE,
AND THE UNITED STATES OF AMERICA,
Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
REPLY 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
APRIL 25, 1994
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TABLE OFCONTENTS Page
----------------
TABLE OF CASES, STATUTES AND OTHER AUTHORITY...........i
ARGUMENT IN REPLY .....................................1
CONCLUSION ............................................5
CERTIFICATE OF SERVICE ................................6
TABLE OF CASES.STATUTES AND OTHER AUTHORITY
-------------------------------------------
United States v. Turk, 526 F.2d 654 (Sth Cir.),
cert. denied, 429 U.S. 823 (1976) ...............1, 2, 4
18 U.S.C. Section 2501, _et_seq._ .....................5
Section 2510(4) .................................2
Section 2701, _et_seq._ .........................2
Section 2703(a) .................................5
ARGUMENT IN REPLY
-----------------
Each Appellant is a dedicated user of the burgeoning new communications
technology: electronic mail. In this lawsuit, the first of its kind,
these Appellants have been fighting to establish that the law provides
their communications the same protections from unwanted and unauthorized
government scrutiny that telephone users have come to take for granted.
These Appellants suffered a terrible intrusion on their privacy by the
federal government: the Secret Service, in an investigation the
government freely admits had absolutely _nothing_ to do with them,
seized their private mail, read it and threw it away. To cap the insult,
government agents then denied having done so, both to the Appellants and
to a federal judge, despite irrefutable documentary evidence.
Appellants sued and won a judgment that the Secret Service had violated
their rights. Appellants have brought this appeal, not to gain a larger
damage award as the government implies, but to confirm that the law
provides added protection for the most vulnerable of electronic
communications -- e-mail messages that are in transit to their intended
recipient, but not yet received. These messages are like mail in a
mailbox -- the sender cannot retrieve them to protect them from unwanted
prying eyes, and the receiver has not yet gained control over them, and
had the chance to decide whether to keep them or remove them.
The government makes two arguments: (1) the seizure of the electronic
mail was not "contemporaneous" with its transmission, citing _United_
_States_v._Turk_, 526 F.2d 654 (Sth Cir.), _cert._denied_, 429 U.S. 823
(1976), and therefore there could be no "interception;" and (2) it would
do violence to the structure of the ECPA for the Secret Service to have
to obey both the
1
restrictions under Title I concerning "interception" and those under
Title II when seizing an electronic bulletin board service. Neither
argument is compelling.
First, _Turk_ does not control the outcome of this case.
"Contemporaneous" is not part of the definition of "interception" in 18
U.S.C. Section 2510(4). This Court adopted that concept in explaining
why the playing back of a previously-recorded conversation was not an
"interception" of that conversation. The taped conversation had already
been completed, and the tape was merely a record of that conversation.
The tape recording was analogous to the electronic mail that had been
read and saved on Illuminati when it was seized, and that Judge Sparks
held that it was protected by 18 U.S.C. Section 2701, _et_seq._
Unlike the taped oral conversation in _Turk_, the communications at
issue in this appeal were not completed, because they had not been
communicated to the addressee. The Illuminati BBS computer that the
Secret Service seized was not the final delivery point, just a temporary
weigh station. The e-mail messages remained in the vulnerable stage when
the sender loses control over the communication, but the receiver has
not yet gained access or control. Before transmission could be
completed, the Secret Service imposed itself between sender and
recipient and acquired the contents of the message. Any
"contemporaneous" requirement that was recognized in _Turk_ was
satisfied here, because the e-mail in question _was_ in transit, out of
the control of both sender and recipient. [Footnote 1]
2
While it is not a _necessary_ condition that an "interception" under
Section 2510(4) prevent the communication from being received, it _is_ a
good indication that an interception has occurred, at least when the
contents of the message are acquired as a consequence. Therefore, the
government's reference to the "jamming" of a communication not being
covered by the ECPA is irrelevant, because the Secret Service "acquired
the contents" of all the electronic mail then in transit, as well as
prevented the delivery.
Second, the government's concern about a perceived unintended overlap
between Title I and Title II is unwarranted. There is no anomaly in
recognizing that a single act, when applied to certain materials, would
violate different laws. For example, the Secret Service's seizure of the
Illuminati BBS violated the Privacy Protection Act of 1980 as well as
the ECPA; if stored electronic messages constituted work product covered
by the PPA (and considering Steve Jackson Games' use of its BBS, that is
quite likely) the Secret Service violated both statutes by seizing the
same computer file.
Any "overlap" would simply require the Secret Service to meet the higher
standard required by Title I before seizing an
active, on-line electronic BBS. A wholesale seizure of an electronic
bulletin board system is not just the seizure of a computer. It
is the disruption of an entire private electronic communication system.
_All_ communications are stopped, including the delivery of
composed electronic messages. In this case, the Secret Service denied
hundreds of users access to this system because it had
suspicions about a single operator. Other investigations seeking
computer records, but not involving seizure of an active
communications system, would pose no threat of intercepting in-transit
communications, and therefore would not require the
government to gain the court order required by Title I.
3
This is consistent with the structure of the ECPA, which grants
graduated protection for communications based upon
whether they are stored, and for how long. The law recognizes a greater
privacy interest in communications that are in storage for
less than 180 days than for those stored for [more] than that period of
time; similarly, it recognized even greater protection for
communications that have not been completed, and where the intended
recipient has not even had the chance to decide whether or
not to store the communication. Like an ongoing conversation, the
participants in an in-transit communication cannot know, and
cannot control, whether their communication is being monitored, and the
invasion of privacy is concomitantly greater.
This point is highlighted by considering a necessary consequence of the
government's position: if correct, the government
does not "intercept" in-transit e-mail if, with or without the
authorization of the system administrator, it accesses the hard drive of
the BBS computer, reads a!l the in-transit e-mail, but instead of
seizing the BBS, allows the messages to be transmitted to their
recipients. Although this is the absolute equivalent of a wiretap (and
technologically easier) the government would claim that it was not an
interception. To take the consequences further, what if the e-mail
message was only on the hard drive for a day? For an hour? A few
minutes? A few seconds or even less? As the brief for the Amici shows,
this is the future of communications technology. But to our government,
as long as a message is "sitting still" on a computer's hard drive when
it is accessed, it is not being "intercepted." There is no need to do
damage to the language of the ECPA, and to sacrifice its protection of
ongoing private communications for the sake of the Justice Department's
need to neatly compartmentalize Title I and Title II. The advent of new
technology has made for a more
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complicated world, and arguments that were sufficient when _Turk_ was
decided no longer translate well.
CONCLUSION
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For the foregoing reasons, and the reasons set forth in the Appellants'
initial Brief, 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, L.L.P.
114 West Seventh, Suite 1000
Austin, Texas 78701
(512) 495-1400
(512) 499-0094 (fax)
gdf@well.sf.ca.us (Internet)
By [signature]
R. James George, Jr.
Peter D. Kennedy
ATTORNEYS FOR APPELLANTS
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- - -
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing
REPLY 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 25 day of April, 1994.
[signature]
R. James George, Jr.
Peter D. Kennedy
FOOTNOTES
1. The government cites no evidence that Congress considered Turk one
way or the other when enacting the ECPA. Response at 19. Had Congress
intended to include "contemporaneous" in an age of non-connection-
oriented data transfers such as BBS mail, it could easily have added it
to the definition of "interception," but did not.
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