IN THE UNITED STATES DISTICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

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

    Plaintiff,’       ’’’’         ’’Civil Action No.
’                              ’     ’’A 91 CA 346
’   VS.

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

’ ’Defendants.
’
_____________________________________________________

š’
THE UNITED STATES MOTION TO DISMISS OR
IN THE ALTERNATIVE FOR SUMMARY JUDGMENT

The United States and the United States Secret Service,
pursuant to Rules 12(b)(6) and 56 of the Federal Rules of Civil
Procedure, hereby move for dismissal of plaintiffs' claims or in
the alternative for summary judgment. The grounds for this
motion are the following:
1. Plaintiffs have not stated a claim under 1   i x4 rhhhhhr  18 U.S.C. 2520;
2. Plaintiffs have not stated a claim under 18 U.S.C. 2707 in
that:
a. the warrant affidavit did not contain intentionally or
recklessly false statements;
b. the warrant affidavit established probable cause;
c. the warrant itself was sufficiently ’specific and;
3. The good faith of the federal employee defendants is a
complete defense to plaintiffs' claims under the Electronic
[...]

-----



IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

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

   Plaintiffs,’’         ’’             ’Civil Action No.
’                               ’’       ’’A 91 CA 346
’š’
UNITED STATES SECRET SERVICE,
UNITED STATES OF AMERICA,
WILLIAM J. COOK,
TIMOTHY M. FOLEY, BARBARA GOLDEN,
and HENRY M. KLUEPFEL,

  ’Defendants.
’
________________________________________________________

MEMORANDUM IN SUPPORT OF THE UNITED STATES' MOTION
TO’DISMISS’OR’IN’THE’ALTERNATIVE’FOR’SUMMARY’JUDGMENT’’

’’INTRODUCTION’’

This is a suit for damages and injunctive relief brought by
Steve Jackson Games, Inc. (SJG), Steve Jackson, its owner, and
three users of an electronic bulletin board system operated by
SJG. Plaintiffs have sued the United States, the Secret
Service (1) and two of its special agents, an Assistant United
States Attorney and Henry M. Kluepfel, a private citizen’(2),
alleging violations of the First and Fourth Amendments, along
with violations of the Privacy Protection Act (PPA) and the

  ***’FN 1 For purposes of this motion, the United States and the
         Secret Service will be collectively referred to as the "United
         States."
’š’
  ***FN 2 A motion to dismiss on behalf of the individual
        defendants has been filed contemporaneously with this motion.

Electronic Communication Privacy Act (ECPA).  Plaintiffs' claims
against the United States are based solely upon the PPA and the
ECPA.


An employee of SJG, Loyd Blankenship, was (and continues to
be) under investigation by the United States for violations of
the Computer Fraud and Abuse Act of 1986 and for the interstate
transportation of stolen property. As part of that
investigation, a search warrant was executed on the premises of
SJG. Plaintiffs allege that the defendants caused a general
search of the business premises of SJG and improperly seized
computer hardware and software along with other business records
and communications stored there. In particular, plaintiffs
contend that information relating to a game known as "GURPS
Cyberpunk" and stored electronic communications were improperly
seized.

For the reasons stated below, plaintiffs' claims against the
United States must be dismissed with prejudice pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure. In the
alternative, the United States is entitled to summary judgment as
a matter of law pursuant to Rule 56 of the Federal Rules of Civil
Procedure.
’š’’
’FACTS’’

On July 3, 1989, William Cook, an Assistant United States
Attorney for the Northern District of Illinois and Timothy Foley,
a Secret Service Special Agent, were informed by Henry Kluepfel,
an employee of Bellcore and representative of BellSouth, that
there had been a theft of proprietary data from BellSouth's
computer system. Exhibits A and B. Mr. Kluepfel advised that,
in March, 1989, he became aware of the presence of BellSouth
proprietary information on a public access computer bulletin
board system (BBS) known as JOLNET. ’Id.

An investigation was commenced, and in July, 1989, the
apartment of Robert Riggs, located in Decatur, Georgia, was
searched. Search Warrant Affidavit, Exhibit A to the Complaint.
At the time of the search, Riggs, who used the name "Prophet"
when communicating via computer, was interviewed by a special
agent of the Secret Service. During the interview, Riggs
admitted that he had entered a BellSouth computer without
authorization and had downloaded the E911 document from the
BellSouth computer to his home computer. Riggs further admitted
that he had distributed the document to others via an
unidentified BBS. Interviews with the operator of the JOLNET BBS
confirmed that the E911 document, complete with proprietary
markings, had been uploaded onto that BBS and was subsequently
downloaded by an individual known to him as "Knight Lightning",
also known as Craig’Neidorf. ’Id.

On January 10, 1990, Assistant U.S. Attorney Cook received
from Kimberly M. Megahee, Staff Manager for Security at
BellSouth, a letter detailing the costs associated with the
production of the stolen E911 document. That letter listed costs
totaling $79,449 - Exhibit C. On January 18, 1990, pursuant to a
grand jury subpoena, documents were received from the University
of Missouri regarding computer publications by Craig Neidorf, who
was a student there and Randy Tishler, also known as "Taran
King", a former student. Documents were also received which
listed the names of computer hackers (individuals involved in the
unauthorized accessing of computers) and their’corresponding real
names. On that list were the ’names of Loyd ’Blankenship and Chris
Goggans, known respectively as "the Mentor" and "Erik Bloodaxe."
Exhibit A to the Complaint. The documents received established
that Neidorf and Tishler were publishing the computer hacker
newsletter "Phrack" through the use of the University of Missouri
account on the Bitnet telecommunications network. Id.

On that same date, Craig Neidorf was interviewed by Special
Agent Foley. During the interview, Neidorf admitted that he had
a copy of the stolen text file regarding the operation of the
E911 system. Neidorf stated that he knew the document had been
stolen by Robert Riggs, that Neidorf had edited the document into
a’"hacker tutorial" and that it had been published in issue 24 of
Phrack. Neidorf provided a copy of a floppy disk containing that
issue of Phrack and the E911 document. Distribution records of
Phrack 24 recovered from the operator of the JOLNET BBS in July,
1989, revealed that copies of the newsletter containing the E911
document had been forwarded to Loyd Blankenship, an employee of
Steve Jackson Games, on February 24, 1989. Id.

On February 14, 1990, Mr. Kluepfel advised the Secret
Service that Phrack 24 was available on the Phoenix Project, a
BBS jointly run by Blankenship and Goggans. Id. ’On that same
date, Kluepfel advised that Erik Bloodaxe (Goggans) had posted a
notice on January 23, 1990, that the Phoenix Project BBS was
beginning a password decryption service. Bloodaxe invited the
readers of the newsletter to send in encrypted passwords for any
UNIX or Prime computer system, and stated that the system
administrators (Blankenship and Goggans) would decrypt the
passwords and return them. The announcement also stated that the
system administrators would probably access the computer using
the decrypted passwords as well.’Id. ’Kluepfel advised that on
January 26, 1990, Blankenship responded to a question about a
transfer protocol that had been sent out but not explained in
Bloodaxe's notice, indicating his involvement in the decryption
scheme. Id.

On February 22, 1990, information regarding Loyd Blankenship
was provided by Larry Couterie, an inspector with campus security
at the University of Texas in Austin, Texas. Id. Couterie
stated that Blankenship was employed at Steve Jackson Games where
he was a computer programmer and where he used a BBS connected to
telephone number 512-447-4449. (3) Mr. Kluepfel logged onto the BBS
connected to that phone number and noted that the Mentor was
listed as the systems operator and that the user list of the BBS
contained the names of others believed by Mr. Kluepfel to be
computer hackers. Id.
’š’
’ ***FN’3 As the complaint alleges, that phone number is associated
        with the Illuminati BBS run by SJG. Complaint, 18(b).


On February 28, 1990, United States Magistrate Stephen H.
Capelle, of the Western District of Texas, reviewed a search
warrant application submitted by Special Agent Foley and issued a
search warrant’for the premises of SJG. Exhibit A to the
Complaint. The warrant was executed on March 1, 1990, by agents
of the Secret Service, including Special Agent Barbara Golden.
Exhibit D. Special Agent Foley arrived at the end of the search.
Exhibit B.

The execution of the search was extremely limited in scope.
After using a key, which had been provided by Blankenship, the
agents entered the premises early in the morning, before any
employees had arrived. Exhibit D. Two of the 18 functioning
computers at SJG were seized. One of the seized computers was
Blankenship's work computer, located at his desk. The other was
the computer used to run the Illuminati BBS. One additional
disassembled and non-functioning computer located next to
Blankenship's desk was also seized. Only computers which were
clearly under Blankenship's control were seized.

In addition, a cardboard box containing computer disks,
papers and notes, a box with memory board entitled "Rampage 286"
and manual and a box with laplink software, along with a
Splatmaster gun with "Mentor" on the barrel, were recovered from
the working area of Blankenship. A box labeled "BBS Backup
files’"WWIV" User's Manual and a red box containing floppy
disks were seized from the area near the computer used to run th
Illuminati BBS. Additionally, a plastic bag containing papers
floppy disk entitled "Phoenix Setup".’Id.

On March 2, 1990, plaintiff Steve Jackson appeared at the
Austin Field Office of the Secret Service, accompanied by his
attorney, Terrance W. Kirk. Exhibit B. Jackson requested access
to Blankenship's work computer, the Illuminati BBS computer and
Blankenship's home computer, which had been seized in another
search executed on March 1, 1990. Jackson stated that he wished
to retrieve computer materials which he said were necessary to
the publishing of a book, GURPS Cyberpunk, because no written
version of the book existed. Jackson was given access to the
files contained on Blankenship's work machine and was provided
with copies of every file he requested. Jackson was not given
access to Blankenship's home computer at that time, because
Blankenship had not provided permission for such access. In
addition, Jacson was denied access to the BBS computer because
of the risk of destruction of evidence. ’Id.

On march 12, 1990, the seized materials were shipped from
Austin to the Chicago Field Office of the Secret Service. Those
materials were received on March 14, 1990.  Id.  During the week
of March 19, 1990, Laurence Boothby of the Chicago Field Office
of the Secret Service reviewed the BBS computer materials. Using
a program known as "Norton Utilities", Boothby conducted a "key
word" search for documents relating to password cracking
activities and/or the stolen E911 document. The keyword search
produced no electronic mail containing any of the terms.
Accordingly, no electronic mail contained on that machine was
read. The search did, however, produce a password hacking
program entitled "PWHACK.TWT". Exhibit E.

On March 22, 1990, additional files requested by plaintiff
Steve Jackson were copied onto floppy disks and express mailed to
Jackson. Exhibit B. On June 12, 1990, pursuant to a
conversation between AUSA Cook and plaintiff Steve Jackson, the
password hacking program entitled "PWHACK.TWT" was deleted from
the Illuminati BBS machine. Exhibit A. On June 13, 1990, the
seized materials were shipped back to the Austin Field Office,
with the exception of item 17 of the inventory of seized
materials. Item 17 consisted of papers seized from Blankenship's
desk, specifically Legion of Doom Technical Journals and other
hacker related notes. A paper copy of the Cyberpunk book was not
amongst these materials. Exhibit B. On June 21, 1990, employees
of SJG picked up all of the seized materials, with the exception
of item 17. Exhibit F. On August 10, 1990, copies of the
documents contained in item 17 were provided to plaintiffs'
attorneys at Silverglate and Good. Exhibit A.

On July 23, 1990, the trial of Craig Neidorf commenced.
During this trial, as a result of cross-examination by the
defense, the government learned that much of the proprietary
information contained in the stolen E911 document had arguably
been disclosed to civic organizations in Ohio by Ohio Bell.
Exhibits A and B.
’š’

’ARGUMENT’

I. Plaintiffs Have Not Stated a Claim Under 18 U.S.C. 2520


In Count V of their complaint, plaintiffs allege that the
United States, through its employees, intentionally intercepted
disclosed or used plaintiffs' electronic communications in
violation of the ECPA, 18 U.S. C. ¤ 2511(1)(a). In addition,
plaintiffs contend that the standards and procedures set forth in
18 U.S.C. 2518 were not followed and that the warrant
application was not authorized by an appropriate Department of
Justice official, in violation of 18 U.S.C. 2516. (4)
Accordingly, they seek damages and other relief under 18 U.S.C. ¤
2520. In addition, plaintiffs seek reimbursement under 18 U.S.C.
2518(4) for costs allegedly incurred as a result of the search
and seizure.

Pursuant to 18 U.S.C. ¤ 2520(a), "any person whose wire,
oral, or electronic communication is intercepted, disclosed or
intentionally used in violation of this chapter may in a civil
action recover frožm the person or entity which engaged in that
violation such relief as may be appropriate." Here, however,
there has been no violation of ¤ 2511 and, indeed, the provisions
’š’
  ***FN’4 Because, there are no wire or oral communications
        involved in this case and, because, as set forth’infra, there was
        no interception of electronic communications, the provisions of
¤¤      2516 and 2518 governing intercept applications are irrelevant.
        In any event, where, as here, an interception may provide
        evidence of a federal felony, any attorney for the government may
        apply for an order approving the interception of an electronic
        communication. 18 U.S.C.  2516(3).


of this chapter are wholly inapplicable to the facts giving rise
to this suit.

Title I ( 2510’et seq.) of the ECPA addresses the
interception of wire, oral or electronic communications. It
amended Title III of the Omnibus Crime Control and Safe Streets
Act, commonly known as the Wiretap Act, which proscribed the
interception or disclosure of wire or oral communications and
provided specific procedures by which law enforcement officers
could gain access to such communications. In 1986, Congress
passed the ECPA, 18 U.S.C. ¤ 2510 ’et seq. and 18 U.S.C. 2701 ’et
seq., in order to provide to electronic communications the same
protections afforded wire and oral communications. ’See Senate
Rep. No. 99-541, 99th Cong., 2d Sess., reprinted in 1986 U.S.
Code Cong. & Admin. News, 3555.

The ECPA defines electronic communications as "any transfer
of signs, signals, writings, images, sounds, data, or
intelligence of any nature transmitted in whole or in part by a
wire, radio, electromagnetic, photoelectronic or photooptical
system that affects interstate or foreign commerce.’ 18 U.S.C. ’
2510(12). The term "intercept" is defined as "the aural or other
acquisition of the contents of" an electronic communication. 18
U.S.C. ¤ 2510(4). The contents of a communication are defined as
"any information concerning the substance, purport, or meaning of
that communication." 18 U.S.C. ¤ 2510(8). In amending the
Wiretap Act, Congress specifically retained the definition of
"intercept" as it existed under the prior law.’See ’Senate Report
at 3567.

In United States v. Turk, ’526 F.2d 654 (5th Cir.), ’cert.
denied, 429 U.S. 823 (1976), a case brought under the former
Wiretap Act, the court recognized that in order for an
interception within the meaning of 2510 ’et seq. ’to occur, a
communication must be obtained while it is in the process of
being transmitted. In that case, plaintiff contended that an
interception had occurred when two law enforcement officers
seized a box containing a tape recorder and two tapes, returned
to the station house and played the tapes without plaintiff's
consent. One tape contained a recording of a private phone call.
The court held that the replaying of a previously recorded
telephone conversation was not an interception because an
interception necessarily requires "participation by the one
charged with an 'interception' in the ’contemporaneous’acquisition’’
of the commuƒnication". Id. at 658. (Emphasis added.)

In the present case, plaintiffs do not assert that any such
contemporaneous acquisition occurred. To the contrary, the
complaint specifically alleges that the agents seized programs,
text files, public communications and private electronic mail
stored on the BBS. Complaint, 45. (Emphasis added.)
Plaintiffs further allege that data stored’ on seized computers
and disks was seized, including drafts of the book GURPS
Cyberpunk. Complaint  46-48. (Emphasis added.) Conspicuously
absent from the complaint, however, is any allegation that the
United States acquired the contents of these communications while
they were in the process of being transmitted. Moreover, as the
declaration of Laurence Boothby attests, Exhibit E, a specialized
computer program known as "Norton Utilities" was used to
electronically sweep through the seized materials using terms
designed to pinpoint information concerning the stolen E911
document or password cracking activity. (5) As a result, no
electronic messages addressed to or sent by any of the plaintiffs
were examined by any defendant.

Because plaintiffs have failed to allege that electronic
communications were intercepted within the meaning of the ECPA,
their claims under 2511 must be dismissed. Alternatively, the
United States is entitled to summary judgment as a matter of
law. (6)

Similarly, plaintiffs' claims under 2518(4) must be
dismissed or, in the alternative, summary judgment granted,
because plaintiffs did not furnish facilities or technical
assistance necessary to accomplish an interception. The
application of 2518(4) is specifically limited to providers of
electronic communication services or other persons who provide
facilities or technical assistance incident to an order
’š’
  ***FN’5 The use of such a program has been held to be proper.
’       See, e.g., United States v. Horowitz,’806 F.2d 1222, 1224 (4th
        Cir. 1986); Commonwealth of Pa. v. Copenhefer, 587 A.2d 1353
’     ’(1991). 

authorizing an interception.  Here, with the exception of
plaintiff SJG, none of the plaintiffs is a provider of an
electronic communications service.  Moreover, none of the
plaintiffs provided any assistance to the federal officers
conducting the search.  Finally, ere was no interception within
the meaning of the statute.  Accordingly, reimbursement under
2518(4) is not available to plaintiffs.

II.  Plaintiffs Have Not Stated’a Claim Under 18 U.S.C. 2707

Title II of the ECPA, 18 U.S.C. ¤ 2701 et seq., governs
unlawful access to stored electronic communications. Section
2701 provides that without authorization, it is unlawful to
obtain an electronic communication while it is in electronic
storage in a facility through which an electronic communication
service is provided. Section 2703 states that where, as here,
the contents of an electronic communication in storage for less
than one hundred and eighty days are sought by the government,
access may be gained if a warrant is obtained. Section 2707
allows a civil cause of action to "any provider of electronic
communication service, subscriber, or customer aggrieved by any
violation of this chapter in which the conduct constituting the
violation is engaged in with a knowing or intentional state of
mind." 18 U.S.C. ¤ 2707(a). Pursuant to ¤ 2707(d), however,
good faith reliance on a warrant or statutory authorization is a
compete defense to any civil or criminal action brought under 18
U.S.C. 2701 et seq., or under any other law. (7).

’In the instant case, a warrant was obtained prior to
executing the search in question. That warrant was based upon
the affidavit of Special Agent Timothy Foley of the Secret
Service. Plaintiffs contend that the warrant was facially
invalid because it failed to describe the place to be searched
and the things to be seized with particularity, it authorized the
seizure of communications and documents protected by the First
Amendment and permitted the seizure of computer hardware and
software used by plaintiff SJG to publish books, magazines and
games and to operate a BBS. Plaintiffs also contend that the
warrant was invalid because the supporting affidavit did not
be seized was broader than any probable cause shown", Complaint,
30, software which did not constitute evidence of a crime and
authorized the agents to seize and read electronically stored
data including publications, work product, proprietary
information, business records and private electronic mail
messages. Finally, plaintiffs contend that the warrant was
invalid because the supporting affidavit was materially false and
misleading in that it did not state that SJG published books and
games and used computers to prepare these publications, it did
’š’
  ***FN’7 The good faith defense provided by 2707(d) is identical
     to the good faith defense available under 18 V.S.C. ¤ 2520(d).




not inform the Magistrate that the computer used to operate the
BBS contained communications protected by the First Amendment
including private messages and documentary materials stored for
the purpose of public dissemination and it falsely stated that
the E911 document in question was highly proprietary and worth
$79,000.00.

’’A. The Warrant Affidavit Did Not Contain Intentionally or
Recklessly False Statements

’’In ’Franks v. Delaware, ’438 U.S. 154 (1978), the Supreme
Court held that a presumption of validity exists with respect to
affidavits in support of applications for a search warrant. The
Court explained that:
’š’
[W]here the defendant makes a substantial preliminary
showing that a false statement knowingly and
intentionally, or with reckless disregard for the
truth, was included by the affiant in the warrant
affidavit, and if the allegedly false statement is
necessary to the finding of probable cause, the Fourth
Amendment requires that a hearheijhi at a hearinat a hearing be held
defendant's request. In the event that at that hearing
the allegation of perjury or reckless disregard is
established by the defendant by a preponderance of the
evidence, and, with the affidavit's false material set
to one side, the affidavit's remaining content is
insufficient to establish probable cause, the search
warrant must be voided and the fruits of the search
excluded. . .
’š’
Franks,’438 U.S. at 155-56. In order for the presumption of
validity to be defeated, the individual challenging the affidavit
must mount more than a conclusory attack. To meet the Franks
test,

’[t]here must be allegations of deliberate falsehood or
of reckless disregard for the truth, and those
allegations must be accompanied by an offer of proof.
They should point out specifically the portion of the
warrant affidavit that is claimed to be false, and they
should be accompanied by a statement of supporting
reasons. Affidavits or sworn or otherwise reliable
statements of witnesses should be furnished, or their
absence satisfactorily explained. Allegations of
negligence or innocent mistake are insufficient.
’š’
Id. at 171.

Notwithstanding plaintiffs' conclusory allegations to the
contrary, the declarations of Special Agent Foley and AUSA Cook,
Exhibits A and B, as well as the search warrant affidavit itself,
establish that any errors in the affidavit were the result of
justifiable reliance upon the statements of BellSouth
irepresentatives and other reliable informants. Special Agent
Foley had been told by Larry Couterie, an inspector with Campus
B
Games.  Neither AUSA Cook nor Special Agent Foley were aware that
STeve Jackson Games, held itself out as a publisher of any sort.
Instead, these employees mistakenly believed that Steve Jackson
Games was a maker of computer or video games.

With respect to plaintiffs' contention that the affidavit
should have stated that the BBS computer might contain stored
messages, text files intended for dissemination and private
communications, while it is undoubtedly true that the affidavit
did not describe every sort of message or information which might
be found on such a computer, and that it did not expressly state
that communications between users of the BBS would constitute
protected speech, it specifically defined the term "BBS", stating
that ’"[a] bulletin board system . . . is an electronic bulletin
board accessible by computer. Users of a bulletin board may
leave messages, data and software readable by others with access
to the bulletin board."’’Exhibit A to Complaint. The term
"electronic mail" was also defined. The affidavit stated that
"[e]lectronic mail, also’known as’e-mail, is a common form of
communication between individuals on the same or on separate
computer systems. Persons who may send or receive electronic
mail are identified by an electronic mail address, similar to a
postal address. Although a person may have more than one
electronic mail address, each electronic mail address identifies
a person uniquely.’ Id.


The affidavit established that a computer hacker and member of
the hacker organization the Legion of Doom was known to have
circulated the stolen file in a hacker newsletter distributed by
e-mail.  Loyd Blakenship was said to have received a copy of the
stolen E911 Practice, via the JOLNET BBS, on a computer located
in Austin, Texas, and was identified as the systems operator for
the Illuminati BBS run by Steve Jackson Games, located in Austin
Id.  These statemetns were more than sufficient to alert the
Magistrate that stored electronic mail messages and other
seized.


Plaintiffs also contend that the affidavit contained false
statements regarding whether the stolen E911 document contained
proprietary information and the approximate value of the
document. Plaintiffs assert that the information contained in
the stolen document was publicly available. As the search
warrant affidavit and the declarations of Special Agent Foley and
AUSA Cook establish, however, in July, 1989, there was no reason
for them to know, and in fact they did not know, that an argument
could be made that much of the information contained in the E911
text file had been provided to civic organizations in Ohio by
Ohio Bell. Instead, the government reasonably relied upon
information provided by BellSouth which seemed to confirm that
the E911 file was regarded as highly proprietary by BellSouth and
had been engineered at a cost of more than $79,000. This
information, considered in conjunction with Riggs' confession
that he had stolen a text file describing the operation of the
E911 system from a computer at BellSouth headquarters in Atlanta,
appeared unassailable evidence of interstate transportation of
stolen property worth in excess of $5,000.
 
It was not until July, 1990, during the trial of Craig
Neidorf that evidence surfaced which tended to show that much of
the proprietary information contained in the stolen E911 document
had arguably been disclosed to civic organizations in Ohio by
Ohio Bell. Prior to that time, neither AUSA Cook nor Special
Agent Foley had any knowledge of the release of information by
Ohio Bell. Instead, they justifiably relied on the information
provided by BellSouth, the victim of the crime. ’’Cf. United
States v. Mueller, ’902 F.2d 336, 340 n.l (5th Cir. 1990). (When
average citizen provides information, law enforcement officers
are permitted to assume they are dealing with a credible person
absent Circumstances suggesting to the contrary.)
Plaintiffs have not made the substantial preliminary showing
of deliberate falsehood or reckless disregard of the truth
necessary to defeat the presumption of validity afforded
affidavits in support of search warrants, nor could they. At the
time the affidavit was presented to the magistrate, Special Agent
Foley and AUSA Cook honestly and justifiably believed that the
E911 document was proprietary in nature and had a value of
$79,000.00. Moreover, it was, and continues to be true that the
E911 text file was stolen from BellSouth. The only question was
the value to be assigned the stolen BellSouth information. As
the Court noted in ’Franks, 438 U.S.’at 165, the requirement that
the facts given to the magistrate be truthful
does not mean "truthful" in the sense that every fact
recited in the warrant affidavit is necessarily
correct, for probable cause may b be founded upon hearsay
and upon information received from informants, as well
as upon information within the affiant's own knowledge
that sometimes must be garnered hastily. But surely it
is to be "truthful" in the sense that the information
put forth is believed or appropriately accepted by the
affiant as true.
’š’
Clearly, Special Agent Foley and AUSA Cook, in reliance upon the
statement of a representative of the victim of the crime,
appropriately believed that the statements in the affidavit
regarding the value and proprietary nature of the E911 document
were true.
 
B. ’’The Affidavit Established Probable Cause
’’

Plaintiffs assert that the affidavit in support of the
search warrant failed to establish probable cause. It is well-
established that the determination of probable cause is a
practical, common-sense decision whether, given all of the
circumstances set forth, there is a fair probability that
contraband or evidence of a crime will be found in a particular
place. ’’Illinois v. Gates, ’462 U.S. 213, 238 (1983). The
magistrate's determination of probable cause is accorded great
deference and, in cases which are doubtful or marginal, the
finding of probable cause by the magistrate must be sustained.
United States v. Freeman, ’685 F.2d 942, 948 (5th Cir. 1982);
United States v. Marbury, ’732 F.2d 390, 395 (5th Cir. 1984);
United States v. May, ’819 F.2d 531, 535 and n. 20 (5th Cir.
1987). So long as the magistrate had a substantial basis for
concluding that a search would uncover evidence of wrongdoing,
the Fourth Amendment requirement is satisfied. ’’Illinois v.
Gates, ’462 U.S. at 236.

The investigation of SJG employee Loyd Blankenship
encompassed violations of 18 U.S.C. ¤ 2314 and 18 U.S.C. ’’¤
1030(a)(6) and (b). Section 2314 of Title 18 involves interstate
transportation of stolen property valued at $5,000 or more. It
is a felony. Section 1030(a)(6) is a misdemeanor offense
authorizing prosecution for interstate trafficking in computer
passwords with the intent to defraud. Section 1030(b) involves
attempted offenses under any subsection of ¤ 1030(a).
’š’
Viewed as a whole, the affidavit was more than sufficient to
support the magistrate's finding of probable cause. The facts
known to Special Agent Foley and included in the affidavit
established that: (l) Blankenship,’Jackson's employee, was a
member of the "Legion of Doom" (LOD) computer hacker group; (2)
the LOD was involved in a wide array of illegal computer and
telecommunication intrusions; (3) Blankenship was himself a
proficient hacker; (4) by virtue of his membership in the LOD,
Blankenship was associated with Robert Riggs, a computer hacker
who had admitted stealing the BellSouth E911 text file; (5)
Blankenship was associated with Craig Neidorf, the publisher of
Phrack, who had sent Blankenship a copy of the stolen E911 text
file; (6) Blankenship was advertising on computer bulletin boards
that he and Goggans were involved in a password cracking scheme;
(7) Blankenship's activities included his use of computers and
the BBS at Steve Jackson Games; and (8) other known computer
hackers were listed along with Blankenship as users of the
computer bulletin board at Steve Jackson Games.

These facts clearly established probable cause to search for
Blankenship's materials at his employer's business to locate
first, the stolen E911 file and second, evidence of illegal
password cracking activity being conducted by Blankenship and
others. The resulting warrant issued by the magistrate properly
ordered the agents to seize evidence of such fraudulent
activities. (8)

C. The Warrant Was Sufficiently Specific

It is, of course, axiomatic that the Fourth Amendment
prohibits general warrants and searches. Nevertheless, the
degree of specificity required in a search warrant is quite
flexible and will vary depending upon the crimes involved and the
types of evidence sought. See’Andresen v. Maryland, 427 U.S.
463, 480 (1976). If the nature of the items to be searched for
is such that detailed particularity is impossible, "generic
language suffices if it particularizes the types of items to be
seized." ’United States v. Webster, 734 F.2d 1048, 1055 (5th
Cir.) ’cert. denied, ’469 U.S. 1073 (1984).’See also United States
vs. Davis, 589 F.2d 904, 906 (5th Cir.),’cert. denied, 441 U.S.
950 (1979); ’Williams v. Kunze, 806 F.2d 594, 598 (5th Cir. 1986).
’š’
’’The search warrant in this case authorized 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,
’š’
  ***FN’8 Moreover, even purged of references to the proprietary
         nature of the E911 document or its value, the affidavit
         nevertheless established probable cause with respect to the
         suspected password cracking activity.
’š’

including interstate transportation of stolen property
(18 U.S.C. 2314) and interstate transportation of
computer access information (18 U.S.C. 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.
’š’
The agents were searching for an illegally possessed copy of an
E911 text file stolen from BellSouth and evidence of password
cracking activity conducted by Blankenship with other computer
hackers. This material could easily have been located on the
various computers and computer bulletin boards under
Blankenship's control as described in the search warrant
affidavit. Thus, on its face, the warrant was specifically
directed to evidence of the crime alleged, and provided the
agents with clear information as to what items could be seized,
retained and read. The equipment described in the warrant
(including the computer terminals, hard drives, disk drives, tape
drives, tapes and disks) was precisely what Blankenship would
have used as an instrumentality of the suspected illegal computer
activities alleged in the warrant application. Without his
modem, his terminal, and his peripherals, and his password
trafficking individually and through the bulletin boards, as well
as his receipt of stolen information, Blankenship could not have
attained his illegal goals. Thus, the warrant was as limited as
the circumstances and the nature of the activity under
investigation would permit.

In’United States v. Cantu, 774 F.2d 1305, ’307-08 (5th Cir.
1985), ’cert. denied, 479 U.S. 847 (1986), the court found that a
warrant which sought the seizure of "computer hardware or
computer software" in connection with an investigation into tax
fraud was sufficiently specific to withstand Fourth Amendment
scrutiny. The court further recognized that "[t]here is no
requirement that government agents know in advance the specific
items of evidence to be seized or that the items seized do in
fact evince a crime, so long as they are within the scope of a
properly authorized warrant." ’Id. ’at 1308. In ’’Andresen v.
Maryland, ’’427 U.S. at 479, the Supreme Court upheld a search
warrant which authorized the seizure of’"other fruits,
instrumentalities and evidence of crime at this [time] unknown.'"’
In’United States v. Davis,’589 F.2d at 906, the Fifth Circuit
approved a warrant authorizing the seizure of "'white string,
brown paper, corregated (sic) paper.'" The court found that:

These materials were listed in the search warrant
because investigators found pieces of such materials in
the vicinity of the explosion. Any more particularized
description of the materials would have been virtually
impossible. Those executing the search warrant could
not be expected to chemically analyze prior to seizure
any items in those general classes to determine if they
were identical to the material found at the explosion
site.
’š’
Similarly, in United States v. Horowitz,’806 F.2d at 1226, the
court, in dicta, ’’stated that a warrant which sought computer
magnetic storage devices, computer keypunch cards and computer
print-outs was sufficiently specific.
’š’
Plaintiffs apparently contend that, because the premises to
be searched were those of a publisher of books and magazines and
because information stored on a BBS run by Steve Jackson Games
was encompassed within the warrant, greater specificity was
required. However, as previously stated, it was not known at the
time of the search that Steve Jackson Games held itself out as
publisher of any sort. Moreover, the additional degree of
scrutiny afforded a warrant which seeks expressive materials is
not implicated where the seizure of the materials is directed not
at their content but rather at their character. ’’United States v.
Cook, 657 ’’.2d 730. 733 n.2 (5th Cir. 1981). Speech is simply
not protected when it is the very vehicle of the crime itself.
United States v. Rowlee II, 899 F.2d 1275, 1278 (2nd Cir.),’cert.
denied, ’111 S. Ct. 87 (1990).
’š’
Thus, in United States v. Riggs, 743 ’F. Supp. 556 (N.D. Ill.
1990), a case arising out of the prosecution of Craig Neidorf and
Robert Riggs, the court held that

Neidorf's violation of criminal law is not excusesed
simply because he provided the public with interesting
information. . . In short, the court finds no support
for Neidorf's argument that the criminal activity with
which he is charged in this case is protected by the
First Amendment. Interpreting the First Amendment as
shielding Neidorf from criminal liability would open a
gaping hole in criminal law; individuals could violate
criminal laws with impunity simply by engaging in
criminal activities which involve speech-related
activity. The First Amendment does not countenance
that kind of end run around criminal law.
’š’
Id. ’at 560-61. Similarly, it has been held that the First
Amendment does not protect the transmission and publication of
stolen defense department information. ’United States v. Morison,
844 F.2d 1057, 1069 (4th Cir.), ’cert. denied, ’488 U.S. 908
(1988). And, as noted in United States v. Mendelsohn, 896 F.2d
1183, 1186 (9th Cir. 1990), where computerized information which
might otherwise warrant First Amendment protection is
instrumental in and intertwined with the performance of criminal
activity, it is no longer entitled to First Amendment protection.

In assessing the propriety of Magistrate Capelle's
determination of probable cause, this Court must apply a
practical standard of specificity. The object of this search was
to uncover evidence of computer fraud on the part of Loyd
Blankenship. Evidence of this crime would naturally be found on
the computer terminals used by Blankenship, as well as hard
drives, disk drives, tape drives, tapes and disks. What might be
contained on these disks was not evident to the unaided human
eye. Only examination on a computer could reveal that
information. In addition, it was to be expected that any
labelling of disks, for example, would attempt to conceal the
presence of information obtained in violation of the law. Hence,
the agents could not know in advance precisely what items would
contain evidence of  a crime or even that the particular item
being seized would definitely constitute such evidence.
Nevertheless, that the warrant was sufficiently specific is
evident from the way it was actually carried out.

The execution of the search warrant was extremely limited in
scope. Only computers and other items clearly under
Blankenship's control were seized. The wholesale rummaging
through plaintiffs' belongings which the specificity requirement
is designed to prevent simply did not occurr. The margin of
flexibility recognized by the courts with respect to search
warrants compels the conclusion that the description of the items
to be seized was sufficiently specific.9

III. ’’The Good Faith of the Federal Employee Defendants Is a
Complete Defense to Plaintiffs' Claims Under the ECPA and
the PPA
’š’
’A. AUSA Cook, and Special Agents Foley and Golden Acted in
Good Faith Reliance Upon A Warrant and Upon Statutory
Authorization
’š’
Sections 2520(d) and 2707(d) of the ECPA provide a complete
good faith defense to claims arising out of the interception of
electronic communications or access to stored electronic
communications respectively. These sections both state that "[a]
good faith reliance on - (l) a court warrant or order . . . or a
statutory authorization . . . is a complete defense against any
civil or criminal action brought under this chapter or any other
law."

In United States v. Leon, ’468 U.S. 897, 922-23 (1984), the
Supreme Court held that evidence seized is admissible if it is
obtained by officers in good faith reliance upon a search warrant
issued by a neutral magistrate, even if the affidavit upon which
the warrant was based is later found insufficient to establish

  ***FN’9 Plaintiffs also seek the return of property seized by the
        agents during the search. However, as set forth earlier, SJG has
      	already received either the original or copies of all items
        seized. Similarly, plaintiffs seek costs pursuant to 18 U.S.C. ¤
       	2706. That provision allows reimbursement of costs incurred by a
        person or entity who assembles or provides information with
        respect to the contents of stored electronic communications.
       	Only costs directly incurred in searching for, assembling,
        reproducing or otherwise providing such information may be
        reimbursed. Since none of the plaintiffs provided any assistance
        in obtaining the contents of stored electronic communications,
        reimbursement is unwarranted.
’š’
probable cause. In ’Malley v. Briggs, 475 U.S. 335, 344-45
(1986), the Court applied the definition of good faith under the
standards of Leon to questions of good faith immunity, holding
that "the same standard of objective reasonableness that ’we
applied in the context of a suppression hearing in’Leon, supra,
defines the qualified immunity accorded an officer whose request
for a warrant allegedly caused an unconstitutional arrest. Only
where the warrant application is so lacking in indicia of
probable cause as to render official belief in its existence
unreasonable, will the shield of immunity be lost." (Footnote
and citations omitted.)

Under the ’Leon test, good faith reliance on a warrant must
be objectively reasonable, although, as the Court noted, a deep
inquiry into the reasonableness of the officer's conduct will not
usually be required because "'a warrant issued by a magistrate
normally suffices to establish' that a law enforcement officer
has 'acted in good faith in conducting the search'". ’United
States v. Leon,’468’U.S.’at 922 (quoting’United States v. Ross,
456 U.S. 798, 823 n.32 (1982)). Objective good faith will be
found lacking only if: (l) the magistrate who issued the warrant
acted in reliance on a deliberately or recklessly false
affidavit; (2) the magistrate abandoned his judicial role and
thereby failed to act in a neutral and detached manner; (3) if
the warrant was based upon an affidavit so lacking in probable
cause that reliance upon it was unreasonable’or; (4) if the
the place to be searched or the things to be seized. 468 U.S. at
922-23. See also United States v. Gant,’759 F.2d 484, 487 (5th
Cir.),’cert. denied, 474 U.S. 851 (1985) (citing’Leon).

As set forth earlier in this memorandum, the warrant
affidavit did not contain recklessly or deliberately false
statements and, even purged of the statements which plaintiffs
challenge, the affidavit nevertheless was more than sufficient to
establish probable cause. Moreover, the warrant itself was as
specific as circumstances would permit and did not constitute a
general warrant. (10) In ’’Anderson v. Creighton, ’483 U.S. 635, 639
(1987), the Supreme Court reconfirmed that the test for good
faith immunity involves only the objective consideration of
whether a reasonable person, possessing the information that the
defendant possessed could have believed his actions lawful.
Thus, immunity is available where a reasonable officer could have
believed his conduct was lawful even though a court might later
find it was not. 483 U.S. at 641.

Here, the federal officers preparing the search warrant
application and presenting it to the magistrate acted in the
objectively reasonable belief that the facts known to them and
stated in the affidavit were true and sufficient to establish
probable cause and that they were authorized to obtain such a
warrant under the provisions of ’2701 ’et seq.’In addition, the
officers executing the warrant acted reasonably in relying on the
’š’
   ***FN’10 Plaintiffs do not appear to challenge the neutrality of
         the magistrate in issuing the warrant.

  ***FN 10 Plaintiffs do not appear to challenge the neutrality of
           teh magistrate in issuing the warrant.


believe himself justified in relying on it. Accordingly, it is
clear that the objective good faith standard is more than
satisfied here and constitutes a complete defense to plaintiffs'
claims against the United States.

’III. ’The Good Faith Defense Established by the ECPA Constitutes
An Implied Repeal of the Provisions of 42 U.S.C. ¤ 2000aa-
6(c) in the Context of Seizures of Electronic
Communications
’š’
Plaintiffs have asserted a claim against the United States
under the Privacy Protection Act (PPA), 42 U.S.C. ¤ 2000aa et
seq. ’That Act, passed in 1980, addresses certain seizures in
which work product or documentary materials possessed by a person
reasonably believed to have a purpose to disseminate to the
public a newspaper, book, broadcast, or other similar form of
public communication, in or affecting interstate or foreign
commerce, are sought. Section 2000aa-6(c) provides that the
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."

This provision is in direct conflict with  2520(d) and
2707(d) of the ECPA, passed in 1986, both of which provide that
"[a] good faith reliance on - (l) a court warrant or order . . .
or a statutory authorization . . . is a complete defense against
any civil or criminal action brought under this chapter or any
other law."’’The ECPA amended the federal Wiretap statute. The
prior version of the good faith defense provided under ¤ 2520
read as follows: "A good faith reliance on a court order or on
the provisions of section 2518(7) of this chapter shall
constitute a complete defense to any civil or criminal action
brought under this chapter." It is clear from the change in the
statutory language, as well as from a common sense reading of the
present wording, that Congress intended the good faith defense
provided to extend to claims brought under the ECPA or any other
authority.

’"'It is, of course, a cardinal principle of statutory
construction that repeals by implication are not favored.'"
Kremer v. Chemical Construction Corp., 456 ’’U.S. ’461, 466 (1982)
(quoting’Radzanower v. Touche Ross & Co., 426’U.S. 154 (1976) and
United States v. United Continental Corp.,’425 ’U.S. 164, 168
(1976)). However, despite this maxim, "where provisions in the
two acts are in irreconcilable conflict, the later act to the
extent of the conflict constitutes an implied repeal of the
earlier one." ’Posadas v. National City Ban, ’’296 U.S. 497, 503
(1936). See also Radzanower v. Touche Ross & Co., 426 U.S. at
154; Kremer v. Chemical Const. Corp., ’d’456 U.S.’at 466.

Here, there is the kind of "positive repugnancy" between the
provisions of the ECPA and the PPA with respect to the good faith
defense which is the hallmark of an implied repeal.’See
Radzanower, ’326 U.S. at 155. The ECPA explicitly states that
good faith is a defense, not only to claims under that act but
"under any other law." The PPA, just as explicitly, denies the
very same good faith defense. At least in the limited context of
searches encompassing electronic communications, the two statutes
simply cannot be reconciled. While it is undoubtedly true that,
as a ’b’general rule, repeals by implication are not favored, the
Supreme Court noted in’United States v. Fausto, 484 U.S. 439, 453
(1988), that:
’š’
’Repeal by implication of an express statutory text is
one thing; it can be strongly presumed that Congress
will specifically address language on the statute books
that it wishes to change. (Citations omitted.) But
repeal by implication of a legal disposition implied by
a statutory text is something else. The courts
frequently find Congress to have done this - whenever,
in fact, they interpret a statutory text in the light
of surrounding texts that happen to have been
subsequently enacted. This classic judicial task of
reconciling many laws enacted over time, and getting
them to "make sense" in combination, necessarily
assumes that the implications of a statute may be
altered by the implications of a later statute.
’š’
In the end, the goal of this Court must be to determine what
interpretation best reflects the will of Congress. In evaluating
the conflict between the ECPA and the PPA, it is helpful to note
that, throughout the legislative history of the ECPA, where it
was intended that a law which overlapped with the ECPA was to be
unchanged in its application, Congress was careful to expressly
note that fact. See Senate Report No. 99-541 1986 U.S. Cong. &
Admin. News at 3567 (ECPA does not affect the Foreign
Intelligence Surveillance Act; 3568, 3573, 3576, (Provisions of
ECPA directed to radio communications do not affect the
applicability of the Communications Act of 1934); 3591 (ECPA does
not affect federal laws which prohibit disclosure of information
on the basis of content such as the Fair Credit Reporting Act).
That Congress intended a good faith defense to be available
to actions brought under the ECPA "or any other law" is clear
from the express wording of that statute. The phrase "under any
other law" can have but one meaning. At least in the limited
context of searches involving electronic communications there is
an irreconcilable conflict between ¤¤ 2520 and 2707(d) of the
ECPA and ¤ 2000aa-6 of the PPA. Accordingly, the ECPA must be
found to operate as an implied repeal of the PPA in that setting.
Any other interpretation would emasculate the good faith defense
in situations involving the seizure of electronic communications
intended to be disseminated to the public. Clearly, Congress
would not countenance such a result. That being the case, the
good faith of the officers applying for and executing the search
warrant bars plaintiffs' claim under the PPA.

CONCLUSION’’

For the reasons stated above, plaintiffs' claims against the
United States should be dismissed. Alternatively, the United
States is entitled to summary judgment as a matter of law.
Respectfully submitted,

STUART M. GERSON
Assistant Attorney General

RONALD F. EDERER
United States Attorney

HELENE M. GOLDBERG
Director, Torts Branch

NICKI L. KOUTSIS
Assistant Director, Torts Branch
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