EFFector Vol. 13, No. 2 Mar. 1, 2000 email@example.com
A Publication of the Electronic Frontier Foundation ISSN 1062-9424
For more information on EFF activities & alerts: http://www.eff.org
On March 1, 1990, the United States Secret Service (USSS) nearly destroyed Steve Jackson Games (SJG), an award-winning publisher of roleplaying games in Austin, Texas.
Today marks ten years to the day since that fateful search and seizure operation, which led to one of the most important precedent-setting lawsuits in online history, the Electronic Frontier Foundation-backed case of Steve Jackson Games, et al. v. US Secret Service.
"I'm very glad to see that the EFF is still here with us and and fighting the good fight. Back in 1990, [EFF co-founders] Mitch Kapor and John Perry Barlow said that this new organization would be in it for the long haul. After ten years, I think we can see that this's true," remarked Steve Jackson on the anniversary of the infamous raid. "The EFF is a permanent part of the civil liberties landscape. Technology is changing faster than ever, bringing new opportunities, but new hazards to freedom and fairness as well. It's good to know the EFF will always be here when it's needed."
In an early morning raid with an unlawful and unconstitutional warrant, agents of the USSS conducted a search of the SJG office. They seized and removed, all in all, 3 computers, 5 hard disks and more than 300 floppies of software and data, and a book manuscript being prepared for publication. Among this equipment was the hardware and software of the SJG-operated Illuminati BBS (bulletin board system). The BBS served as a small-scale online service for gamers to participate in online discussions and to supply customer feedback to SJG. The BBS (today, the Internet service provide Illuminati Online) was also the repository of private electronic mail belonging to several of its users. This private e-mail was seized in the raid.
Yet Jackson, his business, and his BBS's users were not only innocent of any crime, but never suspects in the first place. The raid had been staged on the unfounded (and later proven false) suspicion that somewhere in Jackson's office there "might be" a document allegedly compromising the security of the 911 telephone system.
The Secret Service did not return the equipment, though legally required to do so and requested to do so many times, until sometime in the end of June of that year. When the equipment was returned more than three months after the raid, it became clear that someone at the USSS inspecting the disks had read and DELETED all of the 162 electronic mail messages contained on the BBS at the time of the raid. Not one of the users of the BBS was even under investigation by the Secret Service, and many of the messages had never even been read by their intended recipients.
In the months that followed the raid, Jackson saw the business he had built up over many years dragged to the edge of bankruptcy. SJG was a successful and prestigious publisher of books and other materials used in adventure role-playing games. Jackson had to layoff nearly half of his work force. Publication of at least one of his gaming books was delayed, resulting in loss of revenues to the company. He was written up in Business Week magazine as being a computer criminal. Jackson decided to fight back.
On May 1, 1991, Steve Jackson, the Steve Jackson Games company, and three users of the Illuminati BBS, with the help of the Electronic Frontier Foundation, filed a civil suit against the United States Secret Service and some indivdually named agents thereof, alleging that the search warrant used during the raid was insufficient, since Steve Jackson Games was a publisher (publishers enjoy special protection under the Privacy Protection Act [PPA] of 1980), and that the protections against improper surveillance in the Electronic Communications Privacy Act (ECPA) had been violated with regard to the electronic mail on the system.
ECPA consists of a series of amendments to the federal Wiretap Act. It prohibits law enforcement officers from intentionally intercepting, using and/or disclosing the contents of private electronic communications without a warrant. The statute offers similar privacy protection for communications that are stored "incidental to the electronic transmission thereof" (e.g. on the hard drive of a BBS). The users of the Illuminati board claimed that their unread e-mail required a warrant specifically describing the messages to be searched. The Secret Service claimed that no special warrant was required under ECPA - in essence asking the court for license to go on uncontrolled "fishing expeditions" through citizens' private communications, in violation of Fourth Amendment principles. The court sided with Jackson and the other plaintiffs, berating USSS Agent Tim Foley - on the witness stand - for 15 minutes straight.
According to Mike Godwin, EFF Senior Policy Fellow, "the Steve Jackson Games case was the first case to underscore the intersection between civil liberties and the Internet. Our victory in that case sent a signal to the law-enforcement community that the days of unregulated searches and seizures of computers, and shut-downs of online publishers, were over."
The judge's official decision was announced on March 12, 1993. District Judge Sam Sparks awarded more than $50,000 in damages to Steve Jackson Games, citing lost profits and violations of the PPA. In addition, the judge awarded each BBS-user plaintiff $1,000 under the Electronic Communications Privacy Act for the USSS seizure of their stored electronic mail. The judge also ruled that plaintiffs would be reimbursed for their attorneys' fees. Plaintiffs filed an appeal, seeking to hold the USSS liable for "interception" in addition to "seizure" of the e-mail, on the grounds that e-mail still "in transit" if it has not yet been received by its recipients. This clarifying appeal was not successful, as the appellate court held, on a technicality, that "in transit" essentially means only "in transit, momentarily, across communication wires", not "in transit, by whatever medium, between sender and recipient". But the case remains a victory, establishing that at the very least, "stored" e-mail cannot be seized, examined or destroyed with impunity by law enforcement officers, and affirming, by clarifying the meaning of "in transit", that e-mail cannot be eavesdropped upon by police as it is being transmitted from system to system without a proper warrant.
"It's hard to imagine, but the raid on Steve Jackson Games took place years before the World Wide Web even existed. Ten years may not seem like much, but it's an eternity in 'Internet time' The SJG case is still cited as the seminal precedent explaining the Electronic Communications Privacy Act. It was exciting being a part of it," commented Shari Steele, then Director of Legal Services at EFF when the SJG case came to its conclusion. (Steele is presently Co-Director of the allied nonproft organization Digital Bridges).
Godwin added: "The most important factors in our success in the case were Steve Jackson's courage and determination, the resolve of Mitch Kapor and other EFF backers to go the distance, and a excellent and committed legal team."
Representing the plaintiffs in this suit were Harvey A. Silverglate and Sharon L. Beckman of Silverglate & Good (Boston, MA); Eric Lieberman and Nick Poser of Rabinowitz, Boudin, Standard, Krinsky & Lieberman (New York, NY); and James George, Jr. of Graves, Dougherty, Hearon & Moody (Austin, TX).
Steve Jackson Games: http://www.sjgames.com
Illuminati Online: http://www.io.com
The Electronic Frontier Foundation: http://www.eff.org
EFF's SJG Case Archive: http://www.eff.org/pub/Legal/Cases/SJG
US Secret Service: http://www.treas.gov/usss/
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In every field of human endeavor, there are those dedicated to expanding knowledge, freedom, efficiency, and utility. Many of today's brightest innovators are working along the electronic frontier. To recognize these leaders, the Electronic Frontier Foundation established the Pioneer Awards for deserving individuals and organizations.
The Pioneer Awards are international and nominations are open to all. The deadline for nominations this year is March 15, 2000 (see nomination criteria and instructions below).
The Ninth Annual EFF Pioneer Awards will be presented in Toronto, Canada, at the 10th Conference on Computers, Freedom, and Privacy (see http://www.cfp2000.org). The ceremony will be held on the evening of April 6, 2000. All nominations will be reviewed by a panel of judges chaired by Dave Farber, FCC Chief Technologist and long time EFF Boardmember, and chosen for their knowledge of the technical, legal, and social issues associated with information technology.
This year's EFF Pioneer Awards judges are:
There are no specific categories for the EFF Pioneer Awards, but the following guidelines apply:
You may send as many nominations as you wish, but please use one e-mail per nomination. Submit all entries to: firstname.lastname@example.org
Just tell us:
You may attach supporting documentation in Microsoft Word or other standard binary formats.
1992: Douglas C. Engelbart, Robert Kahn, Jim Warren, Tom Jennings, and Andrzej Smereczynski; 1993: Paul Baran, Vinton Cerf, Ward Christensen, Dave Hughes and the USENET software developers, represented by the software's originators Tom Truscott and Jim Ellis; 1994: Ivan Sutherland, Whitfield Diffie and Martin Hellman, Murray Turoff and Starr Roxanne Hiltz, Lee Felsenstein, Bill Atkinson, and the WELL; 1995: Philip Zimmermann, Anita Borg, and Willis Ware; 1996: Robert Metcalfe, Peter Neumann, Shabbir Safdar and Matthew Blaze; 1997: Marc Rotenberg, Johan "Julf" Helsingius, and (special honorees) Hedy Lamarr and George Antheil; 1998: Richard Stallman, Linus Torvalds, and Barbara Simons; 1999: Jon Postel, Drazen Pantic, and Simon Davies.
See http://www.eff.org/awards for further information.
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