2
ii~ ~i ~i~:il ::: i~ :::~r',~ d'~=~I ~; C ~' ~,i~ ~C I!~, .i!!~il " '~'L.,7~L L,J ~.iiiii~ STEVE JACKSON GAMES v US SECRET SERVICE: AN UPDATE Starting on January 26, 1993 and continuing for three days Judge Sparks of the United States District Court in Austin, Texas heard testimony regarding the case of Steve Jackson Games, Inc v United States 2. This case involved the seizure of compu- ter equipment by the United Stated Secret Service who believed it to contain posted documents on a bulletin board system (BBS) regarding the Extended 911 police emergency system (E911), which was a proprietary document of Bellsouth. Steve Jackson Games (SJG) felt that the United States violated a number of his rights in obtaining the warrant, the execution of the search, and the seizure of computers and related materials. SJG also felt that it incurred economic losses by the Government in its failure to return the seized materials in a timely fashion. SJG asked for US$2 million in damages. SJG was founded by Steve Jackson in 1980 as a publisher of books, magazines and games. In conjunction with its publishing operation, SJG operated a BBS called "llluminati". The Illuminati BBS was used as a means for SJG to communicate with its writers, customers, and employees. In addition, it offered electronic mail to its users. In February 1990, Secret Service Agent Tim Foley had reason to believe that Loyd Blankenship, an employee of SJG, had obtained a copy of the E911 document and a listing of a computer program that aided in the decrypting of passwords on computers, including those of the US Defence Department. Foley believed that this information was stored on Blankenship's computer at home, or possibly on the IIluminati BBS at SJG. The information could have also been contained on disks at Blankenship's office at SJG. Foley believed that this information was involved in criminal activities and Blankenship could delete the information at any time. Based on this information, Agent Foley went before a United States Magistrate on February 28, 1990, and obtained a search warrant. On March 1, 1990, Agents Foley and Barbara Golden exe- cuted the warrant on SJG and Blanken- ship's home and seized three computers, 300 computer disks, and other materials. It should be noted, that computers that were not clearly under Blankenship's control were not seized. Also, prior to the execution of the search warrant neither the Secret Service nor anyone else involved in the investigation knew that SJG held itself out to be a publisher. The following day, after the search, Steve Jackson asked for copies of some of the seized material from Blanken- ship's work computer. All the requested material was copied and made available. On March 12, 1993, Judge Sparks ruled that, with respect to the charge that the search was illegal, the agents did not violate the Fourth Amendment. The Court said: "The court does not find from a preponderance of the evidence that the admitted errors in Foley's affidavit were intentional and so materi- al to make the affidavit and issuance of the warrant legally improper." The Court went on to say that the agents did not violate the Privacy Protection Act 3, which states: "Not- withstanding any other law, it shall be unlawful for a government officer or employee, in conjunction with the investigation of a criminal offense to search for or seize any work product materials possessed by a person reason- ably believed to have a purpose to disseminate to the public a newspaper, broadcast, or other similar for the public communication." At the time of the search, the govern- ment believed SJG only to be a publisher of games. In confirming this, The Court said: "The Court declines to find from a preponderance of evidence that on March 1, 1990, Agent Foley or any other employee or agent of the United States had reason to believe that proper- ty seized would be the work product materials of a person believed to have a purpose to disseminate to the public a newspaper, book, or other similar form of public communications." With respect to the charge that the government violated the Electronic Com- munications Privacy Act (ECPA) s by intercepting electronic mail that was in transit, the Court said: "The Court declines to find liability for any Plaintiff against the Defendants pursuant to the Wire and Electronic Communications Interception and Interception of Oral Communications Act, 18 U.S.C. 2510 et seq., and specifically hold that the alleged "interceptions" under the facts of this case are not "interceptions" contemplated by the Wire and Electro- nic Communications and Interception of Oral Communications Act. It simply has no applicability to the facts of the case." The Court held that the Government did violate the Privacy Protection Act that once it learned that SJG games was a publisher it did not make immediate arrangements to return copies of the seized material. During the search on March 1, 1990 and again on March 2 1990, the Secret Service was advised that SJG was a publisher and that there might be violations of the Privacy Protection Act, It said, "On March 2, 1990, and there- after, the conduct of the United States Secret Service was in violation of 42 U.S.C. 2000aa et seq. It is clear that the Secret Service continued the seizure of property of Steve Jackson Games Incor- porated including information and docu- ments through late June of 1990. Immediate arrangements could and should have been made on March 2, 1990 where copies of all information seized could have been made." Finally, the Court ruled that the agents violated provisions of the Stored Wire and Electronic Communications and Transaction Records Access6 Law. This was done by the Government obtaining a search warrant instead of a subpoena for the information contained on the Illuminati BBS. The court ruled SJG was entitled to US$8781 for its expenses and US$42 259 in economic damages: a total of US$51 040. An attorney involved with the case disagreed with the Court's opinion on a number of points, he said: "The court indicated that the agents should have acted more promptly in analyzing and returning the seized equipment to Steve Jackson Games. The court's attitude overlooked Jackson's failure to specify what information he wanted when he contacted the agents after the search. It also overlooked Jackson's failure to 286

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Page 1: Steve Jackson games v US secret service: An update

ii~ ~i ~i~:ill ::: ii~ :::~r',~ d ''~=~I ~; C ~' ~,ii~ ~ C I!~, .i!!~il " '~'L.,7~L L,J ~.iiiii~

STEVE JACKSON GAMES v US SECRET SERVICE: AN UPDATE

Starting on January 26, 1993 and continuing for three days Judge Sparks of the United States District Court in Austin, Texas heard testimony regarding the case of Steve Jackson Games, Inc v United States 2. This case involved the seizure of compu- ter equipment by the United Stated Secret Service who believed it to contain posted documents on a bulletin board system (BBS) regarding the Extended 911 police emergency system (E911), which was a proprietary document of Bellsouth. Steve Jackson Games (SJG) felt that the United States violated a number of his rights in obtaining the warrant, the execution of the search, and the seizure of computers and related materials. SJG also felt that it incurred economic losses by the Government in its failure to return the seized materials in a timely fashion. SJG asked for US$2 million in damages. SJG was founded by Steve Jackson in 1980 as a publisher of books, magazines and games. In conjunction with its publishing operation, SJG operated a BBS called "ll luminati". The Illuminati BBS was used as a means for SJG to communicate with its writers, customers, and employees. In addition, it offered electronic mail to its users. In February 1990, Secret Service Agent Tim Foley had reason to believe that Loyd Blankenship, an employee of SJG, had obtained a copy of the E911 document and a listing of a computer program that aided in the decrypting of passwords on computers, including those of the US Defence Department. Foley believed that this information was stored on Blankenship's computer at home, or possibly on the IIluminati BBS at SJG. The information could have also been contained on disks at Blankenship's office at SJG. Foley believed that this information was involved in criminal activities and Blankenship could delete the information at any time. Based on this information, Agent Foley went before a United States Magistrate on February 28, 1990, and obtained a search warrant. On March 1, 1990, Agents Foley and Barbara Golden exe- cuted the warrant on SJG and Blanken- ship's home and seized three computers,

300 computer disks, and other materials. It should be noted, that computers that were not clearly under Blankenship's control were not seized. Also, prior to the execution of the search warrant neither the Secret Service nor anyone else involved in the investigation knew that SJG held itself out to be a publisher. The following day, after the search, Steve Jackson asked for copies of some of the seized material from Blanken- ship's work computer. All the requested material was copied and made available. On March 12, 1993, Judge Sparks ruled that, with respect to the charge that the search was illegal, the agents did not violate the Fourth Amendment. The Court said: "The court does not find from a preponderance of the evidence that the admitted errors in Foley's affidavit were intentional and so materi- al to make the affidavit and issuance of the warrant legally improper." The Court went on to say that the agents did not violate the Privacy Protection Act 3, which states: "Not- withstanding any other law, it shall be unlawful for a government officer or employee, in conjunction with the investigation of a criminal offense to search for or seize any work product materials possessed by a person reason- ably believed to have a purpose to disseminate to the public a newspaper, broadcast, or other similar for the public communication." At the time of the search, the govern- ment believed SJG only to be a publisher of games. In confirming this, The Court said: "The Court declines to find from a preponderance of evidence that on March 1, 1990, Agent Foley or any other employee or agent of the United States had reason to believe that proper- ty seized would be the work product materials of a person believed to have a purpose to disseminate to the public a newspaper, book, or other similar form of public communications." With respect to the charge that the government violated the Electronic Com- munications Privacy Act (ECPA) s by intercepting electronic mail that was in transit, the Court said: "The Court declines to find liability for any Plaintiff against the Defendants pursuant to the

Wire and Electronic Communications Interception and Interception of Oral Communications Act, 18 U.S.C. 2510 et seq., and specifically hold that the alleged "interceptions" under the facts of this case are not "interceptions" contemplated by the Wire and Electro- nic Communications and Interception of Oral Communications Act. It simply has no applicability to the facts of the case." The Court held that the Government did violate the Privacy Protection Act that once it learned that SJG games was a publisher it did not make immediate arrangements to return copies of the seized material. During the search on March 1, 1990 and again on March 2 1990, the Secret Service was advised that SJG was a publisher and that there might be violations of the Privacy Protection Act, It said, "On March 2, 1990, and there- after, the conduct of the United States Secret Service was in violation of 42 U.S.C. 2000aa et seq. It is clear that the Secret Service continued the seizure of property of Steve Jackson Games Incor- porated including information and docu- ments through late June of 1990. Immediate arrangements could and should have been made on March 2, 1990 where copies of all information seized could have been made." Finally, the Court ruled that the agents violated provisions of the Stored Wire and Electronic Communications and Transaction Records Access 6 Law. This was done by the Government obtaining a search warrant instead of a subpoena for the information contained on the Illuminati BBS. The court ruled SJG was entitled to US$8781 for its expenses and US$42 259 in economic damages: a total of US$51 040. An attorney involved with the case disagreed with the Court's opinion on a number of points, he said: "The court indicated that the agents should have acted more promptly in analyzing and returning the seized equipment to Steve Jackson Games. The court's attitude overlooked Jackson's failure to specify what information he wanted when he contacted the agents after the search. It also overlooked Jackson's failure to

286

Page 2: Steve Jackson games v US secret service: An update

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exercise his rights under Rule 41 of the Federal Rules of Criminal Procedure to petit ion the court for the return of property." He wen t on to note, nThe court erroneously found that the agents had violated the provisions of the Stored Wire and Electronic Communication Act by obtaining a search warrant rather than a subpoena. In face, the Act specifically calls for agents to obtain a search warrant when the information being sought has been on the target computer for six months or less. 18 U.S.C. sec. 2703(a)." nThe court also erroneously found that the agents had violated the provisions of the Stored Wire and Electronic Commu- nications Act by failing to disclose their

seizure to the individuals who were listed on the BBS. Disclosure was not required by the agents under this Act since they were acting under a search warrant. 18 U.S.C. sec. 2703(c)(2),n he continued. Finally, he said, "The court did not address the critical problem of the conflict between the Privacy Protection Act's requirement that a subpoena be used when a publisher's location will be searched and the ECPA's requirement that a search warrant be used to search computers for stored information that has been stored on a computer for less than six months." I'm sure this is not the last we have heard about this case. Bernard P. Zajac, Jr 1, Report Correspondent.

F0 n O T E S: ~

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i iiiiiiiiiii!! AS/400 Security Audit and Control, by Keith Lester, 1993, i iiiiiiiiiill soft-cover (Elsevier Advanced Technology), 147 p, £145.00, iliiii:i:i ISBN 1-85617-182-S ~iiiiiiiii:ii The IBM application system /400 (A5/400) was introduced in the

Summer of 1988 to rep,ace the system and system :iiiiiiii computers and to extend the range of IBM mid-range computers. iliiiiii!iiill i The ASI400 has been the biggest selling of any of the IBM mid- i:iiiii~i~i range or large computers with over 150 000 sold up to 1992. The :iiii:iii objective of this manual, then, is to provide a comprehensive and i i i! practical guide to the security aspects of the AS/400. The manual ::i takes the reader through the security features that IBM has built .:? :. into each AS/400 and its 051400 operating system and should :: help users check the adequacy and effectiveness of an :::: organization's security arrangements. The manual includes the

B O O K R E V I E W ....................... ......................

IBM ASl400 SECURITY

enhancements to security incorporated into Version 2, Release 1 iiii!i!:i and 2 of the operating system ,t a,so contains other recommenda- ii:i i tions on control procedures that should be implemented/ i!iiiii~:ilil considered as supplementary to those of the AS/400 themselves, ii~iii ~ It is written as a practical guide so that security officers can readily iiiiiii apply the knowledge, and computer auditors can identify and iiiiii!ii determine which area to review or test. It also gives practical iiiiill i guidance on how the enquiry and interrogation facilities provided ili!iiii! by the AS/400 can be harnessed to improve the productivity of the i:.iiiii general auditor. Available from Pergamon Press Ltd (a i!ilii member of the Elsevier Science Publishing Group), Head- ~:iiiii! I ington Hill Hall, Oxford, OX30BW, UK, fax: +44 (0)865 60285.

~iiiii~i~i~iiiiiiiiii~i~i~iiiii~i~i~!~iiii~iiiiiiii~ii!iiiii~iiiiiiiiii~iiiii~iiiiiii~iii~i~i~!ii~i~i~!i~i~i~ii~!iiiiiiiiiiiiiii~i~iiiiiiiiii~ii~i~i~i~i~!ii~i~i~iiiiiiiiii~!iiii~!iiii~iiiiiiiiiiiiiiiiiiiiiii~iiii~i~i~i~

B O O K S R E C E I V E D

i!iiiii! ::ili: • Encyclopedia of Data Protection, Release No 11,

published 1993, Sweet & Maxwell, ISBN 0-421-36900-0.

:~: • Science/Technology/Industry Review, No 12, April 1993, OECD, special issue on micro-electronics and advanced manufacturing technologies, 124 p, FF115 (per issue), subscription FF190, ISBN 92-64-13908-7.

• Information Technology and the Law - An Interna- i::i tional Bibliography, Volume One, No 1, 1992, edited by :::: Instituto per la Documentazione Giuridica of the

3300 AH, Dordrecht, The Netherlands, ISSN 0925-9872. :ii!ii!ii!ii

• Issues in Telecommunication and Disability, edited by i!i!ii!ii i Stephen Von Tetzchner, 1991, Commission of the i ii!iiil I European Communities Information Technologies and ~ii:~ii!iiii Sciences (European cooperation in the field of scientific ~i~!ii~ and technical research-cost), 495 p, ECU 47.50, ISBN 92- i~!!i

826-3128-1, European Communities. Office for Official Publications of the

• Law, Computers and Artificial Intelligence, Volume Two, :i:iiiiii Consiglio Nazionale delle Recerche, 235 p, Kluwer No 1, 1993, Triangle Journal Ltd, 1993, 111 p, ISSN ca e ic stri u ,oo C nt r.

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