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ELECTRONIC FRONTIER FOUNDATION
LEGAL CASE SUMMARY
July 10, 1990
The Electronic Frontier Foundation is currently providing litigation
support in two cases in which it perceived there to be substantial civil
liberties concerns which are likely to prove important in the overall
legal scheme by which electronic communications will, now and in the
future, be governed, regulated, encouraged, and protected.
Steve Jackson Games
Steve Jackson Games is a small, privately owned adventure game
manufacturer located in Austin, Texas. Like most businesses today,
Steve Jackson Games uses computers for word processing and bookkeeping.
In addition, like many other manufacturers, the company operates an
electronic bulletin board to advertise and to obtain feedback on its
product ideas and lines.
One of the company's most recent products is GURPS CYBERPUNK, a science
fiction role-playing game set in a high-tech futuristic world. The
rules of the game are set out in a game book. Playing of the game is
not performed on computers and does not make use of computers in any
way. This game was to be the company's most important first quarter
release, the keystone of its line.
On March 1, 1990, just weeks before GURPS CYBERPUNK was due to be
released, agents of the United States Secret Service raided the premises
of Steve Jackson Games. The Secret Service:
% seized three of the company's computers which were used in the
drafting and designing of GURPS CYBERPUNK, including the computer used
to run the electronic bulletin board,
% took all of the company software in the neighborhood of the computers
taken,
% took with them company business records which were located on the
computers seized, and
% destructively ransacked the company's warehouse, leaving many items
in disarray.
In addition, all working drafts of the soon-to-be-published GURPS
CYBERPUNK game book -- on disk and in hard-copy manuscript form -- were
confiscated by the authorities. One of the Secret Service agents told
Steve Jackson that the GURPS CYBERPUNK science fiction fantasy game book
was a, "handbook for computer crime."
Steve Jackson Games was temporarily shut down. The company was forced
to lay-off half of its employees and, ever since the raid, has operated
on relatively precarious ground.
Steve Jackson Games, which has not been involved in any illegal activity
insofar as the Foundation's inquiries have been able to determine, tried
in vain for over three months to find out why its property had been
seized, why the property was being retained by the Secret Service long
after it should have become apparent to the agents that GURPS CYBERPUNK
and everything else in the company's repertoire were entirely lawful and
innocuous, and when the company's vital materials would be returned. In
late June of this year, after attorneys for the Electronic Frontier
Foundation became involved in the case, the Secret Service finally
returned most of the property, but retained a number of documents,
including the seized drafts of GURPS CYBERPUNKS.
The Foundation is presently seeking to find out the basis for the search
warrant that led to the raid on Steve Jackson Games. Unfortunately, the
application for that warrant remains sealed by order of the court. The
Foundation is making efforts to unseal those papers in order to find out
what it was that the Secret Service told a judicial officer that
prompted that officer to issue the search warrant.
Under the Fourth Amendment to the United States Constitution, a search
warrant may be lawfully issued only if the information presented to the
court by the government agents demonstrates "probable cause" to believe
that evidence of criminal conduct would be found on the premises to be
searched. Unsealing the search warrant application should enable the
Foundation's lawyers, representing Steve Jackson Games, to determine the
theory by which Secret Service Agents concluded or hypothesized that
either the GURPS CYBERPUNK game or any of the company's computerized
business records constituted criminal activity or contained evidence of
criminal activity.
Whatever the professed basis of the search, its scope clearly seems to
have been unreasonably broad. The wholesale seizure of computer
software, and subsequent rummaging through its contents, is precisely
the sort of general search that the Fourth Amendment was designed to
prohibit.
If it is unlawful for government agents to indiscriminately seize all of
the hard-copy filing cabinets on a business premises -- which it surely
is -- that the same degree of protection should apply to businesses
that store information electronically.
The Steve Jackson Games situation appears to involve First Amendment
violations as well. The First Amendment to the United States
Constitution prohibits the government from "abridging the freedom of
speech, or of the press". The government's apparent attempt to prevent
the publication of the GURPS CYBERPUNK game book by seizing all copies
of all drafts in all media prior to publication, violated the First
Amendment. The particular type of First Amendment violation here is the
single most serious type, since the government, by seizing the very
material sought to be published, effectuated what is known in the law as
a "prior restraint" on speech. This means that rather than allow the
material to be published and then seek to punish it, the government
sought instead to prevent publication in the first place. (This is not
to say, of course, that anything published by Steve Jackson Games could
successfully have been punished. Indeed, the opposite appears to be the
case, since SJG's business seems to be entirely lawful.) In any effort
to restrain publication, the government bears an extremely heavy burden
of proof before a court is permitted to authorize a prior restraint.
Indeed, in its 200-year history, the Supreme Court has never upheld a
prior restraint on the publication of material protected by the First
Amendment, warning that such efforts to restrain publication are
presumptively unconstitutional. For example, the Department of Justice
was unsuccessful in 1971 in obtaining the permission of the Supreme
Court to enjoin The New York Times, The Washington Post, and The Boston
Globe from publishing the so-called Pentagon Papers, which the
government strenuously argued should be enjoined because of a perceived
threat to national security. (In 1979, however, the government sought
to prevent The Progressive magazine from publishing an article
purporting to instruct the reader as to how to manufacture an atomic
bomb. A lower federal court actually imposed an order for a temporary
prior restraint that lasted six months. The Supreme Court never had an
opportunity to issue a full ruling on the constitutionality of that
restraint, however, because the case was mooted when another newspaper
published the article.)
Governmental efforts to restrain publication thus have been met by
vigorous opposition in the courts. A major problem posed by the
government's resort to the expedient of obtaining a search warrant,
therefore, is that it allows the government to effectively prevent or
delay publication without giving the citizen a ready opportunity to
oppose that effort in court.
The Secret Service managed to delay, and almost to prevent, the
publication of an innocuous game book by a legitimate company -- not by
asking a court for a prior restraint order that it surely could not have
obtained, but by asking instead for a search warrant, which it obtained
all too readily.
The seizure of the company's computer hardware is also problematic, for
it prevented the company not only from publishing GURPS CYBERPUNK, but
also from operating its electronic bulletin board. The government's
action in shutting down such an electronic bulletin board is the
functional equivalent of shutting down printing presses of The New York
Times or The Washington Post in order to prevent publication of The
Pentagon Papers. Had the government sought a court order closing down
the electronic bulletin board, such an order effecting a prior restraint
almost certainly would have been refused. Yet by obtaining the search
warrant, the government effected the same result.
This is a stark example of how electronic media suffer under a less
stringent standard of constitutional protection than applies to the
print media -- for no apparent reason, it would appear, other than the
fact that government agents and courts do not seem to readily equate
computers with printing presses and typewriters. It is difficult to
understand a difference between these media that should matter for
constitutional protection purposes. This is one of the challenges
facing the Electronic Frontier Foundation.
The Electronic Frontier Foundation will continue to press for return of
the remaining property of Steve Jackson Games and will take formal
steps, if necessary, to determine the factual basis for the search.
The purpose of these efforts is to establish law applying the First and
Fourth Amendments to electronic media, so as to protect in the future
Steve Jackson Games as well as other individuals and businesses from
the devastating effects of unlawful and unconstitutional government
intrusion upon and interference with protected property and speech
rights.
United States v. Craig Neidorf
Craig Neidorf is a 20-year-old student at the University of Missouri who
has been indicted by the United States on several counts of interstate
wire fraud and interstate transportation of stolen property in
connection with his activities as editor and publisher of the
electronic magazine, Phrack.
The indictment charges Neidorf with: (1) wire fraud and interstate
transportation of stolen property for the republication in Phrack of
information which was allegedly illegally obtained through the accessing
of a computer system without authorization, though it was obtained not
by Neidorf but by a third party; and (2) wire fraud for the publication
of an announcement of a computer conference and for the publication of
articles which allegedly provide some suggestions on how to bypass
security in some computer systems.
The information obtained without authorization is a file relating to the
provision of 911 emergency telephone services that was allegedly removed
from the BellSouth computer system without authorization. It is
important to note that neither the indictment, nor any briefs filed in
this case by the government, contain any factual allegation or
contention that Neidorf was involved in or participated in the removal
of the 911 file.
These indictments raise substantial constitutional issues which have
significant impact on the uses of new computer communications
technologies. The prosecution of an editor or publisher, under
generalized statutes like wire fraud and interstate transportation of
stolen property, for the publication of information received lawfully,
which later turns out to be have been "stolen," presents an
unprecedented threat to the freedom of the press. The person who should
be prosecuted is the thief, and not a publisher who subsequently
receives and publishes information of public interest. To draw an
analogy to the print media, this would be the equivalent of prosecuting
The New York Times and The Washington Post for publishing the Pentagon
Papers when those papers were dropped off at the doorsteps of those
newspapers.
Similarly, the prosecution of a publisher for wire fraud arising out of
the publication of articles that allegedly suggested methods of
unlawful activity is also unprecedented. Even assuming that the
articles here did advocate unlawful activity, advocacy of unlawful
activity cannot constitutionally be the basis for a criminal
prosecution, except where such advocacy is directed at producing
imminent lawless action, and is likely to incite such action. The
articles here simply do not fit within this limited category. The
Supreme Court has often reiterated that in order for advocacy to be
criminalized, the speech must be such that the words trigger an
immediate action. Criminal prosecutions such as this pose an extreme
hazard for First Amendment rights in all media of communication, as it
has a chilling effect on writers and publishers who wish to discuss the
ramifications of illegal activity, such as information describing
illegal activity or describing how a crime might be committed.
In addition, since the statutes under which Neidorf is charged clearly
do not envision computer communications, applying them to situations
such as that found in the Neidorf case raises fundamental questions of
fair notice -- that is to say, the publisher or computer user has no
way of knowing that his actions may in fact be a violation of criminal
law. The judge in the case has already conceded that "no court has
ever held that the electronic transfer of confidential, proprietary
business information from one computer to another across state lines
constitutes a violation of [the wire fraud statute]." The Due Process
Clause prohibits the criminal prosecution of one who has not had fair
notice of the illegality of his action. Strict adherence to the
requirements of the Due Process Clause also minimizes the risk of
selective or arbitrary enforcement, where prosecutors decide what
conduct they do not like and then seek some statute that can be
stretched by some theory to cover that conduct.
Government seizure and liability of bulletin board systems
During the recent government crackdown on computer crime, the government
has on many occasions seized the computers which operate bulletin board
systems ("BBSs"), even though the operator of the bulletin board is not
suspected of any complicity in any alleged criminal activity. The
government seizures go far beyond a "prior restraint" on the publication
of any specific article, as the seizure of the computer equipment of a
BBS prevents the BBS from publishing at all on any subject. This akin
to seizing the word processing and computerized typesetting equipment
of The New York Times for publishing the Pentagon Papers, simply because
the government contends that there may be information relating to the
commission of a crime on the system. Thus, the government does not
simply restrain the publication of the "offending" document, but it
seizes the means of production of the First Amendment activity so that
no more stories of any type can be published.
The government is allowed to seize "instrumentalities of crime," and a
bulletin board and its associated computer system could arguably be
called an instrumentality of crime if individuals used its private
e-mail system to send messages in furtherance of criminal activity.
However, even if the government has a compelling interest in interfering
with First Amendment protected speech, it can only do so by the least
restrictive means. Clearly, the wholesale seizure and retention of a
publication's means of production, i.e., its computer system, is not the
least restrictive alternative. The government obviously could seize
the equipment long enough to make a copy of the information stored on
the hard disk and to copy any other disks and documents, and then
promptly return the computer system to the operator.
Another unconstitutional aspect of the government seizures of the
computers of bulletin board systems is the government infringement on
the privacy of the electronic mail in the systems. It appears that the
government, in seeking warrants for the seizures, has not forthrightly
informed the court that private mail of third parties is on the
computers, and has also read some of this private mail after the systems
have been seized.
The Neidorf case also raises issues of great significance to bulletin
board systems. As Neidorf was a publisher of information he received,
BBSs could be considered publishers of information that its users post
on the boards. BBS operators have a great deal of concern as to the
liability they might face for the dissemination of information on their
boards which may turn out to have been obtained originally without
authorization, or which discuss activity which may be considered
illegal. This uncertainty as to the law has already caused a decrease
in the free flow of information, as some BBS operators have removed
information solely because of the fear of liability.
The Electronic Frontier Foundation stands firmly against the
unauthorized access of computer systems, computer trespass and computer
theft, and strongly supports the security and sanctity of private
computer systems and networks. One of the goals of the Foundation,
however, is to ensure that, as the legal framework is established to
protect the security of these computer systems, the unfettered
communication and exchange of ideas is not hindered. The Foundation is
concerned that the Government has cast its net too broadly, ensnaring
the innocent and chilling or indeed supressing the free flow of
information. The Foundation fears not only that protected speech will
be curtailed, but also that the citizen's reasonable expectation in the
privacy and sanctity of electronic communications systems will be
thwarted, and people will be hesitant to communicate via these networks.
Such a lack of confidence in electronic communication modes will
substantially set back the kind of experimentation by and communication
among fertile minds that are essential to our nation's development. The
Foundation has therefore applied for amicus curiae (friend of the
court) status in the Neidorf case and has filed legal briefs in support
of the First Amendment issues there, and is prepared to assist in
protecting the free flow of information over bulletin board systems and
other computer technologies.
For further information regarding Steve Jackson Games please contact:
Harvey Silverglate or Sharon Beckman
Silverglate & Good
89 Broad Street, 14th Floor
Boston, MA 02110
617/542-6663
For further information regarding Craig Neidorf please contact:
Terry Gross or Eric Lieberman
Rabinowitz, Boudin, Standard, Krinsky and Lieberman
740 Broadway, 5th Floor
New York, NY 10003
212/254-1111