telecom@eecs.nwu.edu (TELECOM Moderator) (07/12/90)
TELECOM Digest Wed, 11 Jul 90 21:33:00 CDT Electronic Frontier 2 of 2
Inside This Issue: Moderator: Patrick A. Townson
Electronic Frontier Foundation - Legal Case Summary
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Reply-To: eff@well.sf.ca.us
Subject: Electronic Frontier Foundation - Legal Case Summary
Date: Tue, 10 Jul 90 07:31:17 BST
From: the terminal of Geoff Goodfellow <geoff@fernwood.mpk.ca.us>
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
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End of TELECOM Digest Special: Electronic Frontier 2 of 2
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