UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
STEVE JACKSON GAMES INCORPORATED,
STEVE JACKSON, ELIZABETH
McCOY, WALTER MILLIKEN, and
STEFFAN O'SULLIVAN,
Plaintiffs,
v.
UNITED STATES SECRET SERVICE,
UNITED STATES OF AMERICA,
WILLIAM J. COOK, TIMOTHY M. FOLEY,
BARBARA GOLDEN, and HENRY M. KLUEPFEL,
Defendants.
COMPLAINT AND DEMAND FOR JURY TRIAL
I. INTRODUCTION AND SUMMARY
This is a civil action for damages to redress
violations of the Privacy Protection Act of 1980,
42 U.S.C. 2000aa et seq; the Electronic
Communications Privacy Act, as amended, 18 U.S.C.
2510 et seq and 2701 et seq; and the First and
Fourth Amendments to the United States
Constitution.
Plaintiffs are Steve Jackson Games
Incorporated ("SJG"), an award-winning publisher of
books, magazines, and games; its president and sole
owner Steve Jackson; and three other users of an
electronic bulletin board system operated by SJG.
Defendants are the United States Secret
Service, the United States of America, an Assistant
United States Attorney, Secret Service agents, and
a private individual who acted at the direction of
these federal officers and agents and under color
of federal authority.
Although neither Steve Jackson nor SJG was a
target of any criminal investigation, defendants
caused a general search of the business premises of
SJG and the wholesale seizure, retention, and
conversion of computer hardware and software and
all data and communications stored there.
Defendants seized and retained work product and
documentary materials relating to SJG books, games,
and magazines, thereby imposing a prior restraint
on the publication of such materials. Defendants
also seized and retained an entire electronic
bulletin board system, including all computer
hardware and software used to operate the system
and all data and communications stored on the
system, causing a prior restraint on the operation
of the system. Defendants also seized and retained
computer hardware and software, proprietary
information, records, and communications used by
SJG in the ordinary course of operating its
publishing business.
The search of this reputable publishing
business and resulting seizures constituted a
blatant violation of clearly established law. The
search and seizure violated the Privacy Protection
Act of 1980, which strictly prohibits law
enforcement officers from using search and seizure
procedures to obtain work product or documentary
materials from a publisher, except in narrow
circumstances not applicable here. The seizure and
retention of SJG's work product and bulletin board
system, as well as the seizure and retentionof the
computers used to prepare SJG publications and to
operate the bulletin board system, violated the
First Amendment. The search and seizure, which
encompassed proprietary business information and
private electronic communications as well as
materials protected by the First Amendment, also
violated the Fourth Amendment. Defendants
conducted an unconstitutional general search
pursuant to a facially invalid, general warrant.
The warrant was issued without probable cause to
believe that any evidence of criminal activity
would be found at SJG and was issued on the basis
of false and misleading information supplied by the
defendants. Defendants also invaded plaintiffs'
privacy by seizing and intercepting the plaintiffs'
private electronic communications in violation of
the Electronic Communications Privacy Act.
Defendants' wrongful and unlawful conduct
amounted to an assault by the government on the
plaintiffs, depriving them of their property, their
privacy, their First Amendment rights and
inflicting humiliation and great emotional distress
upon them.
II. DEFINITIONS
When used in this complaint, the following
words and phrases have the following meanings:
Computer Hardware: Computer hardware consists
of the mechanical, magnetic, electronic, and
electrical devices making up a computer system,
such as the central processing unit, computer
storage devices (disk drives, hard disks, floppy
disks), keyboard, monitor, and printing devices.
Computer Software: Computer software consists
of computer programs and related instructions and
documentation.
Computer Program: A computer program is a set
of instructions that, when executed on a computer,
cause the computer to process data.
Source Code: Source code is a set of
instructions written in computer programming
language readable by humans. Source code must be
"compiled," "assembled," or "interpreted" with the
use of a computer program before it is executable
by a computer.
Text File: A computer file is a collection of
data treated as a unit by a computer. A text file
is a memorandum, letter, or any other alphanumeric
text treated as a unit by a computer. A text file
can be retrieved from storage and viewed on a
computer monitor, printed on paper by a printer
compatible with the computer storing the data, or
transmitted to another computer.
Modem: A modem, or modulator-demodulator, is
an electronic device that makes possible the
transmission of data to or from a computer over
communications channels, including telephone lines.
Electronic mail: Electronic mail (e-mail) is a
data communication transmitted between users of a
computer system or network. E-mail is addressed to
one or more accounts on a computer system assigned
to specific users and is typically stored on the
system computer until read and deleted by the
addressee. The privacy of electronic mail is
typically secured by means of a password, so that
only individuals withknowledge of the account's
password can obtain access to mail sent to that
account.
Electronic Bulletin Board System (BBS): A BBS
is a computerized conferencing system that permits
communication and association between and among its
users. A systems operator ("sysop") manages the
BBS on a computer system that is equipped with
appropriate hardware and software to store text
files and communications and make them accessible
to users. Users of the BBS gain access to the
system using their own computers and modems and
normal telephone lines.
A BBS is similar to a traditional bulletin
board in that it allows users to transmit and
"post" information readable by other users. Common
features of a BBS include:
(1) Conferences in which users engage in an
ongoing exchange of information and ideas.
Conferences can be limited to a specific group of
users, creating an expectation of privacy, or open
to the general public.
(2) Archives containing electronically stored
text files accessible to users;
(3) Electronic mail service, in which the host
computer facilitates the delivery, receipt, and
storage of electronic mail sent between users.
Bulletin board systems may be maintained as
private systems or permit access to the general
public. They range in size from small systems
operated by individuals using personal computers in
their homes, to medium-sized systemsoperated by
groups or commercial organizations, to world-wide
networks of interconnected computers. The subject
matter and number of topics discussed on a BBS are
limited only by the choices of the system's
operators and users. Industry estimates indicate
that well over a million people in the United
States use bulletin board systems.
III. PARTIES
1. Plaintiff SJG is a corporation duly
organized and existing under the laws of the State
of Texas. At all relevant times, SJG was engaged
in the business of publishing adventure games and
related books and magazines. Its place of business
is 2700-A Metcalfe Road, Austin, Texas.
2. Plaintiff Steve Jackson ("Jackson"), the
president and sole owner of SJG, is an adult
resident of the State of Texas.
3. Plaintiffs Elizabeth McCoy, Walter
Milliken, and Steffan O'Sullivan are adult
residents of the State of New Hampshire. At all
relevant times, they were users of the electronic
bulletin board system provided and operated by SJG
and known as the "Illuminati Bulletin Board System"
("Illuminati BBS").
4. The United States Secret Service, an
agency within the Treasury Department, and the
United States of America sued in Counts I, IV, and
V.
5. Defendant William J. Cook ("Cook") is an
adult resident of the State of Illinois. At all
relevant times,Cook was employed as an Assistant
United States Attorney assigned to the United
States Attorney's office in Chicago, Illinois.
Cook is sued in Counts II-V.
6. Defendant Timothy M. Foley ("Foley") is an
adult resident of the State of Illinois. At all
relevant times, Foley was employed as a Special
Agent of the United States Secret Service, assigned
to the office of the United States Secret Service
in Chicago, Illinois. At all relevant times, Foley
was an attorney licensed to practice law in the
State of Illinois. Foley is sued in Counts II-V.
7. Defendant Barbara Golden ("Golden") is an
adult resident of the State of Illinois. At all
relevant times, Golden was employed as a Special
Agent of the United States Secret Service assigned
to the Computer Fraud Section of the United States
Secret Service in Chicago, Illinois.
8. Defendant Henry M. Kluepfel ("Kluepfel")
is an adult resident of the state of New Jersey.
At all relevant times, Kluepfel was employed by
Bell Communications Research as a district manager.
Kluepfel is sued in Counts II-V.
III. JURISDICTION AND VENUE
9. This Court's jurisdiction is invoked
pursuant to 28 U.S.C. 1331 and 42 U.S.C. 2000aa-
6(h). Federal question jurisdiction is proper
because this is a civil action authorized and
instituted pursuant to the First and Fourth
Amendments to the United States Constitution, 42
U.S.C. 2000aa-6(a) and 6(h), and 18 U.S.C. 2707
and 2520.
10. Venue in the Western District of Texas is
proper under 28 U.S.C. 1391(b), because a
substantial part of the events or omissions giving
rise to the claims occurred within this District.
IV. STATEMENT OF CLAIMS
FACTUAL BACKGROUND
Steve Jackson Games
11. SJG, established in 1980 and incorporated
in 1984, is a publisher of books, magazines, and
adventure games.
(a) SJG books and games create imaginary worlds
whose settings range from prehistoric to futuristic
times and whose form encompass various literary
genres.
(b) The magazines published by SJG contain news,
information, and entertainment relating to the
adventure game industry and related literary
genres.
12. SJG games and publications are carried by
wholesale distributors throughout the United States
and abroad.
13. SJG books are sold by national retail
chain stores including B. Dalton, Bookstop, and
Waldenbooks.
14. Each year from 1981 through 1989, and
again in 1991, SJG board games, game books, and/or
magazines have been nominated for and/or received
the Origins Award. The Origins Award, administered
by the Game Manufacturers' Association, is the
adventure game industry's most prestigious award.
15. SJG is not, and has never been, in the
business of selling computer games, computer
programs, or other computer products.
16. On March 1, 1990, SJG had 17 employees.
Steve Jackson Games Computer Use
17. At all relevant times, SJG relied upon
computers for many aspects of its business,
including but not limited to the following uses:
(a) Like other publishers of books or magazines,
and like a newspaper publisher, SJG used computers
to compose, store, and prepare for publication the
text of its books, magazines, and games.
(b) SJG stored notes, source materials, and
other work product and documentary materials
relating to SJG publications on its computers.
(c) Like many businesses, SJG used computers to
create and store business records including, but
not limited to, correspondence, contracts, address
directories, budgetary and payroll information,
personnel information, and correspondence.
18. Since 1986, SJG has used a computer to
operate an electronic bulletin board system (BBS)
dedicated to communication of information about
adventure games, the game industry, related
literary genres, and to association among
individuals who share these interests.
(a) The BBS was named "Illuminati," after the
company's award-winning board game.
(b) At all relevant times, the Illuminati BBS
was operated by means of a computer located on the
business premises of SJG. The computer used to run
the Illuminati BBS (hereafter the "Illuminati
computer") was connected to the telephone number
512-447-4449. Users obtained access to
communications and information stored on the
Illuminati BBS from their own computers via
telephone lines.
(c) The Illuminati BBS provided a forum for
communication and association among its users,
which included SJG employees, customers, retailers,
writers, artists, competitors, writers of science
fiction and fantasy, and others with an interest in
the adventure game industry or related literary
genres.
(d) SJG, Jackson, and SJG employees also used
the Illuminati BBS in the course of business to
communicate with customers, retailers, writers, and
artists; to provide customer service; to obtain
feedback on games and new game ideas; to obtain
general marketing information; to advertise its
games and publications, and to establish good will
and a sense of community with others who shared
common interests.
(e) As of February 1990, the Illuminati BBS had
over 300 users residing throughout the United
States and abroad.
(f) At all relevant times, plaintiffs SJG,
Jackson, McCoy, Milliken, and O'Sullivan were
active users of the Illuminati BBS.
(g) Each user account was assigned a password to
secure the privacy of the account.
(h) The Illuminati BBS gave users access to
general files of electronically stored information.
General files included, but were not limited to,
text files containing articles on adventure games
and game-related humor, including articles
published in SJG magazines and articles contributed
by users of the BBS, and text files containing game
rules. These general files were stored on the
Illuminati computer at SJG.
(i) The Illuminati BBS provided several public
conferences, in which users of the BBS could post
information readable by other users and read
information posted by others. The discussions in
the public conferences focused on SJG products,
publications and related literary genres. All
communications transmitted to these conferences
were stored in the Illuminati computer at SJG.
(j) SJG informed users of the Illuminati BBS
that
"any opinions expressed on the BBS, unless
specifically identified as the opinions or policy
of Steve Jackson Games Incorporated, are only those
of the person posting them. SJ Games will do its
best to remove any false, harmful or otherwise
obnoxious material posted, but accepts no
responsibility for material placed on this board
without its knowledge.
(k) The Illuminati BBS also provided private
conferences that were accessible only to certain
users authorized by SJG and not to the general
public. All communications transmitted to these
conferences were stored in the Illuminati computer
at SJG.
(l) The Illuminati BBS provided a private
electronic mail (e-mail) service, which permitted
the transmission of private communications between
users on the system as follows:
(i) E-mail transmitted to an account on the
Illuminati BBS was stored on the BBS computer until
deleted by the addressee.
(ii) The privacy of e-mail was secured by the
use of passwords.
(iii) The privacy of e-mail was also secured by
computer software that prevented the system
operator from reading e-mail inadvertently.
(iv) The privacy of e-mail was also secured by
SJG policy. SJG informed users of the Illuminati
BBS that "[e]lectronic mail is private."
(v) As a matter of policy, practice, and
customer expectations, SJG did not read e-mail
addressed to Illuminati users other than SJG.
(vi) At all relevant times, all plaintiffs used
the e-mail service on the Illuminati BBS.
(vii) On March 1, 1990, the Illuminati computer
contained stored e-mail sent to or from each of the
plaintiffs.
The Illegal Warrant and Application
19. On February 28, 1990, defendant Foley
filed an application with this Court, for a warrant
authorizing the search of the business premises of
SJG and seizure of "[c]omputer 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, instrumentalities and fruits of federal
crimes, including interstate transportation of
stolen property (18 USC 2314) and interstate
transportation of computer access information (18
USC 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."
A copy of the application and supporting affidavit
of defendant Foley (hereafter "Foley affidavit")
are attached as Exhibit "A" and incorporated herein
by reference.
20. The search warrant was sought as part of
an investigation being conducted jointly by
defendant Cook and the United States Attorney's
office in Chicago; defendants Foley, Golden, and
the Chicago field office of the United States
Secret Service; and defendant Kluepfel.
21. On information and belief, neither SJG
nor Jackson nor any of the plaintiffs were targets
of this investigation.
22. The Foley affidavit was based on the
investigation of defendant Foley and on information
and investigative assistance provided to him by
others, including defendants Golden and Kluepfel
and unnamed agents of the United States Secret
Service. Foley Affidavit para. 3.
23. The Foley affidavit alleged that
defendant Kluepfel had participated in the
execution of numerous federal and state search
warrants. Id.
24. On information and belief, Defendant Cook
participated in the drafting, review, and
submission of the warrant application and
supporting affidavit to this Court.
25. The warrant application and supporting
affidavit were placed under seal on motion of the
United States.
26. On February 28, 1990, based on the Foley
affidavit, a United States Magistrate for the
Western District of Texas granted defendant Foley's
warrant application and issued awarrant authorizing
the requested search and seizure described in
paragraph 19 above. A copy of the search warrant
is attached as Exhibit B.
27. The warrant was facially invalid for the
following reasons:
(a) It was a general warrant that failed to
describe the place to be searched with
particularity.
(b) It was a general warrant that failed to
describe things to be seized with particularity.
(c) It swept within its scope handwritten,
typed, printed, and electronically stored
communications, work product, documents, and
publications protected by the First Amendment.
(d) It swept within its scope SJG proprietary
information and business records relating to
activities protected by the First Amendment.
(e) It swept within its scope a BBS that was a
forum for speech and association protected by the
First Amendment.
(f) It swept within its scope computer hardware
and software that were used by SJG to publish
books, magazines, and games.
(g) It swept within its scope computer hardware
and software used by SJG to operate a BBS.
28. The warrant was also invalid in that it
authorized the seizure of work product and
documentary materials from apublisher "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," which is
generally prohibited by 42 U.S.C. 2000aa(a) and
(b), without showing the existence of any of the
narrow statutory exceptions in which such a search
and seizure is permitted. Specifically, the Foley
affidavit did not establish the existence of any of
the following circumstances:
(a) The Foley affidavit did not establish
probable cause to believe that SJG, or any employee
in possession of work product materials at SJG, had
committed or was committing a criminal offense to
which such materials related.
(b) The Foley affidavit did not establish
probable cause to believe that SJG or any employee
of SJG in possession of work product materials at
SJG, had committed or was committing a criminal
offense to which such materials related consisting
of other than the receipt possession,
communication, or withholding of such materials or
the information contained therein.
(c) The Foley affidavit did not establish
probable cause to believe that SJG, or any employee
of SJG in possession of work product materials at
SJG, had committed or was committing a criminal
offense consisting of the receipt, possession, or
communicationof information relating to the
national defense, classified information, or
restricted data under the provisions of 18 U.S.C.
793, 794, 797, or 798 or 50 U.S.C. 783.
(d) The Foley affidavit did not establish reason
to believe that immediate seizure of work product
materials from SJG was necessary to prevent the
death of, or serious bodily injury to, a human
being.
(e) The Foley affidavit did not establish
probable cause to believe that SJG, or any employee
of SJG in possession of documentary materials at
SJG, had committed or was committing a criminal
offense to which the materials related.
(f) The Foley affidavit did not establish
probable cause to believe that SJG, or any employee
of SJG in possession of documentary materials at
SJG had committed or was committing a criminal
offense to which the materials related consisting
of other than the receipt, possession,
communication, or withholding of such materials or
the information contained therein.
(g) The Foley affidavit did not establish
probable cause to believe that SJG, or any employee
of SJG in possession of documentary materials at
SJG, had committed or was committing an offense
consisting of the receipt, possession, or
communication of information relating to the
national defense, classifiedinformation, or
restricted data under the provisions of 18 U.S.C.
793, 794, 797, or 798 or 50 U.S.C. 783.
(h) The Foley affidavit did not establish
reason to believe that the immediate seizure of
such documentary materials was necessary to prevent
the death of, or serious bodily injury to, a human
being.
(i) The Foley affidavit did not establish
reason to believe that the giving of notice
pursuant to a subpoena duces tecum would result in
the destruction, alteration, or concealment of such
documentary materials.
(j) The Foley affidavit did not establish that
such documentary materials had not been produced in
response to a court order directing compliance with
a subpoena duces tecum and that all appellate
remedies had been exhausted or that there was
reason to believe that the delay in an
investigation or trial occasioned by further
proceedings relating to the subpoena would threaten
the interests of justice.
29. The warrant was invalid because the
warrant application and supporting affidavit of
defendant Foley did not establish probable cause to
believe that the business premises of SJG was a
place where evidence of criminal activity would be
found, in that:
(a) The Foley affidavit did not allege that
evidence of criminal activity would be found at
SJG. Rather, the affidavit alleged that "E911
source code and text file"and a "decryption
software program" would be "found in the computers
located at 1517G Summerstone, Austin, Texas, or at
2700-A Metcalfe Road, Austin, Texas [SJG], or at
3524 Graystone #192, or in the computers at each of
those locations." Foley Affidavit para. 30
(emphasis added).
(b) The Foley affidavit did not establish
probable cause to believe that E911 source code
would be found at the business premises of SJG.
(c) The Foley affidavit did not establish
probable cause to believe that an E911 text file
would be found at the business premises of SJG.
(d) The Foley affidavit did not establish
probable cause to believe that a decryption
software program would be found at the business
premises of SJG.
30. Even assuming, arguendo, that the warrant
affidavit demonstrated probable cause to believe
that "E911 source code and text file" and a
"password decryption program" would be found at the
business premises of SJG, the warrant was still
invalid because its description of items to be
seized was broader than any probable cause shown,
in that:
(a) The warrant authorized the seizure of
computer hardware, software, and documentation that
did not constitute evidence, instrumentalities, or
fruits of criminal activity;
(b) The warrant authorized the seizure and
reading of electronically stored data, including
publications, work product, proprietary
information, business records, personnel records,
and correspondence, that did not constitute
evidence, instrumentalities, or fruits of criminal
activity;
(c) The warrant authorized the seizure and
reading of electronically stored communications
that were not accessible to the public, including
private electronic mail, and that did not
constitute evidence, instrumentalities, or fruits
of criminal activity.
31. The warrant is invalid because there is
nothing in the Foley affidavit to show that the
information provided by defendant Kluepfel
regarding the BBS at SJG was not stale.
32. The warrant was invalid because the Foley
affidavit was materially false and misleading, and
because defendants submitted it knowing it was
false and misleading or with reckless disregard for
the truth, as set forth in paragraphs 33-40 below.
33. The Foley affidavit did not inform the
Magistrate that SJG was a publisher of games,
books, and magazines, engaged in the business of
preparing such materials for public dissemination
in or affecting interstate commerce;
(a) This omission was material;
(b) Defendants omitted this material information
from the warrant application knowingly or with
reckless disregard for the truth or falsity of the
application.
34. The Foley affidavit did not inform the
Magistrate that SJG used computers to compose and
prepare publications for public dissemination;
(a) This omission was material;
(b) Defendants omitted this material information
from the warrant application knowingly or with
reckless disregard for the truth or falsity of the
application.
35. The Foley affidavit did not inform the
Magistrate that the computer at SJG used to operate
the BBS contained electronically stored texts, work
product, documentary materials, and communications
stored for the purpose of public dissemination in
or affecting interstate commerce;
(a) This omission was material;
(b) Defendants omitted this material information
from the warrant application knowingly or with
reckless disregard for the truth or falsity of the
application.
36. The Foley affidavit did not inform the
Magistrate that a computer used to operate the BBS
at SJG operated a forum for constitutionally
protected speech and association regarding
adventure games and related literary genres;
(a) This omission was material;
(b) Defendants omitted this material information
from the warrant application knowingly or with
reckless disregard for the truth or falsity of the
application.
37. The Foley affidavit did not inform the
Magistrate that the computer used to operate the
BBS at SJG contained stored private electronic
communications;
(a) This omission was material;
(b) Defendants omitted this material information
from the warrant application knowingly or with
reckless disregard for the truth or falsity of the
application.
38. The Foley affidavit falsely alleged that
the E911 text file was a "program." Foley Affidavit
paras. 8, 14, 17; (a) This false allegation
was material;
(b) Defendants made this material false
allegation knowingly or with reckless disregard for
its truth or falsity;
(c) Defendants Cook and Foley have acknowledged
that the E911 text file is not a program.
39. The affidavit of defendant Foley falsely
alleges that the information in the E911 text file
was "highly proprietary" and "sensitive". Foley
Affidavit paras. 13, 14, 22;
(a) This false allegation was material;
(b) Defendants made this material false
allegation knowingly or with reckless disregard for
its truth or falsity;
(c) Defendant Cook has acknowledged that much of
the information in the E911 text file had been
disclosed to the public.
40. The affidavit of defendant Foley falsely
alleges that the E911 text file was "worth
approximately $79,000.00," para. 4, and "engineered
at a cost of $79,449.00," para. 14;
(a) This false allegation was material;
(b) Defendants made this material false
allegation knowingly or with reckless disregard for
its truth or falsity;
(c) Defendant Cook has acknowledged that the
value of the nondisclosed information in the E911
text file was less than the $5000.00 jurisdictional
minimum for Interstate Transportation of Stolen
Property, 18 U.S.C. 2314.
41. Reasonable persons in defendants'
position would have known that the warrant was
invalid for the reasons given in paragraphs 27-40
and would not have requested or relied on the
warrant.The Search and Seizure:
42. Nevertheless, on March 1, 1990, defendant
Golden, other agents of the United States Secret
Service, and others acting in concert with them,
conducted a general search of the SJG office and
warehouse.
43. The searching officers prevented SJG
employees from entering their workplace or
conducting any business from 8:00 a.m. until after
1:00 p.m. on March 1, 1990.
44. The agents seized computer hardware and
related documentation, including, but not limited
to, the following:
(a) three central processing units;
(b) hard drives;
(c) hundreds of disks;
(d 2 monitors;
(e) 3 keyboards;
(f) 3 modems;
(g) a printer;
(h) electrical equipment including, but not limited
to, extension cords, cables, and adapters;
(i) screws, nuts, and other small parts.
45. The agents seized all computer hardware,
computer software, and supporting documentation
used by SJG to run the Illuminati BBS, thereby
causing the following to occur:
(a) the seizure of all programs, text files, and
public communications stored on the BBS computer;
(b) the seizure of all private electronic
communications stored on the system, including
electronic mail;
(c) preventing plaintiffs from operating and
using the BBS.
46. The agents seized computer software and
supporting documentation that SJG used in the
ordinary course of its business including, but not
limited to, word processing software.
47. The defendants seized all data stored on
the seized SJG computers and disks, including, but
not limited to, the following:
(a) SJG work product, including drafts of
forthcoming publications and games;
(b) Communications from customers and others
regarding SJG's games, books, and magazines;
(c) SJG financial projections;
(d) SJG contracts;
(e) SJG correspondence;
(f) SJG editorial manual, containing
instructions and procedures for writers and
editors;
(g) SJG address directories, contacts lists, and
employee information, including the home telephone
numbers of SJG employees.
48. The defendants seized all current drafts
-- both electronically stored copies and printed
("hard") copies -- of the book GURPS Cyberpunk,
which was scheduled to go to the printer later that
week.
(a) GURPS Cyberpunk was part of a series of
fantasy roleplaying game books published by SJG
called the Generic Universal Roleplaying System.
(b) The term "Cyberpunk" refers to a science
fiction literary genre which became popular in the
1980s. The Cyberpunk genre is characterized by the
fictional interaction of humans with technology and
the fictional struggle for power between
individuals, corporations, and government. One of
the most popular examples of the Cyberpunk genre is
William Gibson's critically acclaimed science
fiction novel Neuromancer, which was published in
1984.
(c) GURPS Cyberpunk is a fantasy roleplaying
game book of the Cyberpunk genre.
(d) SJG eventually published the book GURPS
Cyberpunk in 1990.
(e) The book has been distributed both
nationally and internationally.
(f) To date SJG has sold over 16,000 copies of
the book.
(g) The book has been nominated for an Origins
Award for Best Roleplaying Supplement.
(h) The book is used in at least one college
literature course as an example of the Cyberpunk
genre.
49. The search and seizure exceeded the scope
of the warrant, in that the searching officers
seized computer hardware, computer software, data,
documentation, work product, and correspondence
that did not constitute evidence, instrumentalities
or fruits of any crime.
50. The search was conducted in a reckless
and destructive fashion, in that the searching
officers caused damage to SJG property and left the
SJG office and warehouse in disarray.
Post-seizure Retention of Property
51. Plaintiffs Jackson and SJG put defendants
on immediate notice that they had seized the
current drafts of the about-to-be-published book
GURPS Cyberpunk and the computer hardware and
software necessary to operate a BBS and requested
immediate return of these materials.
52. SJG and Jackson made diligent efforts to
obtain the return of the seized equipment and data,
including but not limited to, retention of legal
counsel, numerous telephone calls to defendants
Cook and Foley by Jackson and SJG counsel, a trip
to the Austin Secret Service office, and
correspondence with defendants Cook and Foley and
with other federal officials.
53. On March 2, 1990, Jackson went to the
Austin office of the Secret Service in an
unsuccessful attempt to obtain the return of seized
documents and computer data, including the drafts
of the forthcoming book GURPS Cyberpunk and the
software and files stored on the Illuminati BBS.
54. On March 2, 1990, the Secret Service
refused to provide Jackson with the files
containing current drafts of GURPS Cyberpunk, one
agent calling the book a "handbook for computer
crime."
55. On March 2, 1990, the Secret Service also
refused to return copies of the software used to
run the Illuminati BBS and copies of any of the
data or communications stored on the BBS.
56. In the months following the seizure,
defendant Cook repeatedly gave Jackson and his
counsel false assurances that the property of SJG
would be returned within days.
57. In May of 1990, Jackson wrote to Senators
Philip Gramm and Lloyd Bentsen and Congressman J.
J. Pickle, regarding the search and seizure
conducted at SJG and requesting their assistance in
obtaining the return of SJG property.
58. On June 21, 1990, the Secret Service
returned most, but not all, of the computer
equipment that had been seized from SJG over three
months earlier.
59. The Secret Service did not return some of
SJG's hardware and data.
60. The Secret Service did not return any of
the printed drafts of GURPS Cyberpunk.
61. In July 3, 1990, letters to Senator
Bentsen and Congressman J. J. Pickle, Robert R.
Snow of the United States Secret Service falsely
stated that all of the items seized from SJG had
been returned to Jackson.
62. In his July 16, 1990, letter to Senator
Gramm, Bryce L. Harlow of the United States
Department of Treasuryfalsely stated that all of
the items seized from SJG had been returned to
Jackson.
63. Through counsel, SJG wrote to defendant
Foley on July 13, 1990, requesting, inter alia, a
copy of the application for the search warrant and
return of the property the government had not
returned. A copy of this letter was mailed to
Defendant Cook. Though the letter requested a
response by August 1, 1990, neither defendant
responded.
64. Through counsel, plaintiff SJG again
wrote to defendant Cook on August 8, 1990,
requesting, inter alia, a copy of the application
for the search warrant and return of the property
the government had not returned. Copies of this
letter were sent to other Assistant United States
Attorneys in Chicago, namely Thomas Durkin, Dean
Polales, and Michael Shepard.
65. Defendant Cook responded to this request
with an unsigned letter dated August 10, 1990. The
letter enclosed a number of documents that had not
previously been returned to SJG. The letter
further stated that "the application for the search
warrant is under seal with the United States
District Court in Texas since it contains
information relating to an ongoing federal
investigation."
66. On September 17, 1990, the warrant
affidavit was unsealed by the United States
Magistrate for the Western District of Texas on the
motion of the United States Attorney for the
Northern District of Illinois.
67. The United States Attorney's office did
not provide Jackson, SJG or their counsel with
notice of its motion to unseal the warrant
affidavit or of this Court's order granting its
motion.
Prior Restraint on Publication and Other Damages:
68. Defendants' seizure and retention of the
computer hardware and software used to operate the
Illuminati BBS prevented and interfered with
plaintiffs' operation and use of the Illuminati
BBS, including the following:
(a) In an attempt to minimize the damage caused
by defendants' conduct, SJG purchased replacement
computer hardware and software to operate the
Illuminati BBS;
(b) As a result of defendants' conduct, SJG was
unable to operate or use the Illuminati BBS for
over a month;
(c) As a result of defendants' conduct,
plaintiffs were deprived of the use of the
Illuminati BBS for over a month;
(d) Defendants seized and intercepted electronic
mail in which plaintiffs had a reasonable
expectation of privacy;
(e) Users of the BBS were substantially chilled
in their exercise of their constitutionally
protected rights of freedom of speech and
association;
(f) Some of the data previously available to
users of the Illuminati BBS was lost or destroyed.
69. Defendants' conduct caused a prior
restraint of the publication of the book GURPS
Cyberpunk, in that:
(a) On March 1, 1990, the book GURPS Cyberpunk
was nearly completed and scheduled to be sent to
the printer the following week;
(b) On March 1, 1990, defendants caused the
illegal seizure of all of the current drafts of
GURPS Cyberpunk, including both printed drafts and
electronically stored drafts.
(c) On March 1, 1990, Defendants caused the
illegal seizure of electronic communications stored
on the Illuminati BBS containing comments on GURPS
Cyberpunk.
(d) Defendants unreasonably refused for weeks to
return the electronically stored drafts of GURPS
Cyberpunk.
(e) Defendants have not yet returned the printed
drafts of GURPS Cyberpunk.
(f) Defendants refused to return electronically
stored comments regarding GURPS Cyberpunk for over
three months.
(g) By their conduct, defendants prevented SJG
from delivering GURPS Cyberpunk to the printer on
schedule, and caused SJG to miss its publication
deadline.
(h) As a result of defendants' conduct, and in
an attempt to minimize damages, SJG and its
employeesreconstructed and rewrote GURPS Cyberpunk
from older drafts.
(i) As a result of defendants' conduct, the
publication of GURPS Cyberpunk was delayed for six
weeks.
70. Defendants' conduct caused substantial
delay in the publication and delivery of other SJG
publications.
71. As a result of defendants' conduct, SJG
suffered substantial financial harm including, but
not limited to, lost sales, lost credit lines,
interest on loans, late payment penalties, and
attorney's fees and costs.
72. As a result of defendants' conduct, SJG
was forced to lay off 8 of its 17 employees.
73. As a result of defendants' conduct, SJG
suffered damage to its business reputation.
74. As a result of defendants' conduct, SJG
has suffered loss of, damage to, and conversion of
computer equipment and data, including, but not
limited to, the following:
(a) loss of and damage to computer hardware;
(b) loss and destruction of seized data;
75. Defendants have retained copies of data seized
from SJG.
76. As a result of defendants' conduct,
plaintiff Steve Jackson has suffered additional
harm including, but not limited to, lost income,
damage to professional reputation,humiliation,
invasion of privacy, deprivation of constitutional
rights, and emotional distress.
77. As a result of defendants' conduct,
plaintiffs McCoy, Milliken, and O'Sullivan have
suffered additional harm including, but not limited
to, damages resulting from the seizure of their
private electronic mail and the interference with,
and temporary shut down of, the Illuminati forum
for speech and association, deprivation of their
constitutional rights, invasion of their privacy,
and emotional distress.
COUNT I:
PRIVACY PROTECTION ACT OF 1980,
42 U.S.C. 2000aa et seq
Against the United States Secret Service
and the United States of America
78. The allegations in paragraphs 1-77 are
incorporated herein by reference.
79. At all relevant times, SJG and its
employees were persons "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" within the meaning of 42 U.S.C.
2000aa(a) and (b).
80. At all relevant times, SJG and its
employees possessed work product and documentary
materials in connection with a purpose to
disseminate to the public a newspaper, book,
broadcast, or other similar form of
publiccommunication, in or affecting interstate or
foreign commerce.
81. Defendants caused the submission of an
application for a warrant to search the business
premises of SJG and to seize work product materials
therefrom, in violation of 42 U.S.C. 2000aa, in
that:
(a) The Foley affidavit did not inform the
Magistrate that SJG and its employees were persons
"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" within the meaning of 42 U.S.C.
2000aa(a) and (b).
(b) The Foley affidavit did not inform the
Magistrate that SJG and its employees possessed
work product materials and documentary materials in
connection with 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.
(c) The Foley affidavit did not establish that
any of the exceptions to the statutory prohibition
of searches and seizures set out in 42 U.S.C.
2000aa(a) and (b) existed.
82. Defendants caused the March 1, 1990,
search of the business premises of SJG and seizure
of work product anddocumentary materials therefrom
in violation of 42 U.S.C. 2000aa et seq.
83. Defendants Cook, Foley, and Golden were
federal officers and employees acting within the
scope or under color of federal office or
employment.
84. Defendant Kluepfel acted in concert with
federal agents under color of federal office.
85. Plaintiffs SJG, Jackson, McCoy, Milliken,
and O'Sullivan are all persons aggrieved by
defendants' conduct, having suffered damages,
attorney's fees, and costs, as a direct result of
defendants' conduct.
86. The United States of American and the
United States Secret Service are liable to
plaintiffs for damages, attorney's fees and costs
caused by defendants' conduct.
COUNT II:
FIRST AMENDMENT
Against Defendants Cook, Foley, Golden & Kluepfel
87. The allegations in paragraphs 1-86 are
incorporated herein by reference.
88. Defendants violated plaintiffs' rights to
freedom of speech, freedom of the press, and
freedom of association as guaranteed by the First
Amendment, in that:
(a) At all relevant times SJG was a publisher of
books, magazines, and games protected by the First
Amendment;
(b) At all relevant times SJG was the operator
of a BBS that was a forum for speech and
association protected by the First Amendment;
(c) At all relevant times, plaintiffs SJG,
Jackson, McCoy, Milliken, and O'Sullivan used the
Illuminati BBS for speech and association protected
by the First Amendment;
(d) At all relevant times, plaintiff SJG used
computers to publish books, magazines, and games
and to operate the Illuminati BBS;
(e) The search, seizure, and retention of SJG
work product--both printed and electronically
stored--caused a prior restraint on SJG
publications in violation of plaintiffs' First
Amendment rights of freedom of speech and of the
press;
(f) The search and seizure of the Illuminati BBS
constituted a prior restraint on plaintiffs'
exercise of their First Amendment rights of freedom
of speech, of the press, and of association;
(g) The seizure and retention of computer
hardware and software used by SJG to publish books,
magazines, and games violated plaintiffs' rights to
freedom of speech and of the press;
(h) The seizure and retention of computer
hardware and software used by SJG to operate a BBS
violatedplaintiffs' First Amendment rights to
freedom of speech, of the press, and of
association.
89. Defendants knew or reasonably should have
known that their conduct violated plaintiffs'
clearly established First Amendment rights of
freedom of speech, freedom of the press, and
freedom of association.
90. Defendants acted with intent to violate,
or with reckless indifference to, plaintiffs'
clearly established First Amendment rights to
freedom of speech, freedom of the press, and
freedom of association.
91. Defendants Cook, Foley, and Golden acted
as federal agents and under color of federal law.
92. Defendant Kluepfel acted in concert with
the federal defendants under color of federal law.
93. As a direct result of the defendants'
conduct, plaintiffs have suffered damages.
COUNT III:
FOURTH AMENDMENT
Against Defendants Cook, Foley, Golden, and
Kluepfel
94. The allegations in paragraphs 1-93 are
incorporated herein by reference.
95. The defendants, by their actions,
violated plaintiffs' clearly established right to
be free from unreasonable searches and seizures as
guaranteed by the Fourth Amendment to the United
States Constitution, in that:
(a) Plaintiffs SJG and Jackson had a reasonable
expectation of privacy in the business premises of
SJG and in all SJG work product, SJG records, and
SJG documents kept there, including in all data
stored in the computers at SJG;
(b) All plaintiffs had a reasonable expectation
of privacy in private electronic communications
stored on the Illuminati BBS at SJG;
(c) The search and seizure at SJG games was a
general search;
(d) The search and seizure at SJG was not
authorized by a valid warrant particularly
describing the place to be searched and the things
to be seized;
(e) The search and seizure at SJG was conducted
without probable cause to believe that evidence of
criminal activity would be found at SJG;
(f) The search and seizure at SJG was based on
information that was not shown to be current;
(g) Defendants' warrant application was
materially false and misleading, and was submitted
by defendants with knowledge of its false and
misleading nature or with reckless disregard for
its truth or falsity.
96. The defendants knew, or reasonably should
have known, that their conduct violated plaintiffs'
clearly established constitutional right to be free
from unreasonable searches and seizures.
97. The defendants acted with intent to
violate, or with reckless indifference to,
plaintiffs' clearly established Fourth Amendment
rights.
98. Defendants Cook, Foley, and Golden acted
as federal agents and under color of federal law.
99. Defendant Kluepfel acted in concert with
the federal defendants and under color of federal
law.
100. As a direct result of the defendants'
actions, plaintiffs suffered damages, attorney's
fees and costs.
COUNT IV:
ELECTRONIC COMMUNICATIONS PRIVACY ACT,
18 U.S.C. 2707
Seizure of Stored Electronic Communications
Against All Defendants
101. The allegations in paragraphs 1-100 are
incorporated herein by reference.
102. At all times relevant times, plaintiff
SJG was the provider of an electronic communication
service within the meaning of 18 U.S.C. 2510(15)
and 2707.
103. At all relevant times, plaintiffs SJG,
Jackson, McCoy, Milliken, and O'Sullivan were
subscribers to or customers of the electronic
communication service provided by SJG within the
meaning of 18 U.S.C. 2510(15) and 2707.
104. At all relevant times, plaintiffs had
electronic communications in electronic storage on
the communicationservice provided by SJG that were
not accessible to the general public.
105. Defendants applied for a warrant to
search and seize the computer operating the
electronic communication service provided by SJG
and all data stored thereon, but failed to inform
the Magistrate that the computer contained stored
electronic communications that were not accessible
to the general public.
106. Defendants, acting without a valid
warrant, required SJG to disclose the contents of
electronic communications that were not accessible
to the general public and that were in electronic
storage for 180 days or less, in violation of 18
U.S.C. 2703(a).
107. Defendants disrupted the normal
operations of the communication service operated by
SJG without compensation to plaintiffs in violation
of 18 U.S.C. 2706(a).
108. Defendants Cook, Foley, and Golden acted
as federal agents and under color of federal law.
109. Defendant Kluepfel acted in concert with
the federal defendants and under color of federal
law.
110. Defendants acted knowingly and
intentionally.
111. Defendants did not act in good faith.
112. Plaintiffs were aggrieved by defendants'
conduct, and suffered damages, attorney's fees and
costs.
COUNT V:
ELECTRONIC COMMUNICATIONS PRIVACY ACT,
18 U.S.C. 2510 et seq.
Interception of Electronic Communications
Against All Defendants
113. The allegations in paragraphs 1-112 are
incorporated herein by reference.
114. Defendants intercepted, disclosed, or
intentionally used plaintiffs' electronic
communications in violation of 18 U.S.C. 2510 et
seq and 2520.
115. Defendants intentionally intercepted,
endeavored to intercept, or procured others to
intercept or endeavor to intercept, plaintiffs'
electronic communications in violation of 18 U.S.C.
2511(1)(a).
116. Defendants did not comply with the
standards and procedures prescribed in 18 U.S.C.
2518.
117. The warrant application was not
authorized by the Attorney General, Deputy Attorney
General, Associate Attorney General, or any
Assistant Attorney general, acting Assistant
Attorney General, or any Deputy Assistant Attorney
General in the Criminal Division specially
designated by the Attorney General, in violation of
18 U.S.C. 2516.
118. Defendants Cook, Foley, and Golden acted
as federal agents and under color of federal law.
119. Defendant Kluepfel acted in concert with
the federal defendants and under color of federal
law.
120. Defendants did not act in good faith.
121. Defendants did not compensate plaintiffs
for reasonable expenses incurred by defendants'
seizure of the Illuminati BBS, in violation of 18
U.S.C. 2518(4).
122. As a direct result of defendants'
conduct, plaintiffs suffered damages, attorney's
fees and costs.
Prayers for Relief
WHEREFORE, plaintiffs SJG, Jackson, McCoy,
Milliken, and O'Sullivan pray that this Court:
1. Assume jurisdiction of this case.
2. Enter judgment against defendants and in
favor of plaintiffs.
3. Enter an order requiring defendants to
return all property and data seized from the
premises of SJG, and all copies of such data, to
SJG.
4. Award plaintiffs damages.
5. Award plaintiffs punitive and liquidated
damages.
6. Award plaintiffs all costs incurred in the
prosecution of this action, including reasonable
attorney's fees.
7. Provide such additional relief as may
appear to the Court to be just.
PLAINTIFFS DEMAND A JURY TRIAL ON ALL CLAIMS
TRIABLE BY JURY
Dated: May 1, 1991
Respectfully submitted
by their attorneys,
_____________________________
Sharon L. Beckman
Harvey A. Silverglate
Andrew Good
SILVERGLATE & GOOD
89 Broad St., 14th floor
Boston, MA 02110
(617) 542-6663
Fax: (617) 451-6971
____________________________
Eric M. Lieberman
Nicholas E. Poser
Rabinowitz, Boudin, Standard,
Krinsky & Lieberman, P.C.
740 Broadway, at Astor Place
New York, NY 10003-9518
(212) 254-1111
Fax: (212) 674-4614
___________________________
R. James George, Jr.
Graves, Dougherty,
Hearon & Moody
2300 NCNB Tower
515 Congress Street
Austin, Texas 78701
(512) 480-5600
Fax: (512) 478-1976
--
Mike Godwin, |"Most pernicious of French imports is the notion that
mnemonic@eff.org | there is no person behind a text. Is there anything more
(617) 864-0665 | affected, aggressive, and relentlessly concrete than a
EFF, Cambridge, MA | Parisian intellectual behind his/her turgid text?"
G
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