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From: mnemonic@eff.org (Mike Godwin) Subject: STEVE JACKSON LAWSUIT: FULL TEXT OF COMPLAINT (long) Summary: This document was filed May 1 in federal court in Austin, Texas Organization: The Electronic Frontier Foundation 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?"