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