the secret service - big brother is watching you

The Secret Service Wall Of Shame

We've faced many challenges to our existence since 2600 began publishing back in 1984. None has proven to be as ominous and threatening as recent events involving the Secret Service.

We've been following this agency for years, ever since they first took an interest in the activities of computer hackers. We've seen carelessness,

violations of rights, and overall ignorance on their part. In other

words, nothing we wouldn't expect at some point from any law

enforcement agency. Now, we see something which poses a real and

immediate danger to us all.

The Secret Service has made it quite clear with the recent prosecution of

the Bernie S. case that they intend to use whatever means necessary to put hackers behind bars. In the Bernie S. example, they successfully managed

to lock him up with violent criminals for nearly a year, solely

because of his possession of written material, software, and bits of

hardware. In other words, not much at all. With such vague

requirements, the prospect of selective prosecution seems a

certainty for many more of us. What the Secret Service has done transcends the mere interests of computer hackers. Their behavior, vindictiveness, and lack of concern for upholding the values of a free

society are of concern to Americans of all varieties.

We want to make it abundantly clear that we are prepared to challenge such abuses by whatever means necessary. We object strongly to a person being imprisoned based on the books he/she reads or the

information they happen to be interested in collecting. The Secret Service has abused their power in this way and we are here to see that it does not continue.

In this section, you will find a great deal of information about the Secret Service. We're doing this

http://www.2600.com/secret/ (1 of 2)4/16/2006 10:37:17 AM

The Secret Service Wall Of Shame

because people have every right to have access to this information, despite the fact that it was this very same information that helped convince a judge that its possessor was a major threat to society. You may be thought of in the same way once you access this section. And we can only imagine how *we* will be

defined.

The existence of this information here is rather ironic. The Secret Service reacted strongly to someone's possession of this knowledge and defined them as a major threat to society because of it. As a direct result, millions of people all over the world now have *instant* access to that very same information.

We want the Secret Service to know that they inspired us to give this data out. This page would not exist had it not been for their gross abuse of an individual.

We encourage people to not only read these pages but to copy them and disseminate them widely. While there is nothing illegal about having this data available, we want to make sure that others continue even

if we're somehow struck down.

We also want to know of any other abuses of power or "Secret Service stories" that are floating around. You can mail us at [email protected] or send snail mail to 2600, PO Box 99, Middle Island, NY 11953.

Naturally, any corrections or additions to the data we have provided will also be welcomed.

[email protected]

http://www.2600.com/secret/ (2 of 2)4/16/2006 10:37:17 AM

http://www.2600.com/index.shtml

mailto:[email protected]

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http://www.2600.com/secret/next.html4/16/2006 10:40:40 AM

http://www.2600.com/law/law.html#Bernie

http://www.2600.com/secret/other.html

Bernie S.

THIS IS A CHRONOLOGY OF EVENTS:

[Indictment] [Trial] [Sentencing] [Second Sentencing] [BCCF] [NEW - URGENT] [Press Release] [The Latest]

Ed Cummings (Bernie S.) has been in prison since the spring of 1995 and is the first person to have been imprisoned without bail for something as harmless as possession of a modified Radio Shack tone dialer. He is also being charged with possession of a computer (no joke) and software which could be used to modify a cellular phone. This case is significant in that if successful in prosecuting him, the government would be able to prosecute almost any one of us because the tones and the information in his possession are very easy to get ahold of. If you want to send Bernie S. a letter, just send email to his account, [email protected]. His indictment follows:

401Cummings:AWC:ecw

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA v. EDWARD E. CUMMINGS

CRIMINAL NO. 95-320

DATE FILED: 6/8/95

VIOLATIONS: 18 U.S.C. S1029(a)(5) (Possession of modified telecommunication instruments - 2 counts) 18 U.S.C. S1029(a)(6) (Possession of hardware and software used for altering telecommunications instruments - 1 count)

INDICTMENT

COUNT ONE

THE GRAND JURY CHARGES THAT:

On or about March 13, 1995, in Haverford Township, in the Eastern District of Pennsylvania, defendant EDWARD E. CUMMINGS, knowingly and with intent to defraud did possess and have custody and control of a telecommunications instrument, that is a speed dialer, that had been modified and altered to obtain unauthorized use of telecommunication services through the use of public telephones.

In violation of Title 18, United States Code, Section 1029(a)(5).

http://www.2600.com/law/bernie.html (1 of 19)4/16/2006 10:47:04 AM


Bernie S.

COUNT TWO


On or about March 15, 1995, in Haverford Township, in the Eastern District of Pennsylvania, defendant EDWARD E. CUMMINGS, knowingly and with intent to defraud did possess and have custody and control of a telecommunications instrument, that is a speed dialer, that had been modified and altered to obtain unauthorized use of telecommunication services through the use of public telephones.


COUNT THREE


On or about March 15, 1995, at Villanova, in the Eastern District of Pennsylvania, defendant EDWARD E. CUMMINGS, knowingly and with intent to defraud did possess and have custody and control of hardware and software, that is an IBM "Think Pad" laptop computer and computer disks, used for altering and modifying telecommunications instruments to obtain unauthorized access to telecommunications service.


A TRUE BILL:

(unsigned)______________________FOREPERSON

(signature)______________________MICHAEL R. STILESUnited States AttorneyFirst Assistant U.S. Attorney

Here is a copy of the statute he is alleged to have violated:

title 18 u.s.c. 1029 Fraud and related activity in connection with access devices

(a) Whoever


Bernie S.

(1) knowingly and with intent to defraud produces, uses, or traffics in one or more counterfeit access devices;

(2) knowingly and with intent to defraud traffics in or uses one or more unauthorized access devices during any one-year period, and by such conduct obtains anything of value aggregating $1,000 or more during that period;

(3) knowingly and with intent to defraud possesses fifteen or more devices which are counterfeit or unauthorized access devices;

(4) knowingly and with intent to defraud, produces, traffics in, has control or custody of, or possesses device-making equipment;

==> (5) knowingly and with intent to defraud uses, produces, traffics in, has control or custody of, or

possesses a telecommunications instrument that has been modified or altered to obtain unauthorized use of telecommunications services; or

(6) knowingly and with intent to defraud uses, produces, traffics in, has control or custody of, or possesses

(A) a scanning receiver; or

==> (B) hardware or software used for altering or modifying telecommunications instruments to obtain unauthorized access to telecommunications services,

(5)1 knowingly and with intent to defraud effects transactions, with 1 or more access devices issued to another person or persons, to receive payment or any other thing of value during any 1-year period the aggregate value of which is equal to or greater than $1,000;

(6)2 without the authorization of the issuer of the access device, knowingly and with intent to defraud solicits a person for the purpose of

(A) offering an access device; or

==> (B) selling information regarding or an application to obtain an access device; or

(7) without the authorization of the credit card system member knowingly and with intent to defraud causes or arranges for another person to present to the member or its agent, for payment, 1 or more evidences or records of transactions made by an access device;


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shall, if the offense affects interstate or foreign commerce, be punished as provided in subsection (c) of this section.

(b) (1) Whoever attempts to commit an offense under subsection (a) of this section shall be punished

as provided in subsection (c) of this section.

(2) Whoever is a party to a conspiracy of two or more persons to commit an offense under subsection (a) of this section, if any of the parties engages in any conduct in furtherance of such offense, shall be fined an amount not greater than the amount provided as the maximum fine for such offense under subsection (c) of this section or imprisoned not longer than one-half the period provided as the maximum imprisonment for such offense under subsection (c) of this section, or both.

(c) The punishment for an offense under subsection (a) or (b)(1) of this section is

==> (1) a fine under this title or twice the value obtained by the offense, whichever is greater, or

imprisonment for not more than ten years, or both, in the case of an offense under subsection (a)(2), (3), (5), (6), or (7) of this section which does not occur after a conviction for another offense under either such subsection, or an attempt to commit an offense punishable under this paragraph;

==> (2) a fine under this title or twice the value obtained by the offense, whichever is greater, or

imprisonment for not more than fifteen years, or both, in the case of an offense under subsection (a)(1), (4), (5), or (6) of this section which does not occur after a conviction for another offense under either such subsection, or an attempt to commit an offense punishable under this paragraph; and

(3) a fine under this title or twice the value obtained by the offense, whichever is greater, or imprisonment for not more than twenty years, or both, in the case of an offense under subsection (a) of this section which occurs after a conviction for another offense under such subsection, or an attempt to commit an offense punishable under this paragraph.

(d) The United States Secret Service shall, in addition to any other agency having such authority, have the authority to investigate offenses under this section. Such authority of the United States Secret Service shall be exercised in accordance with an agreement which shall be entered into by the Secretary of the Treasury and the Attorney General.

(e) As used in this section

(1) the term "access device" means any card, plate, code, account number, electronic serial number, mobile identification number, personal identification number, or other telecommunications service, equipment, or instrument identifier, or other means of account access that can be used, alone or


Bernie S.

in conjunction with another access device, to obtain money, goods, services, or any other thing of value, or that can be used to initiate a transfer of funds (other than a transfer originated solely by paper instrument);

(2) the term "counterfeit access device" means any access device that is counterfeit, fictitious, altered, or forged, or an identifiable component of an access device or a counterfeit access device;

(3) the term "unauthorized access device" means any access device that is lost, stolen, expired, revoked, canceled, or obtained with intent to defraud;

(4) the term "produce" includes design, alter, authenticate, duplicate, or assemble;

(5) the term "traffic" means transfer, or otherwise dispose of, to another, or obtain control of with intent to transfer or dispose of.

A trial date was set for July 31st but it has now been postponed to September 8th at the Philadelphia Federal Courthouse at 6th and Arch St. starting at 10 am in Courtroom 5B on the fifth floor. Also, some good news is the fact that a bail hearing has finally been agreed to by the judge. The bad news is that it's not until September 7th, the day before the trial.

A suppression hearing is now set for WEDNESDAY, September 6th with the trial set to start on the 7th. The issue of bail will also be decided on Wednesday. Times are 11:00 am Wednesday and 10:00 am Thursday, if the trial is still scheduled at that point. The courtroom is now 9B. We expect things to start changing quickly at this point so keep checking this address for new information.

Trial Results

The trial is over. And we wish we could report better news than this. In the words of Bernie S., "I was forced to make a deal with the devil." On Thursday, September 7th, he plead guilty under what is known as a Zoodic Plea. This means that, although pleading guilty, he is challenging the constitutionality of the law he is violating. This came about for a number of reasons. The government had found data on a commercial diskette in Bernie S.'s possession which they say was related to cellular fraud in California. While Bernie says he has no idea what it is they're referring to, the odds of a jury being able to understand how someone could have a diskette and not be held accountable for every bit of data on it seemed uncomfortably slim. Also, by pleading guilty at this point and in this manner, Bernie will be sentenced in 10 days and will most likely be released at that time since he has already served the time he would probably be sentenced to. He would then have the ability to further challenge this law over the next several months. Being free during this process will be an advantage. Of course, the down side to this is the fact that the federal government will interpret this as a green light to lock up anyone in possession of simple electronic and/or computer tools. And, as has been so aptly demonstrated by the Bernie S. case, if they choose to treat the suspect as a terrorist and lock him/her up for six months with no bail, they won't have much of a problem finding a judge willing to do this. But what is really tragic


Bernie S.

about this case is that so few organizations with the power to speak up and draw attention to this travesty of justice felt compelled to do so. Groups such as the Electronic Frontier Foundation, Computer Professionals for Social Responsibility, Electronic Privacy Information Center, and the American Civil Liberties Union did little, if anything, to help. Their silence is overwhelming evidence that we need an electronic civil liberties group to tackle cases like this, many of which are likely to come up in the future.

Sentencing

In yet another example of callousness, the sentencing of Bernie S. was postponed for another three weeks. No reason was given for this latest extension of prison time (had he been sentenced on September 21 as scheduled, it's quite likely he would have been released because of the long period already served) but an emergency bail appeal is being filed. For now, sentencing is scheduled for October 10.

Sentencing took place on October 10 and Bernie S. was sentenced to seven months in federal prison. The seven month period ends on Saturday, October 14. At this time, Bernie S. is expected to be placed in the custody of local police where he will face a hearing on October 20 for probation violation. (He had been convicted of "tampering with evidence" when he removed the batteries from a tone dialer after being questioned by police.) There is the possibility of still more prison time after this hearing.

FREEDOM!

In a surprise move, Bernie S. was released on October 13. He still faces the October 20 hearing. This is the first time Bernie S. has been free since March.

HERE WE GO AGAIN

The nightmare has started all over again. After five postponements (two requested by Ed's attorney, two procedural delays, and one court-ordered delay), the hearing was held on Friday, 1/12/96. In addition to the judge, Northampton County probation officer Scott Hoke, Secret Service agent Tom Varney, and Haverford Township detective John Morris were in attendance. Varney and Morris arrived in the same car.

Ed's attorney was unable to attend because his car had been plowed under in Philadelphia. He said he doubted the hearing would take place because of the weather but told Ed to drive up just in case. Ed drove several hours through blizzard conditions and arrived at the courthouse for the fourth time. Scott Hoke, however, did not take this effort into consideration and told the judge he would not tolerate any more postponements, despite the fact that most of the postponements had been requested by the court itself and that Ed had been wanting to get this over with from the start.

Hoke complained that Cummings had been "walking around on the street" for three months. He did not


Bernie S.

mention that Cummings has been fully employed during that time and has not violated any laws since his release. The judge chastised Cummings for his lawyer's failure to appear and refused to allow him to say anything.

Tom Varney of the Secret Service then told the judge that he believed Cummings to be a major threat to society and that he was concerned because of the upcoming presidential campaign. It was unclear if he was actually implying that Cummings would somehow be a threat to the president but the judge and the police listened intently. This was the first time a Secret Service agent had come to their town. Varney continued to describe the threatening items that had been found in Cummings' residence: a copy of The Anarchist's Cookbook, publications from Loompanix, a mag stripe read head (no electronics) which "could have been used" to commit fraud, and material thought to be C4 but later proven not to be. However, Varney said, the fact that it could have been showed how serious this was. Nobody questioned his logic.

All of this stems from an incident years ago when Cummings and two friends were being questioned by a Northampton County police officer. He had asked them about a tone dialer they had and, while he went into another room, somebody removed the batteries from the dialer. They were not under arrest and had not been instructed not to do this. However, based on this, Cummings was charged with "tampering with evidence" even though there was no proof that he had been the one to do it. Cummings refused to say who did and pleaded no contest. He was fined and that should have been the end of it. Then the events of March 1995 unfurled and all of a sudden, Cummings was a probation violator.

Prior to this hearing, the Secret Service made an extra effort to contact the county probation officer to insist that Cummings be imprisoned because he was such a threat. They made quite an impression upon him apparently. It also became known through various contacts that the Secret Service was particularly angry at Cummings because he had given pictures of Secret Service agents to local media (FOX 29) in Philadelphia. These pictures made the Secret Service agents look foolish. Later, Secret Service agents would say to a friend of Cummings: "Don't fuck with us. We're the biggest gang in town."

The judge determined that a probation violation had indeed taken place and that Cummings should be held and a sentencing date scheduled within 60 days. The judge had just done the same thing for a man who had just committed his third DWI offense. In fact, he had killed someone. The judge ordered that person held on $50,000 bail. Ed Cummings, however, was another matter. The judge ordered Cummings held on $250,000.

So Cummings was being held on a quarter of a million dollars because he was thought to have taken batteries out of a tone dialer years ago. He's in a 5 by 8 holding cell 22 hours a day with no windows and no clock. He never knows what time it is or whether it's day or night. The temperature reaches a maximum of sixty degrees and he has only one layer of thin cotton clothing and one blanket. To add to his misery, he was just notified that the Haverford Township police will destroy the property they seized from him last year unless he picks it up by Friday, January 19.


Bernie S.

The hearing to determine how long Cummings will be imprisoned for will be scheduled within 60 days. He could get a maximum of two years.

[1/16/96]

Cummings has been transferred into the "Phase One Inmate Unit" which is where inmates are held for the first 30 days. There are three phases in total, the third occurs after 60 days. Right now he's actually in the cell known as "the hole" which is supposed to be used for solitary punishment. Because of overcrowding, he's been put in there with two other inmates, one of whom is a convicted child molestor serving time for DWI. Cummings described the conditions as "really bad" - the prison is cold and filthy. The prison itself was built right after the Civil War. There are tons of roaches and grafitti in all the cells which dates back to the fifties - the last time it was painted. There are 1200 inmates.

We will continue to forward any email he receives at the [email protected] address.

[1/22/96]

We just found out that Bernie S. will be sentenced this Friday morning at 9 am in Easton, PA for the crime of removing batteries from a tone dialer several years ago. This is defined as a victimless misdemeanor for which the judge in this small town (under considerable influence from the Secret Service) set bail at $250,000. He could get two years in prison at sentencing. Press attention could be very helpful in avoiding a sentence as irrational as the bail setting - right now the only influence these people are getting is from the Secret Service and they want to put Bernie S away for as long as they can.

If you know of anyone who will cover this story, please get ahold of them right away so they can plan on being there. If anyone is interested in going, let us know so we can hopefully fill some cars from NYC.

Sentencing is scheduled for Friday, January 26 at 9 amCourtroom 5Northampton County Government Center7th and Washington StreetEaston, PA 18042-7492

(610) 559-3020 (district attorney)

case # 2173-1993The Commonwealth of Pennsylvania vs. Edward E. CummingsMisdemeanor 2 - tampering with physical evidence

Please help spread the word.


Bernie S.

[1/26/96]

The events of 1/26/96 were about as unbelievable as the events that have transpired throughout this case. The only positive development is that more people are slowly starting to realize what's happening.

Two and a half hours after the sentencing was to be held, the judge arrived in the courtroom. His demeanor seemed significantly more upbeat and open than his previous appearances. Perhaps this had to do with the fact that Ed's lawyer and members of the press were in attendance. The judge allowed everyone involved in the case to speak: Probation Officer Scott Hoak, Haverford Township Detective John K. Morris, Secret Service Agent Thomas L. Varney, Ed's attorney (Ken Trujillo), and Ed himself.

Throughout the hearing, the main issue was whether or not Cummings was a threat to the community. Varney was adament in his assessment of Cummings as a danger but when pressed by Trujillo could come up with nothing more substantive than the books found in Cummings' home. These books came from publishers like Loompanix and dealt with such things as making bombs and establishing false identities. The other damning evidence was a list of Secret Service frequencies (from an issue of Monitoring Times), a copy of a magazine article that listed Secret Service codenames for President Reagan (dated 1983), and a material that the Secret Service had suspected was C4 but which later turned out not to be. For some reason they feel compelled to mention this at each hearing as if C4 had actually been found when in fact the substance was something dentists use to mold dentures (the owner of the house was a dentist).

Trujillo successfully managed to get Varney to admit that no guns or explosives of any sort were found. No evidence was presented to indicate that Cummings was ever a threat of any sort to anybody. What's more, Cummings proved his responsibility by immediately getting a job after the Secret Service locked him up for most of last year and also by dutifully showing up for each hearing that was scheduled in Easton, even though the threat of more prison time loomed.

Cummings apologized to the court for his "odd curiosity" of the past, insisting that he merely collected books and information and never caused harm to anyone. His lawyer pleaded with the judge to allow Cummings to pick up the pieces of his life and not be subjected to any more inhumane treatment.

In the end, the judge was not interested in whether or not Cummings posed a threat. He saw a probation violation and therefore withdrew the probation. Sentencing was postponed to March 5th. But the judge showed some compassion. He lowered the $250,000 bail to $100,000.

Currently Cummings is imprisoned in the maximum wing of the prison where people with the highest bail are kept. He's with murderers and rapists. Conditions are appalling. One of the prisoners is on death row - his name is Joseph Henry and he bit off a woman's nipples and clitoris before strangling her with a slinky. These are the kinds of people the Secret Service has condemned Cummings to be with.

When Cummings was originally put on probation years ago, the probation officer told him he thought


Bernie S.

the whole thing was a big waste of time. The only thing he was accused of, after all, was taking batteries out of a tone dialer that a cop was questioning him about. And the really ironic part was that Cummings wasn't even the person who took the batteries out - it was one of his friends. But he was not about to turn a friend in for something so absurd. After all, this was a very minor thing - he paid a fine of nearly $3,000 and was put on probation and that was it.

When the Secret Service threw Cummings in prison for possession of a red box in early 1995, they knew he could be screwed again when he finally got out since being arrested is a probation violation. And Special Agent Thomas Varney spent a great deal of effort to see that this is exactly what happened. He made multiple trips to Easton and convinced the local authorities to lock Cummings up as if he were the most sadistic of killers.

On Friday, Cummings' probation officer did an aboutface and told the court that he thought Cummings represented a very great danger to the community. Outside the courtroom, he and the other local law enforcement people crowded around Varney like kids surrounding a rock star. He was their hero and maybe one day they would be just like him.

It would be good to say that the press showed up and the rest of the world finally got to see one of the greatest injustices perpetrated by the Secret Service. But the only headlines to come out of this charade said things like "Judge Hangs Up On Phone Hacker - Bail Revoked After He Continues To Commit Telecom Fraud". Not only has Cummings never been convicted of any kind of fraud - he's never even been accused of it. This is a case based entirely on perceptions and a sick vendetta by a government agency that has turned into a genuine threat against free thinking people everywhere.

When Cummings is sentenced on March 5th, he could be put into prison for years. This is what the Secret Service will attempt to ensure. They have to be stopped and they have to be held accountable for what they've already done. We need to be able to protect individual rights against this kind of abuse and so far we have all failed miserably. We have little more than a month to get it right.

[3/5/96]

At the hearing the Secret Service once again attempted to portray Cummings as one of America's most dangerous criminals. The points Special Agent Thomas Varney focused upon were: possession of books on explosives (books published by Loompanics that are widely available), lock-picking devices (Cummings was in violation of no law by possessing these), a number of computers (hardly surprising as Cummings' job was repairing computers), his affiliation with 2600 Magazine (not a secret and not a reason to label someone a criminal), and Cummings' appearances on WBAI radio in New York (something he had every right to do and one of the only ways the general public has been able to hear about his case). Varney began to say that Ed's "followers" had "taken it upon themselves" to do something but the judge cut him off before he was able to finish. We imagine Varney and his friends have been upset by the increasing awareness of the case and that they want to blame Cummings for every piece of nasty mail they get on the subject. Fortunately, the judge didn't buy it and refused to


Bernie S.

accept their labelling of Cummings as "one step above a terrorist". Unfortunately, this wasn't reflected in the sentencing.

Judge Jack A. Panella chastised Cummings for his lousy driving record and used this to back up the allegation that he had no respect for the law. (Cummings was never involved in an accident and was never accused of driving while impaired.) The judge found some inequities on the computer printout of Cummings' driving record and he seemed to imply that Cummings was somehow responsible for this. He also implied that Cummings had something to do with the loss of a previous arrest record. Curiously enough, he never mentioned that he forced Cummings to travel a long distance every month to report to probation when he could have easily assigned him to probation in or close to Philadelphia. When Cummings asked if it might be possible to change the location since his license was suspended, Panella increased the appearances to once every two weeks.

After calling Cummings a "true wise guy" and someone who showed disrespect and no remorse for his crimes (apparently, complaining about being locked in prison for a year for possessing crystals is a sign of "no remorse"), Panella passed sentence: 6 to 24 months plus a $3,000 fine.

At this point the best case scenario is that Ed will be out on May 30 since that will mark the six month point served in county prisons (the time served last year in county prison would also be added to this). But this is by no means a guarantee, especially if the Secret Service chooses to pursue their vendetta.

One thing is for certain: the publicity is helping. We have it on good authority that the prosecution wanted to ask for even more time but felt there would be too much adverse publicity. In recent weeks there have been a number of stories around the world on radio, television, and in newspapers. Public interest has increased dramatically.

We have also learned of a very similar case that took place in Kentucky late last year where a man was accused of the same offense that Cummings was. In this instance, however, he was accused of actually selling the black box that allowed cellular phones to be cloned. This was far more than Ed was ever accused of - he merely sold kits that could be built into boxes. The man in Kentucky decided to fight the charges and he showed how there were many legitimate uses for cloned phones. In front of a jury in Kentucky, he won the case. Unfortunately, Cummings' lawyer knew nothing about this and Cummings was forced to plead guilty last year in the mistaken belief that he would never be able to convince a jury that he hadn't committed a serious crime. Had he been found innocent, there never would have been a probation violation and Ed would be free today.

Shortly after sentencing, for unknown reasons, Ed was moved to another prison. The reason listed on the transfer form was "protective custody" which, in prison terms, means a prisoner is being moved because his life may be in danger, usually because he's an informant of some sort. Since this was the furthest thing from the truth, Ed asked around to find out what the story was. It seems that he was part of a "prisoner trade" where the *other* prisoner was being transferred for protective custody. This episode put Ed at great risk for no reason. It was the second time this kind of thing has happened - at the first


Bernie S.

prison a rumor was circulated that Ed was an undercover cop. Fortunately, newspaper articles about his case convinced his fellow prisoners that this wasn't true. But these incidents show us what a serious position Ed has been put into. This is not a camp or a halfway house. This is a serious prison where people are killed for two cartons of cigarettes. We must never forget this.

[4/96]

Ed bides his time in maximum security. Visits are 2 hours long but closely supervised in a large multi-purpose room. Only three people can visit at a time. Each visitor is thorougly metal-checked and hand-stamped.

Ed should receive a visit from a parole officer sometime in April or May, but does not. His first parole interview should occur about 2 months before his earliest possible release date (5/30 or 6/4).

[6/28/96]

On or about this date, Ed is moved from the maximum security facility at Bucks County Correctional Center to the minimum security Men's County Correctional Center (MCCC) just up the road in Doylestown, PA.

Visits here take place at picnic benches outside in the middle of a field, virtually unsupervised. Ed can receive clothing, food, books and other sundries during the visits. We bring lots of food, as he hasn't had any non-prison food since October. He really appreciates the visits and the deliveries of toiletries, etc., since the commissary in the minimum security facility stocks mostly just food items. Most minimum security inmates have either work-release privileges or shopping privileges. Ed does not.

On July 2, Ed has his first parole interview. The parole officer explains that he had had Ed on his list to visit in June, but 'forgot'. Unfortunately, the resulting paperwork cannot be sent to the State parole office in Harrisburg until 8/1 (due to some arcane rule, paperwork can only be submitted on the first of the month). The parole officer cannot officially estimate when Ed will be released, but his best guess is in the October/November timeframe.

Shortly after this interview, Ed is approved for three weeks of "voluntary" community service work. If an inmate "chooses" not to volunteer, he gets sent back to maximum security. He must complete the three weeks of service work with no pay before he will be permitted to obtain a work-release job. Ed volunteers and is sent to do groundskeeping work at The Heritage Conservancy.

Throughout July, Ed spends several hours on the phone with Rob Bernstein of Internet Underground Magazine. It's kind of difficult, because of course Ed must call collect, so he can't phone Rob at his office. Nevertheless, Rob thoroughly researches the story, interviewing everyone from Tom Varney to lawyers, witnesses, and friends. Rob's deadline for going to press is July 26.


http://www.inch.com/~esoteric/weekend.html

http://www.underground-online.com/

http://www.underground-online.com/

Bernie S.

Rob and Ed discuss the best way for Ed to receive a final copy of the article to verify all of the facts. Rob is to overnight the article on July 21. Rob's other duties prevent him from doing so. On July 23, Ed and Rob discuss whether Ed could possibly receive a fax at the offices of The Heritage Conservancy. They agree that Rob should not send the fax unless Ed has told him he has permission to do so. The next day, Ed asks his supervisor's boss, John Thornberry, for permission to receive a fax. John does not give his permission.

On July 25, Ed reports for his next-to-last day of community service. He spends most of the day raking grass clippings, pulling weeds, and 'weed-whacking'. At around 3PM, the cord on the weed-whacker breaks. Ed's supervisor, George, tells Ed that he has done a good enough job and to take a break. Ed insists that he wants to finish the job correctly, so George and Ed go to George's workshop in the basement to replace the cord.

Ed then completes the trimming job. George tells him to take a break, as it is just about time for Ed to return to the prison. Ed goes into the Conservancy office and sees a large amount of fax spilling out onto the floor (the fax machine is in the entryway). He picks up the fax and realizes that it is for him.

The Conservancy secretary, Nancy, asks if the fax is for Ed. He states that it is for him and starts reading it. A few minutes later, Ed decides that it might not be a good idea to hold onto the fax and throws it out. A few minutes later, John takes Ed back to the prison.

Later that same evening, Ed is handcuffed, chained and shackled and taken back to the maximum security facility. He is accused of of violating the community service rules.

A day or so later, he receives a formal written copy of the charges against him. He has supposedly not obeyed the wishes of his community service supervisor and also has had an unauthorized visit from friends or family on the community service worksite. These charges are Misdemeanor I offenses under prison rules, the same category as posessing a deadly weapon or attacking a prison guard.

Five days later, the Corrections Evaluation Board (CEB) must hold a hearing to decide if Ed is guilty of the misdemeanor charges. Although Rob Bernstein sends a notarized letter stating (among other things) that Ed did not know the fax was coming and did not authorize him to send the fax, the CEB finds Ed guilty. The board also refused to let Ed bring any witnesses to the hearing, a clear denial of his due process rights.

Ed decides to appeal the ruling, as having any possible 'write-ups' against him can potentially cause him to have to wait an additional 9 months until he can receive parole. During all Ed's time in jail prior to this point, he has never received even a single write-up. Ironically, he receives this misdemeanor charge almost a full two months past his earliest parole date.

The ruling carries a penalty of 10 days time in maximum security prison. After serving 19 days of his 10 day sentence, Cummings is returned to the minimum security facility (August 12). Ed works on his


Bernie S.

appeal with some help from his friends. As soon as the appeal is filed, Ed's cell is shaken down and he is written up for having excess reading materials. He must have them removed from his cell (i.e., given to his visitors or other inmates) by the end of the day on August 18. Ed's visitors on the 18th remove about 25 books and 10 periodicals when they leave at 10AM. The guards shake down Ed's cell again at around 9PM, stating that he has not removed all of the materials by the end of the day. Although Ed tells them that he thought he had until lights out (11PM) to throw the remaining materials away or give them to other prisoners, the guards don't agree. They write him up for having excess shampoo (3 bottles).

The appeal is rejected without comment.

The next step in the process is to file a grievance. Cummings' grievance is faxed by a friend to Mr. John Henderson at the prison at 1:52AM on July 22. Around 3:30AM, the night officers at the prison wake Ed up excitedly, screaming "What are you doing? Where's the computer? Where's the phone?". They rouse Ed out of bed and put him in a holding cell while they turn his own cell upside down, searching for a laptop and/or cellular phone. After about 15 minutes, the officers question Ed, asking how he managed to send the fax to Mr. Henderson. He says he dictated the letter earlier in the evening to a friend. The officers can't seem to understand this and want to know how he got out of his cell in the middle of the night and made the payphones work (they get turned off at 11PM). He again stated that he did not send the fax himself.

Somewhat perplexed, the guards allow Cummings to return to his cell. It takes him about an hour to put it back in order, replacing his bedding, returning his belongings to his locker, and cleaning up the toothpaste they squeezed onto the floor while searching for electronic devices. Finishing his task, Ed becomes violently ill. He eventually returns to a restless sleep.

The next morning, Mr. Henderson calls Ed into his office. Henderson confirms that he received the fax but that the information he received from other prison officers as to who would hear the grievance was incorrect. The appeal was to be heard by a Cliff Mitchell, a member of the original CEB. Mr. Henderson tells Ed that he has forwarded his appeal to Mr. Mitchell. When Ed asks why none of the legal and due process points made in his appeal were addressed, Mr. Henderson does not reply. When Ed tells Henderson that he wants to advise him that his lawyer, a former federal prosecutor, is willing to take the case to court, Mr. Henderson says, "That could take six years," and orders Ed out of his office. Ed relates the above horror story to the friend who sent the fax. She phones Mr. Henderson to confirm that he received the fax.

Cummings is once again asked to "volunteer" for community service; the 20 days of unpaid labor he performed previously are no longer considered valid. He volunteers and is put to work in the fields around the prison, shoveling up semi-decomposed grass clippings in the hot summer sun. He does this for 2 days, suffering from severe sunburn and heat exhaustion. On 8/26, prison officials decide to switch Ed to pot scrubbing duty. He scrubs pots big enough to climb into for 8-9 hours a day.

Ed's cell is shaken down two more times in the next week, although no other inmates seem to be


Bernie S.

receiving this treatment. He receives an unofficial write-up for having excess paperwork and is made to remove it from the prison the next time he has visitors. The papers in question are bound transcripts of Ed's court appearances and appeals.

The grievance is rejected by Mr. Mitchell on the morning of 8/29. The next step appears to be to file an appeal of the grievance with the prison warden. Ed and his lawyer had earlier spoken about perhaps taking the case to court, but the lawyer counseled Ed to proceed with the regular prison administrative procedures first. Ed contacts his lawyer through a friend, although the lawyer is out of the country until 9/4.

[8/30/96]

Ed is woken up by prison guards who handcuff, chain and shackle him. He is then handed over to the Northampton County sheriff. The sheriff transfers him from Bucks County Men's Correctional Facility (a minimum security facility) to Lehigh County Correctional Facility (a maximum security facility), supposedly for "protective custody".

This rationale was somewhat of a fallacy; we believe it is fairly common in the prison universe to transfer a prisoner who has appealed administrative decisions.

For those of you unaware of the meaning of "protective custody", in prison, this status is usually reserved for prisoners who need protection from other prisoners, most often child molesters, rapists, and 'snitches'. Prison officials are *supposed* to put these prisoners in even more restrictive conditions for their own protection.

So, Ed is approved for minimum security and is then all of a sudden transferred to a maximum security prison under "protective custody". Furthermore, Ed says that his original sentencing order states that he must serve out his term in Buck's County. Being moved to Lehigh County certainly violates that.

Adding injury to insult, as Ed was talking on the phone at 10:15AM on 8/31, trying to get a second message to his lawyer about the transfer and the "protective custody", he had to go all of a sudden.

The person he was speaking to noted that Ed, who said he'd call right back, didn't until late Saturday evening. Also for the record, when Ed did call back Saturday night, the collect call was from AT&T (not a prison system).

Why? At 7:41AM 9/1, in a somewhat slurred but very intent voice, Ed told the story...

As he was speaking on the phone Saturday morning, apparently some other inmate who'd been nabbed in a prison drug bust Friday night wanted to use the phone. Ed hung up, but told the guy he needed to make one more call. He dialed the number three times, but it was busy. The guy wasn't too happy about this -- he kicked Ed in the face. Ed used his previously-shattered left arm to try to protect his face. The


Bernie S.

result? He's lost several teeth, his jaw is shattered, and his arm is also completely shattered.

He had surgery on both his arm and his jaw. He said "I look like Lou Albano". His jaw was so shattered, they had to "slit my throat in two places" to put the metal in to hold it back together as it mends. His mouth will be wired shut for 2-3 months. If you wanted to shut someone up, this would do the trick. There is also a chance of nerve damage which might leave him with permanent droops in his face.

[9/2/96 11AM]

Ed's nurse, Pat, says that he's doing well, a little mush mouthed, but the surgery was fine. She says that the hospital doesn't have special visiting hours for prisoners - he can have visitors as far as she's concerned from 11AM - 8PM daily. She then says he can receive calls in his room .

A gruff voice answers Ed's phone, "Roberts". Roberts asks, "Are you aware that he's a prisoner?" Of course we are, and the hospital staff told us to call. Roberts states that permission to speak to or visit Ed must be granted by the warden of Lehigh County Prison.

The warden, Ed Sweeney, is not in the office (it being Labor Day). The prison lobby officer, CO White, says when asked if Mr. Sweeney is there, "No chance - its a holiday!" He adds that he was with Ed when the kicking incident happened, but that the warden won't be in until 9/3.

So, Ed's finally getting the protective custody they ordered for him. He's being protected from his friends.

[9/2/96 9PM]

An urgent phone call arrives at 2600's offices from a friend: Ed is trying to reach us but the pay phone system he is using won't allow him to connect to several of our numbers. Ed manages to reach Rob Bernstein (the reporter from Internet Underground) who gets through to us.

After trying many of our fax and other phone lines, we finally get to talk to Ed. At 2PM, prison officials had Ed moved from the hospital back to the prison's Infectious Disease Ward. Ed begged and pleaded with his surgeon to allow him to stay in the hospital one more night, to no avail. The surgeon determined that it was not medically necessary for Ed to stay in the hospital, as the prison has medical facilities.

The medical unit at the prison consists mostly of people with tuberculosis and other infectious diseases. It took 3.5 hours for them to put sheets on Ed's bunk, and 7 hours for them to give him any pain medication, ice for his swelling, or pillows to raise his arm. When Ed complained about this, stating that he was under medical orders to have ice on his incisions every half hour, the prison nurse replied, "This is not a medical facility, it's a prison. You should be lucky you're getting any attention at all." He is also supposed to have a soft toothbrush to brush the blood and tissue from the surgery out of the wires holding his jaw shut. The nurse offered him a hard toothbrush.


Bernie S.

Ed is suffering many injustices and can barely speak for himself at this point. We will be arranging protests over the next several days. If you or anyone you know can help make this case more public, now is the time. Ed has previously asked that we not organize protests, but he has requested that we do so now explicitly. Please email [email protected] or phone our voice mail system at (516) 473-2626 for up to the minute details. The office number for 2600 Magazine is (516) 751-2600.

We will update this page as soon as we have any news or further information about what YOU can do to help.

You can always send Ed e-mail at [email protected] should go to Ed's new mailing address: Lehigh County Prison Ed Cummings, Inmate 67770 38 North 4th Street Allentown, PA 18103

[ 09.04.96 ]

At around 10AM Wednesday, we received a rather upbeat call from Ed. He's still feeling pretty lousy, but he did speak to his lawyer. Ken (lawyer) called Judge Panella in Northampton County and also Dan Pollanski, the District Attorney. They both agreed that there was no valid reason for Ed to have been transferred to Lehigh County maximum facility and that a transfer to a minimum security facility with good medical services should be They also concurred that Ed should not be sent back to Bucks County due to the administrative treatment he received there.

The judge spent a good 30 minutes discussing this with Ken, which is virtually unheard of. They discussed that Panella's sentencing had specifically stated that Ed was to serve all of his sentence at Bucks County, alluding to the fact that the BCCF administrators should never have transferred him. Furthermore, the judge agreed that there was no basis provided for the "protective custody" designation.

On an even more positive note, the judge and the DA were to discuss revisiting Ed's sentence with Ken. They both agreed that they had expected Ed to serve his minimum sentence and be paroled after 6 months. We will hear more about this shortly.

This could result in Ed's immediate release. A note of caution to you optimists out there: several layers of administrative b.s. are in place to assure that prisoners are not easily released (to prevent them from taking advantage of family or political ties, etc.)

So, we were feeling fairly upbeat about the whole situation... At 12:30, Ed phoned from yet another prison phone system (TeleLink). He was transferred back to Northampton County Prison. As most of you will remember, this prison was built in the 1800s and has horrible conditions including roaches and




Bernie S.

rats.

Ed is now in the infectious disease medical unit there. There is not *supposed* to be any smoking on this unit, but of course inmates do. Ed is allergic to cigarette smoke. When he was last in this facility, he was very ill with 104 fever and coughing up blood. We can imagine how difficult that type of coughing could get with Ed's jaw broken and wired shut.

The medical facility there is run by a private company who cuts costs wherever possible, including neglecting to provide prescribed medications to inmates. Ed was given a pillow, which seems like a bonus compared to the Lehigh facilities. Ed was woken up around 8am Wednesday and moved to a new cell in the infectious disease ward (he had been transferred yesterday as well). He also got to see the Lehigh Prison doctor for the first time since his release from the hospital. The doctor was concerned about continued pain Ed has in his right temple and was to call the hospital to review the xrays for possible fracture there. He was also going to prescribe a stronger painkiller for Ed (currently on Tylenol 3 with Codeine). Ed is fairly sure that he will have to start this process all over again with a doctor at Northampton County, whenever one sees him. The discharge unit at Lehigh County refused to allow Ed to take his legal paperwork with him. His lawyer has phoned the discharge unit, who is now "searching for the folders".

Ed still needs to get a soft toothbrush and a cover for his cast so he can shower -- believe it or not, he hasn't been able to shower since last THURSDAY; when they transferred him on Friday, he was in a holding cell for about 10 hours and hadn't had a chance to shower before 10AM on Saturday. You can just imagine his current condition, after losing a few pints of blood and then having surgery...

We have no assurance that they will allow him to receive the package we're sending today which includes these items. We tried getting a copy of his medical release instructions to send along with the package, but the hospital requires Ed to sign a release form before they'll provide the instructions to anyone but Ed. The prison system, including medical facilities, seem to feel no compulsion to follow the medical orders. Lehigh didn't provide him with liquified food and didn't have a mortar/pestle to grind up his medication and vitamins. Ed doesn't hold much hope that the Northampton County facilities will be any better. He also hasn't had any ice on his incisions since last night (more than 12 hours ago). If his arm swells under the cast, his circulation could be cut off.

We've also just called the Lehigh County DA's office to find out what Ed has to do to file criminal charges against the guy who beat him up (Michael Williams). Apparently, no one from the police department has asked Ed if he wants to file charges. No one took photographs of Ed's condition after the beating. Ed has to ask for a special criminal complaint form from the prison he's in. He'll do this today; he *has* to file the criminal complaint against his assailant before he can file civil complaints against Bucks County and Lehigh County prisons.

If anyone can send him a money order for $10 or $15, that would also help - he could then purchase soap, shampoo, paper, pen and stamps at the comissary. He's now at:


Bernie S.

Northampton County Correctional Facility

ATTN: Ed Cummings, M3666 Walnut StreetEaston, PA 18042

For the record, the Warden at this facility is:

Terrence O'Connelvoice: 610.559.4228fax: 610.252.4082

More Info: The Latest

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BERNIE S. Picture

To E-Mail [email protected]

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Snail MailNorthampton CountyCorrectional Facility


Those ResponsibleThese are the people responsiblefor keeping Ed Cummings imprisoned.

Bucks County Correctional Facility

❍ phone: 215.325.3700 ❍ fax: 215.345.3940

Address 1730 South Easton Road Doylestown, PADirector: Mr. Nesbitt (warden equivalent)Chief: John Henderson(had Cummings thrown into maximum security for receiving a fax from a reporter - later told Cummings he had "no right" to speak to the press)

Lehigh County Prison

❍ phone: 610.820.3270

Address 38 North Fourth Street Allentown, PA 18103 Warden: Ed Sweeney

❍ phone: 610.820.3133 ❍ fax: 610.820.3450

Haverford Township Police Department

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John Morris

❍ phone: 610.853.2400 ❍ fax: 610.853.1706

(original arresting officer who believed Cummings was involved in a drug deal because he was observed selling electronic components to a vehicle occupied by African Americans)

Northampton County Probation Department

Scott Hoke (parole officer)

❍ phone: 610.559.7211 ❍ fax: 610.559.7218

(as Cummings' parole officer for a minor infraction years earlier, Hoke had told Cummings that parole was a waste of time for such a trivial offense. However, after being interviewed by the Secret Service, Hoke did an about face and began referring to Cummings as a very dangerous criminal who needed to be in prison for a long time.)

Harrisburg Parole Office

Ralph Bigley -

❍ Phone: 717.787.2563 ❍ Fax: 717.772.3534

Mr. Bigelow

phone: 717.787.5699



Northampton County Courthouse

❍ (main) 610.559.3000

Judge Panella

❍ phone: 610.515.0830 ❍ fax:610.515.0832

US District Court, Philadelphia

(main) 215.597.2995Address 601 Market Street Philadelphia, PA 19106

❍ Judge Marjorie Rendell phone:215.597.3015 fax:215.580.2393 ❍ Judge Jay C. Waldman phone:215.597.9644 fax:215.580.2155 ❍ Judge Charles B. Smith phone:215.597.0421 fax:215.597.6125

Assistant U.S. Attorney

Anne Whatley Chain, Esq.phone: 215.451.5282 Address 615 Chestnut Street Suite 1250 Philadelphia, PA 19106

U.S. Secret Service Special Agent Thomas L. Varney, Room 7236Federal Building 600 Arch Street Philadelphia, PA 19106

❍ main 215.597.0600 ❍ fax 215.597.2435

(Varney was the key factor in having Ed Cummings imprisoned since March of 1995. It was he who convinced Det. John Morris that Cummings' possession of electronic components and certain books and magazines made him a danger to society. His testimony stands out in its incredible assessment of Cummings as nothing short of a terrorist



and his ability, as a representative of one of the nation's most powerful agencies, to convince others in law enforcement that Cummings belongs in prison with the most dangerous and most violent of criminals.)

More information on this case can be found on the following web site: http://www.2600.com.

the complete story....select here.



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Those With the Power to changeEvery one of these people has the power to do something. Please contact them and convince them to take an interest!

Pennsylvania Elected Officials

Governor: Tom Ridge (717) [email protected]

Senator: Arlen Specter (R) (202) [email protected]

Senator: Rick Santorum (R) (202) [email protected]

Representatives:

1st District Thomas Foglietta (D) (202) 225-4731

2nd District Chaka Fattah (D) (202) 225-4001

3rd District Robert Borski (D) (202) 225-8251

4th District Ron Klink (D) (202) 225-2565

5th District William Clinger (R) (202) 225-5121

6th District Tim Holden (D) (202) 225-5546

7th District Curt Weldon (R) (202) 225-2011 [email protected]

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8th District James Greenwood (R) (202) 225-4276

9th District Bud Shuster (R) (202) 225-2431

10th DistrictJoseph McDade (R) (202) 225-3731

11th District Paul Kanjorski (D) (202) [email protected]

12th District John Murtha (D) (202) [email protected]

13th District Jon Fox (R) (202) [email protected]

14th District William Coyne (D) (202) 225-2301

15th District Paul McHale (D) (202) [email protected]

16th District Robert Walker (R) (202) [email protected]

17th District George Gekas (R) (202) 225-4315

18th District Mike Doyle (D) (202) 225-2135

19th District Bill Goodling (R) (202) 225-5836

20th District Frank Mascara (D) (202) 225-4665

21st District Phil English (R) (202) 225-5406





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The Ed Cummings/ BernieS Archive

❍ [ sept 12th 1996 ].......Ed has still not been given any painkillers

❍ [ sept 11th 1996 ].......Ed's Uncle pays a visit and much more

❍ [ sept 9th 1996 11:10AM ]....The Doctor and the dialogue

❍ [ sept 9th 1996 ].......The latest update is pretty depressing.

❍ [ sept 4th 1996 ].......We received a rather upbeat call from Ed

❍ [ sept 4th 1996 ].......Still feeling pretty lousy.

❍ [ sept 2th 1996 ].......Press Release

. . . . . . . . .




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Press ReleaseComputer Hacker Severely Beaten after Criticizing Prison ConditionsTarget of Campaign by U.S. Secret Service

A convicted hacker, in prison for nothing more than possession of electronic parts easily obtainable at any Radio Shack, has been savagely beaten after being transferred to a maximum security prison as punishment for speaking out publicly about prison conditions. Ed Cummings, recently published in Wired and Internet Underground, as well as a correspondent for WBAI-FM in New York and 2600 Magazine, has been the focus of an increasingly ugly campaign of harrassment and terror from the authorities. At the time of this writing, Cummings is locked in the infectious diseases ward at Lehigh County prison in Allentown, Pennsylvania, unable to obtain the proper medical treatment for the severe injuries he has suffered.

The Ed Cummings case has been widely publicized in the computer hacker community over the past 18 months. In March of 1995, in what can only be described as a bizarre application of justice, Cummings (whose pen name is "Bernie S.") was targetted and imprisoned by the United States Secret Service for mere possession of technology that could be used to make free phone calls. Although the prosecution agreed there was no unauthorized access, no victims, no fraud, and no costs associated with the case, Cummings was imprisoned under a little known attachment to the Digital Telephony bill allowing individuals to be charged in this fashion. Cummings was portrayed by the Secret Service as a potential terrorist because of some of the books found in his library.

A year and a half later, Cummings is still in prison, despite the fact that he became eligible for parole three months ago. But things have now taken a sudden violent turn for the worse. As apparent retribution for Cummings' continued outspokenness against the daily harrassment and numerous injustices that he has faced, he was transferred on Friday to Lehigh County Prison, a dangerous maximum security facility. Being

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placed in this facility was in direct opposition to his sentencing order. The reason given by the prison: "protective custody".

A day later, Cummings was nearly killed by a dangerous inmate for not getting off the phone fast enough. By the time the prison guards stopped the attack, Cummings had been kicked in the face so many times that he lost his front teeth and had his jaw shattered. His arm, which he tried to use to shield his face, was also severely injured. It is expected that his mouth will be wired shut for up to three months. Effectively, Cummings has now been silenced at last.

From the start of this ordeal, Cummings has always maintained his composure and confidence that one day the injustice of his imprisonment will be realized. He was a weekly contributor to a radio talk show in New York where he not only updated listeners on his experiences, but answered their questions about technology. People from as far away as Bosnia and China wrote to him, having heard about his story over the Internet.

Now we are left to piece these events together and to find those responsible for what are now criminal actions against him. We are demanding answers to these questions: Why was Cummings transferred for no apparent reason from a minimum security facility to a very dangerous prison? Why has he been removed from the hospital immediately after surgery and placed in the infectious diseases ward of the very same prison, receiving barely any desperately needed medical attention? Why was virtually every moment of Cummings' prison stay a continuous episode of harrassment, where he was severely punished for such crimes as receiving a fax (without his knowledge) or having too much reading material? Why did the Secret Service do everything in their power to ruin Ed Cummings' life?

Had these events occurred elsewhere in the world, we would be quick to condemn them as barbaric and obscene. The fact that such things are taking place in our own back yards should not blind us to the fact that they are just as unacceptable.

Lehigh County Prison will be the site of several protest actions as will the Philadelphia office of the United States Secret Service. For more information on this, email [email protected] or call our office at (516) 751-2600.








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FOR IMMEDIATE RELEASEComputer Hacker Severely Beatenafter Criticizing Prison ConditionsTarget of Campaign by U.S. Secret Service

At around 10AM Wednesday September 4th, we received a rather upbeat call from Ed. He's still feeling pretty lousy, but he did speak to his lawyer. Ken (lawyer) called Judge Panella in Northampton County and also Dan Pollanski, the District Attorney. They both agreed that there was no valid reason for Ed to have been transferred to Lehigh County maximum facility and that a transfer to a minimum security facility with good medical services should be They also concurred that Ed should not be sent back to Bucks County due to the administrative treatment he received there.




So, we were feeling fairly upbeat about the whole situation... At 12:30, Ed phoned from yet another prison phone system (TeleLink). He was

http://www.2600.com/law/index0902.html (1 of 4)4/17/2006 2:16:46 AM




transferred back to Northampton County Prison. As most of you will remember, this prison was built in the 1800s and has horrible conditions including roaches and rats.




We have no assurance that they will allow him to receive the package we're sending today which includes these items. We tried getting a copy of his medical release instructions to send along with the package, but the hospital requires Ed to sign a release form before they'll provide the instructions to anyone but Ed. The prison system, including medical facilities, seem to feel no compulsion to follow the medical orders. Lehigh didn't provide him with liquified food and didn't have a mortar/pestle to grind up his medication and vitamins. Ed doesn't hold much hope that the Northampton County facilities will be any better. He also



hasn't had any ice on his incisions since last night (more than 12 hours ago). If his arm swells under the cast, his circulation could be cut off.


If anyone can send him a money order for $10 or $15, that would also help - he could then purchase soap, shampoo, paper, pen and stamps at the comissary. He's now at:Northampton County Correctional Facility








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At around 10AM Wednesday September 4th, we received a rather upbeat call from Ed. He's still feeling pretty lousy, but he did speak to his lawyer. Ken (lawyer) called Judge Panella in Northampton County and also Dan Pollanski, the District Attorney. They both agreed that there was no valid reason for Ed to have been transferred to Lehigh County maximum facility and that a transfer to a minimum security facility with good medical services should be They also concurred that Ed should not be sent back to Bucks County due to the administrative treatment he received there.




So, we were feeling fairly upbeat about the whole situation... At 12:30, Ed phoned from yet another prison phone system (TeleLink). He was transferred back to Northampton County Prison. As most of you will remember, this prison was built in the 1800s and has horrible





conditions including roaches and rats.




We have no assurance that they will allow him to receive the package we're sending today which includes these items. We tried getting a copy of his medical release instructions to send along with the package, but the hospital requires Ed to sign a release form before they'll provide the instructions to anyone but Ed. The prison system, including medical facilities, seem to feel no compulsion to follow the medical orders. Lehigh didn't provide him with liquified food and didn't have a mortar/pestle to grind up his medication and vitamins. Ed doesn't hold much hope that the Northampton County facilities will be any better. He also hasn't had any ice on his incisions since last night (more than 12 hours ago). If his arm swells under the cast, his circulation could be cut off.




If anyone can send him a money order for $10 or $15, that would also help - he could then purchase soap, shampoo, paper, pen and stamps at the comissary. He's now at:Northampton County Correctional Facility








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[ Mon, 9 Sep 1996 ]

The latest update is pretty depressing. Ed's lawyer has been very hard to get ahold of - Judge Panella has rescinded his offer to revisit Ed's sentence. The best offer they're holding out now is a consideration (!) to grant Ed work release status. This would mean that he could leave prison during the day to go to work (and return to prison at night). Of course, how many jobs can you do with your jaw wired shut and one arm in a cast? He can't type - his lawyer has offered to call some lawyer friends in Easton to get Ed a 'job' in their office (just so he can get out during the day). What he really needs is to be resting and recovering in BED somewhere OUTSIDE the prison system.

Note that the very same judge has already granted Ed this status (and rescinded it once in-between during the fax-crime maximum jail penalty period) while at Bucks. Ironically, Judge Panella's second order for work release at Bucks was sent to them on the very same day that Ed was transferred to Lehigh.

We called the health provider (CHS) at the prison to find out the last name and direct phone number of a Barbara person who was helpful to Ed on Thursday night, only to be told that she now no longer works at that facility. We then called their corporate offices who didn't (of course) know about this problem. They did seem very interested in keeping the story out of the press.

We also spoke to Ed's nurse at the (real) hospital, Pat. She couldn't give any further details on his nutritional requirements, but said that he should have been taken for his follow up visits to the surgeons already. Pat added that all of the visit and medical information had been given to Ed on his discharge from the hospital. Of course he was not allowed

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to retain this information.

Ed has asked us to phone the surgeons Monday morning to confirm that he is scheduled to meet with them. He also asked us to relate this info to his uncle, to try to get his uncle to witness the meetings with the surgeons (and of course with prison guard present) so that it is duly noted that he hasn't been receiving proper medical attention.

On a positive note, he _has_ been getting his antibiotics fairly regularly since late on Thursday. Still no pain relievers though...he has to argue with them to even get regular Tylenol! And he did finally receive all of his legal papers from Lehigh County; they finally found his 20+ folders (although they had all been sorted through, which Ed believes is illegal).

Ed met with the doctor at the prison, a Dr. Wood, on Friday. The doctor asked him what was bothering him and would not let Ed consult his notes about missed medications and nutritional concerns. He merely wanted Ed to describe what was wrong with him (as though this 'illness' he had were something new). When Ed informed him from memory that he'd had no antibiotics for 32 hours, no ice for about 20 hours, and no pain relievers as prescribed, the good Dr. did not care. Ed also mentioned that no one had taken his temperature, blood pressure, or pulse since he'd been at Dr. Wolf's facility. Ed also expressed concern that the medical orders from his surgeons were not being followed, to which Wolf replied "Those orders are irrelevant. You are under my care now." When Ed again tried to get the guy to admit that there might be some problem with a person who had just had surgery not getting the required antibiotics and pain killers, the doctor walked out of the room.

As an aside, the hospital staff had very carefully made sure that the Lehigh County Prison guards were given a special set of wire cutters in case Ed choked or vomited. They gave special instruction to the guards, noting that Ed could easily choke to death with his jaw wired shut. Ed has pointed out that in his 'medical isolation cell', it took his next-door-cell-mate whistling under the door to the ward to get a guard's attention. Ed's own version of yelling (through his wires) was not loud enough to attract their attention. The guards only pass through the area about once an hour. It's pretty easy to see that this is not a very safe condition. Ed could die if he chokes on anything. Ed is _not at all_ certain that the instructions OR the wire cutters got transferred to the Northampton County Prison. Furthermore, with NCCF's blatant



disregard for any other medical orders Ed is under, it is unlikely that they would have paid attention to this instruction even if they DO have it. (The staff at Lehigh County Prison couldn't find Ed's medical orders when he was transferred to Northampton and promised to fax them to NCCF).

Both Dr. Wood and a Debra Tombocz, the kind prison hospital administrator who blew smoke in Ed's face as she interviewed him, told Ed's lawyer that he was receiving adequate care but was an annoying patient. We suppose he is, if you consider asking for your medication as prescribed to be _annoying_.





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Dr. Wood just saw Ed again. [ 9.09.96 11:10AM ]

Ed: Have you consulted with either of my 2 surgeons yet? Dr. Wood: NO (Both of the surgeons told Ed the day after the operation that they wanted to see him in their offices within a week.) Dr. Wood: We're in a different jurisdiction. We can't let you visit these surgeons. (They want him to see a prison dentist and prison orthopedist INSTEAD of the maxillo-facial and orthopedic surgeons who operated on him.) Dr. Wood: Open your mouth wide - I need to look down your throat. (takes out tongue depressor) Ed: You're not going to be able to do that. Dr. Wood: Are you refusing to let me look at your throat? Ed: No, my jaw is wired shut. I guess you didn't notice? Dr. Wood: Oh. Ed: Have you further considered the amount of pain i'm in or the pain medication I was prescribed? Dr. Wood: NO. Ed: Is that a medical decision or security? Dr. Wood: You seem to understand simple things - this is simple, it's MY decision. Ed: Is that medical or security. Dr. Wood: Medical. Ed: Have you even consulted with my surgeons? Dr. Wood: No, and I do not have to. (Then Wood walked out.) Note well that NO vitals signs have EVER been taken at Northampton County Prison, no bp, no temp, no pulse.

Dr. Wood originally changed medication orders without seeing or talking to Ed, and persists in making decisions without consulting Ed's surgeons. He refuses to allow Ed the prescribed painkillers and visits





with his surgeons.

When Ed arrived at Northampton County, he advised them that the surgeons wanted to see him within a week. It wasn't until TODAY that NCP asked him to sign a medical release consent form. We can only imagine that they won't get his xrays and other medical records from the hospital for at least another week. What the dentist at NCP will be able to accomplish without this info is a mystery.

The bottom line: Ed's chin is not just numb, he can't move his entire lower jaw from below his lip down through his neck.

Ed's uncle who lives in Pennsylvania was able to intervene today and get Ed to be taken from the prison for his follow-up visit to the maxillo-facial surgeon. The visit was to happen TODAY at 1:30 pm.

His uncle attended this visit as a witness (so that prison officials cannot just ignore the surgeon's orders). This is really critical, as the whole of Ed's face below his bottom lip has been numb/dead for several days.

We'll get an update on this around 7:00 pm.





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MEDICAL [ Sept, 11 1996 ]. . . . . . . . . Ed's uncle was a bit late attending the facial surgeon visit yesterday. Although the visit was successful, and Ed had the 26 stitches in his neck removed, there was a skirmish. Ed's uncle, Ben Howells, brought a camera to take photographs of Ed's face. Apparently _no_ investigation has been done as of yet regarding the assault on Ed last weekend. Deputy Ward (a sheriff's deputy) and a Northampton County prison officer transporting Ed to the visit were none too happy about Mr. Howells' attendance of the visit.

They asked him to leave but he did not, saying that he believed the doctor's office was a public place.

Mr. Howells then followed Ed and the officers out to the parking lot. He began taking photgraphs as Ed was being handcuffed and shackled for his return to prison. Deputy Ward, a 300lb.+ guy, jumped Mr. Howells and took the camera from him. We should point out that Mr. Howells is a retired politician, about 5'10 and slim build, aged 65+. There was apparently much shouting, after which Mr. Howells received his camera back.

Mr. Howells returned to Dr. Elstein's office and spoke with him for about 30 minutes. Dr. Elstein has clearly stated that he will assure that Ed receives his next follow up visit (in 2 weeks). He also agreed to contact Dr. Wood at the prison to attempt to assure that Ed received adequate antibiotics and pain medication.

During Ed's transport back to prison, Deputy Ward and the guard insisted that the appearance of Ed's uncle during the office visit was a security violation - that anyone could have appeared at the visit with





guns, etc. to shoot at them. Ed pointed out to them that in fact it was his uncle who arranged the visit - there had been no leak of information out to him. They insisted that it was still a security breach and that Ed would have no further medical visits outside the prison.

Their promise seems to have held true - Ed was supposed to have a visit to his other surgeon, Dr. Jaeger, to have his arm evaluated and the surgical staples removed, TODAY at 8AM. This visit did not take place. It has been 10 days since the surgery and the staples should be removed to prevent undue scarring.

LEGAL. . . . . . . . . Ed has been denied his legal right to use the NCCF law library, supposedly because he is under medical observation. We have made some headway in contacting the ACLU. We told them only that a friend in prison was not receiving adequate medical care after surgery. They promptly referred us to the Pennsylvania Prison Society, who is sending their representive (Richard Altimos) to visit Ed, probably today.

POLITICAL. . . . . . . . . We had phoned the Northampton County Executive's office yesterday to find out how to legally hold a demonstration in their county (as posted yesterday evening). We were filled in by the Executive's secretary, Annette, as to the details.

This morning we received a call from the Executive himself, a Mr. Frank Bilotta. He was very helpful and listened carefully to the detailed story about Ed's situation.

We have sent him a fax containing all the details. He mentioned to us that he was aware of Ed's transfer to Northampton County when it occurred last week. We have asked him to look into various aspects of Ed's situation including medical care, pain medication, visitation privileges, law library usage, and parole status. He has assured us he will do so and get back to us.

MEDIA. . . . . . . . . Ed received a FedEx package today from Declan McCullagh and



Brock Meeks in their Wired reporter guise. You also may recognize their names from other good organizations they are involved with. They are asking Ed to call them and arrange a visit to interview him.

Ed assures me that PA state law requires state and county prisons to provide media access to inmates unless the prison feels that this type of access would endanger the security conditions at the facility. "Professional Visits" from lawyers and journalists are supposedly allowed at any time. Declan is going to follow up on this and attempt to do the interview within the next few days.





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MEDICAL [ Sept 12, 1996 AM ]. . . . . . . . . No further details yet available to regarding Ed's visit to the orthopedist, Dr. Jaeger. We're valiantly trying to find this doctor and get the visit rescheduled...

Ed has still not been given any painkillers other than regular Tylenol. Tuesday night, for the *first* time, they offered him something to help him sleep. It worked nicely, alhtough whatever it is, they have to grind it up and put it in warm water for him to drink through his teeth...and it tastes pretty nasty.

During the day on Wednesday, they didn't give Ed his fourth can of Ensure (dinner). We saw him at about 7:45 and he was hungry but glad for the visit. Today, they've started giving him Sustecal (instead of Ensure). If anyone has the nutritional details on this product, please let us know. So far, Ed hasn't been able to look at the can.

The visit Wednesday night lasted until about 9PM. After they strip searched Ed and returned him to his cell (they do this to all prisoners after they have visitors), he had missed his opportunity to receive his 10PM Tylenol. He asked for his sleeping medicine shortly after 10 and was given something. He noticed that the taste was different and that there were pieces of brown coating in the mixture, which was not true the night before. Whatever medication they'd given him Tuesday night put him to sleep within about 20 minutes. The stuff they gave him at 10PM didn't work at all. He waited about 2 hours and then finally asked the nurse to check what medication he'd been given.

The nurse checked - nothing had been written on his chart. She then





gave him the proper medication which helped him sleep. Ed saved the cup from the mystery medication for possible analysis. He didn't seem to suffer any ill effects from the unknown dosage, fortunately...

During the visit, we expected Ed to look pretty gruesome. The pain he's in is obvious in his eyes, and the swelling of most of his face is severe. The scars he'll have are under his jawline on each side of his face and they seem to be healing fairly well. Ed said his surgeon, Dr. Elstein, was really good.

For those of you who asked about Ed's missing teeth, we have good news. He wasn't given back his missing teeth because NONE FELL OUT. The surgeon told Ed that he had very strong teeth and that they probably prevented even more damage from occurring. What Ed *thought* was a hole from missing teeth, through which he could stick his tongue (prior to surgery), was in fact one of the severe breaks in his jaw protruding between his teeth.

LEGAL. . . . . . . . . Ed spoke to his lawyer today - Ken is following up on his letter of last week asking the judge to revisit the sentence. We hope to hear more later today, although we no longer expect to hear from Ken directly. He doesn't think media attention is the right way to go on this case.

Ed disagrees on this... which is why you're all listening to these details! There may have been a time for caution, but that time has long passed. Some people may think that Ed should not have filed the appeal or the grievance and just sat quietly in jail, even for the potential extra nine months. Ed insists that he will not sit still for injustice. Even after all that has happened, he _still_ feels this way.

POLITICAL. . . . . . . . . Apparently our call to the Northampton County Executive, Mr. Frank Bilotta, was useful.

When we arrived at the jail last night, there was a handwritten note at the guard's desk, giving authorization for three adults to visit Mr. Cummings. It said that the guard was to review our ID carefully and to permit us the extra 30 minute visit courtesy extended to visitors from over 15 miles away if we were entitled to it. The note also told the



guard to radio to the guard supervisor when we arrived. We were treated almost like VIPs (well, at least as far as prison standards go).

Ed's uncle did not join us for the visit. If you had been jumped by a guard from that prison just the day before, you might have stayed away too.

Mr. Bilotta also seems to have facilitated Ed's receipt of the correct forms to file criminal charges against the guy who beat him up. Ed was woken up this morning by the Deputy Warden (Richard Zettlemoyer). Mr. Zettlemoyer gave him the forms and was polite. Ed sleepily realized that he only had a 3" bowling-scoring-type pencil (given to him by the prison) and would probably need to fill out the forms in ink. He asked Mr. Zettlemoyer for a pen and was given one. (It doesn't sound like much to those of us with access to office products, but prisons do NOT give out this kind of stuff. You're supposed to buy it from the commissary. Ed still doesn't have any money, and we of course were not allowed to give him any. He must receive money orders via mail to the prison.) Providing the pen seemed like a TRUE benevolent act to Ed.

MEDIA. . . . . . . . . Ed has spoken to Declan McCullough and Brock Meeks at length. They are still planning to visit and interview him, although they've been told that they don't qualify for 'professional' visitation.

Media interest in Ed's case has been luke warm, to put it nicely.

PHONE USAGE [ 9/12/96 PM ] . . . . . . . . . Supervisor Terley, one of the guards who was joking with us during the visit last night, informed Ed this afternoon that he was only allowed 15 minutes of phone usage daily. Considering that Ed is without a clock, a window, a TV, a radio, and barely any reading material, limiting his phone usage is practically criminal. Ed asked the supervisor whether this was in the rulebook. Mr. Terley replied that it is. Ed then consulted the NCCF rulebook. The 15 minute daily phone limitation _is_ in the rulebook for inmates under DISCIPLINARY observation/lockdown. Ed is under MEDICAL observation and should not be subjected to this rule. Ed also noted that the rulebook specifies a penalty of 3 days with _no_ phone usage if an inmate (subject to the rule) exceeds the time



limit. If his phone privileges are cut back or off, we can all imagine what that will do to the detail potential for these messages.



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Planned ProtestComputer Hacker Severely Beatenafter Criticizing Prison ConditionsTarget of Campaign by U.S. Secret Service

PROTEST UPDATE 9.10.96

We spoke to the Northamton County Executive's office today. We do *not* need to file for a permit to hold a peaceful demonstration. The county sheriff advises:

1. Please call him, the warden, and the county executive a day in advance so that they can set up appropriate additional security at their sites.

2. No megaphones allowed. 3. No blocking of pedestrian or vehicular traffic. 4. No violence.

They also advised us to phone the City of Easton to see if they have any specific rules or permits for demonstrations.

We are tentatively planning a protest for a week from Thursday (9/19) with a bus leaving from Long Island and picking people up in New York City. This would be occurring in the morning starting at around 9. What we need to know now is how many people will be committing. We won't be charging anyone for the trip but we'll take donations at some point. That way, cost won't be a factor for anyone. By scheduling it this far in advance, we'll have enough lead time for the word to get out and also allow people to get out of things like school and work. It's essential that we have this on a weekday since our visibility would be greatly reduced if we did this on a day the courthouse wasn't open.

We also need to know if people will be coming to this thing from other places. We've been getting lots of responses from all over but we need

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to translate this into actual numbers. If the numbers are big enough we may be able to get additional buses.

The plan at this point is to be at the courthouse/prison in Easton, PA where Ed is currently being held and where the sentencing was imposed. We'll post the exact address as the date gets closer. We are also planning to protest at other sites on that day such as the Secret Service headquarters in Philadelphia. If we decide to picket outside the homes of those involved, we won't be announcing that in advance. Having a bus or two of protestors show up outside your door unannounced is something you remember for the rest of your life. Announcing it in advance would spoil that special feeling. :)

The protest in Easton is scheduled to start at around 12 or 1. At this point, please email us at [email protected] to let us know if you can come or not. To join our mailing list, email [email protected] and enter as the first line of text (not the subject) the following:

SUBSCRIBE PROTEST-L USERNAME

where username is your email address. Once you have signed up you can send mail to the entire list by mailing to [email protected].




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2600 | Bernie S REAL Live w/ RealAudio


< Those responsible - Power to change - Archive - Protest - Off the

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REAL AUDIO @ 2600

RealAudio [ Sept, 13,1996 ]. . . . . . . . . A realaudio version of Off The Hook which contains the first news of the attack on Bernie and actually contains audio of Bernie talking to listeners even though his mouth is wired shut! Note: since we do not have a realaudio server, you can't listen to this file until you download the whole thing. Since it's about 7 megs, this could take some time if you have a slow connection.

Anyone who has access to a realaudio server is welcome to make this file available there. Please let us know and we would be happy to link to your site.

Off the Hook. 09.17.96 [ 7 megabytes ]

Off the Hook. 09.10.96 [ 6.5 megabytes ]

Bernie S. 09.03.96 [ 7 megabytes ]



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2600 | Bernie S REAL Live w/ RealAudio


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Those responsible - Power to change - Archive - Protest - Ed Speaks

As of Friday, September 13th,1996 Bernie S. was released from prison on an unprecedented furlough. He will have to report to probation and he still has major medical problems as a result of his extended tour of the Pennsylvania prison system. But the important thing is that he is out and that this horrible ordeal has finally begun to end.

We thank all of you who took an interest in this case. We believe it was your support and the pressure you put on the authorities that finally made things change. Thanks again and never forget the power you have.


Those responsible - Power to change - Archive - Protest - Ed Speaks

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Steve Jackson

The Secret Service kicked off the nineties with one of the most widely publicized and ultimately disastrous operations - attempting to shut down publisher Steve Jackson because one of his employees had links to the hacker world. It's hard to imagine what was going through the minds of the Secret Service as they seized a computer bulletin board with private mail belonging to hundreds of innocent people and took into custody a fictitious manuscript that they defined as "a handbook for computer crime". It took a while but people finally began to see the tremendous threat to civil liberties that the Secret Service was involved in. This, combined with Operation Sun Devil and the Craig Neidorf/Phrack trial, led to the formation of the Electronic Frontier Foundation - whose initial purpose was to fight such violations of freedom. In the end, Steve Jackson actually won a lawsuit against the Secret Service and a federal judge chastised them for their actions. In the mainstream press, however, there was little publicity of this important event. Regrettably, this was only the beginning for the Secret Service.

● Summary of the whole saga from Steve Jackson.

● An early report from 2600.

● The affidavit by the secret service that led to the raid.

● John Perry Barlow's article on the incident.

● Complaint against the secret service by Steve Jackson Games.

● Professor Laurence Tribe addresses the secret service issue.

● PRESS RELEASE - Steve Jackson wins lawsuit against Secret Service.

● Article from Boardwatch Magazine on the Steve Jackson

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Steve Jackson

case.

● Article from Cyberlaw on the Steve Jackson case.

● The decision in the Steve Jackson case against the Secret Service.

● The Secret Service appeals the verdict.

● Bruce Sterling updates The Hacker Crackdown after the verdict.

● Bruce Sterling speech to the High Technology Crime Investigation Association.

● The Top Ten Media Errors surrounding Steve Jackson and the Secret Service.

[email protected]

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2600 Magazine

[Steve Jackson Games:]

SJ Games vs. the Secret Service

On March 1 1990, the offices of Steve Jackson Games, in Austin, Texas, were raided by the U.S. Secret Service as part of a nationwide investigation of data piracy. The initial news stories simply reported that the Secret Service had raided a suspected ring of hackers. Gradually, the true story emerged.

More than three years later, a federal court awarded damages and attorneys' fees to the game company, ruling that the raid had been careless, illegal, and completely unjustified. Electronic civil-liberties advocates hailed the case as a landmark. It was the first step toward establishing that online speech IS speech, and entitled to Constitutional protection . . . and, specifically, that law-enforcement agents can't seize and hold a BBS with impunity.

The Raid

On the morning of March 1, without warning, a force of armed Secret Service agents - accompanied by Austin police and at least one civilian "expert" from the phone company - occupied the offices of Steve Jackson Games and began to search for computer equipment. The home of Loyd Blankenship, the writer of GURPS Cyberpunk, was also raided. A large amount of equipment was seized, including four computers, two laser printers, some loose hard disks and a great deal of assorted hardware. One of the computers was the one running the Illuminati BBS.

The only computers taken were those with GURPS Cyberpunk files; other systems were left in place. In their diligent search for evidence, the agents also cut off locks, forced open footlockers, tore up dozens of boxes in the warehouse, and bent two of the office letter openers attempting to pick the lock on a file cabinet.

The next day, accompanied by an attorney, Steve Jackson visited the Austin offices of the Secret Service. He had been promised that he could make copies of the company's files. As it turned out, he was only allowed to copy a few files, and only from one system. Still missing were all the current text files and hard copy for this book, as well as the files for the Illuminati BBS with their extensive playtest comments.

In the course of that visit, it became clear that the investigating agents considered GURPS Cyberpunk to be ``a handbook for computer crime.'' They seemed to make no distinction between a discussion of futuristic credit fraud, using equipment that doesn't exist, and modern real-life credit card abuse. A repeated comment by the agents was ``This is real.''

Over the next few weeks, the Secret Service repeatedly assured the SJ Games attorney that complete

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2600 Magazine

copies of the files would be returned ``tomorrow.'' But these promises weren't kept; the book was reconstructed from old backups, playtest copies, notes and memories.

On March 26, almost four weeks after the raid, some (but not all) of the files were returned. It was June 21, nearly four months later, when most (but not all) of the hardware was returned. The Secret Service kept one company hard disk, all Loyd's personal equipment and files, the printouts of GURPS Cyberpunk, and several other things.

The raid, and especially the confiscation of the game manuscript, caused a catastrophic interruption of the company's business. SJ Games very nearly closed its doors. It survived only by laying off half its employees, and it was years before it could be said to have "recovered."

Why was SJ Games raided? That was a mystery until October 21, 1990, when the company finally received a copy of the Secret Service warrant affidavit - at their request, it had been sealed. And the answer was . . . guilt by remote association.

While reality-checking the book, Loyd Blankenship corresponded with a variety of people, from computer security experts to self-confessed computer crackers. From his home, he ran a legal BBS which discussed the ``computer underground,'' and he knew many of its members. That was enough to put him on a federal List of Dangerous Hoodlums! The affidavit on which SJ Games were raided was unbelievably flimsy . . . Loyd Blankenship was suspect because he ran a technologically literate and politically irreverent BBS, because he wrote about hacking, and because he received and re-posted a copy of the /Phrack newsletter. The company was raided simply because Loyd worked there and used its (entirely different) BBS!

As for GURPS Cyberpunk, it had merely been a target of opportunity . . . something "suspicious" that the agents picked up at the scene. The Secret Service allowed SJ Games (and the public) to believe, for months, that the book had been the target of the raid.

The one bright spot in this whole affair was the creation of the Electronic Frontier Foundation. In mid-1990, Mitch Kapor, John Barlow and John Gilmore formed the EFF to address this and similar outrages. It's a nonprofit organization dedicated to preserving the Constitutional rights of computer users. (For more information, look at the EFF web site, or write them at 1001 G Street, N.W., Suite 950 East, Washington, DC 20001.) The EFF provided the financial backing that made it possible for SJ Games and four Illuminati users to file suit against the Secret Service.

Two active electronic-civil-liberties groups have also formed in Texas: EFF-Austin and Electronic Frontiers Houston.

And science fiction writer Bruce Sterling turned his hand to journalism and wrote The Hacker Crackdown about this and other cases where the law collided with technology. A few months after it was published in hardback, he released it to the Net, and you can read it online.


2600 Magazine

In early 1993, the case finally came to trial. SJ Games was represented by the Austin firm of George, Donaldson & Ford. The lead counsel was Pete Kennedy.

And we won. The judge gave the Secret Service a tongue-lashing and ruled for SJ Games on two out of the three counts, and awarded over $50,000 in damages, plus over $250,000 in attorney's fees. In October 1994, the Fifth Circuit turned down SJ Games' appeal of the last (interception) count . . . meaning that right now, in the Fifth Circuit, it is not "interception" of your e-mail messages when law enforcement officials walk out the door with the computer holding them.


2600 Magazine

A year ago, we told the stories of Kevin Mitnick and Herbert Zinn, two hackers who had been sent to prison. It was then, and still is today, a very disturbing chain of events: mischief makers and explorers imprisoned for playing with the wrong toys and for asking too many questions. We said at the time that it was important for all hackers to stand up to such gross injustices. After all, they couldn't lock us all up.

It now appears that such an endeavor may indeed be on the agendas of some very powerful U.S. governmental agencies. And even more frightening is the realization that these agencies don't particularly care who or what gets swept up along with the hackers, as long as all of the hackers get swept up. Apparently, we're considered even more of a threat than we had previously supposed.

In retrospect, this doesn't come as a great deal of a surprise. In fact, it now seems to make all too much sense. You no longer have to be paranoid or of a particular political mindset to point to the many parallels that we've all been witnesses to. Censorship, clampdowns, "voluntary" urine tests, lie detectors, handwriting analysis, surveillance cameras, exaggerated crises that invariably lead to curtailed freedoms.... All of this together with the overall view that if you're innocent, you've got nothing to hide. And all made so much more effective through the magic of high tech. Who would you target as the biggest potential roadblock if not the people who understand the technology at work? It appears the biggest threats to the system are those capable of manipulating it.

What we're about to tell you is frightening, plain and simple. You don't have to be a hacker to understand this. The words and ideas are easily translatable to any time and any culture.

Crackdown

"We can now expect a crackdown...I just hope that I can pull through this one and that my friends can also. This is the time to watch yourself. No matter what you are into.... Apparently the government has seen the last straw in their point of view.... I think they are going after all the 'teachers'...and so that is where their energies will be put: to stop all hackers, and stop people before they can become threats."

This was one of the reactions on a computer bulletin board to a series of raids on hackers, raids that had started in 1989 and spread rapidly into early 1990. Atlanta, St. Louis, and New York were major targets in what was then an undetermined investigation.

This in itself wouldn't have been especially alarming, since raids on hackers can almost be defined as commonplace. But this one was different. For the very first time, a hacker newsletter had also been shut down.

Phrack was an electronic newsletter published out of St. Louis and distributed worldwide. It dealt with hacker and phone phreak matters and could be found on nearly all hacker bulletin boards. While dealing with sensitive material, the editors were very careful not to publish anything illegal (credit card numbers, passwords, Sprint codes, etc.). We described "Phrack World News" (a regular column of Phrack) in our Summer 1989 edition as "a must-read for many hackers". In many ways Phrack resembled 2600, with

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the exception of being sent via electronic mail instead of U.S. Mail. That distinction would prove to be Phrack's undoing.

It now turns out that all incoming and outgoing electronic mail used by Phrack was being monitored by the authorities. Every piece of mail going in and every piece of mail coming out. These were not pirated mailboxes that were being used by a couple of hackers. These had been obtained legally through the school the two Phrack editors were attending. Privacy on such mailboxes, though not guaranteed, could always be assumed. Never again.

It's fairly obvious that none of this would have happened, none of this could have happened had Phrack been a non-electronic magazine. A printed magazine would not be intimidated into giving up its mailing list as Phrack was. Had a printed magazine been shut down in this fashion after having all of their mail opened and read, even the most thick-headed sensationalist media types would have caught on: hey, isn't that a violation of the First Amendment?

Those media people who understood what was happening and saw the implications were very quickly drowned out in the hysteria that followed. Indictments were being handed out. Publisher/editor Craig Neidorf, known in the hacker world as Knight Lightning, was hit with a seven count indictment accusing him of participating in a scheme to steal information about the enhanced 911 system run by Bell South. Quickly, headlines screamed that hackers had broken into the 911 system and were interfering with emergency telephone calls to the police. One newspaper report said there were no indications that anyone had died or been injured as a result of the intrusions. What a relief. Too bad it wasn't true.

In actuality there have been very grievous injuries suffered as a result of these intrusions. The intrusions we're referring to are those of the government and the media. The injuries have been suffered by the defendants who will have great difficulty resuming normal lives even if all of this is forgotten tomorrow.

And if it's not forgotten, Craig Neidorf could go to jail for more than 30 years and be fined $122,000. And for what? Let's look at the indictment:

"It was... part of the scheme that defendant Neidorf, utilizing a computer at the University of Missouri in Columbia, Missouri would and did receive a copy of the stolen E911 text file from defendant [Robert J.] Riggs [located in Atlanta and known in the hacker world as Prophet] through the Lockport [Illinois] computer bulletin board system through the use of an interstate computer data network.

"It was further part of the scheme that defendant Neidorf would and did edit and retype the E911 Practice text file at the request of the defendant Riggs in order to conceal the source of the E911 Practice text file and to prepare it for publication in a computer hacker newsletter.

"It was further part of the scheme that defendant Neidorf would and did transfer the stolen E911 Practice text file through the use of an interstate computer bulletin board system used by defendant Riggs in Lockport, Illinois.


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"It was further part of the scheme that the defendants Riggs and Neidorf would publish information to other computer hackers which could be used to gain unauthorized access to emergency 911 computer systems in the United States and thereby disrupt or halt 911 service in portions of the United States."

Basically, Neidorf is being charged with receiving a stolen document. There is nothing anywhere in the indictment that even suggests he entered any computer illegally. So his crimes are receiving, editing, and transmitting.

Now what is contained in this document? Information about how to gain unauthorized access to, disrupt, or halt 911 service? Hardly. The document (erroneously referred to as "911 software" by the media which caused all kinds of misunderstandings) is quoted in Phrack Volume 2, Number 24 and makes for one of the dullest articles ever to appear in the newsletter. According to the indictment, the value of this 20k document is $79,449.

Shortly after the indictments were handed down, a member of the Legion of Doom known as Erik Bloodaxe issued a public statement. "[A group of three hackers] ended up pulling files off [a Southern Bell system] for them to look at. This is usually standard procedure: you get on a system, look around for interesting text, buffer it, and maybe print it out for posterity. No member of LOD has ever (to my knowledge) broken into another system and used any information gained from it for personal gain of any kind...with the exception of maybe a big boost in his reputation around the underground. [A hacker] took the documentation to the system and wrote a file about it. There are actually two files, one is an overview, the other is a glossary. The information is hardly something anyone could possibly gain anything from except knowledge about how a certain aspect of the telephone company works."

He went on to say that Neidorf would have had no way of knowing whether or not the file contained proprietary information.

Prosecutors refused to say how hackers could benefit from the information, nor would they cite a motive or reveal any actual damage. In addition, it's widely speculated that much of this information is readily available as reference material.

In all of the indictments, the Legion of Doom is defined as "a closely knit group of computer hackers involved in: a) disrupting telecommunications by entering computerized telephone switches and changing the routing on the circuits of the computerized switches; b) stealing proprietary computer source code and information from companies and individuals that owned the code and information; c) stealing and modifying credit information on individuals maintained in credit bureau computers; d) fraudulently obtaining money and property from companies by altering the computerized information used by the companies; e) disseminating information with respect to their methods of attacking computers to other computer hackers in an effort to avoid the focus of law enforcement agencies and telecommunication security experts."


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Ironically, since the Legion of Doom isn't a closely knit group, it's unlikely that anyone will be able to defend the group's name against these charges - any defendants will naturally be preoccupied with their own defenses. (Incidentally, Neidorf was not a part of the Legion of Doom, nor was Phrack a publication of LOD, as has been reported.)

The Hunt Intensifies

After learning of the Phrack electronic mail surveillance, one of the system operators of The Phoenix Project, a computer bulletin board in Austin, Texas, decided to take action to protect the privacy of his users. "I will be adding a secure encryption routine into the e-mail in the next 2 weeks - I haven't decided exactly how to implement it, but it'll let two people exchange mail encrypted by a password only known to the two of them.... Anyway, I do not think I am due to be busted...I don't do anything but run a board. Still, there is that possibility. I assume that my lines are all tapped until proven otherwise. There is some question to the wisdom of leaving the board up at all, but I have personally phoned several government investigators and invited them to join us here on the board. If I begin to feel that the board is putting me in any kind of danger, I'll pull it down with no notice - I hope everyone understands. It looks like it's sweeps-time again for the feds. Let's hope all of us are still around in 6 months to talk about it."

The new security was never implemented. The Phoenix Project was seized within days.

And the clampdown intensified still further. On March 1, the offices of Steve Jackson Games, a publishing company in Austin, were raided by the Secret Service. According to the Associated Press, the home of the managing editor was also searched. The police and Secret Service seized books, manuals, computers, technical equipment, and other documents. Agents also seized the final draft of a science fiction game written by the company. According to the Austin American-Statesman, the authorities were trying to determine whether the game was being used as a handbook for computer crime.

Callers to the Illuminati bulletin board (run by Steve Jackson Games), received the following message:

"Before the start of work on March 1, Steve Jackson Games was visited by agents of the United States Secret Service. They searched the building thoroughly, tore open several boxes in the warehouse, broke a few locks, and damaged a couple of filing cabinets (which we would gladly have let them examine, had they let us into the building), answered the phone discourteously at best, and confiscated some computer equipment, including the computer that the BBS was running on at the time.

"So far we have not received a clear explanation of what the Secret Service was looking for, what they expected to find, or much of anything else. We are fairly certain that Steve Jackson Games is not the target of whatever investigation is being conducted; in any case, we have done nothing illegal and have nothing whatsoever to hide. However, the equipment that was seized is apparently considered to be evidence in whatever they're investigating, so we aren't likely to get it back any time soon. It could be a month, it could be never.


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"To minimize the possibility that this system will be confiscated as well, we have set it up to display this bulletin, and that's all. There is no message base at present. We apologize for the inconvenience, and we wish we dared do more than this."

Apparently, one of the system operators of The Phoenix Project was also affiliated with Steve Jackson Games. And that was all the authorities needed.

Raids continued throughout the country with reports of more than a dozen bulletin boards being shut down. In Atlanta, the papers reported that three local LOD hackers faced 40 years in prison and a $2 million fine.

Another statement from a Legion of Doom member (The Mentor, also a system operator of The Phoenix Project) attempted to explain the situation:

"LOD was formed to bring together the best minds from the computer underground - not to do any damage or for personal profit, but to share experiences and discuss computing. The group has always maintained the highest ethical standards.... On many occasions, we have acted to prevent abuse of systems.... I have known the people involved in this 911 case for many years, and there was absolutely no intent to interfere with or molest the 911 system in any manner. While we have occasionally entered a computer that we weren't supposed to be in, it is grounds for expulsion from the group and social ostracism to do any damage to a system or to attempt to commit fraud for personal profit.

"The biggest crime that has been committed is that of curiosity.... We have been instrumental in closing many security holes in the past, and had hoped to continue to do so in the future. The list of computer security people who count us as allies is long, but must remain anonymous. If any of them choose to identify themselves, we would appreciate the support."

And The Plot Thickens

Meanwhile, in Lockport, Illinois, a strange tale was unfolding. The public UNIX system known as Jolnet that had been used to transmit the 911 files had also been seized. What's particularly odd here is that, according to the electronic newsletter Telecom Digest, the system operator, Rich Andrews, had been cooperating with federal authorities for over a year. Andrews found the files on his system nearly two years ago, forwarded them to AT&T, and was subsequently contacted by the authorities. He cooperated fully. Why, then, was his system seized as well? Andrews claimed it was all part of the investigation, but added, "One way to get [hackers] is by shutting down the sites they use to distribute stuff."

The Jolnet raid caused outrage in the bulletin board world, particularly among administrators and users of public UNIX systems.

Cliff Figallo, system administrator for The Well, a public UNIX system in California, voiced his


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concern. "The assumption that federal agents can seize a system owner's equipment as evidence in spite of the owner's lack of proven involvement in the alleged illegal activities (and regardless of the possibility that the system is part of the owner's livelihood) is scary to me and should be to anyone responsible for running a system such as this."

Here is a sampling of some of the comments seen around the country after the Jolnet seizure:

"As administrator for Zygot, should I start reading my users' mail to make sure they aren't saying anything naughty? Should I snoop through all the files to make sure everyone is being good? This whole affair is rather chilling."

"From what I have noted with respect to Jolnet, there was a serious crime committed there - by the [federal authorities]. If they busted a system with email on it, the Electronic Communication Privacy Act comes into play. Everyone who had email dated less than 180 days old on the system is entitled to sue each of the people involved in the seizure for at least $1,000 plus legal fees and court costs. Unless, of course, the [authorities] did it by the book, and got warrants to interfere with the email of all who had accounts on the systems. If they did, there are strict limits on how long they have to inform the users."

"Intimidation, threats, disruption of work and school, "hit lists", and serious legal charges are all part of the tactics being used in this "witch-hunt". That ought to indicate that perhaps the use of pseudonyms wasn't such a bad idea after all."

"There are civil rights and civil liberties issues here that have yet to be addressed. And they probably won't even be raised so long as everyone acts on the assumption that all hackers are criminals and vandals and need to be squashed, at whatever cost...."

"I am disturbed, on principle, at the conduct of at least some of the federal investigations now going on. I know several people who've taken their systems out of public access just because they can't risk the seizure of their equipment (as evidence or for any other reason). If you're a Usenet site, you may receive megabytes of new data every day, but you have no common carrier protection in the event that someone puts illegal information onto the Net and thence into your system."

Increased Restrictions

But despite the outpourings of concern for what had happened, many system administrators and bulletin board operators felt compelled to tighten the control of their systems and to make free speech a little more difficult, for their own protection.

Bill Kuykendall, system administrator for The Point, a public UNIX system in Chicago, made the following announcement to the users of his system:

"Today, there is no law or precedent which affords me... the same legal rights that other common


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carriers have against prosecution should some other party (you) use my property (The Point) for illegal activities. That worries me....

"I fully intend to explore the legal questions raised here. In my opinion, the rights to free assembly and free speech would be threatened if the owners of public meeting places were charged with the responsibility of policing all conversations held in the hallways and lavatories of their facilities for references to illegal activities.

"Under such laws, all privately owned meeting places would be forced out of existence, and the right to meet and speak freely would vanish with them. The common sense of this reasoning has not yet been applied to electronic meeting places by the legislature. This issue must be forced, or electronic bulletin boards will cease to exist.

"In the meantime, I intend to continue to operate The Point with as little risk to myself as possible. Therefore, I am implementing a few new policies:

"No user will be allowed to post any message, public or private, until his name and address has been adequately verified. Most users in the metropolitan Chicago area have already been validated through the telephone number directory service provided by Illinois Bell. Those of you who received validation notices stating that your information had not been checked due to a lack of time on my part will now have to wait until I get time before being allowed to post.

"Out of state addresses cannot be validated in the manner above.... The short term solution for users outside the Chicago area is to find a system closer to home than The Point.

"Some of the planned enhancements to The Point are simply not going to happen until the legal issues are resolved. There will be no shell access and no file upload/download facility for now.

"My apologies to all who feel inconvenienced by these policies, but under the circumstances, I think your complaints would be most effective if made to your state and federal legislators. Please do so!"

These restrictions were echoed on other large systems, while a number of smaller hacker bulletin boards disappeared altogether. We've been told by some in the hacker world that this is only a phase, that the hacker boards will be back and that users will once again be able to speak without having their words and identities "registered". But there's also a nagging suspicion, the feeling that something is very different now. A publication has been shut down. Hundreds, if not thousands, of names have been seized from mailing lists and will, no doubt, be investigated. The facts in the 911 story have been twisted and misrepresented beyond recognition, thanks to ignorance and sensationalism. People and organizations that have had contact with any of the suspects are open to investigation themselves. And, around the country, computer operators and users are becoming more paranoid and less willing to allow free speech. In the face of all of this, the belief that democracy will triumph in the end seems hopelessly naive. Yet, it's something we dare not stop believing in. Mere faith in the system, however, is not


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enough.

We hope that someday we'll be able to laugh at the absurdities of today. But, for now, let's concentrate on the facts and make sure they stay in the forefront.

Were there break-ins involving the E911 system? If so, the entire story must be revealed. How did the hackers get in? What did they have access to? What could they have done? What did they actually do? Any security holes that were revealed should already have been closed. If there are more, why do they still exist? Could the original holes have been closed earlier and, if so, why weren't they? Any hacker who caused damage to the system should be held accountable. Period. Almost every hacker around seems to agree with this. So what is the problem? The glaring fact that there doesn't appear to have been any actual damage. Just the usual assortment of gaping security holes that never seem to get fixed. Shoddiness in design is something that shouldn't be overlooked in a system as important as E911. Yet that aspect of the case is being side-stepped. Putting the blame on the hackers for finding the flaws is another way of saying the flaws should remain undetected.

Under no circumstance should the Phrack newsletter or any of its editors be held as criminals for printing material leaked to them. Every publication of any value has had documents given to them that were not originally intended for public consumption. That's how news stories are made. Shutting down Phrack sends a very ominous message to publishers and editors across the nation.

Finally, the privacy of computer users must be respected by the government. It's ironic that hackers are portrayed as the ones who break into systems, read private mail, and screw up innocent people. Yet it's the federal authorities who seem to have carte blanche in that department. Just what did the Secret Service do on these computer systems? What did they gain access to? Whose mail did they read? And what allowed them to do this?

Take Exception

It's very easy to throw up your hands and say it's all too much. But the facts indicate to us that we've come face to face with a very critical moment in history. What comes out of this could be a trend-setting precedent, not only for computer users, but for the free press and every citizen of the United States. Complacency at this stage will be most detrimental.

We also realize that one of the quickest ways of losing credibility is to be shrill and conspiracy-minded. We hope we're not coming across in this way because we truly believe there is a significant threat here. If Phrack is successfully shut down and its editors sent to prison for writing an article, 2600 could easily be next. And so could scores of other publications whose existence ruffles some feathers. We cannot allow this to happen.

In the past, we've called for people to spread the word on various issues. More times than not, the results have been felt. Never has it been more important than now. To be silent at this stage is to accept a very


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grim and dark future.


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SECRET SERVICE SEARCH WARRANT AFFADAVIT

(COMPUTER UNDERGROUND DIGEST ISSUE 2.11)

This is the affidavit submitted by the Secret Service in order to get permission to raid the SJ Games offices on March First. Also included here is the relevant section of the Phoenix Project log - the material on which the Secret Service agent based his allegation of "conspiracy". [Note that the Secret Service did NOT append the actual log material to the affidavit the judge saw - but we're including it so YOU can see it. It's interesting that they chose to omit it. It's interesting that the magistrate granted the warrant anyway.]

The moderators of Computer Underground Digest re-typed all this material from a photocopy supplied by SJ Games. To acknowledge their effort, we are reproducing their issue 2.11 in the form they distributed it, complete with their editorial comments, rather than just publishing the affidavit itself.

Correspondence about CuD should go directly to its moderators.

**************************************************************************** C O M P U T E R U N D E R G R O U N D D I G E S T *** Volume 2, Issue #2.11 (November 13, 1990) ** *** SPECIAL ISSUE: SEARCH AFFIDAVIT FOR STEVE JACKSON GAMES *** ****************************************************************************

MODERATORS: Jim Thomas / Gordon Meyer ([email protected]) ARCHIVISTS: Bob Krause / Alex Smith / Brendan Kehoe USENET readers can currently receive CuD as alt.society.cu-digest.

COMPUTER UNDERGROUND DIGEST is an open forum dedicated to sharing information among computerists and to the presentation and debate of diverse views. CuD material may be reprinted as long as the source is cited. It is assumed that non-personal mail to the moderators may be reprinted, unless otherwise specified. Readers are encouraged to submit reasoned articles relating to the Computer Underground.

++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++DISCLAIMER: The views represented herein do not necessarily represent the views of the moderators. Contributors assume all responsibility for assuring that articles submitted do not violate copyright protections.++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

The application and affidavit for the search warrant for Steve Jackson Games (Case #A-90-54m), dated February 28, 1990, and signed by U.S. Magistrate Stephen H. Capelle in Austin Texas and Special Agent Timothy M. Foley of the U.S. Secret Service, has been released. The application alleges violations of Title 18 USC Sections 2314 and 1030 and was issued in the U.S. District Court (Western District of Texas).

We have retyped it, and there may be some typographical errors, but we have done our best to recreate it as is.

There are several features about the affidavit. First, the bulk of it is repititious and simply establishes the credentials

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of the investigators, summarizes basic terms, and provides general background that seems inconsequential in linking the persons to be searched to any substantive criminal activity. It should also be remembered that the "$79,449.00" document in question was shown to contain nothing of substance that is not available to the general public for under $14. Further, to our knowledge, there is no evidence, contrary to suggestions, that E911 software was obtained.

Most troublesome is the interpretation given to attached logs from The Phoenix Project that creates a conspiratorial scenario from a few ambiguous messages. While imaginative use of narrative is admirable in fiction, its use as a weapon of power is dangerous. At root, Steve Jackson Games was raided because an employee ran a BBS that made available, as did perhaps thousands of others BBSs nationwide, Phrack. The employee was also accused of being part of a "fraud scheme" because he had the temerity to explain what a Kermit protocol is in a two line message.

Perhaps Agent Foley is competent, but in reviewing this warrant questions arise regarding the raid on SJG that should not go unanswered.

ATTACHMENT A

2700 "A" Metcalfe Road is located in the city of Austin, State of Texas, County of Travis. Said address is a two-story square building measuring approximately 50 feet on a side located on the south side of Metcalfe Street.

The bottom story is multi-colored brick face and the upper story is white wood frame construction.

A balcony surrounds the upper story. The address "2700A" is on two sides in white letters, and the numbers are approximately ten inches high. An outside wooden stairway connects the floors on the south side of the building. The driveway is of gravel. A large all-metal warehouse-type building is immediately behind the address.

(End Attachment A)

ATTACHMENT B

Computer hardware (including, but not limited to, central processing unit(s), monitors, memory devices, modem(s), programming equipment, communication equipment, disks, and prints) [sic] 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 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.


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(End Attachment B)

State of Texas ) ) ssCounty of Travis )

AFFIDAVIT

1. I, Timothy Foley, am a Special Agent of the United States Secret Service and have been so employed for the past two years. I am presently assigned to the United States Secret Service in Chicago. Prior to that I was employed as an attorney practicing in the City of Chicago and admitted to practice in the State of Illinois. I am submitting this affidavit in support of the search warrants for the premises known as: (a) the residence of Loyd Dean Blankenship, 1517G Summerstone, Austin, Texas; (b) the employment location of Blankenship, the business known as Steve Jackson Games, 2700-A Metcalfe Road, Austin Texas; and (c) the residence of Chris Goggans, 3524 Graystone #192, Austin, Texas.

SOURCES OF INFORMATION

2. This affidavit is based on my investigation and information provided to me by Special Agent Barbara Golden of the Computer Fraud Section of the United States Secret Service in Chicago and by other agents of the United States Secret Service.

3. I have also received technical information and investigative assistance from the experts in the fields of telecommunications, computer technology, software development and computer security technology, including:

a. Reed Newlin, a Security Officer of Southwestern Bell, who has numerous years of experience in operations, maintenance and administration of telecommunications systems as an employee of the Southwestern Bell Telephone Company.

b. Henry M. Kluepfel, who has been employed by the Bell System or its divested companies for the last twenty-four years. Mr. Kluepfel is presently employed by Bell Communications Research, (Bellcore) as a district manager responsible for coordinating security technology and consultation at Bellcore in support of its owners, the seven regional telephone companies, including Bell South Telephone Company and Southwestern Bell Telephone Company. Mr. Kluepfel has participated in the execution of numerous Federal and State search warrants relative to telecommunications and computer fraud investigations. In addition, Mr. Kluepfel has testified on at least twelve occasions as an expert witness in telecommunications and computer-fraud related crimes.

c. David S. Bauer, who has been employed by Bell Communications Research (Bellcore) since April 1987. Mr. Bauer is a member of the technical staff responsible for research and development in computer security technology and for consultation in support of its owners, the seven regional telephone companies, including Bell South. Mr. Bauer is an expert in software development, communications operating systems, telephone and related security technologies. Mr. Bauer has conducted the review and analysis of approximately eleven computer hacking investigations for Bellcore. He has over nine years professional experience in the computer related field.


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Violations Involved

4. 18 USC 2314 provides federal criminal sanctions against individuals who knowingly and intentionally transport stolen property or property obtained by fraud, valued at $5,000 or more ininterstate commerce. My investigation has revealed that on or about February 24, 1989, Craig Neidorf transported a stolen or fraudulently obtained computerized text file worth approximately $79,000.000 from Columbia, Missouri, through Lockport, Illinois to Austin, Texas to Loyd Blankenship and Chris Goggans.

5. 18 USC 1030 (a)(6) and (b) provide federal criminal sanctions against individuals who knowingly and with intent to defraud traffic or attempt to traffic, in interstate commerce, in passwords or similar information through which a computer may be accessed without authorization. My investigation has revealed that on or about January 30, 1990, Loyd Blankenship and Chris Goggans attempted to traffic in illegally obtained encrypted passwords received from other computer hackers. My investigation has further revealed that, through the use of sophisticated decryption equipment and software, they planned to decrypt the encrypted passwords provided by the hackers. They then planned to provide the original hackers with the decrypted passwords which they in turn could use to illegally access previously guarded computers.

DEFINITIONS

6. COMPUTER HACKERS/INTRUDERS - Computer hackers or intruders are individuals involved with the unauthorized access of computer systems by various means. The assumed names used by the hackers when contacting each other are referred to as "hacker handles."

7. BULLETIN BOARD SYSTEM (BBS) - A bulletin board system (also referred to as a "Bulletin board" or "BBS") is an electronic bulletin board accessible by computer. Users of a bulletin board may leave messages, data, and software readable by others with access to the bulletin board. Bulletin board readers may copy, or "download," onto their own machines material that appears on a bulletin board. Bulletin boards typically are created and maintained by "systems operators" or "system administrators". Hackers frequently use bulletin boards to exchange information and data relating to the unauthorized use of computers.

8. E911 - E911 means the enhanced 911 telephone service in universal use for handling emergency calls (police, fire, ambulance, etc.) in municipalities. Dialing 911 provides the public with direct access to a municipality's Public Safety Answering Point (PSAP). Logistically, E911 runs on the public telephone network with regular telephone calls into the telephone company switch. However, incoming 911 calls are given priority over all other calls. Then the 911 call travels on specially dedicated telephone lines from the telephone company's switch to the fire, police and emergency reaction departments in the city closest to the location of the caller. It is essential for the emergency unit to know the location of the caller, so one of the most important parts of the system is the Automatic Location Identifier (ALI), which automatically locates where the telephone call originates, and the Automataic Number Identification (ANI), which holds the telephone number of the calling party even if the caller hangs up. The E911 system of Bell South is described in the text of a computerized file program and is highly proprietary and closely held by its owner, Bell South. The file describes the computerized control, operation and maintenance of the E911 system.

9. ELECTRONIC MAIL - Electronic mail, also known as e-mail, is a common form of communication between individuals on the same or on separate computer systems. Persons who may send or receive electronic mail are identified by an electronic mail address, similar to a postal address. Although a person may have more than one electronic mail address, each mail address identifies a person uniquely.


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10. LEGION OF DOOM - At all times relevant herein, the Legion of Doom, (LOD), was a closely knit group of computer hackers involved in:

a. Disrupting telecommunications by entering telephone switches and changing the routing on the circuits of the computers.

b. Stealing propriety (sic) computer source code and information from individuals that owned the code and information

c. Stealing credit information on individuals from credit bureau computers.

d. Fraudulently obtaining money and property from companies by altering the computerized information used by the companies.

e. Disseminating information with respect to their methods of attacking computers to other computer hackers in an effort to avoid the focus of law enforcement agencies and telecommunication security experts.

11. PASSWORD ENCRYPTION - A password is a security device that controls access to a computer, (log on privileges) or to special portions of a computer's memory. Encryption further limits access to a computer by converting the ordinary language and/or numerical passwords used on a computer into cipher or code. Decryption is the procedure used to transform coded text into the original ordinary language and/or numerical format.

12. TRANSFER PROTOCOL - transfer protocol is a method of transferring large files of information from one computer to another over telephone lines. Using a transfer protocol a file is uploaded (sent) and downloaded (received). This transfer procedure breaks blocks of data into smaller packages for transmission and insures that each block of data is an error free copy of the original data. Transfer protocols may also encode and decode transmissions to insure the privacy of the transferred information.

INVESTIGATION OVERVIEW

13. My investigation to date has disclosed that computer hacker Robert Riggs of the Legion of Doom, (LOD), stole the highly proprietary and sensitive Bell South E911 Practice text file from Bell South in Atlanta, Georgia in about December, 1988 and that this stolen document was distributed in "hacker" newsletters through the use of e-mail. These newsletters included the "Phrack" newsletter issue #24 distributed in February, 1989 by Crig Neidorf to LOD members, including Loyd Blankenship and Chris Goggans of Austin, Texas. The E911 Practice was posted on the "Phoenix Project" BBS, in January, 1990, so that anyone with access to the BBS could download a copy of the E911 Practice onto any other computer. The "Phoenix Project" BBS is run jointly by co-systems operators Loyd Blankenship, (hacker handle, The Mentor), and Chris Goggans, (hacker handle, Eric [sic] Bloodaxe), who both have sent e-mail communications identifying themselves as members of LOD. My investigation has also disclosed that Loyd Blankenship and Chris Goggans, through their hacker BBS "Phoenix Project," have established a password decryption service for hackers who had obtained encrypted passwords from computers they had been attacking.

THEFT OF E911 TEXT FILE


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14. In March, 1988, Bell South developed a sophisticated new program which describes in great detail the operation of the E911 system and the 911 support computer in Sunrise, Florida that controls ALI and ANI information. This program, which was enginered at a cost of $79,449.00, was locked in a secure computer (AIMSX) in Bell South's corporate headquarters in Atlanta, Georgia. The document was and is highly proprietary and contained the following warning:

NOTICE: NOT FOR USE OR DISCLOSURE OUTSIDE BELL SOUTH OR ANY OF ITS SUBSIDIARIES EXCEPT UNDER WRITTEN AGREEMENT.

15. In July, 1989, Robert Riggs apartment in Decatur, Georgia was searched by United States Secret Service agents from Atlanta pursuant to a federal search warrant.

16. At the time of the search, Riggs, (hacker handle, The Prophet), was interviewed by Special Agent James Cool of the USSS- Atlanta and representatives of Bell South from Atlanta. During this extensive interview, Riggs admitted that he illegally gained remote access into Bell South's AIMSX computer through an account to which access was not secured by a password, and that once on the machine he executed a program designed to search for passwords and to obtain other account names on the computer. He stated that once he was on the computer, he found the E911 protocol document and downloaded it from the Bell South computer to his home computer. He subsequently uploaded the E911 file from his home computer to a computer bulletin board. (He did not give the agents the name of the bulletin board).

17. Riggs' admissions were corroborated by interviews with Rich Andrews, the operator of the computer bulletin board known as JOLNET BBS in Lockport, Illinois. Andrews disclosed that in about January, 1989, a hacker known to him by the handle PROPHET uploaded an E911 program with bell South proprietary markings onto his BBS. This program was then downloaded from the BBS to another hacker known to him by the handle Knight Lightning (Craig Neidorf).

PHRACK PUBLICATION

18. On January 18, 1990, pursuant to a federal grand jury subpoena, I received documents from the administration of the University of Missouri regarding computer publications of Craig Neidorf, a student at University of Missouri and Randly Tishler, a former student at University of Missouri, (hacker handle, Taran King), which showed that Neidorf and Tishler were publishing the computer hacker newsletter entitled "Phrack" which they were distributing to computer hackers around the United States through the use of the University of Missouri account on a telecommunication network called Bitnet.

19. On January 18, 1990, Security Officer Reed Newlin of Southwestern Bell Telephone and I interviewed Craig Neidorf at the Zeta Beta Tau Fraternity House at Columbia, Missouri. During the course of the interview, Neidorf admitted to me and Security Officer Newlin that he used the hacker handle Knight Lightning; that he and Randy Tishler were the publishsers of two hacker newsletters entitled "Phrack" and "Pirate."

20. Also during the course of this interview, Neidorf admitted that he had a copy of a hacker tutorial regarding the operation of the E911 system in his room. He admited that he had edited the E911 Practice into a hacker tutorial. He also admitted that he knew that the E911 Practice had been stolen from a telecommunications company by Robert J. Riggs and that the tutorial, (the edited E911 Practice File), had been published in the Phrack newsletter issue 24. At this point of the interview, Neidorf excused himself, saying he was going to his room, and he returned moments later with a floppy disk containing the copy of the E911 document published in Phrack magazine. 21. In addition to


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Neidorf's admission that he knew the E911 tutorial had been stolen, my investigation has revealed other facts reflecting that Neidorf was aware that the E911 data received from Riggs in Atlanta was stolen. In July, 1989, I reviewed documentation received from Rich Andrews, the system administrator of the JOLNET BBS. Included in the documentation was an edited version of the E911, the document received from Neidorf, dated January 23, 1989, which included the following notation on his version:

NOTICE: NOT FOR USE OR DISCLOSURE OUTSIDE BELLSOUTH OR ANY OF ITS SUBSIDIARIES EXCEPT UNDER WRITTEN AGREEMENT. (WHOOPS)

22. Distribution records of Phrack 24 recovered from Richard Andrews in Lockport in July 1989 reflect that copies of this newsletter containing the proprietary E911 information and the proprietary markings from Bell South were forwarded from Neidorf's computer in Colombia [sic], Missouri to Loyd Blankenship's computer in Austin, Texas on or about February 24, 1989.

23. I have personally examined the Phrack newsletter number 24 and observed that the newsletter does in fact contain a slightly edited copy of the stolen Bell South E911 Practice text file with the warning:

NOTICE: NOT FOR USE OR DISCLOSURE OUTSIDE BELLSOUTH OR ANY OF ITS SUBSIDIARIES EXCEPT UNDER WRITTEN AGREEMENT. (WHOOPS)

REPUBLICATION OF E911 BY PHOENIX PROJECT

24. On February 26, 1990, Hank Kluepfel of Bellcore advised me that the Phoenix Project BBS run by Loyd Blankenship and Chris Goggans was in operation on January 15, 1990. Mr. Kluepfel advised that he had made this determination by successfully logging on to Phoenix Project at telephone number 512-441-0229 on about January 30, 1990 and observing messages dated from January 15, 1990 to January 30, 1990, on the BBS. Mr. Kluepfel also advised me that the BBS system information identified the Mentor and Erik Bloodaxe as the system administrators on the BBS.

25. On February 14, 1990, Mr. Kluepfel advised me that after accessing the Phoenix Project BBS, he had gone to the Phrack sub- menu of the BBS and observed Phrack 24 on the menu. Mr. Kluepfel further advised me that upon review of Phrack 24, he observed that the Bell South E911 Practice text file was still in the edition carried by the Phoenix Project BBS.

26. On February 14, 1990, Mr. Kluepfel advised me that he had downloaded a copy of Phoenix Project's user list (its electronic mailing list) and that it reflected that seeral of the hackers on the list of users were located in the Northern District of Illinois.

PHOENIX PROJECT DECRYPTION SERVICE

27. On February 14, 1990, Mr. Kluepfel advised me that on January 23, 1990, the co-systems administrator on the Phoenix Project BBS, Erik Bloodaxe, had published a notice that the BBS was beginning a new decryption service. Bloodaxe invited the readers of the newsletter to send the BBS encrypted passwords for any UNIX or Prime computer system, and the system administrators would decrypt the passwords and return them. Bloodaxe also indicated that the systemes administrators would probably access the computer using the password as well. In a later message on January 26, 1990, The Mentor responded to a question about a transfer protocol that had been set


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out, but not explained in Bloodaxe's notice, indicating his involvement in the decryption scheme.

28. On February 14, 1990, Mr. Kluepfel advised me that the password file decryption service offered by the Phoenix Project provided computer hackers with information through which a computer could be acessed without authorization under the meaning of 18 USC 1030 (a)(6) and (b) and constituted a threat to Bellcore's client companies including Bell South.

IDENTIFICATION OF BLANKENSHIP AND GOGGANS

29. Among the documents that had been printed out from the University of Missouri computers, which I received from the University of Missouri computers, which I received from the administration of the University of Missouri, were lists of hackers and their corresponding real names. On that list were the names of Loyd Blankenship and Chris Goggans and their respective hacker handles of The Mentor and Erik Bloodaxe.

30. Among the documents seized in the search of Neidorf's house were phone lists which included the full names of Loyd Blankenship and Chris Goggans and identified them as The Mentor and Erik Bloodaxe, respectively.

31. On February 6, 1990, Mr. Kluepfel provided me with copies of a Phrack newsletter which contained a September 23, 1989, profile of computer hacker Erik Bloodaxe. The profile indicated that the Erik Bloodaxe's real name was Chris, that he was 20 years old, 5'10", 130 pounds, that he had blue eyes, brown hair and that he used various computers including an Atari 400, various computer terminals with limited computing capability that are or can be linked to a central computer, and a CompuAid Turbo T. The profile reflects that Erik Bloodaxe was a student in computer science at the University of Texas in Austin.

32. On February 6, 1990, Mr. Kluepfel provided me with a copy of Phrack containing a January 18, 1989 profile of the computer hacker known as The Mentor. The profile indicated that the Mentor's real name was Loyd, that he was 23 years old, 120 pounds, 5'10", that he had brown hair, brown eyes and that he had owned a TRS-80, an Apple IIe, an Amiga 1000, and a PC/AT.

33. The identification of Loyd Blankenship as The Mentor in the Phrack profile was corroborated on February 22, 1990, by information provided by Larry Coutorie an inspector with campus security at the University in Austin, Texas who advised me that his review of locator information at the University of Texas in Austin disclosed current drivers license information on Loyd Dean Blankenship reflecting that Blankenship resides at 1517G Summerstone, in Austin, Texas, telephone number 512-441-2916 and is described as a white, male, 5'10", with brown hair and brown eyes. He further advised that Blankenship is employed at Steve Jackson Games, 2700-A Metcalfe Road, Austin, Texas where he is a computer programmer and where he uses a bulletin board service connected to telephone number 512-447-4449.

34. According to telephone company records the telephone number 512-441-0229, the number for the Phoenix Project BBS, is assigned to the address 1517 G Summerstone, Austin, Texas, which is the residence of Loyd Blankenship.

35. Hank Kluepfel has advised me that he has loged on to the BBS at 512-447-4449 and that The Mentor is listed as the systems operator of the BBS. Mr. Kluepfel further advised me that the user list of that BBS contains the name of Loyd Blankenship and others known to Mr. Kluepfel has hackers. Also, Mr. Kluepfel observed that Loyd Blankenship is a frequent user of the BBS.


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36. Similarly, the identification of Chris Goggans as the Erik Bloodaxe described in the Phrack profile was corroborated on February 22, 1990, by Larry Coutorie who advised me that his review of locator information at the University of Texas with respect to Chris Goggans disclosed that Goggans resides at 3524 Graystone #192, in AUstin, Texas and that his full name is Erik Christian Goggans. Goggans, who goes by the name Chris, is a white, male, with blond hair and blue eyes date of birth 5/5/69, 5'9", 120 pounds.

37. On February 19, 1990, I was advised by Margaret Knox, Assistant Director of the Computation Center, University of Texas, Austin, Texas, that a young man presented himself to her as Chris Goggans in response to the University sending a notification of the Grand Jury subpoena for University records pertaining to Chris Goggans to Chris Goggans at 3524 Graystone #192, Austin, Texas. The young man also told her that he was Erik Bloodaxe of the Legion of Doom.

Locations to be Searched

38. Based on the above information and my own observations, I believe that the E911 source code and text file and the decryption software program are to be found in the computers located at 1517G Summerstone, Austin, Texas, or at 2700-A Metcalfe Road, Austin, Texas, or at 3524 Graystone #192, Austin, Texas, or in the computers at each of those locations.

39. The locations to be searched are described as: the premises known as the residence of Loyd Dean Blankenship, 1517G Summerstone, Austin, Texas; the employment location of Blankenship, the business known as Steve Jackson Games, 2700-A Metcalfe Road, AUstin, Texas; and the residence of Chris Goggans, 3524 Graystone #192, Austin, Texas. Those locations are further described in Attachment A to this Affidavit for Search Warrant.

Evidence To Be Found

40. On February 2, 1990, Jerry Dalton of AT&T advised me that based upon his background, experience and investigation in this case and investigating approximately 50 other incidents this year involving the unauthorized use of other computer systems, including individuals that run computer bulletin boards, these individuals typically keep and use the following types of hardware, software and documents to execute their fraud schemes and operate their computers and computer bulletin boards:

a. Hardware - a central processing unit, a monitor, a modem, a key board, a printer, and storage devices (either cartridge tapes, 9-track magnetic tapes, floppy disks or axillary [sic] disk units), telephone equipment (including) automatic dialing equipment, cables and connectors), tape drives and recording equipment.

b. Software - hard disks and floppy disks containing computer programs, including, but not limited to software data files, electronic mail files, UNIX software and other AT&T proprietary software.

c. Documents - computer related manuals, computer related textbooks, looseleaf binders, telephone books, computer printout, cassette tapes, videotapes and other documents used to access computers and record information taken from the computers during the above referred breakins. Financial and licensing information with respect to the computer hardware and software.

41. Based on the above information and my own observation, I believe that at the premises known as the residence


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of Loyd Dean Blankenship, 1571G Summerstone, Austin, Texas; the employment location of Blankenship, the business known as Steve Jackson Games, 2700-A Metcalfe Road, Austin, Texas; and the residence of Chris Goggans, 3524 Graystone, #192, Austin Texas there is computer hardware (including central processing unit(s), monitors, memory devices, (modem(s), programming equipment, communication equipment, disks, 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 computer and advertising the results of the computer attack (including telephone numbers and location information). This affidavit 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 which are evidence of violations of 18 USC 2314 and 1030, as well as evidence, instrumentalities or fruits of the fraud scheme being conducted by the operator of the computer at that location.

42. Request is made herein to search and seize the above described computer and computer data and to read the information contained in and on the computer and computer data.

(signature of) Timothy M. Foley Special Agent Timothy Foley United States Secret Service

Sworn and Subscribed to beforeme this 28th day of February, 1990

(signature of) Stephen H. CapelleUNITED STATES MAGISTRATE

(END OF SEARCH AFFIDAVIT)

A document attached to the search affidavit reproduced 17 messages from The Phoenix Project written from Jan. 23 - Jan. 29, 1990. We have retyped messages 13/17, but substituted the original posts (18/29) from TPP logs we have obtained. The differences in message numbers (eg 13/58 from Henry Kluepfel's logs, or our source's logs, eg, 22/47) reflect that the notes were captured on different days. We have compared the logs from both our source and the document, and they are identical. Hence, the difference in capturing dates is of no consequence.

There are several points that should be considered in reading the logs:

1. The affidavit claims that the logs substantiate the claim that an encryption service existed. In fact, they do no such thing. The claim is based primarily on message 13 (Jan 23), which includes the comment "What do you people think? Bad idea? Good idea? Hell...It is just another attempt by me to piss everyone off."

2. The bulk of these messages are inconsequential general discussions, and include brief discussion of transfer protocols.

3. Timothy Foley's "evidence" that The Mentor is involved in the situation is message 23, in which The Mentor is


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"guilty" of saying that Kermit is a 7-bit transfer protocol, is found on mainframes, and works through outdials. From this, Foley says:

In a later message on January 26, 1990, the Mentor responded to a question about a transfer protocol that been set out, but not explained in Bloodaxe's notice, indicating his involvement in the decryption scheme (#27, p. 12).

4. The messages before and after these dates are general, and there is little substantive discussion of the "decryption service."

It appears that Loyd Blankenship is "guilty" of posting phracks on The Phoenix Project, as are perhaps thousands of other sysops across the country, and of the "criminal act" of summarizing Kermit.

We will leave it to others to judge and comment upon the logic and quality of the document(s).

+++++++++++++++++++++++++++++++++++++++++++++++++(The following is the first page of a 3 page document attached tothe affidavit. It has been retyped from the original).+++++++++++++++++++++++++++++++++++++++++++++++++

New user pw= GUNSHIP

13/58: things...Name: Erik Bloodaxe #2Date: Tue Jan 23 22:57:29 1990I think it's time for your friend at The Legion of Doom to start a newservice...(with great help from friends)Decryption service! On any unix or Prime, send the etc/passwd file, or theUAF file to the sysop directory, and you will be mailed back the encryptedUAF file to the sysop directory, and you will be mailed back the encryptedpasswords...(on UNIX any pw that the deszip could bust)The Prime UAF must be in binary, so kermit it from the site, and xmodem ithere.In return, we will not distribute any information gained from your site, butwe will probably look around it anyway...but it will remain between you andus.What do you people think? Bad idea? Good idea? Hell...It is just anotherattempt by me to piss everyone off.->ME

14/58: aha..!Name: Phoenix #17Date: Wed Jan 24 01:30:35 1990ummm...hmmm(doesn't know what to say..)

15/58: Heck


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Name: The Parmaster #21Date: Wed Jan 24 07:48:01 1990 Personally i like it :-)Jason.

16/58: DecryptionName: Grey Owl #10Date: Wed Jan 24 19:10:52 1990I think it's a great idea. I get a whole shitload of passwd files and someUAF files too. |||_______got!grey owl

17/58: Just a couple of questions...Name: Konica #47Date: Wed Jan 24 23:41:13 1990Well since the feds know this is a hacker board whats stopping them fromtracing every incoming call to Pheonix Project and getting all the #'s, thenmonitoring then for illegal activity?

And just say I was calling through my personal calling card....What wouldthey get as the incomming #?If I had a DNR on my line is there any way I could find out?Sorry about this but I am not as good as most of you (except for the guy thatkeeps posting codes) and the only way I am going to learn is by trying shitout and asking questions...Hope this is the right sub for these questions....

+++++++++++++++(The following are the actual logs; Typos were not removed)+++++++++++++++

18/47: vvName: Dtmf #27Date: Thu Jan 25 03:22:29 1990

RE: Just a couple of questions...

To check the DNR the best bet woud be to call bell security, or the SCC

19/47: well..Name: Phoenix #17Date: Thu Jan 25 07:27:43 1990

nothing stops them from tracing..I dont know how it works there.. but down here all traces are illegal unlessthey are for drug/murder reasons.. (well not traces, but taps are..)

20/47: Feds...


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Name: Erik Bloodaxe #2Date: Thu Jan 25 17:05:35 1990

Absolutely nothing would stop them from collecting all local calls, and/or anylongdistance company records of calls coming into this number...in fact, Ikind of expect them to at least get all local calls here...hell Austin is alless...most of them 5's...(I think...maybe 1's)

However, I doubt that tapping the data line is worth their while...especiallywhen they can just log on and read everything anyway. And the mail just isn'tthat spectacular...

In any case, all calls here made by legal means are legaal, so don't worryabout it. Just because tee nature of this bbs isn't that of your averagemainstream bbs, doesn't negate its legality. Information posted here is keptlegal.

If you are truly worried about it, don't call, and sit home being paranoid.

Hell, I'm local...I call direct...and now I do it at 300 baud. Hell, I canalmost tell what's being typed at 300 baud while listening to it...forget thedata tap! Hehe, although a 300 baud data tap is SO simple to playbackcompletely error free...at 1200 or 2400 you kind of have to get the recordinglevels just right...but 300 gives you plenty of room for error...

21/47: ess 1,5Name: Dark Sun #11Date: Thu Jan 25 20:14:00 1990

hey, whats the diff??? :-) DS

22/47: decryptionName: Silencer #31Date: Thu Jan 25 23:35:01 1990

hmmm....like...you mean once you have an account...read the user file and thenyou will deencrypt all the passcodez...sounds good....but what the fuck iskermit... - Silencer

23/47: kermitName: The Mentor #1Date: Fri Jan 26 10:11:23 1990

Kermit is a 7-bit transfer protocol that is used to transfer files to/frommachines. It is mostly found on mainframes (it's a standard command on VAX,for instance). Kermit has the added advantage of being able to work through an


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outdial (because it is 7-bit).

Mentor

24/47: KermitName: Sicilumm Thorne #28Date: Fri Jan 26 11:20:10 1990

Kermit is merely another transfer protocol like Sealink, Xmodem, Modem7,Zmodem, et cetera.

Its relatively slow, but was thought to be better than Xmodem, due to itscapabilties. (Don't remember what they are, I use Zmodem).

Sic.

25/47: my kermitName: Ravage #19Date: Fri Jan 26 12:24:21 1990

lets me set it at 8 bits also. just another trivial note.

26/47: from what I know...Name: Dark Sun #11Date: Fri Jan 26 16:26:55 1990

kermit was originally designed to allow transmission of data across 2computers running with different parity settings. DS

27/47: and..Name: Phoenix #17Date: Sat Jan 27 07:28:45 1990

as a major disadvantage.. it is damn slow!

Phoenix

28/47: Well....Name: Johnny Hicap #45Date: Sat Jan 27 21:28:18 1990

No one answered that question (forget who posted it) that if he was callingthrough a calling card is it possible to get the number of the person whocalled even he was calling through hs calling card? What would they get as thenumber comming in? Would they get the card? Of course then they would just seewho owns it.


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JH!

29/47: more Kermit BSName: Grey Owl #10Date: Sat Jan 27 23:53:57 1990

Kermit is slower than Xmodem, BTW. The packets are smaller (usually 64 bytes)and the error-checking is shot to hell with any line noise. It's better thanASCII though!

grey owl

******************************************************************** ** END OF CuD #2.11 **********************************************************************


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CRIME AND PUZZLEMENT

by John Perry Barlow [email protected]

Desperados of the DataSphere

So me and my sidekick Howard, we was sitting out in front of the 40 Rod Saloon one evening when he all of a sudden says, "Lookee here. What do you reckon?" I look up and there's these two strangers riding into town. They're young and got kind of a restless, bored way about 'em. A person don't need both eyes to see they mean trouble...

Well, that wasn't quite how it went. Actually, Howard and I were floating blind as cave fish in the electronic barrens of the WELL, so the whole incident passed as words on a display screen:

Howard: Interesting couple of newusers just signed on. One calls himself acid and the other's optik.

Barlow: Hmmm. What are their real names?

Howard: Check their finger files.

And so I typed !finger acid. Several seconds later the WELL's Sequent computer sent the following message to my Macintosh in Wyoming:

Login name: acid In real life: Acid Phreak

By this, I knew that the WELL had a new resident and that his corporeal analog was supposedly called Acid Phreak. Typing !finger optik yielded results of similar insufficiency, including the claim that someone, somewhere in the real world, was walking around calling himself Phiber Optik. I doubted it.

However, associating these sparse data with the knowledge that the WELL was about to host a conference on computers and security rendered the conclusion that I had made my first sighting of genuine computer crackers. As the arrival of an outlaw was a major event to the settlements of the Old West, so was the appearance of crackers cause for stir on the WELL.

The WELL (or Whole Earth 'Lectronic Link) is an example of the latest thing in frontier villages, the computer bulletin board. In this kind of small town, Main Street is a central minicomputer to which (in the case of the WELL) as many as 64 microcomputers may be connected at one time by phone lines and little blinking boxes called modems.

In this silent world, all conversation is typed. To enter it, one forsakes both body and place and becomes a thing of words alone. You can see what your neighbors are saying (or recently said), but not what

http://www.2600.com/secret/sj/sj-barlow.html (1 of 23)4/16/2006 11:11:53 AM

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either they or their physical surroundings look like. Town meetings are continuous and discussions rage on everything from sexual kinks to depreciation schedules.

There are thousands of these nodes in the United States, ranging from PC clone hamlets of a few users to mainframe metros like CompuServe, with its 550,000 subscribers. They are used by corporations to transmit memoranda and spreadsheets, universities to disseminate research, and a multitude of factions, from apiarists to Zoroastrians, for purposes unique to each.

Whether by one telephonic tendril or millions, they are all connected to one another. Collectively, they form what their inhabitants call the Net. It extends across that immense region of electron states, microwaves, magnetic fields, light pulses and thought which sci-fi writer William Gibson named Cyberspace.

Cyberspace, in its present condition, has a lot in common with the 19th Century West. It is vast, unmapped, culturally and legally ambiguous, verbally terse (unless you happen to be a court stenographer), hard to get around in, and up for grabs. Large institutions already claim to own the place, but most of the actual natives are solitary and independent, sometimes to the point of sociopathy. It is, of course, a perfect breeding ground for both outlaws and new ideas about liberty.

Recognizing this, Harper's Magazine decided in December, 1989 to hold one of its periodic Forums on the complex of issues surrounding computers, information, privacy, and electronic intrusion or "cracking." Appropriately, they convened their conference in Cyberspace, using the WELL as the "site."

Harper's invited an odd lot of about 40 participants. These included: Clifford Stoll, whose book The Cuckoo's Egg details his cunning efforts to nab a German cracker. John Draper or "Cap'n Crunch," the grand- daddy of crackers whose blue boxes got Wozniak and Jobs into consumer electronics. Stewart Brand and Kevin Kelly of Whole Earth fame. Steven Levy, who wrote the seminal Hackers. A retired Army colonel named Dave Hughes. Lee Felsenstein, who designed the Osborne computer and was once called the "Robespierre of computing." A UNIX wizard and former hacker named Jeff Poskanzer. There was also a score of aging techno-hippies, the crackers, and me.

What I was doing there was not precisely clear since I've spent most of my working years either pushing cows or song-mongering, but I at least brought to the situation a vivid knowledge of actual cow-towns, having lived in or around one most of my life.

That and a kind of innocence about both the technology and morality of Cyberspace which was soon to pass into the confusion of knowledge.

At first, I was inclined toward sympathy with Acid 'n' Optik as well as their colleagues, Adelaide, Knight Lightning, Taran King, and Emmanuel. I've always been more comfortable with outlaws than Republicans, despite having more certain credentials in the latter camp.


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But as the Harper's Forum mushroomed into a boom-town of ASCII text (the participants typing 110,000 words in 10 days), I began to wonder. These kids were fractious, vulgar, immature, amoral, insulting, and too damned good at their work.

Worse, they inducted a number of former kids like myself into Middle Age. The long feared day had finally come when some gunsel would yank my beard and call me, too accurately, an old fart.

Under ideal circumstances, the blind gropings of bulletin board discourse force a kind of Noh drama stylization on human commerce. Intemperate responses, or "flames" as they are called, are common even among conference participants who understand one another, which, it became immediately clear, the cyberpunks and techno- hippies did not.

My own initial enthusiasm for the crackers wilted under a steady barrage of typed testosterone. I quickly remembered I didn't know much about who they were, what they did, or how they did it. I also remembered stories about crackers working in league with the Mob, ripping off credit card numbers and getting paid for them in (stolen) computer equipment.

And I remembered Kevin Mitnik. Mitnik, now 25, recently served federal time for a variety of computer and telephone related crimes. Prior to incarceration, Mitnik was, by all accounts, a dangerous guy with a computer. He disrupted phone company operations and arbitrarily disconnected the phones of celebrities. Like the kid in Wargames, he broke into the North American Defense Command computer in Colorado Springs.

Unlike the kid in Wargames, he is reputed to have made a practice of destroying and altering data. There is even the (perhaps apocryphal) story that he altered the credit information of his probation officer and other enemies. Digital Equipment claimed that his depredations cost them more than $4 million in computer downtime and file rebuilding. Eventually, he was turned in by a friend who, after careful observation, had decided he was "a menace to society."

His spectre began to hang over the conference. After several days of strained diplomacy, the discussion settled into a moral debate on the ethics of security and went critical.

The techno-hippies were of the unanimous opinion that, in Dylan's words, one "must be honest to live outside the law." But these young strangers apparently lived by no code save those with which they unlocked forbidden regions of the Net.

They appeared to think that improperly secured systems deserved to be violated and, by extension, that unlocked houses ought to be robbed. This latter built particular heat in me since I refuse, on philosophical grounds, to lock my house.

Civility broke down. We began to see exchanges like:


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Dave Hughes: Clifford Stoll said a wise thing that no one has commented on. That networks are built on trust. If they aren't, they should be.

Acid Phreak: Yeah. Sure. And we should use the 'honor system' as a first line of security against hack attempts.

Jef Poskanzer: This guy down the street from me sometimes leaves his back door unlocked. I told him about it once, but he still does it. If I had the chance to do it over, I would go in the back door, shoot him, and take all his money and consumer electronics. It's the only way to get through to him.

Acid Phreak: Jef Poskanker (Puss? Canker? yechh) Anyway, now when did you first start having these delusions where computer hacking was even *remotely* similar to murder?

Presented with such a terrifying amalgam of raw youth and apparent power, we fluttered like a flock of indignant Babbitts around the Status Quo, defending it heartily. One former hacker howled to the Harper's editor in charge of the forum, "Do you or do you not have names and addresses for these criminals?" Though they had committed no obvious crimes, he was ready to call the police.

They finally got to me with:

Acid: Whoever said they'd leave the door open to their house... where do you live? (the address) Leave it to me in mail if you like.

I had never encountered anyone so apparently unworthy of my trust as these little nihilists. They had me questioning a basic tenet, namely that the greatest security lies in vulnerability. I decided it was time to put that principal to the test...

Barlow: Acid. My house is at 372 North Franklin Street in Pinedale, Wyoming. If you're heading north on Franklin, you go about two blocks off the main drag before you run into hay meadow on the left. I've got the last house before the field. The computer is always on...

And is that really what you mean? Are you merely just the kind of little sneak that goes around looking for easy places to violate? You disappoint me, pal. For all your James Dean-On-Silicon rhetoric, you're not a cyberpunk. You're just a punk.

Acid Phreak: Mr. Barlow: Thank you for posting all I need to get your credit information and a whole lot more! Now, who is to blame? ME for getting it or YOU for being such an idiot?! I think this should just about sum things up.

Barlow: Acid, if you've got a lesson to teach me, I hope it's not that it's idiotic to trust one's fellow man. Life on those terms would be endless and brutal. I'd try to tell you something about conscience, but I'd sound like Father O'Flannigan trying to reform the punk that's about to gutshoot him. For no more


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reason that to watch him die.

But actually, if you take it upon yourself to destroy my credit, you might do me a favor. I've been looking for something to put the brakes on my burgeoning materialism.

I spent a day wondering whether I was dealing with another Kevin Mitnik before the other shoe dropped:

Barlow: ... With crackers like acid and optik, the issue is less intelligence than alienation. Trade their modems for skateboards and only a slight conceptual shift would occur.

Optik: You have some pair of balls comparing my talent with that of a skateboarder. Hmmm... This was indeed boring, but nonetheless:

At which point he downloaded my credit history.

Optik had hacked the core of TRW, an institution which has made my business (and yours) their business, extracting from it an abbreviated ( and incorrect) version of my personal financial life. With this came the implication that he and Acid could and would revise it to my disadvantage if I didn't back off.

I have since learned that while getting someone's TRW file is fairly trivial, changing it is not. But at that time, my assessment of the crackers' black skills was one of superstitious awe. They were digital brujos about to zombify my economic soul.

To a middle-class American, one's credit rating has become nearly identical to his freedom. It now appeared that I was dealing with someone who had both the means and desire to hoodoo mine, leaving me trapped in a life of wrinkled bills and money order queues. Never again would I call the Sharper Image on a whim.

I've been in redneck bars wearing shoulder-length curls, police custody while on acid, and Harlem after midnight, but no one has ever put the spook in me quite as Phiber Optik did at that moment. I realized that we had problems which exceeded the human conductivity of the WELL's bandwidth. If someone were about to paralyze me with a spell, I wanted a more visceral sense of him than could fit through a modem.

I e-mailed him asking him to give me a phone call. I told him I wouldn't insult his skills by giving him my phone number and, with the assurance conveyed by that challenge, I settled back and waited for the phone to ring. Which, directly, it did.

In this conversation and the others that followed I encountered an intelligent, civilized, and surprisingly principled kid of 18 who sounded, and continues to sound, as though there's little harm in him to man or


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data. His cracking impulses seemed purely exploratory, and I've begun to wonder if we wouldn't also regard spelunkers as desperate criminals if AT&T owned all the caves.

The terrifying poses which Optik and Acid had been striking on screen were a media-amplified example of a human adaptation I'd seen before: One becomes as he is beheld. They were simply living up to what they thought we, and, more particularly, the editors of Harper's, expected of them. Like the televised tears of disaster victims, their snarls adapted easily to mass distribution.

Months later, Harper's took Optik, Acid and me to dinner at a Manhattan restaurant which, though very fancy, was appropriately Chinese. Acid and Optik, as material beings, were well-scrubbed and fashionably-clad. They looked to be dangerous as ducks. But, as Harper's and the rest of the media have discovered to their delight, the boys had developed distinctly showier personae for their rambles through the howling wilderness of Cyberspace.

Glittering with spikes of binary chrome, they strode past the kleig lights and into the digital distance. There they would be outlaws. It was only a matter of time before they started to believe themselves as bad as they sounded. And no time at all before everyone else did.

In this, they were like another kid named Billy, many of whose feral deeds in the pre-civilized West were encouraged by the same dime novelist who chronicled them. And like Tom Horn, they seemed to have some doubt as to which side of the law they were on. Acid even expressed an ambition to work for the government someday, nabbing "terrorists and code abusers."

There is also a frontier ambiguity to the "crimes" the crackers commit. They are not exacdly stealing VCR's. Copying a text file from TRW doesn't deprive its owner of anything except informational exclusivity. (Though it may said that information has monetary value only in proportion to its containment.)

There was no question that they were making unauthorized use of data channels. The night I met them, they left our restaurant table and disappeared into the phone booth for a long time. I didn't see them marshalling quarters before they went.

And, as I became less their adversary and more their scoutmaster, I began to get "conference calls" in which six or eight of them would crack pay phones all over New York and simultaneously land on my line in Wyoming. These deft maneuvers made me think of skydiving stunts where large groups convene geometrically in free fall. In this case, the risk was largely legal.

Their other favorite risky business is the time-honored adolescent sport of trespassing. They insist on going where they don't belong. But then teen-age boys have been proceeding uninvited since the dawn of human puberty. It seems hard-wired. The only innovation is in the new form of the forbidden zone the means of getting in it.


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In fact, like Kevin Mitnik, I broke into NORAD when I was 17. A friend and I left a nearby "woodsie" (as rustic adolescent drunks were called in Colorado) and tried to get inside the Cheyenne Mountain. The chrome-helmeted Air Force MP's held us for about 2 hours before letting us go. They weren't much older than us and knew exactly our level of national security threat. Had we come cloaked in electronic mystery, their alert status certainly would have been higher.

Whence rises much of the anxiety. Everything is so ill-defined. How can you guess what lies in their hearts when you can't see their eyes? How can one be sure that, like Mitnik, they won't cross the line from trespassing into another adolescent pastime, vandalism? And how can you be sure they pose no threat when you don't know what a threat might be?

And for the crackers some thrill is derived from the metamorphic vagueness of the laws themselves. On the Net, their effects are unpredictable. One never knows when they'll bite.

This is because most of the statutes invoked against the crackers were designed in a very different world from the one they explore. For example, can unauthorized electronic access can be regarded as the ethical equivalent of old-fashioned trespass? Like open range, the property boundaries of Cyberspace are hard to stake and harder still to defend.

Is transmission through an otherwise unused data channel really theft? Is the track-less passage of a mind through TRW's mainframe the same as the passage of a pickup through my Back 40? What is a place if Cyberspace is everywhere? What are data and what is free speech? How does one treat property which has no physical form and can be infinitely reproduced? Is a computer the same as a printing press? Can the history of my business affairs properly belong to someone else? Can anyone morally claim to own knowledge itself?

If such questions were hard to answer precisely, there are those who are ready to try. Based on their experience in the Virtual World, they were about as qualified to enforce its mores as I am to write the Law of the Sea. But if they lacked technical sophistication, they brought to this task their usual conviction. And, of course, badges and guns.

******

Operation Sun Devil

"Recently, we have witnessed an alarming number of young people who, for a variety of sociological and psychological reasons, have become attached to their computers and are exploiting their potential in a criminal manner. Often, a progression of criminal activity occurs which involves telecommunications fraud (free long distance phone calls), unauthorized access to other computers (whether for profit, fascination, ego, or the intellectual challenge), credit card fraud (cash advances and unauthorized purchases of goods), and then move on to other destructive activities like computer viruses."


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"Our experience shows that many computer hacker suspects are no longer misguided teenagers mischievously playing games with their computers in their bedrooms. Some are now high tech computer operators using computers to engage in unlawful conduct." -- Excerpts from a statement by Garry M. Jenkins Asst. Director, U. S. Secret Service

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue but upon probable cause, support by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." -- Amendment IV, United States Constitution

On January 24, 1990, a platoon of Secret Service agents entered the apartment which Acid Phreak shares with his mother and 12 year-old sister. The latter was the only person home when they burst through the door with guns drawn. They managed to hold her at bay for about half an hour until their quarry happened home.

By then, they were nearly done packing up Acid's worldly goods, including his computer, his notes (both paper and magnetic), books, and such dubiously dangerous tools as a telephone answering machine, a ghetto blaster and his complete collection of audio tapes. One agent asked him to define the real purpose of the answering machine and was frankly skeptical when told that it answered the phone. The audio tapes seemed to contain nothing but music, but who knew what dark data Acid might have encoded between the notes...

When Acid's mother returned from work, she found her apartment a scene of apprehended criminality. She asked what, exactly, her son had done to deserve all this attention and was told that, among other things, he had caused the AT&T system crash several days earlier. (Previously AT&T had taken full responsibility.) Thus, the agent explained, her darling boy was thought to have caused over a billion dollars in damage to the economy of the United States.

This accusation was never turned into a formal charge. Indeed, no charge of any sort of was filed against Mr. Phreak then and, although the Secret Service maintained resolute possession of his hardware, software, and data, no charge had been charged 4 months later.

Across town, similar scenes were being played out at the homes of Phiber Optik and another colleague code-named Scorpion. Again, equipment, notes, disks both hard and soft, and personal effects were confiscated. Again no charges were filed.

Thus began the visible phase of Operation Sun Devil, a two-year Secret Service investigation which involved 150 federal agents, numerous local and state law enforcement agencies. and the combined security resources of PacBell, AT&T, Bellcore, Bell South MCI, U.S. Sprint, Mid-American, Southwestern Bell, NYNEX, U.S. West and American Express.

The focus of this impressive institutional array was the Legion of Doom, a group which never had any


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formal membership list but was thought by the members with whom I spoke to number less than 20, nearly all of them in their teens or early twenties.

I asked Acid why they'd chosen such a threatening name. "You wouldn't want a fairy kind of thing like Legion of Flower Pickers or something. But the media ate it up too. Probing the Legion of Doom like it was a gang or something, when really it was just a bunch of geeks behind terminals."

******

Sometime in December 1988, a 21 year-old Atlanta-area Legion of Doomster named The Prophet cracked a Bell South computer and downloaded a three-page text file which outlined, in bureaucrat-ese of surpassing opacity, the administrative procedures and responsibilities for marketing, servicing, upgrading, and billing for Bell South's 911 system.

A dense thicket of acronyms, the document was filled with passages like:

"In accordance with the basic SSC/MAC strategy for provisioning, the SSC/MAC will be Overall Control Office (OCO) for all Notes to PSAP circuits (official services) and any other services for this customer. Training must be scheduled for all SSC/MAC involved personnel during the pre-service stage of the project."

And other such.

At some risk, I too have a copy of this document. To read the whole thing straight through without entering coma requires either a machine or a human who has too much practice thinking like one. Anyone who can understand it fully and fluidly has altered his consciousness beyond the ability to ever again read Blake, Whitman, or Tolstoy. It is, quite simply, the worst writing I have ever tried to read.

Since the document contains little of interest to anyone who is not a student of advanced organizational sclerosis...that is, no access codes, trade secrets, or proprietary information...I assume The Prophet only copied this file as a kind of hunting trophy. He had been to the heart of the forest and had returned with this coonskin to nail to the barn door.

Furthermore, he was proud of his accomplishment, and since such trophies are infinitely replicable, he wasn't content to nail it to his door alone. Among the places he copied it was a UNIX bulletin board (rather like the WELL) in Lockport, Illinois called Jolnet.

It was downloaded from there by a 20 year-old hacker and pre-law student (whom I had met in the Harper's Forum) who called himself Knight Lightning. Though not a member of the Legion of Doom, Knight Lightning and a friend, Taran King, also published from St. Louis and his fraternity house at the University of Missouri a worldwide hacker's magazine called Phrack. (From phone phreak and hack.)


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Phrack was an unusual publication in that it was entirely virtual. The only time its articles hit paper was when one of its subscribers decided to print out a hard copy. Otherwise, its editions existed in Cyberspace and took no physical form.

When Knight Lightning got hold of the Bell South document, he thought it would amuse his readers and reproduced it in the next issue of Phrack. He had little reason to think that he was doing something illegal. There is nothing in it to indicate that it contains proprietary or even sensitive information. Indeed, it closely resembles telco reference documents which have long been publicly available.

However, Rich Andrews, the systems operator who oversaw the operation of Jolnet, thought there might be something funny about the document when he first ran across it in his system. To be on the safe side, he forwarded a copy of it to AT&T officials. He was subsequently contacted by the authorities, and he cooperated with them fully. He would regret that later.

On the basis of the forgoing, a Grand Jury in Lockport was persuaded by the Secret Service in early February to hand down a seven count indictment against The Prophet and Knight Lightning, charging them, among other things, with interstate transfer of stolen property worth more than $5,000. When The Prophet and two of his Georgia colleagues were arrested on February 7, 1990, the Atlanta papers reported they faced 40 years in prison and a $2 million fine. Knight Lightning was arrested on February 15.

The property in question was the affore-mentioned blot on the history of prose whose full title was A Bell South Standard Practice (BSP) 660-225-104SV-Control Office Administration of Enhanced 911 Services for Special Services and Major Account Centers, March, 1988.

And not only was this item worth more than $5,000.00, it was worth, according to the indictment and Bell South, precisely $79,449.00. And not a penny less. We will probably never know how this figure was reached or by whom, though I like to imagine an appraisal team consisting of Franz Kafka, Joseph Heller, and Thomas Pynchon...

In addition to charging Knight Lightning with crimes for which he could go to jail 30 years and be fined $122,000.00, they seized his publication, Phrack, along with all related equipment, software and data, including his list of subscribers, many of whom would soon lose their computers and data for the crime of appearing on it.

I talked to Emmanuel Goldstein, the editor of 2600, another hacker publication which has been known to publish purloined documents. If they could shut down Phrack, couldn't they as easily shut down 2600?

He said, "I've got one advantage. I come out on paper and the Constitution knows how to deal with paper."

In fact, nearly all publications are now electronic at some point in their creation. In a modern newspaper,


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stories written at the scene are typed to screens and then sent by modem to a central computer. This computer composes the layout in electronic type and the entire product transmitted electronically to the presses. There, finally, the bytes become ink.

Phrack merely omitted the last step in a long line of virtual events. However, that omission, and its insignificant circulation, left it vulnerable to seizure based on content. If the 911 document had been the Pentagon Papers (another proprietary document) and Phrack the New York Times, a completion of the analogy would have seen the government stopping publication of the Times and seizing its every material possession, from notepads to presses.

Not that anyone in the newspaper business seemed particularly worried about such implications. They, and the rest of the media who bothered to report Knight Lightning's arrest were too obsessed by what they portrayed as actual disruptions of emergency service and with marvelling at the sociopathy of it. One report expressed relief that no one appeared to have died as a result of the "intrusions."

Meanwhile, in Baltimore, the 911 dragnet snared Leonard Rose, aka Terminus. A professional computer consultant who specialized in UNIX, Rose got a visit from the government early in February. The G-men forcibly detained his wife and children for six hours while they interrogated Rose about the 911 document and ransacked his system.

Rose had no knowledge of the 911 matter. Indeed, his only connection had been occasional contact with Knight Lightning over several years...and admitted membership in the Legion of Doom. However, when searching his hard disk for 911 evidence, they found something else. Like many UNIX consultants, Rose did have some UNIX source code in his possession. Furthermore, there was evidence that he had transmitted some of it to Jolnet and left it there for another consultant.

UNIX is a ubiquitous operating system, and though its main virtue is its openness to amendment at the source level, it is nevertheless the property of AT&T. What had been widely distributed within businesses and universities for years was suddenly, in Rose's hands, a felonious possession.

Finally, the Secret Service rewarded the good citizenship of Rich Andrews by confiscating the computer where Jolnet had dwelt, along with all the e-mail, read and un-read, which his subscribers had left there. Like the many others whose equipment and data were taken by the Secret Service subsequently, he wasn't charged with anything. Nor is he likely to be. They have already inflicted on him the worst punishment a nerd can suffer: data death.

Andrews was baffled. "I'm the one that found it, I'm the one that turned it in...And I'm the one that's suffering," he said.

One wonders what will happen when they find such documents on the hard disks of CompuServe. Maybe I'll just upload my copy of Bell South Standard Practice (BSP) 660-225-104SV and see...


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In any case, association with stolen data is all the guilt you need. It's quite as if the government could seize your house simply because a guest left a stolen VCR in an upstairs bedroom closet. Or confiscate all the mail in a post office upon finding a stolen package there. The first concept of modern jurisprudence to have arrived in Cyberspace seems to have been Zero Tolerance.

******

Rich Andrews was not the last to learn about the Secret Service's debonair new attitude toward the 4th Amendment's protection against unreasonable seizure.

Early on March 1, 1990, the offices of a role-playing game publisher in Austin, Texas called Steve Jackson Games were visited by agents of the United States Secret Service. They ransacked the premises, broke into several locked filing cabinets (damaging them irreparably in the process) and eventually left carrying 3 computers, 2 laser printers, several hard disks, and many boxes of paper and floppy disks.

Later in the day, callers to the Illuminati BBS (which Steve Jackson Games operated to keep in touch with roll-players around the country) encountered the following message:

"So far we have not received a clear explanation of what the Secret Service was looking for, what they expected to find, or much of anything else. We are fairly certain that Steve Jackson Games is not the target of whatever investigation is being conducted; in any case, we have done nothing illegal and have nothing whatsoever to hide. However, the equipment that was seized is apparently considered to be evidence in whatever they're investigating, so we aren't likely to get it back any time soon. It could be a month, it could be never."

It's been three months as I write this and, not only has nothing been returned to them, but, according to Steve Jackson, the Secret Service will no longer take his calls. He figures that, in the months since the raid, his little company has lost an estimated $125,000. With such a fiscal hemorrhage, he can't afford a lawyer to take after the Secret Service. Both the state and national offices of the ACLU told him to "run along" when he solicited their help.

He tried to go to the press. As in most other cases, they were unwilling to raise the alarm. Jackson theorized, "The conservative press is taking the attitude that the suppression of evil hackers is a good thing and that anyone who happens to be put out of business in the meantime...well, that's just their tough luck."

In fact, Newsweek did run a story about the event, portraying it from Jackson's perspective, but they were almost alone in dealing with it.

What had he done to deserve this nightmare? Role-playing games, of which Dungeons and Dragons is the most famous, have been accused of creating obsessive involvement in their nerdy young players, but no one before had found it necessary to prevent their publication.


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It seems that Steve Jackson had hired the wrong writer. The managing editor of Steve Jackson Games is a former cracker, known by his fellows in the Legion of Doom as The Mentor. At the time of the raid, he and the rest of Jackson staff had been working for over a year on a game called GURPS Cyberpunk, High-Tech Low-Life Role-Playing.

At the time of the Secret Service raids, the game resided entirely on the hard disks they confiscated. Indeed, it was their target. They told Jackson that, based on its author's background, they had reason to believe it was a "handbook on computer crime." It was therefore inappropriate for publication, 1st Amendment or no 1st Amendment.

I got a copy of the game from the trunk of The Mentor's car in an Austin parking lot. Like the Bell South document, it seemed pretty innocuous to me, if a little inscrutable. Borrowing its flavor from the works of William Gibson and Austin sci-fi author Bruce Sterling, it is filled with silicon brain implants, holodecks, and gauss guns.

It is, as the cover copy puts it, "a fusion of the dystopian visions of George Orwell and Timothy Leary." Actually, without the gizmos, it describes a future kind of like the present its publisher is experiencing at the hands of the Secret Service.

An unbelievably Byzantine world resides within its 120 large pages of small print. (These roll-players must be some kind of idiots savants...) Indeed, it's a thing of such complexity that I can't swear there's no criminal information in there, but then I can't swear that Grateful Dead records don't have satanic messages if played backwards. Anything's possible, especially inside something as remarkable as Cyberpunk.

The most remarkable thing about Cyberpunk is the fact that it was printed at all. After much negotiation, Jackson was able to get the Secret Service to let him have some of his data back. However, they told him that he would be limited to an hour and a half with only one of his three computers. Also, according to Jackson, "They insisted that all the copies be made by a Secret Service agent who was a two- finger typist. So we didn't get much. "

In the end, Jackson and his staff had to reconstruct most of the game from neural rather than magnetic memory. They did have a few very old backups, and they retrieved some scraps which had been passed around to game testers. They also had the determination of the enraged.

Despite government efforts to impose censorship by prior restraint, Cyberpunk is now on the market. Presumably, advertising it as "The book that was seized by the U.S. Secret Service" will invigorate sales. But Steve Jackson Games, the heretofore prosperous publisher of more than a hundred role-playing games, has been forced to lay off more than half of its employees and may well be mortally wounded.

Any employer who has heard this tale will think hard before he hires a computer cracker. Which may be,


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of course, among the effects the Secret Service desires.

******

On May 8, 1990, Operation Sun Devil, heretofore an apparently random and nameless trickle of Secret Service actions, swept down on the Legion of Doom and its ilk like a bureaucratic tsunami. On that day, the Secret Service served 27 search warrants in 14 cities from Plano, Texas to New York, New York.

The law had come to Cyberspace. When the day was over, transit through the wide open spaces of the Virtual World would be a lot trickier.

In a press release following the sweep, the Secret Service boasted having shut down numerous computer bulletin boards, confiscated 40 computers, and seized 23,000 disks. They noted in their statement that "the conceivable criminal violations of this operation have serious implications for the health and welfare of all individuals, corporations, and United States Government agencies relying on computers and telephones to communicate."

It was unclear from their statement whether "this operation" meant the Legion of Doom or Operation Sun Devil. There was room to interpret it either way.

Because the deliciously ironic truth is that, aside from the 3 page Bell South document, the hackers had neither removed nor damaged anyone's data. Operation Sun Devil, on the other hand, had "serious implications" for a number of folks who relied on "computers and telephones to communicate." They lost the equivalent of about 5.4 million pages of information. Not to mention a few computers and telephones.

And the welfare of the individuals behind those figures was surely in jeopardy. Like the story of the single mother and computer consultant in Baltimore whose sole means of supporting herself and her 18 year old son was stripped away early one morning. Secret Service agents broke down her door with sledge hammers, entered with guns drawn, and seized all her computer equipment. Apparently her son had also been using it...

Or the father in New York who opened the door at 6:00 AM and found a shotgun at his nose. A dozen agents entered. While one of the kept the man's wife in a choke-hold, the rest made ready to shoot and entered the bedroom of their sleeping 14 year-old. Before leaving, they confiscated every piece of electronic equipment in the house, including all the telephones.

It was enough to suggest that the insurance companies should start writing policies against capricious governmental seizure of circuitry.

In fairness, one can imagine the government's problem. This is all pretty magical stuff to them. If I were trying to terminate the operations of a witch coven, I'd probably seize everything in sight. How would I


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tell the ordinary household brooms from the getaway vehicles?

But as I heard more and more about the vile injustices being heaped on my young pals in the Legion of Doom, not to mention the unfortunate folks nearby, the less I was inclined toward such temperate thoughts as these. I drifted back into a 60's-style sense of the government, thinking it a thing of monolithic and evil efficiency and adopting an up-against-the-wall willingness to spit words like "pig" or "fascist" into my descriptions.

In doing so, I endowed the Secret Service with a clarity of intent which no agency of government will ever possess. Despite almost every experience I've ever had with federal authority, I keep imagining its competence.

For some reason, it was easier to invest the Keystone Kapers of Operation Sun Devil with malign purpose rather than confront their absurdity straight-on. There is, after all, a twisted kind of comfort in political paranoia. It provides one such a sense of orderliness to think that the government is neither crazy nor stupid and that its plots, though wicked, are succinct.

I was about to have an experience which would restore both my natural sense of unreality and my unwillingness to demean the motives of others. I was about to see first hand the disorientation of the law in the featureless vastness of Cyberspace.

********

In Search of NuPrometheus

"I pity the poor immigrant..."-- Bob Dylan

Sometime last June, an angry hacker got hold of a chunk of the highly secret source code which drives the Apple Macintosh. He then distributed it to a variety of addresses, claiming responsibility for this act of information terrorism in the name of the NuPrometheus League.

Apple freaked. NuPrometheus had stolen, if not the Apple crown jewels, at least a stone from them. Worse, NuPrometheus had then given this prize away. Repeatedly.

All Apple really has to offer the world is the software which lies encoded in silicon on the ROM chip of every Macintosh. This set of instructions is the cyber-DNA which makes a Macintosh a Macintosh.

Worse, much of the magic in this code was put there by people who not only do not work for Apple any longer, but might only do so again if encouraged with cattle prods. Apple's attitude toward its ROM code is a little like that of a rich kid toward his inheritance. Not actually knowing how to create wealth himself, he guards what he has with hysterical fervor.


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Time passed, and I forgot about the incident. But one recent May morning, I leaned that others had not. The tireless search for the spectral heart of NuPrometheus finally reached Pinedale, Wyoming, where I was the object of a two hour interview by Special Agent Richard Baxter, Jr. of the Federal Bureau of Investigation.

Poor Agent Baxter didn't know a ROM chip from a Vise-grip when he arrived, so much of that time was spent trying to educate him on the nature of the thing which had been stolen. Or whether "stolen" was the right term for what had happened to it.

You know things have rather jumped the groove when potential suspects must explain to law enforcers the nature of their alleged perpetrations.

I wouldn't swear Agent Baxter ever got it quite right. After I showed him some actual source code, gave a demonstration of e-mail in action, and downloaded a file from the WELL, he took to rubbing his face with both hands, peering up over his finger tips and saying, "It sure is something, isn't it" Or, "Whooo-ee."

Or "my eight year-old knows more about these things than I do." He didn't say this with a father's pride so much as an immigrant's fear of a strange new land into which he will be forcibly moved and in which his own child is a native. He looked across my keyboard into Cyberspace and didn't like what he saw.

We could have made it harder for one another, but I think we each sensed that the other occupied a world which was as bizarre and nonsensical as it could be. We did our mutual best to suppress immune response at the border.

You'd have thought his world might have been a little more recognizable to me. Not so, it turns out. Because in his world, I found several unfamiliar features, including these:

1. The Hacker's Conference is an underground organization of computer outlaws with likely connections to, and almost certainly sympathy with, the NuPrometheus League. (Or as Agent Baxter repeatedly put it, the "New Prosthesis League.")

2. John Draper, the affore-mentioned Cap'n Crunch, in addition to being a known member of the Hacker's Conference, is also CEO and president of Autodesk, Inc. This is of particular concern to the FBI because Autodesk has many top-secret contracts with the government to supply Star Wars graphics imaging and "hyperspace" technology. Worse, Draper is thought to have Soviet contacts.

He wasn't making this up. He had lengthy documents from the San Francisco office to prove it. And in which Autodesk's address was certainly correct.

On the other hand, I know John Draper. While, as I say, he may have once distinguished himself as a


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cracker during the Pleistocene, he is not now, never has been, and never will be CEO of Autodesk. He did work there for awhile last year, but he was let go long before he got in a position to take over.

Nor is Autodesk, in my experience with it, the Star Wars skunk works which Agent Baxter's documents indicated. One could hang out there a long time without ever seeing any gold braid.

Their primary product is something called AutoCAD, by far the most popular computer-aided design software but generally lacking in lethal potential. They do have a small development program in Cyberspace, which is what they call Virtual Reality. (This, I assume is the "hyperspace" to which Agent Baxter's documents referred.)

However, Autodesk had reduced its Cyberspace program to a couple of programmers. I imagined Randy Walser and Carl Tollander toiling away in the dark and lonely service of their country. Didn't work. Then I tried to describe Virtual Reality to Agent Baxter, but that didn't work either. In fact, he tilted. I took several runs at it, but I could tell I was violating our border agreements. These seemed to include a requirement that neither of us try to drag the other across into his conceptual zone.

I fared a little better on the Hacker's Conference. Hardly a conspiracy, the Hacker's Conference is an annual convention originated in 1984 by the Point Foundation and the editors of Whole Earth Review. Each year it invites about a hundred of the most gifted and accomplished of digital creators. Indeed, they are the very people who have conducted the personal computer revolution. Agent Baxter looked at my list of Hacker's Conference attendees and read their bios.

"These are the people who actually design this stuff, aren't they?" He was incredulous. Their corporate addresses didn't fit his model of outlaws at all well.

Why had he come all the way to Pinedale to investigate a crime he didn't understand which had taken place (sort of) in 5 different places, none of which was within 500 miles?

Well, it seems Apple has told the FBI that they can expect little cooperation from Hackers in and around the Silicon Valley, owing to virulent anti-Apple sentiment there. They claim this is due to the Hacker belief that software should be free combined with festering resentment of Apple's commercial success. They advised the FBI to question only those Hackers who were as far as possible from the twisted heart of the subculture.

They did have their eye on some local people though. These included a couple of former Apple employees, Grady Ward and Water Horat, Chuck Farnham (who has made a living out of harassing Apple), Glenn Tenney (the purported leader of the Hackers), and, of course, the purported CEO of Autodesk.

Other folks Agent Baxter asked me about included Mitch Kapor, who wrote Lotus 1-2-3 and was known to have received some this mysterious source code. Or whatever. But I had also met Mitch Kapor, both


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on the WELL and in person. A less likely computer terrorist would be hard to come by.

Actually, the question of the source code was another area where worlds but shadow-boxed. Although Agent Baxter didn't know source code from Tuesday, he did know that Apple Computer had told his agency that what had been stolen and disseminated was the complete recipe for a Macintosh computer. The distribution of this secret formula might result in the creation of millions of Macintoshes not made by Apple. And, of course, the ruination of Apple Computer.

In my world, NuPrometheus (whoever they, or more likely, he might be) had distributed a small portion of the code which related specifically to Color QuickDraw. QuickDraw is Apple's name for the software which controls the Mac's on-screen graphics. But this was another detail which Agent Baxter could not capture. For all he knew, you could grow Macintoshes from floppy disks.

I explained to him that Apple was alleging something like the ability to assemble an entire human being from the recipe for a foot, but even he know the analogy was inexact. And trying to get him to accept the idea that a corporation could go mad with suspicion was quite futile. He had a far different perception of the emotional reliability of institutions.

When he fnally left, we were both dazzled and disturbed. I spent some time thinking about Lewis Carroll and tried to return to writing about the legal persecution of the Legion of Doom. But my heart wasn't in it. I found myself suddenly too much in sympathy with Agent Baxter and his struggling colleagues from Operation Sun Devil to get back into a proper sort of pig-bashing mode.

Given what had happened to other innocent bystanders like Steve Jackson, I gave some thought to getting scared. But this was Kafka in a clown suit. It wasn't precisely frightening. I also took some comfort in a phrase once applied to the administration of Frederick the Great: "Despotism tempered by incompetence."

Of course, incompetence is a double-edged banana. While we may know this new territory better than the authorities, they have us literally out-gunned. One should pause before making well-armed paranoids feel foolish, no matter how foolish they seem.

******

The Fear of White Noise

"Neurosis is the inability to tolerate ambiguity."

-- Sigmund Freud, appearing to me in a dream

I'm a member of that half of the human race which is inclined to divide the human race into two kinds of people. My dividing line runs between the people who crave certainty and the people who trust chance.


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You can draw this one a number of ways, of course, like Control vs. Serendipity, Order vs. Chaos, Hard answers vs. Silly questions, or Newton, Descartes & Aquinas vs. Heisenberg, Mandelbrot & the Dalai Lama. Etc.

Large organizations and their drones huddle on one end of my scale, busily trying to impose predictable homogeneity on messy circumstance. On the other end, free-lancers and ne'er-do-wells cavort about, getting by on luck if they get by at all.

However you cast these poles, it comes down to the difference between those who see life as a struggle against cosmic peril and human infamy and those who believe, without any hard evidence, that the universe is actually on our side. Fear vs. Faith.

I am of the latter group. Along with Gandhi and Rebecca of Sunnybrook Farm, I believe that other human beings will quite consistently merit my trust if I'm not doing something which scares them or makes them feel bad about themselves. In other words, the best defense is a good way to get hurt.

In spite of the fact that this system works very reliably for me and my kind, I find we are increasingly in the minority. More and more of our neighbors live in armed compounds. Alarms blare continuously. Potentially happy people give their lives over to the corporate state as though the world were so dangerous outside its veil of collective immunity that they have no choice.

I have a number of theories as to why this is happening. One has to do with the opening of Cyberspace. As a result of this development, humanity is now undergoing the most profound transformation of its history. Coming into the Virtual World, we inhabit Information. Indeed, we become Information. Thought is embodied and the Flesh is made Word. It's weird as hell.

Beginning with the invention of the telegraph and extending through television into Virtual Reality, we have been, for a over a century, experiencing a terrifying erosion in our sense of both body and place. As we begin to realize the enormity of what is happening to us, all but the most courageous have gotten scared.

And everyone, regardless of his psychic resilience, feels this overwhelming sense of strangeness. The world, once so certain and tangible and legally precise, has become an infinite layering of opinions, perceptions, litigation, camera-angles, data, white noise, and, most of all, ambiguities. Those of us who are of the fearful persuasion do not like ambiguities.

Indeed, if one were a little jumpy to start with, he may now be fairly humming with nameless dread. Since no one likes his dread to be nameless, the first order of business is to find it some names.

For a long time here in the United States, Communism provided a kind of catch-all bogeyman. Marx, Stalin and Mao summoned forth such a spectre that, to many Americans, annihilation of all life was


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preferable to the human portion's becoming Communist. But as Big Red wizened and lost his teeth, we began to cast about for a replacement.

Finding none of sufficient individual horror, we have draped a number of objects with the old black bunting which once shrouded the Kremlin. Our current spooks are terrorists, child abductors, AIDS, and the underclass. I would say drugs, but anyone who thinks that the War on Drugs is not actually the War on the Underclass hasn't been paying close enough attention.

There are a couple of problems with these Four Horsemen. For one thing, they aren't actually very dangerous. For example, only 7 Americans died in worldwide terrorist attacks in 1987. Fewer than 10 (out of about 70 million) children are abducted by strangers in the U.S. each year. Your chances of getting AIDS if you are neither gay nor a hemophiliac nor a junkie are considerably less than your chances of getting killed by lightning while golfing. The underclass is dangerous, of course, but only, with very few exceptions, if you are a member of it.

The other problem with these perils is that they are all physical. If we are entering into a world in which no one has a body, physical threats begin to lose their sting.

And now I come to the point of this screed: The perfect bogeyman for Modern Times is the Cyberpunk! He is so smart he makes you feel even more stupid than you usually do. He knows this complex country in which you're perpetually lost. He understands the value of things you can't conceptualize long enough to cash in on. He is the one-eyed man in the Country of the Blind.

In a world where you and your wealth consist of nothing but beeps and boops of micro-voltage, he can steal all your assets in nanoseconds and then make you disappear.

He can even reach back out of his haunted mists and kill you physically. Among the justifications for Operation Sun Devil was this chilling tidbit:

"Hackers had the ability to access and review the files of hospital patients. Furthermore, they could have added, deleted, or altered vital patient information, possibly causing life- threatening situations."

Perhaps the most frightening thing about the Cyberpunk is the danger he presents to The Institution, whether corporate or governmental. If you are frightened you have almost certainly taken shelter by now in one of these collective organisms, so the very last thing you want is something which can endanger your heretofore unassailable hive.

And make no mistake, crackers will become to bureaucratic bodies what viruses presently are to human bodies. Thus, Operation Sun Devil can be seen as the first of many waves of organizational immune response to this new antigen. Agent Baxter was a T-cell. Fortunately, he didn't know that himself and I was very careful not to show him my own antigenic tendencies.


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I think that herein lies the way out of what might otherwise become an Armageddon between the control freaks and the neo-hip. Those who are comfortable with these disorienting changes must do everything in our power to convey that comfort to others. In other words, we must share our sense of hope and opportunity with those who feel that in Cyberspace they will be obsolete eunuchs for sure.

It's a tall order. But, my silicon brothers, our self-interest is strong. If we come on as witches, they will burn us. If we volunteer to guide them gently into its new lands, the Virtual World might be a more amiable place for all of us than this one has been.

Of course, we may also have to fight.

******

Defining the conceptual and legal map of Cyberspace before the ambiguophobes do it for us (with punitive over-precision) is going to require some effort. We can't expect the Constitution to take care of itself. Indeed, the precedent for mitigating the Constitutional protection of a new medium has already been established. Consider what happened to radio in the early part of this century.

Under the pretext of allocating limited bandwidth, the government established an early right of censorship over broadcast content which still seems directly unconstitutional to me. Except that it stuck. And now, owing to a large body of case law, looks to go on sticking.

New media, like any chaotic system, are highly sensitive to initial conditions. Today's heuristical answers of the moment become tomorrow's permanent institutions of both law and expectation. Thus, they bear examination with that destiny in mind.

Earlier in this article, I asked a number of tough questions relating to the nature of property, privacy, and speech in the digital domain. Questions like: "What are data and what is free speech?" or "How does one treat property which has no physical form and can be infinitely reproduced?" or "Is a computer the same as a printing press." The events of Operation Sun Devil were nothing less than an effort to provide answers to these questions. Answers which would greatly enhance governmental ability to silence the future's opinionated nerds.

In over-reaching as extravagantly as they did, the Secret Service may actually have done a service for those of us who love liberty. They have provided us with a devil. And devils, among their other galvanizing virtues, are just great for clarifying the issues and putting iron in your spine. In the presence of a devil, it's always easier to figure out where you stand.

While I previously had felt no stake in the obscure conundra of free telecommunication, I was, thanks to Operation Sun Devil, suddenly able to plot a trajectory from the current plight of the Legion of Doom to an eventual constraint on opinions much dearer to me. I remembered Martin Neimoeller, who said:


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"In Germany they came first for the Communists, and I didn't speak up because I wasn't a Communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. They came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics, and I didn't speak up because I was a Protestant. Then they came for me, and by that time no one was left to speak up."

I decided it was time for me to speak up.

The evening of my visit from Agent Baxter, I wrote an account of it which I placed on the WELL. Several days later, Mitch Kapor literally dropped by for a chat.

Also a WELL denizen, he had read about Agent Baxter and had begun to meditate on the inappropriateness of leaving our civil liberties to be defined by the technologically benighted. A man who places great emphasis on face-to-face contact, he wanted to discuss this issue with me in person. He had been flying his Canadair bizjet to a meeting in California when he realized his route took him directly over Pinedale.

We talked for a couple of hours in my office while a spring snowstorm swirled outside. When I recounted for him what I had learned about Operation Sun Devil, he decided it was time for him to speak up too.

He called a few days later with the phone number of a civil libertarian named Harvey Silverglate, who, as evidence of his conviction that everyone deserves due process, is currently defending Leona Helmsley. Mitch asked me to tell Harvey what I knew, with the inference that he would help support the costs which are liable to arise whenever you tell a lawyer anything.

I found Harvey in New York at the offices of that city's most distinguished constitutional law firm, Rabinowitz, Boudin, Standard, Krinsky, and Lieberman. These are the folks who made it possible for the New York Times to print the Pentagon Papers. (Not to dwell on the unwilling notoriety which partner Leonard Boudin achieved back in 1970 when his Weathergirl daughter blew up the family home...)

In the conference call which followed, I could almost hear the skeletal click as their jaws dropped. The next day, Eric Lieberman and Terry Gross of Rabinowitz, Boudin met with Acid Phreak, Phiber Optik, and Scorpion.

The maddening trouble with writing this account is that Whole Earth Review, unlike, say, Phrack, doesn't publish instantaneously. Events are boiling up at such a frothy pace that anything I say about current occurrences surely will not obtain by the time you read this. The road from here is certain to fork many times. The printed version of this will seem downright quaint before it's dry.

But as of today (in early June of 1990), Mitch and I are legally constituting the Electronic Frontier


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Foundation, a two (or possibly three) man organization which will raise and disburse funds for education, lobbying, and litigation in the areas relating to digital speech and the extension of the Constitution into Cyberspace.

Already, on the strength of preliminary stories about our efforts in the Washington Post and the New York Times, Mitch has received an offer from Steve Wozniak to match whatever funds he dedicates to this effort. (As well as a fair amount of abuse from the more institutionalized precincts of the computer industry.)

The Electronic Frontier Foundation will fund, conduct, and support legal efforts to demonstrate that the Secret Service has exercised prior restraint on publications, limited free speech, conducted improper seizure of equipment and data, used undue force, and generally conducted itself in a fashion which is arbitrary, oppressive, and unconstitutional.

In addition, we will work with the Computer Professionals for Social Responsibility and other organizations to convey to both the public and the policy-makers metaphors which will illuminate the more general stake in liberating Cyberspace.

Not everyone will agree. Crackers are, after all, generally beyond public sympathy. Actions on their behalf are not going to be popular no matter who else might benefit from them in the long run.

Nevertheless, in the litigations and political debates which are certain to follow, we will endeavor to assure that their electronic speech is protected as certainly as any opinions which are printed or, for that matter, screamed. We will make an effort to clarify issues surrounding the distribution of intellectual property. And we will help to create for America a future which is as blessed by the Bill of Rights as its past has been.

John Perry Barlow [email protected] Friday, June 8, 1990


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Complaint in SJ Games v. Secret Service

Text of the original complaint in Steve Jackson Games vs. U.S. Secret Service, as filed in U.S. Federal Court on May 1, 1991. Yes, there do seem to be two Roman Numeral III sections. Fnord.

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.

http://www.2600.com/secret/sj/sj-complaint.html (1 of 24)4/16/2006 11:12:22 AM

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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 retention of the computers used to prepare SJGpublications and to operate the bulletin board system, violated theFirst 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.


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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 with knowledge 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 system 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.


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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.


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(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


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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:


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(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


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unnamed agents of the United States Secret Service. Foley Affidavit para. 3.

23. The Foley affidavit alleged that defendant Kluepfel had partipated 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 a publisher "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.


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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 communication of 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, classified information, 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


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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


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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;



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;


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;



37. The Foley affidavit did not inform the Magistrate that the computer used to operate the BBS at SJG contained stored private electronic communications;



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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;



(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;



(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,


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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;


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(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,


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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 Treasury falsely 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


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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


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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 employees reconstructed 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;


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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 public communication, 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


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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 and documentary 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 AMENDMENTAgainst Defendants Cook, Foley, Golden & Kluepfel


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;


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(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 violated plaintiffs' 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 AMENDMENTAgainst Defendants Cook, Foley, Golden, and Kluepfel


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;


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(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.


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. 2707Seizure of Stored Electronic Communications Against All Defendants


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


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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).



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


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.


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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


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(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


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The Constitution in Cyberspace

by Laurence H. Tribe

Tyler Professor of Constitutional Law, Harvard Law School

PREPARED REMARKS

KEYNOTE ADDRESS AT THE FIRST CONFERENCE ON COMPUTERS, FREEDOM & PRIVACY

Copyright, 1991, Jim Warren & Computer Professionals for Social Responsibility. All rights to copy the materials contained herein are reserved, except as hereafter explicitly licensed and permitted for anyone:

Anyone may receive, store and distribute copies of this ASCII-format computer text file in purely magnetic or electronic form, including on computer networks, computer bulletin board systems, computer conferencing systems, free computer diskettes, and host and personal computers, provided and only provided that:

(1) this file, including this notice, is not altered in any manner, and

(2) no profit or payment of any kind is charged for its distribution, other than normal online connect-time fees or the cost of the magnetic media, and

(3) it is not reproduced nor distributed in printed or paper form, nor on CD ROM, nor in any form other than the electronic forms described above without prior written permission from the copyright holder.

Arrangements to publish printed Proceedings of the First Conference on Computers, Freedom & Privacy are near completion. Audiotape and videotape versions are also being arranged.

A later version of this file on the WELL (Sausalito, California) will include ordering details. Or, for details, or to propose other distribution alternatives, contact Jim Warren, CFP Chair,345 Swett Rd., Woodside CA 94062; voice:(415)851-7075; fax:(415)851-2814; e-mail:[email protected].[4/19/91]

[ These were the author's *prepared* remarks. A transcript of Professor Tribe's March 26th comments at the Conference (which expanded slightly on several points herein) will be uploaded onto the WELL as soon as it is transcribed from the audio tapes and proofed against the audio and/or videotapes.]

"The Constitution in Cyberspace:

http://www.2600.com/secret/sj/sj-tribe.html (1 of 15)4/16/2006 11:12:56 AM

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Law and Liberty Beyond the Electronic Frontier"

by Laurence H. Tribe

Copyright 1991 Laurence H. Tribe, Tyler Professor of Constitutional Law, Harvard Law School.

Professor Tribe is the author, most recently, of "On Reading the Constitution" (Harvard University Press, Cambridge, MA, 1991).

Introduction

My topic is how to "map" the text and structure of our Constitution onto the texture and topology of "cyberspace". That's the term coined by cyberpunk novelist William Gibson, which many now use to describe the "place" -- a place without physical walls or even physical dimensions -- where ordinary telephone conversations "happen," where voice-mail and e-mail messages are stored and sent back and forth, and where computer-generated graphics are transmitted and transformed, all in the form of interactions, some real-time and some delayed, among countless users, and between users and the computer itself

Some use the "cyberspace" concept to designate fantasy worlds or "virtual realities" of the sort Gibson described in his novel *Neuromancer*, in which people can essentially turn their minds into computer peripherals capable of perceiving and exploring the data matrix. The whole idea of "virtual reality," of course, strikes a slightly odd note. As one of Lily Tomlin's most memorable characters once asked, "What's reality, anyway, but a collective hunch?" Work in this field tends to be done largely by people who share the famous observation that reality is overrated!

However that may be, "cyberspace" connotes to some users the sorts of technologies that people in Silicon Valley (like Jaron Lanier at VPL Research, for instance) work on when they try to develop "virtual racquetball" for the disabled, computer-aided design systems that allow architects to walk through "virtual buildings" and remodel them *before* they are built, "virtual conferencing" for business meetings, or maybe someday even "virtual day care centers" for latchkey children. The user snaps on a pair of goggles hooked up to a high-powered computer terminal, puts on a special set of gloves (and perhaps other gear) wired into the same computer system, and, looking a little bit like Darth Vader, pretty much steps into a computer-driven, drug-free, 3-dimensional, interactive, infinitely expandable hallucination complete with sight, sound and touch -- allowing the user literally to move through, and experience, information.

I'm using the term "cyberspace" much more broadly, as many have lately. I'm using it to encompass the full array of computer-mediated audio and/or video interactions that are already widely dispersed in modern societies -- from things as ubiquitous as the ordinary telephone, to things that are still coming on-line like computer bulletin boards and networks like Prodigy, or like the WELL ("Whole Earth 'Lectronic Link"), based here in San Francisco. My topic, broadly put, is the implications of that rapidly


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expanding array for our constitutional order. It is a constitutional order that tends to carve up the social, legal, and political universe along lines of "physical place" or "temporal proximity." The critical thing to note is that these very lines, in cyberspace, either get bent out of shape or fade out altogether. The question, then, becomes: when the lines along which our Constitution is drawn warp or vanish, what happens to the Constitution itself?

Setting the Stage

To set the stage with a perhaps unfamiliar example, consider a decision handed down nine months ago, *Maryland v. Craig*, where the U.S. Supreme Court upheld the power of a state to put an alleged child abuser on trial with the defendant's accuser testifying not in the defendant's presence but by one-way, closed-circuit television. The Sixth Amendment, which of course antedated television by a century and a half, says: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." Justice O'Connor wrote for a bare majority of five Justices that the state's procedures nonetheless struck a fair balance between costs to the accused and benefits to the victim and to society as a whole. Justice Scalia, joined by the three "liberals" then on the Court (Justices Brennan, Marshall and Stevens), dissented from that cost-benefit approach to interpreting the Sixth Amendment. He wrote:

The Court has convincingly proved that the Maryland procedure serves a valid interest, and gives the defendant virtually everything the Confrontation Clause guarantees (everything, that is, except confrontation). I am persuaded, therefore, that the Maryland procedure is virtually constitutional. Since it is not, however, actually constitutional I [dissent].

Could it be that the high-tech, closed-circuit TV context, almost as familiar to the Court's youngest Justice as to his even younger law clerks, might've had some bearing on Justice Scalia's sly invocation of "virtual" constitutional reality? Even if Justice Scalia wasn't making a pun on "virtual reality," and I suspect he wasn't, his dissenting opinion about the Confrontation Clause requires *us* to "confront" the recurring puzzle of how constitutional provisions written two centuries ago should be construed and applied in ever-changing circumstances.

Should contemporary society's technology-driven cost-benefit fixation be allowed to water down the old-fashioned value of direct confrontation that the Constitution seemingly enshrined as basic? I would hope not. In that respect, I find myself in complete agreement with Justice Scalia.

But new technological possibilities for seeing your accuser clearly without having your accuser see you at all -- possibilities for sparing the accuser any discomfort in ways that the accuser couldn't be spared before one-way mirrors or closed-circuit TVs were developed -- *should* lead us at least to ask ourselves whether *two*-way confrontation, in which your accuser is supposed to be made uncomfortable, and thus less likely to lie, really *is* the core value of the Confrontation Clause. If so, "virtual" confrontation should be held constitutionally insufficient. If not -- if the core value served by


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the Confrontation Clause is just the ability to *watch* your accuser say that you did it -- then "virtual" confrontation should suffice. New technologies should lead us to look more closely at just *what values* the Constitution seeks to preserve. New technologies should *not* lead us to react reflexively *either way* -- either by assuming that technologies the Framers didn't know about make their concerns and values obsolete, or by assuming that those new technologies couldn't possibly provide new ways out of old dilemmas and therefore should be ignored altogether.

The one-way mirror yields a fitting metaphor for the task we confront. As the Supreme Court said in a different context several years ago, "The mirror image presented [here] requires us to step through an analytical looking glass to resolve it." (*NCAA v. Tarkanian*, 109 S. Ct. at 462.) The world in which the Sixth Amendment's Confrontation Clause was written and ratified was a world in which "being confronted with" your accuser *necessarily* meant a simultaneous physical confrontation so that your accuser had to *perceive* you being accused by him. Closed-circuit television and one-way mirrors changed all that by *decoupling* those two dimensions of confrontation, marking a shift in the conditions of information-transfer that is in many ways typical of cyberspace.

What does that sort of shift mean for constitutional analysis? A common way to react is to treat the pattern as it existed *prior* to the new technology (the pattern in which doing "A" necessarily *included* doing "B") as essentially arbitrary or accidental. Taking this approach, once the technological change makes it possible to do "A" *without* "B" -- to see your accuser without having him or her see you, or to read someone's mail without her knowing it, to switch examples -- one concludes that the "old" Constitution's inclusion of "B" is irrelevant; one concludes that it is enough for the government to guarantee "A" alone. Sometimes that will be the case; but it's vital to understand that, sometimes, it won't be.

A characteristic feature of modernity is the subordination of purpose to accident -- an acute appreciation of just how contingent and coincidental the connections we are taught to make often are. We understand, as moderns, that many of the ways we carve up and organize the world reflect what our social history and cultural heritage, and perhaps our neurological wiring, bring to the world, and not some irreducible "way things are." A wonderful example comes from a 1966 essay by Jorge Louis Borges, "Other Inquisitions." There, the essayist describes the following taxonomy of the animal kingdom, which he purports to trace to an ancient Chinese encyclopedia entitled *The Celestial Emporium of Benevolent Knowledge*:

On those remote pages it is written that animals are divided into: (a) those belonging to the Emperor (b) those that are embalmed (c) those that are trained (d) suckling pigs (e) mermaids (f) fabulous ones (g) stray dogs (h) those that are included in this classification


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(i) those that tremble as if they were mad (j) innumerable ones (k) those drawn with a very fine camel's hair brush (l) others (m) those that have just broken a water pitcher (n) those that, from a great distance, resemble flies

Contemporary writers from Michel Foucault, in *The Archaeology of Knowledge*, through George Lakoff, in *Women, Fire, and Dangerous Things*, use Borges' Chinese encyclopedia to illustrate a range of different propositions, but the *core* proposition is the supposed arbitrariness -- the political character, in a sense -- of all culturally imposed categories.

At one level, that proposition expresses a profound truth and may encourage humility by combating cultural imperialism. At another level, though, the proposition tells a dangerous lie: it suggests that we have descended into the nihilism that so obsessed Nietzsche and other thinkers -- a world where *everything* is relative, all lines are up for grabs, all principles and connections are just matters of purely subjective preference or, worse still, arbitrary convention. Whether we believe that killing animals for food is wrong, for example, becomes a question indistinguishable from whether we happen to enjoy eating beans, rice and tofu.

This is a particularly pernicious notion in a era when we pass more and more of our lives in cyberspace, a place where, almost by definition, our most familiar landmarks are rearranged or disappear altogether -- because there is a pervasive tendency, even (and perhaps especially) among the most enlightened, to forget that the human values and ideals to which we commit ourselves may indeed be universal and need not depend on how our particular cultures, or our latest technologies, carve up the universe we inhabit. It was my very wise colleague from Yale, the late Art Leff, who once observed that, even in a world without an agreed-upon God, we can still agree -- even if we can't "prove" mathematically -- that "napalming babies is wrong."

The Constitution's core values, I'm convinced, need not be transmogrified, or metamorphosed into oblivion, in the dim recesses of cyberspace. But to say that they *need* not be lost there is hardly to predict that they *will* not be. On the contrary, without further thought and awareness of the kind this conference might provide, the danger is clear and present that they *will* be.

The "event horizon" against which this transformation might occur is already plainly visible:

Electronic trespassers like Kevin Mitnik don't stop with cracking pay phones, but break into NORAD -- the North American Defense Command computer in Colorado Springs -- not in a *WarGames* movie, but in real life.

Less challenging to national security but more ubiquitously threatening, computer crackers download everyman's credit history from institutions like TRW; start charging phone calls (and more) to


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everyman's number; set loose "worm" programs that shut down thousands of linked computers; and spread "computer viruses" through everyman's work or home PC.

It is not only the government that feels threatened by "computer crime"; both the owners and the users of private information services, computer bulletin boards, gateways, and networks feel equally vulnerable to this new breed of invisible trespasser. The response from the many who sense danger has been swift, and often brutal, as a few examples illustrate.

Last March, U.S. Secret Service agents staged a surprise raid on Steve Jackson Games, a small games manufacturer in Austin, Texas, and seized all paper and electronic drafts of its newest fantasy role-playing game, *GURPS[reg.t.m.] Cyberpunk*, calling the game a "handbook for computer crime."

By last Spring, up to one quarter of the U.S. Treasury Department's investigators had become involved in a project of eavesdropping on computer bulletin boards, apparently tracking notorious hackers like "Acid Phreak" and "Phiber Optik" through what one journalist dubbed "the dark canyons of cyberspace."

Last May, in the now famous (or infamous) "Operation Sun Devil," more than 150 secret service agents teamed up with state and local law enforcement agencies, and with security personnel from AT&T, American Express, U.S. Sprint, and a number of the regional Bell telephone companies, armed themselves with over two dozen search warrants and more than a few guns, and seized 42 computers and 23,000 floppy discs in 14 cities from New York to Texas. Their target: a loose-knit group of people in their teens and twenties, dubbed the "Legion of Doom."

I am not describing an Indiana Jones movie. I'm talking about America in the 1990s.

The Problem

The Constitution's architecture can too easily come to seem quaintly irrelevant, or at least impossible to take very seriously, in the world as reconstituted by the microchip. I propose today to canvass five axioms of our constitutional law -- five basic assumptions that I believe shape the way American constitutional scholars and judges view legal issues -- and to examine how they can adapt to the cyberspace age. My conclusion (and I will try not to give away too much of the punch line here) is that the Framers of our Constitution were very wise indeed. They bequeathed us a framework for all seasons, a truly astonishing document whose principles are suitable for all times and all technological landscapes.

Axiom 1:There is a Vital Difference*Between Government and Private Action*

The first axiom I will discuss is the proposition that the Constitution, with the sole exception of the Thirteenth Amendment prohibiting slavery, regulates action by the *government* rather than the conduct of *private* individuals and groups. In an article I wrote in the Harvard Law Review in


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November 1989 on "The Curvature of Constitutional Space," I discussed the Constitution's metaphor-morphosis from a Newtonian to an Einsteinian and Heisenbergian paradigm. It was common, early in our history, to see the Constitution as "Newtonian in design with its carefully counterpoised forces and counterforces, its [geographical and institutional] checks and balances." (103 *Harv. L. Rev.* at 3.)

Indeed, in many ways contemporary constitutional law is still trapped within and stunted by that paradigm. But today at least some post-modern constitutionalists tend to think and talk in the language of relativity, quantum mechanics, and chaos theory. This may quite naturally suggest to some observers that the Constitution's basic strategy of decentralizing and diffusing power by constraining and fragmenting governmental authority in particular has been rendered obsolete.

The institutional separation of powers among the three federal branches of government, the geographical division of authority between the federal government and the fifty state governments, the recognition of national boundaries, and, above all, the sharp distinction between the public and private spheres, become easy to deride as relics of a simpler, pre-computer age. Thus Eli Noam, in the First Ithiel de Sola Pool Memorial Lecture, delivered last October at MIT, notes that computer networks and network associations acquire quasi-governmental powers as they necessarily take on such tasks as mediating their members' conflicting interests, establishing cost shares, creating their own rules of admission and access and expulsion, even establishing their own *de facto* taxing mechanisms. In Professor Noam's words, "networks become political entities," global nets that respect no state or local boundaries. Restrictions on the use of information in one country (to protect privacy, for example) tend to lead to export of that information to other countries, where it can be analyzed and then used on a selective basis in the country attempting to restrict it. "Data havens" reminiscent of the role played by the Swiss in banking may emerge, with few restrictions on the storage and manipulation of information.

A tempting conclusion is that, to protect the free speech and other rights of *users* in such private networks, judges must treat these networks not as associations that have rights of their own *against* the government but as virtual "governments" in themselves -- as entities against which individual rights must be defended in the Constitution's name. Such a conclusion would be misleadingly simplistic. There are circumstances, of course, when non-governmental bodies like privately owned "company towns" or even huge shopping malls should be subjected to legislative and administrative controls by democratically accountable entities, or even to judicial controls as though they were arms of the state -- but that may be as true (or as false) of multinational corporations or foundations, or transnational religious organizations, or even small-town communities, as it is of computer-mediated networks. It's a fallacy to suppose that, just because a computer bulletin board or network or gateway is *something like* a shopping mall, government has as much constitutional duty -- or even authority -- to guarantee open public access to such a network as it has to guarantee open public access to a privately owned shopping center like the one involved in the U.S. Supreme Court's famous *PruneYard Shopping Center* decision of 1980, arising from nearby San Jose.

The rules of law, both statutory and judge-made, through which each state *allocates* private powers and responsibilities themselves represent characteristic forms of government action. That's why a state's rules for imposing liability on private publishers, or for deciding which private contracts to enforce and


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which ones to invalidate, are all subject to scrutiny for their consistency with the federal Constitution. But as a general proposition it is only what *governments* do, either through such rules or through the actions of public officials, that the United States Constitution constrains. And nothing about any new technology suddenly erases the Constitution's enduring value of restraining *government* above all else, and of protecting all private groups, large and small, from government.

It's true that certain technologies may become socially indispensable -- so that equal or at least minimal access to basic computer power, for example, might be as significant a constitutional goal as equal or at least minimal access to the franchise, or to dispute resolution through the judicial system, or to elementary and secondary education. But all this means (or should mean) is that the Constitution's constraints on government must at times take the form of imposing *affirmative duties* to assure access rather than merely enforcing *negative prohibitions* against designated sorts of invasion or intrusion.

Today, for example, the government is under an affirmative obligation to open up criminal trials to the press and the public, at least where there has not been a particularized finding that such openness would disrupt the proceedings. The government is also under an affirmative obligation to provide free legal assistance for indigent criminal defendants, to assure speedy trials, to underwrite the cost of counting ballots at election time, and to desegregate previously segregated school systems. But these occasional affirmative obligations don't, or shouldn't, mean that the Constitution's axiomatic division between the realm of public power and the realm of private life should be jettisoned.

Nor would the "indispensability" of information technologies provide a license for government to impose strict content, access, pricing, and other types of regulation. *Books* are indispensable to most of us, for example -- but it doesn't follow that government should therefore be able to regulate the content of what goes onto the shelves of *bookstores*. The right of a private bookstore owner to decide which books to stock and which to discard, which books to display openly and which to store in limited access areas, should remain inviolate. And note, incidentally, that this needn't make the bookstore owner a "publisher" who is liable for the words printed in the books on her shelves. It's a common fallacy to imagine that the moment a computer gateway or bulletin board begins to exercise powers of selection to control who may be on line, it must automatically assume the responsibilities of a newscaster, a broadcaster, or an author. For computer gateways and bulletin boards are really the "bookstores" of cyberspace; most of them organize and present information in a computer format, rather than generating more information content of their own.

Axiom 2:The Constitutional Boundaries of Private Propertyand Personality Depend on Variables Deeper Than*Social Utility and Technological Feasibility*

The second constitutional axiom, one closely related to the private-public distinction of the first axiom, is that a person's mind, body, and property belong *to that person* and not to the public as a whole. Some believe that cyberspace challenges that axiom because its entire premise lies in the existence of


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computers tied to electronic transmission networks that process digital information. Because such information can be easily replicated in series of "1"s and "0"s, anything that anyone has come up with in virtual reality can be infinitely reproduced. I can log on to a computer library, copy a "virtual book" to my computer disk, and send a copy to your computer without creating a gap on anyone's bookshelf. The same is true of valuable computer programs, costing hundreds of dollars, creating serious piracy problems. This feature leads some, like Richard Stallman of the Free Software Foundation, to argue that in cyberspace everything should be free -- that information can't be owned. Others, of course, argue that copyright and patent protections of various kinds are needed in order for there to be incentives to create "cyberspace property" in the first place.

Needless to say, there are lively debates about what the optimal incentive package should be as a matter of legislative and social policy. But the only *constitutional* issue, at bottom, isn't the utilitarian or instrumental selection of an optimal policy. Social judgments about what ought to be subject to individual appropriation, in the sense used by John Locke and Robert Nozick, and what ought to remain in the open public domain, are first and foremost *political* decisions.

To be sure, there are some constitutional constraints on these political decisions. The Constitution does not permit anything and everything to be made into a *private commodity*. Votes, for example, theoretically cannot be bought and sold. Whether the Constitution itself should be read (or amended) so as to permit all basic medical care, shelter, nutrition, legal assistance and, indeed, computerized information services, to be treated as mere commodities, available only to the highest bidder, are all terribly hard questions -- as the Eastern Europeans are now discovering as they attempt to draft their own constitutions. But these are not questions that should ever be confused with issues of what is technologically possible, about what is realistically enforceable, or about what is socially desirable. Similarly, the Constitution does not permit anything and everything to be *socialized* and made into a public good available to whoever needs or "deserves" it most. I would hope, for example, that the government could not use its powers of eminent domain to "take" live body parts like eyes or kidneys or brain tissue for those who need transplants and would be expected to lead particularly productive lives. In any event, I feel certain that whatever constitutional right each of us has to inhabit his or her own body and to hold onto his or her own thoughts and creations should not depend solely on cost-benefit calculations, or on the availability of technological methods for painlessly effecting transfers or for creating good artificial substitutes.

Axiom 3:*Government May Not Control Information Content*

A third constitutional axiom, like the first two, reflects a deep respect for the integrity of each individual and a healthy skepticism toward government. The axiom is that, although information and ideas have real effects in the social world, it's not up to government to pick and choose for us in terms of the *content* of that information or the *value* of those ideas.

This notion is sometimes mistakenly reduced to the naive child's ditty that "sticks and stones may break


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my bones, but words can never hurt me." Anybody who's ever been called something awful by children in a schoolyard knows better than to believe any such thing. The real basis for First Amendment values isn't the false premise that information and ideas have no real impact, but the belief that information and ideas are *too important* to entrust to any government censor or overseer.

If we keep that in mind, and *only* if we keep that in mind, will we be able to see through the tempting argument that, in the Information Age, free speech is a luxury we can no longer afford. That argument becomes especially tempting in the context of cyberspace, where sequences of "0"s and "1"s may become virtual life forms. Computer "viruses" roam the information nets, attaching themselves to various programs and screwing up computer facilities. Creation of a computer virus involves writing a program; the program then replicates itself and mutates. The electronic code involved is very much like DNA. If information content is "speech," and if the First Amendment is to apply in cyberspace, then mustn't these viruses be "speech" -- and mustn't their writing and dissemination be constitutionally protected? To avoid that nightmarish outcome, mustn't we say that the First Amendment is *inapplicable* to cyberspace?

The answer is no. Speech is protected, but deliberately yelling "Boo!" at a cardiac patient may still be prosecuted as murder. Free speech is a constitutional right, but handing a bank teller a hold-up note that says, "Your money or your life," may still be punished as robbery. Stealing someone's diary may be punished as theft -- even if you intend to publish it in book form. And the Supreme Court, over the past fifteen years, has gradually brought advertising within the ambit of protected expression without preventing the government from protecting consumers from deceptive advertising. The lesson, in short, is that constitutional principles are subtle enough to bend to such concerns. They needn't be broken or tossed out.

Axiom 4:The Constitution is Founded on NormativeConceptions of Humanity That Advances*in Science and Technology Cannot "Disprove"*

A fourth constitutional axiom is that the human spirit is something beyond a physical information processor. That axiom, which regards human thought processes as not fully reducible to the operations of a computer program, however complex, must not be confused with the silly view that, because computer operations involve nothing more than the manipulation of "on" and "off" states of myriad microchips, it somehow follows that government control or outright seizure of computers and computer programs threatens no First Amendment rights because human thought processes are not directly involved. To say that would be like saying that government confiscation of a newspaper's printing press and tomorrow morning's copy has nothing to do with speech but involves only a taking of metal, paper, and ink. Particularly if the seizure or the regulation is triggered by the content of the information being processed or transmitted, the First Amendment is of course fully involved. Yet this recognition that information processing by computer entails something far beyond the mebe sequencing of mechanical or chemical steps still leaves a potential gap between what computers can do internally and in communication with one another -- and what goes on within and between human minds. It is that gap to


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which this fourth axiom is addressed; the very existence of any such gap is, as I'm sure you know, a matter of considerable controversy.

What if people like the mathematician and physicist Roger Penrose, author of *The Emperor's New Mind*, are wrong about human minds? In that provocative recent book, Penrose disagrees with those Artificial Intelligence, or AI, gurus who insist that it's only a matter of time until human thought and feeling can be perfectly simulated or even replicated by a series of purely physical operations -- that it's all just neurons firing and neurotransmitters flowing, all subject to perfect modeling in suitable computer systems. Would an adherent of that AI orthodoxy, someone whom Penrose fails to persuade, have to reject as irrelevant for cyberspace those constitutional protections that rest on the anti-AI premise that minds are *not* reducible to really fancy computers?

Consider, for example, the Fifth Amendment, which provides that "no person shall be . . . compelled in any criminal case to be a witness against himself." The Supreme Court has long held that suspects may be required, despite this protection, to provide evidence that is not "testimonial" in nature -- blood samples, for instance, or even exemplars of one's handwriting or voice. Last year, in a case called *Pennsylvania v. Muniz*, the Supreme Court held that answers to even simple questions like "When was your sixth birthday?" are testimonial because such a question, however straightforward, nevertheless calls for the product of mental activity and therefore uses the suspect's mind against him. But what if science could eventually describe thinking as a process no more complex than, say, riding a bike or digesting a meal? Might the progress of neurobiology and computer science eventually overthrow the premises of the *Muniz* decision?

I would hope not. For the Constitution's premises, properly understood, are *normative* rather than *descriptive*. The philosopher David Hume was right in teaching that no "ought" can ever be logically derived from an "is." If we should ever abandon the Constitution's protection for the distinctively and universally human, it won't be because robotics or genetic engineering or computer science have led us to deeper truths, but rather because they have seduced us into more profound confusions. Science and technology open options, create possibilities, suggest incompatibilities, generate threats. They do not alter what is "right" or what is "wrong." The fact that those notions are elusive and subject to endless debate need not make them totally contingent on contemporary technology.

Axiom 5:Constitutional Principles Should Not*Vary With Accidents of Technology*

In a sense, that's the fifth and final constitutional axiom I would urge upon this gathering: that the Constitution's norms, at their deepest level, must be invariant under merely *technological* transformations. Our constitutional law evolves through judicial interpretation, case by case, in a process of reasoning by analogy from precedent. At its best, that process is ideally suited to seeing beneath the surface and extracting deeper principles from prior decisions. At its worst, though, the same process can get bogged down in superficial aspects of preexisting examples, fixating upon unessential features while


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overlooking underlying principles and values.

When the Supreme Court in 1928 first confronted wiretapping and held in *Olmstead v. United States* that such wiretapping involved no "search" or "seizure" within the meaning of the Fourth Amendment's prohibition of "unreasonable searches and seizures," the majority of the Court reasoned that the Fourth Amendment "itself shows that the search is to be of material things -- the person, the house, his papers or his effects," and said that "there was no searching" when a suspect's phone was tapped because the Constitution's language "cannot be extended and expanded to include telephone wires reaching to the whole world from the defendant's house or office." After all, said the Court, the intervening wires "are not part of his house or office any more than are the highways along which they are stretched." Even to a law student in the 1960s, as you might imagine, that "reasoning" seemed amazingly artificial. Yet the *Olmstead* doctrine still survived.

It would be illuminating at this point to compare the Supreme Court's initial reaction to new technology in *Olmstead* with its initial reaction to new technology in *Maryland v. Craig*, the 1990 closed-circuit television case with which we began this discussion. In *Craig*, a majority of the Justices assumed that, when the 18th- century Framers of the Confrontation Clause included a guarantee of two-way *physical* confrontation, they did so solely because it had not yet become technologically feasible for the accused to look his accuser in the eye without having the accuser simultaneously watch the accused. Given that this technological obstacle has been removed, the majority assumed, one-way confrontation is now sufficient. It is enough that the accused not be subject to criminal conviction on the basis of statements made outside his presence.

In *Olmstead*, a majority of the Justices assumed that, when the 18th-century authors of the Fourth Amendment used language that sounded "physical" in guaranteeing against invasions of a person's dwelling or possessions, they did so not solely because *physical* invasions were at that time the only serious threats to personal privacy, but for the separate and distinct reason that *intangible* invasions simply would not threaten any relevant dimension of Fourth Amendment privacy.

In a sense, *Olmstead* mindlessly read a new technology *out* of the Constitution, while *Craig* absent-mindedly read a new technology *into* the Constitution. But both decisions -- *Olmstead* and *Craig* -- had the structural effect of withholding the protections of the Bill of Rights from threats made possible by new information technologies. *Olmstead* did so by implausibly reading the Constitution's text as though it represented a deliberate decision not to extend protection to threats that 18th-century thinkers simply had not foreseen. *Craig* did so by somewhat more plausibly -- but still unthinkingly -- treating the Constitution's seemingly explicit coupling of two analytically distinct protections as reflecting a failure of technological foresight and imagination, rather than a deliberate value choice.

The *Craig* majority's approach appears to have been driven in part by an understandable sense of how a new information technology could directly protect a particularly sympathetic group, abused children, from a traumatic trial experience. The *Olmstead* majority's approach probably reflected both an exaggerated estimate of how difficult it would be to obtain wiretapping warrants even where fully


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justified, and an insufficient sense of how a new information technology could directly threaten all of us. Although both *Craig* and *Olmstead* reveal an inadequate consciousness about how new technologies interact with old values, *Craig* at least seems defensible even if misguided, while *Olmstead* seems just plain wrong.

Around 23 years ago, as a then-recent law school graduate serving as law clerk to Supreme Court Justice Potter Stewart, I found myself working on a case involving the government's electronic surveillance of a suspected criminal -- in the form of a tiny device attached to the outside of a public telephone booth. Because the invasion of the suspect's privacy was accomplished without physical trespass into a "constitutionally protected area," the Federal Government argued, relying on *Olmstead*, that there had been no "search" or "seizure," and therefore that the Fourth Amendment "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures," simply did not apply.

At first, there were only four votes to overrule *Olmstead* and to hold the Fourth Amendment applicable to wiretapping and electronic eavesdropping. I'm proud to say that, as a 26-year-old kid, I had at least a little bit to do with changing that number from four to seven -- and with the argument, formally adopted by a seven-Justice majority in December 1967, that the Fourth Amendment "protects people, not places." (389 U.S. at 351.) In that decision, *Katz v. United States*, the Supreme Court finally repudiated *Olmstead* and the many decisions that had relied upon it and reasoned that, given the role of electronic telecommunications in modern life, the First Amendment purposes of protecting *free speech* as well as the Fourth Amendment purposes of protecting *privacy* require treating as a "search" any invasion of a person's confidential telephone communications, with or without physical trespass.

Sadly, nine years later, in *Smith v. Maryland*, the Supreme Court retreated from the *Katz* principle by holding that no search occurs and therefore no warrant is needed when police, with the assistance of the telephone company, make use of a "pen register", a mechanical device placed on someone's phone line that records all numbers dialed from the phone and the times of dialing. The Supreme Court, over the dissents of Justices Stewart, Brennan, and Marshall, found no legitimate expectation of privacy in the numbers dialed, reasoning that the digits one dials are routinely recorded by the phone company for billing purposes. As Justice Stewart, the author of *Katz*, aptly pointed out, "that observation no more than describes the basic nature of telephone calls . . . . It is simply not enough to say, after *Katz*, that there is no legitimate expectation of privacy in the numbers dialed because the caller assumes the risk that the telephone company will expose them to the police." (442 U.S. at 746-747.) Today, the logic of *Smith* is being used to say that people have no expectation of privacy when they use their cordless telephones since they know or should knowgmn?^? that radio waves can be easily monitored!

It is easy to be pessimistic about the way in which the Supreme Court has reacted to technological change. In many respects, *Smith* is unfortunately more typical than *Katz* of the way the Court has behaved. For example, when movies were invented, and for several decades thereafter, the Court held that movie exhibitions were not entitled to First Amendment protection. When community access cable TV was born, the Court hindered municipal attempts to provide it at low cost by holding that rules


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requiring landlords to install small cable boxes on their apartment buildings amounted to a compensable taking of property. And in *Red Lion v. FCC*, decided twenty-two years ago but still not repudiated today, the Court ratified government control of TV and radio broadcast content with the dubious logic that the scarcity of the electromagnetic spectrum justified not merely government policies to auction off, randomly allocate, or otherwise ration the spectrum according to neutral rules, but also much more intrusive and content-based government regulation in the form of the so-called "fairness doctrine."

Although the Supreme Court and the lower federal courts have taken a somewhat more enlightened approach in dealing with cable television, these decisions for the most part reveal a curious judicial blindness, as if the Constitution had to be reinvented with the birth of each new technology. Judges interpreting a late 18th century Bill of Rights tend to forget that, unless its *terms* are read in an evolving and dynamic way, its *values* will lose even the *static* protection they once enjoyed. Ironically, *fidelity* to original values requires *flexibility* of textual interpretation. It was Judge Robert Bork, not famous for his flexibility, who once urged this enlightened view upon then Judge (now Justice) Scalia, when the two of them sat as colleagues on the U.S. Court of Appeals for the D.C. Circuit.

Judicial error in this field tends to take the form of saying that, by using modern technology ranging from the telephone to the television to computers, we "assume the risk." But that typically begs the question. Justice Harlan, in a dissent penned two decades ago, wrote: "Since it is the task of the law to form and project, as well as mirror and reflect, we should not . . . merely recite . . . risks without examining the *desirability* of saddling them upon society." (*United States v. White*, 401 U.S. at 786). And, I would add, we should not merely recite risks without examining how imposing those risks comports with the Constitution's fundamental values of *freedom*, *privacy*, and *equality*. Failing to examine just that issue is the basic error I believe federal courts and Congress have made:

* in regulating radio and TV broadcasting without adequate sensitivity to First Amendment values;

* in supposing that the selection and editing of video programs by cable operators might be less than a form of expression;

* in excluding telephone companies from cable and other information markets;

* in assuming that the processing of "O"s and "1"s by computers as they exchange data with one another is something less than "speech"; and

* in generally treating information processed electronically as though it were somehow less entitled to protection for that reason.

The lesson to be learned is that these choices and these mistakes are not dictated by the Constitution. They are decisions for us to make in interpreting that majestic charter, and in implementing the


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principles that the Constitution establishes.

*Conclusion*

If my own life as a lawyer and legal scholar could leave just one legacy, I'd like it to be the recognition that the Constitution *as a whole* "protects people, not places." If that is to come about, the Constitution as a whole must be read through a technologically transparent lens. That is, we must embrace, as a rule of construction or interpretation, a principle one might call the "cyberspace corollary." It would make a suitable Twenty-seventh Amendment to the Constitution, one befitting the 200th anniversary of the Bill of Rights. Whether adopted all at once as a constitutional amendment, or accepted gradually as a principle of interpretation that I believe should obtain even without any formal change in the Constitution's language, the corollary I would propose would do for *technology* in 1991 what I believe the Constitution's Ninth Amendment, adopted in 1791, was meant to do for *text*.

The Ninth Amendment says: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." That amendment provides added support for the long-debated, but now largely accepted, "right of privacy" that the Supreme Court recognized in such decisions as the famous birth control case of 1965, *Griswold v. Connecticut*. The Ninth Amendment's simple message is: The *text* used by the Constitution's authors and ratifiers does not exhaust the values our Constitution recognizes. Perhaps a Twenty-seventh Amendment could convey a parallel and equally simple message: The *technologies* familiar to the Constitution's authors and ratifiers similarly do not exhaust the *threats* against which the Constitution's core values must be protected.

The most recent amendment, the twenty-sixth, adopted in 1971, extended the vote to 18-year-olds. It would be fitting, in a world where youth has been enfranchised, for a twenty-seventh amendment to spell a kind of "childhood's end" for constitutional law. The Twenty-seventh Amendment, to be proposed for at least serious debate in 1991, would read simply:

"This Constitution's protections for the freedoms of speech, press, petition, and assembly, and its protections against unreasonable searches and seizures and the deprivation of life, liberty, or property without due process of law, shall be construed as fully applicable without regard to the technological method or medium through which information content is generated, stored, altered, transmitted, or controlled."

[Note: The machine-readable original of this was provided by the author on a PC diskette in WordPerfect. It was reformatted to ASCII, appropriate for general network and computer access, by Jim Warren. Text that was underlined or boldface in the original copy was delimited by asterisks, and a registered trademark symbol was replaced by "reg.t.m.". Other than that, the text was as provided by the author.]


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Press Releases issued at end of SJ Games v. Secret Service

PRESS RELEASE March 15, 1993 - For Immediate Release

STEVE JACKSON GAMES WINS SUIT AGAINST SECRET SERVICE

Steve Jackson Games and its co-plaintiffs - Steve Jackson himself and three users of the Illuminati Bulletin Board - have won their lawsuit against the US Secret Service. The decision was announced late Friday, March 12.

Federal judge Sam Sparks ruled for SJ Games on the PPA (Privacy Protection Act), saying that the publisher's work product was unlawfully seized and held. Under the ECPA (Electronic Communications Privacy Act), he ruled that the Secret Service had unlawfully read, disclosed and erased the messages - despite their repeated denials that they had done any such thing. On a separate ECPA count, he ruled for the defendants, saying that taking the computer out the door was not an "interception" of the messages on it within the meaning of the law.

The Electronic Frontier Foundation, which sponsored the suit, hailed the decision as "groundbreaking." According to Mike Godwin, legal services counsel for the EFF, "This case should send a message to law-enforcement groups everywhere that they can't ignore the rights of those who communicate by computer."

The judge awarded damages of $1,000 per plaintiff under the ECPA, for a total of $5,000. Under the PPA, he awarded SJ Games $42,259 for lost profits in 1990, and out-of-pocket costs of $8,781. The plaintiff's attorneys are also entitled to costs, an amount which will be well in excess of $200,000.

The Justice Department has not stated whether it will appeal. Sparks' opinion was quite critical of the Secret Service's behavior, before, during and after their raid, calling the affidavit and warrant preparation "simply sloppy and not carefully done."

Commented Steve Jackson: "I'm overjoyed, and a little numb. We stood up to them and we won. It was never a sure thing . . . legally, this is all new ground. We won because what the Secret Service did to us was totally outrageous, and because our lawyers did a great job of penetrating their cover-up and bringing out all the facts.

"I'm more grateful than I can say to the Electronic Frontier Foundation for making the suit possible. And since the government will have to pay our legal costs, the EFF will get their money back, to fight the next case!

"And if I've gained any notoriety from all this mess, I want to use it to work for changes in the law, to stop this kind of abuse forever."

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The EFF press release:

NEWSFLASH! STEVE JACKSON GAMES WINS LAWSUIT AGAINST U.S. SECRET SERVICE

A games publisher has won a lawsuit against the U.S. Secret Service and the federal government in a groundbreaking case involving computer publications and electronic-mail privacy.

In a decision announced Friday, March 12, Judge Sparks of the federal district court for the Western District of Texas announced that the case of Steve Jackson Games et al. versus the U.S. Secret Service and the United States Government has been decided for the plaintiffs.

Judge Sparks awarded more than $50,000 in damages to the plaintiffs, citing lost profits for Steve Jackson Games, violations of the Electronic Communications Privacy Act, and violations of the Privacy Protection Act of 1980. The judge also stated that plaintiffs would be reimbursed for their attorneys' fees.

The judge did not find that Secret Service agents had "intercepted" the electronic communications that were captured when agents seized the Illuminati BBS in an early-morning raid in spring of 1990 as part of a computer-crime investigation. The judge did find, however, that the ECPA had been violated by the agents' seizure of stored electronic communications on the system.

Judge Sparks also found that the Secret Service had violated Steve Jackson Games's rights as a publisher under the Privacy Protection Act of 1980, a federal law designed to limit the ability of law-enforcement agents to engage in searches and seizures of publishers.

Mike Godwin, legal services counsel for the Electronic Frontier Foundation, which has underwritten and supported the case since it was filed in 1991, said he is pleased with the decision. "This case is a major step forward in protecting the rights of those who use computers to send private mail to each other or who use computers to create and disseminate publications."

"Judge Sparks has made it eminently clear that the Secret Service acted irresponsibly," Godwin said. "This case should send a message to law-enforcement groups everywhere that they can't ignore the rights of those who communicate by computer."

Press can contact Mike Godwin at 617-576-4510, or by pager at 1-800-SKYPAGE, 595-0535.

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Steve Jackson Games v. US Secret Service

The Case and its Outcome

by Peter D. Kennedy

George, Donaldson & Ford, 114 W. 7th Street, Suite 100Austin, Texas 78701512-495-1400 - Fax: 512-499-0094 - E-mail: gdf.well.sf.ca.us

(The print version of this article appeared in BOARDWATCH Magazine in the July 1993 issue.)

On March 12, 1993, a federal judge in Austin, Texas decided that the US Secret Service broke the law when it searched Steve Jackson Games Inc., and seized its bulletin board system and other computer equipment. The decision in this case has been long- awaited in the computer world, and most observers have hailed it as a significant victory for computer user's freedom and privacy.

I had the fortune to be one of the lawyers representing Steve Jackson and his co-plaintiffs. During the course of the lawsuit, I met many people passionately interested in the issues the case raised. I watched and listened to the discussions and arguments about the case. I've been impressed by the intelligence of the online world, and the interest that computer enthusiasts show -- especially computer communication enthusiasts -- in the law. I've also been impressed and distressed at how the Net can spontaneously generates misinformation. Steve Jackson has spent untold hours correcting errors about him, his company, and the case on both the Net and more traditional news media.

The decision in the Steve Jackson Games case is clearly a significant victory for computer users, especially BBS operators and subscribers. I hope to give a simple and clear explanation for the intelligent non-lawyer of the legal issues raised by the case, and the significance and limitations of the court's decision.

The facts. By now, most people interested in the case are familiar with the basic facts: On March 1, 1990, the Secret Service, in an early-morning raid, searched the offices of Steve Jackson Games. The agents kept the employees out of the offices until the afternoon, and took the company's BBS -- called "Illuminati" -- along with an employee's work computer, other computer equipment, and hundreds and hundreds of floppy disks. They took all the recent versions of a soon-to-be-published game book, "GURPS Cyberpunk," including big parts of the draft which were publicly available on Illuminati.

On March 2, Steve Jackson tried to get copies of the seized files back from the Secret Service. He was treated badly, and given only a handful of files from one office computer. He was not allowed to touch the Illuminati computer, or copy any of its files.

Steve Jackson Games took a nosedive, and barely avoided going out of business. According to Jackson,

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eight employees lost their jobs on account of the Secret Service raid, and the company lost many thousands of dollars in sales. It is again a busy enterprise, no thanks to the Secret Service (although they tried to take credit, pointing to the supposedly wonderful publicity their raid produced).

After months of pestering, including pressure by lawyers and Senator Lloyd Bentsen (now, as Treasury Secretary, the Secret Service's boss) the Secret Service returned most of the equipment taken, some of it much the worse for wear.

By then, Steve Jackson had restarted Illuminati on a different computer. When the old Illuminati computer was finally given back, Jackson turned it on -- and saw that all the electronic mail which had been on the board on March 1 was gone! Wayne Bell, WWIV developer and guru, was called in. He gave us invaluable (and free) help evaluating the condition of the files. He concluded, and testified firmly at trial, that during the week of March 20, 1990, when the Secret Service still had Illuminati, the BBS was run, and every piece of e-mail was individually accessed and deleted. The Illuminati files the Secret Service had returned to Steve Jackson left irrefutable electronic traces of what had been done -- even I could understand how the condition and dates of the e-mail files showed what had happened, and when.

The Lawsuit

Sueing the federal government and its agents is never a simple thing. The United States can only be sued when it consents. Lawsuits against individual agents face big legal hurdles erected to protect government officials from fear of a tidal wave of lawsuits.

Amazing as it may sound, you cannot sue the United States (or any federal agency) for money damages for violating your constitutional rights. You can sue individual federal agents, though. If you do, you have to get past a defense called "qualified immunity" which basically means you have to show that the officials violated "clearly established" constitutional law. For reasons I can't explain briefly, "qualified immunity" often creates a vicious circle in civil rights litigation, where the substance of constitutional law is never established because the court never has determine the Constitution's scope, only whether the law was "clearly established" at the time of the violation.

The strongest remedies for federal overstepping are often statutes which allow direct suit against the United States or federal agencies (although these are less dramatic than the Constitution). Fortunately, these statutes were available to Steve Jackson and the three Illuminati users who joined him in his suit against the Secret Service.

The Legal Claims

The Steve Jackson Games case was a lot of things to a lot of people. I saw the case as having two basic goals: (1) to redress the suppression of the public expression embodied in Steve Jackson's publications (including his publication via BBS) and thereby compensate the company for the damage unnecessarily


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done by the raid, and (2) to redress the violation of the privacy of the BBS users, and the less tangible harm they suffered.

The individual government agents involved in the raid were sued for constitutional violations -- the First and Fourth Amendments. The Secret Service was sued under two important laws which embody the same principles as the First and Fourth Amendments -- the Privacy Protection Act of 1980 and provisions of the Electronic Communications Privacy Act of 1986. There were other claims, but these were the core.

After the case was pending a year and a half and all discovery completed, the government moved to have the claims against the individual defendants dismissed, claiming qualified immunity. This motion (usually brought early in a case) guaranteed that the trial would be delayed by over a year, because even if the government lost its motion, the individuals could immediately appeal. In December, 1992, the tactical decision was made to drop those claims, rather than suffer the delay, and proceed promptly to trial on the claims against the Secret Service itself.

The Privacy Protection Act of 1980

In the late 1970's the Stanford Daily was subjected to a fishing expedition conducted by police officers in the Stanford Daily's newsroom. The police were looking for notes and photos of a demonstration the newspaper had covered for a story, hoping the newspaper's files would identify suspects. The Supreme Court held in 1979 that the newspaper had no separate First Amendment right protecting it from searches and seizures of its reporters' notes and photographs if they were "evidence" of a crime the paper had covered -- even when the newspaper was not under any suspicion itself. Congress responded in 1980 with the Privacy Protection Act, which, until Steve Jackson came along, was distinguished mostly by its lack of interpretation by courts.

The Act's wording is rather obtuse, but basically it enacts a "subpoena only" rule for publishers -- law enforcement officials are not allowed to search for evidence of crimes in publishers' offices, or more accurately, they may not "search for or seize" publishers' "work product" or "documentary materials", essentially draft of publications, writers' notes, and such. To get such material, the police must subpoena them, not with the much more disruptive search warrant. Every BBS sysop should read this act, located at 42 U.S.C. 2000aa in the law books, because I can't fully explain it here.

The Act is quite broad, protecting from searches and seizures the work product and documentary materials of anyone who has "a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication ..." It also has a big exception -- if the publisher is the person suspected in the criminal investigation.

The Electronic Communications Privacy Act

Two provisions of the Electronic Communications Privacy Act (or ECPA) were paramount in the suit.


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The plaintiffs claimed the Secret Service violated two provisions -- one prohibiting unjustified "disclosure and use" of e-mail (18 U.S.C. Sec. 2703; the other prohibiting "interception" of e-mail (18 U.S.C. Sec. 2511(1)).

The parties' positions were fairly simple, and laid out well before trial. As for the Privacy Protection Act, Steve Jackson claimed that his company's publications, both in book form and on Illuminati, were obviously "work product" protected by the Act, and the government had no right to seize them, and therefore owed him money for the damage the raid caused his business. The government replied claiming that (1) Steve Jackson Games' products are not the type of publications protected by the PPA; and anyway, (2) the Secret Service didn't know that Steve Jackson Games was a publisher when it raided its offices; and even then, (3) the Secret Service didn't mean to take the books, the books just came along when the computers and disks were taken.

As for the e-mail, Steve Jackson and the other BBS users claimed that the seizure, disclosure, and deletion of the e-mail was both an unlawful "disclosure and use," and an "interception" of electronic communications in violation of the ECPA. The Secret Service replied that (1) there was no "interception" because the e- mail was just sitting there on the hard drive, not moving; and (2) the Secret Service didn't read the mail, but if it did, it was acting in good faith, because it had a search warrant authorizing it so seize Steve Jackson Games' "computers" and to read their contents.

The Trial

When the individual defendants were dropped, the case quickly went to trial. The plaintiffs opened their case on January 29, 1993. The trial took the better part of four days; the witnesses included now-familiar names: Timothy Foley and Barbara Golden of the Secret Service, William Cook, formerly of the U.S. Attorney's office in Chicago, Henry Kluepfel of Bellcore, Steve Jackson and the BBS users Elizabeth McCoy, Walter Milliken and Steffan O'Sullivan, and WWIV master Wayne Bell.

At trial, Judge Sparks was introduced to the labyrinthine E911 investigation. We also set up and ran Illuminati as it looked on March 1, 1990, and Steve Jackson walked Judge Sparks through his BBS, lingering on discussion areas such as "GURPS Old West" to give the Judge a taste of the scope and breadth of BBS publication and communication which the Secret Service had shut down. The judge appeared upset by the callous and suspicious manner in which the Secret Service had treated Steve Jackson, and with the Service's apparent disregard for the effects the raid might have on the company.

The Decision

Judge Sparks decided the case in February, 1993, in a long written opinion. The full text of the opinion is available on the Internet at ftp.eff.org, and on Illuminati itself. I recommend all sysops and BBS users to read it, as it is one of the very few legal rulings specifically addressing bulletin boards and electronic mail.


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First, the bad news: Judge Sparks accepted the government's argument that the seizure of the BBS was not an "interception" of the e-mail, even mail that had not yet been read. Essentially, he decided that the definition of "interception" implicitly means "contemporaneous with the transmission"; that is, for there to be an interception, the government must position itself in the data stream, like a conventional wiretap. Since the e-mail was temporarily stored on the BBS hard drive, he held there was no contemporaneous interception.

Ruling that there was no interception means two things. First, the plaintiffs did not receive the $10,000 minimum damages a violation of the "interception" law provides, even though the judge found the Secret Service had not acted in good faith. More importantly, it lowers the standard for seizing BBS e-mail -- and threatens to lower the standard for the seizure of all electronic communications which reside long enough in computer memory to be seized (which is most all computer communications, as far as I understand it). To "intercept" wire communications you need a court order, not just a routine search warrant. This ruling (which technically only applies in the Western District of Texas) means law enforcement is not limited in its seizure of BBSs by the higher standards required of wiretapping.

Now, the good news: the plaintiffs won the "disclosure and use" argument under the ECPA, getting back most of what was lost in the "interception" decision. First, Judge Sparks found the obvious: that while the Secret Service had Illuminati they or their agents read and deleted all the e-mail on Illuminati, including the plaintiffs' mail -- persons the Secret Service admittedly having no reason at all to suspect of any illegal activity.

Next, he rejected the Secret Service's argument that its agents were acting in "good faith." While he didn't list all the reasons, quite a few are supported by the evidence: the Secret Service's investigation was "sloppy", he said, and there was no attempt to find out what Steve Jackson Games did as a business; the Secret Service was told the day of the raid that the company was a "publisher," and refused to make copies or return the files for months after they were done reviewing them; and the Secret Service apparently allowed the private mail of dozens of entirely innocent and unsuspecting people to be read and trashed.

The judge ruled that Steve Jackson, his company, and the three Illuminati users who joined Jackson in the suit were each entitled to an $1,000 award from the government, as provided by the ECPA.

The Privacy Protection Act was pretty much a clean sweep. While the judge and Steve Jackson still differ over how much money the raid cost the company, the court's ruling was squarely in Jackson's favor on the law. Although unconventional, the court found that Steve Jackson Games' publications were clearly covered by the Act, should not have been seized, and should have been promptly returned.

At trial, the Secret Service agents had freely admitted they knew nothing about the Act. Former U.S. Attorney William Cook claimed he knew about it before the raid, but decided (without any investigation) that Steve Jackson Games wasn't covered. The Privacy Protection Act (unlike the ECPA) allows no "good faith" excuses, anyway, and since the Secret Service was repeatedly told on March 1


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and afterwards that the company was a publishing business there was no defense for the seizure of "GURPS Cyberpunk" or the other book drafts. Most of the over $50,000 awarded in damages was due to the violation of the Privacy Protection Act.

Steve Jackson Games publishes traditional books and magazines, with printed paper pages. Is the BBS operator who publishes only on-line articles protected, too? It's a question Judge Sparks did not need to address directly, but his opinion can and should be read to include the on-line publisher. The court's opinion includes the BBS files as material improperly seized, and the Act specifically includes work product in electronic form. Publishing via BBSs has become just like publishing a "newspaper, book, or other form of publication..." -- the only source of news many people get.

If the Privacy Protection Act is broadly understood to encompass electronic publishing (as it should) it should provide meaningful protection to innocent sysops whose boards may be used by some for illegal purposes. It should prevent the "preventative detention" of BBSs -- where boards are seized in investigations and held indefinitely -- which seems to be one crude means used to attack suspected criminal activity without bothering to actually prosecute a case. It should also force law enforcement to consider who the actual suspect is -- for instance, in the recent spate of seizures of BBSs for suspected copyright violations. The Privacy Protection Act should prevent law enforcement from seizing a sysop's board who is not suspected in engaging or condoning illegal activity.

Those of you who have followed this case will note how little significance I've given the "Phrack" investigation and the overvaluation of the E911 document. Of course the Secret Service misunderstood or exaggerated the importance of the purloined E911 document, and were chasing imaginary goblins.

The real significance of the Steve Jackson Games case, however, was not knocking holes in that one investigation (the Neidorf trial effectively did that), but taking a solid step to set firm, discernable limits for criminal investigations involving computer communication. To focus on the specific foibles of the E911 investigation is to miss the importance of what the Secret Service really did wrong. Out of ignorance or callousness, they ignored the legal rights of people not even suspected of crimes; people who simply shared common electronic space. There are and will continue to be legitimate computer-crime investigations. The closeness that people live in Cyberspace, though, means the government must learn ways to conduct investigations without violating the rights of all the innocent members of the on-line community. In March 1990, the Privacy Protection Act said that Steve Jackson could write and publish his books without having them seized; the Secret Service didn't know that. In 1990, the Illuminati users had the right not to have their e-mail seized and read without at least being suspected of a crime; the Secret Service apparently didn't know that, either. Now they do, and hopefully the word will spread to other government agencies, too.

(As of this writing, there is still no decision whether the Secret Service (or Steve Jackson, for that matter) will appeal Judge Spark's decision.)


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CYBERLAW REPORT ON THE SJ GAMES CASE

CyberLaw is an educational service focusing on legal issues concerning computer technology. CyberLex reports legal developments touching the computer industry. CyberLaw and CyberLex are distributed as a monthly column, published by computer user groups throughout the United States.

CyberLaw is edited by Jonathan Rosenoer ([email protected])

CyberLaw (tm) [4/93]

Search & Seizure

I. Liberty & Cyberspace

Three years ago, a small publisher of role-playing games in Texas was raided by the United States Secret Service. Government agents carted away computers, one of which ran the company's computer bulletin board system (BBS), hundreds of floppy disks, and drafts of a soon-to-be-published book and of magazine articles. The seized material was held for months, which led to the layoff of a number of the company's employees. No-one at the company was arrested or charged with a crime. The owner of the company, Steve Jackson, appealed for help and managed to gain the attention of some prominent members of the computer community. The case came to be viewed by many as a struggle for civil liberties in the new electronic frontier, known as Cyberspace. Steve Jackson and his supporters were vindicated recently, when a Federal District Court ruled that the Secret Service had violated federal statutes protecting publishers and the privacy of electronic communications with regard to its raid of the company.

II. The Saga Begins

The saga of Steve Jackson and his company began in the summer of 1989, when the Secret Service was contacted by a representative of BellSouth (a Regional Bell Operating Company) who advised that there had been a theft of sensitive data from BellSouth's computer system. The stolen data was described as "an internal, proprietary document that described the control, operation and maintenance of BellSouth's 911 emergency system." This report led the Secret Service and the U.S. Attorney's office in Chicago into a larger investigation, concerning a national group of computer hackers called the "Legion of Doom" (LOD).

A member of LOD had allegedly entered a BellSouth computer and copied the 911 document to his own computer. The 911 document was then allegedly sent to a BBS in Illinois, from which it was downloaded by a student named Craig Neidorf and edited for and distributed in a publication named __Phrack__. One person who received __Phrack__ was Loyd Blankenship, also a member of LOD.

Notably, the 911 document is not a computer program and has nothing to do with accessing a 911

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system. It simply details who does what in the telephone company bureaucracy regarding customer complaints and equipment failures, among other things. For the Secret Service, BellSouth estimated the cost of the 911 document at $79,449. But in July 1990, during Neidorf's trial, it was disclosed that the 911 document was available to the public directly from BellSouth for about $20. (Upon this disclosure, the prosecution of Neidorf collapsed -- leaving him owing over $100,000 in legal fees.)

In early 1990, the Secret Service learned that another LOD member had posted a message on a BBS maintained by Blankenship, allegedly "inviting other BBS participants to send in encrypted passwords stolen from other computers, which Blankenship and [the other member of LOD] would decrypt and return...." After seeking additional information, the Secret Service decided to obtain search warrants to obtain evidence against them, including a search warrant for the offices of Blankenship's employer, Steve Jackson Games, Inc.

Steve Jackson Games, as described by its lawyers, "publishes role- playing games in book form, magazines, a book about game theory, boxed games, and game-related products. The company's games are played not on computers, but with dice, a game book or books, and lots of imagination." As part of its business, the company runs a BBS (the "Illuminati" BBS) that allows outside callers to dial in and, as outlined by Steve Jackson, "read messages left by [the company], read public messages left by others who have called the bulletin board, leave public messages for other callers to read, send private electronic mail to other persons who called the bulletin board, and 'download' computerized files to their own computer." Like the typical BBS, the Illuminati BBS stored electronic mail, including mail that had been sent but not yet received. In February 1990, there were 365 users of the Illuminati BBS and, according to the trial court, Blankenship was a "co-sysop" of the BBS.

III. The Raid

On March 1, 1990, Steve Jackson Games was raided by the Secret Service. They seized and carried away a computer found on Blankenship's desk, a disassembled computer next to his desk, the computer running the Illuminati BBS, over 300 computer disks, and various documents and other materials. Among the seized items were drafts of a book titled __GURPS Cyberpunk__, which was to be published within days or weeks of the raid, and drafts of magazines and magazine articles. ("GURPS" stands for "Generic Universal Game Role Playing System.") According to the company's attorneys, a Secret Service agent called __GURPS Cyberpunk__ "'a handbook for computer crime' in Mr. Jackson's presence, (although the government now claims that the book was not the target of the search and admits it was not evidence of any crime)."

For Steve Jackson Games, the raid was a calamity. It was suffering severe cash flow problems, and the seizure caused substantial delays in publication and the termination of 8 employees. The bulk of the seized material was not made available to the company until late June 1990, and no printed copies of __GURPS Cyberpunk__ were ever returned.

The raid also caused wide concern across the United States. From the outset, as noted by the company's


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lawyers, many saw the case as one in which,

"The Secret Service, on exceedingly weak pretense, invaded the office of an upstanding, hard-working small businessman, and nearly put him out of business. The Secret Service shut down a working BBS -- a new, powerful means of public and private communication -- with __no__ evidence that anything unlawful was transpiring there. Shutting down the "Illuminati" was like clearing or closing down a park or meeting hall, simply because one of hundreds of the people gathered there was under vague suspicion."

This view was later validated by the trial court, which found that,

"[P]rior to March 1, 1990, and at all other times, __there has never been any basis for suspicion__ that [Steve Jackson Games, Steve Jackson, or any of the other individuals who subsequently sued the Secret Service as a result of the raid] have engaged in any criminal activity, violated any law, or attempted to communicate, publish, or store any illegally obtained information or otherwise provide access to any illegally obtained information or to solicit any information which was to be used illegally." (Emphasis added.)

IV. The Lawsuit

After the raid, Steve Jackson Games, Steve Jackson and 3 users of the Illuminati BBS filed suit against the United States Secret Service, the United States of America, and several government employees who had been involved in the raid. The plaintiffs brought causes of action for violation of the following: the Fourth Amendment to the U.S. Constitution; the Privacy Protection Act, 42 U.S.C. 2000aa et seq.; the Wire and Electronic Communications Interception and Interception of Oral Communication Act, 18 U.S.C. 2510 et seq.; and, the Stored Wire and Electronic Communications and Transactional Records Act, 18 U.S.C. 2701 et seq. (The latter 2 statutes are part of the Electronic Communications Protection Act, or ECPA.)

V. Fourth Amendment

With respect to the Fourth Amendment, the plaintiffs argued that "probable cause to believe that a crime has occurred ... does not automatically give license to search every place that a suspect may frequent," and also that "there must be probable cause to believe that the __type__ of materials sought are located at the place to be searched." "The search warrant," continued the plaintiffs, "did not establish probable cause that evidence of any crime would be found at [Steve Jackson Games]," and the search of the company "was broader than justified by any facts in the warrant." In response, the government argued that even if the plaintiffs were correct, they still had to prove that "these defects were so obvious that no reasonable officer could have believed the warrant to be valid, in light of the information [the officer] possessed." Because a court determination in favor of the plaintiffs could have resulted in an immediate appeal that would delay the balance of their case, the plaintiffs dropped their Fourth Amendment claims to focus their case on the Privacy Protection Act and ECPA claims.


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VI. Privacy Protection Act

The Privacy Protection Act concerns the investigation and prosecution of criminal offenses and, in relevant part, prohibits government employees from searching for or seizing any "work product materials" possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication. "Work product materials" are defined to include materials, not including contraband, the fruits of a crime, or things used as the means of committing a crime, created or prepared for the purpose of communicating such materials to the public.

At the time of the raid on Steve Jackson Games, the Secret Service was advised that the company was in the publishing business. No significance was attached to this information, however, as the Secret Service agents involved in the raid were oblivious of the provisions of the Privacy Protection Act.

Notwithstanding the fact that the Secret Service had failed to make a reasonable investigation of Steve Jackson Games "when it was apparent [its] intention was to take substantial properties belonging to the [company], the removal of which could have a substantial effect on the continuation of business," the trial court declined to find that on March 1, 1990, any government employee had reason to believe that the property to be seized would be "work product material" subject to the Privacy Protection Act. But during the raid, the Secret Service had been advised of facts that put its agents on notice of probable violations of that Act. Indeed, the Secret Service continued to detain the company's property through late June 1990 despite the fact that, as observed by the trial court, "[i]mmediate arrangements could and should have been made on March 2, 1990, whereby copies of all information seized could have been made." The refusal of the Secret Service to return the company's information and property violated the Privacy Protection Act, and the court awarded Steve Jackson Games its expenses ($8,781) and economic damages ($42,259).

VII. ECPA

The trial court did not find, however, that the Secret Service had violated the Electronic Communications Interception and Interception of Oral Communication Act. According to the trial court, "the Secret Service intended not only to seize and read [the communications stored on the Illuminati BBS], but, in fact, did read the communications and thereafter deleted or destroyed some communications either intentionally or accidentally." But the Secret Service had not "intercepted" communications within the meaning of the latter Act, ruled the court, apparently on the grounds that only the contemporaneous acquisition of a communication is prohibited thereby.

In support of this ruling, the court looked to the Congressional enactment of the Stored Wire and Electronic Communications and Transactional Records Act, among other things. This statute protects the content of electronic communications in electronic storage and sets out specific requirements for the government to follow to obtain the "disclosure" of such communications. One such requirement is that there be "reason to believe the contents of a[n] ... electronic communication ... are relevant to a


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legitimate law enforcement inquiry." Although the Secret Service wanted to seize, review and read all electronic communications, public and private, on the Illuminati BBS, the Secret Service did not advise the Magistrate Judge who issued the warrant for the raid on Steve Jackson Games "that the Illuminati board contained private electronic communications between users or how the disclosure of the content of these communications could relate to [the] investigation." The court commented that it was not until June 1990 that the plaintiffs were able to determine the reasons for the March 1, 11990, seizure, "and then only with the efforts of the offices of both United States Senators of the State of Texas." Simply stated, "[t]he procedures followed by the Secret Service in this case virtually eliminated the safeguards contained in the statute." Lacking sufficient proof of compensatory damages, the court assessed statutory damages in favor of the plaintiffs, in the amount of $1,000 for each plaintiff.

VIII. Further Information

Further information concerning this case may be found in the opinion of the United States District Court in __Steve Jackson Games, Inc., et al. v. United States Secret Service, et al.__, No. A-91-CA-346-SS (W.D. Tex. 3/12/93). For background information on this case and other related cases, see B. Sterling, __The Hacker Crackdown__ (1992), and John Perry Barlow, __Crime & Puzzlement__ (1990).

(Copies of the arguments filed with the trial court and of the court's opinion were kindly made available to the author by Peter D. Kennedy, Esq., of George, Donaldson & Ford, attorneys for Steve Jackson Games, Inc. and the other plaintiffs.)

CyberLaw (tm) is published solely as an educational service. The author may be contacted at [email protected]; [email protected]; questions and comments may be posted on America Online (go to keyword "CYBERLAW"). Copyright (c) 1993 Jonathan Rosenoer; All Rights Reserved. CyberLaw is a trademark of Jonathan Rosenoer.

CyberLex (tm) [4/93]

Notable legal developments reported in April 1993 include the following:

#The Ninth Circuit Court of Appeals has ruled that an independent service provider violated copyright laws by loading operating software licensed to its client into the random access memory of its client's computer in the course of fixing the computer. (__MAI Systems Corp. v. Peak Computer Inc., et al.__, 93 C.D.O.S. 2596 (9th Cir. 4/9/93)).

#The White House has announced the development of a computer chip, called the "Clipper Chip," that encodes voice and data transmissions using a secret algorithm. The chip is to work with an 80-bit, split key escrow system. Two escrow agents would each hold 40-bit segments of a user's key, which would be released to law enforcement agents upon presentation of a valid warrant. After the announcement, several groups expressed concern that, among other things, the algorithm used cannot be trusted unless it is public and open to testing. (New York Times, April 16, 1993, A1; San Jose Mercury News, April 16,


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1993, 1A, and April 17, 1993, 11D;Wall Street Journal, April 19, 1993, A5.)

#The CIA has warned U.S. high-tech companies that the French government may be spying on them. (San Jose Mercury News, April 27, 1993, 11E.)

#Kevin Poulson, a hacker already scheduled to be tried on 14 federal felonies, has been indicted on 19 more felony counts in which he is accused of using telephone and computer skills to ensure that he and two alleged accomplices would win radio station call-in contests. Prizes in those contest included a pair of Porsche cars and more than $20,000 in cash. (San Jose Mercury News, April 22, 1993, 1F.)

#InterDigital Communications Corp. has filed suit for patent infringement against Oki Electric Industry Co., of Tokyo. The suit concerns a data communication technique called code division multiple access (CDMA), developed by a San Diego-based company, and CDMA-based phones that Oki plans to manufacture, among other things. InterDigital holds many patents on a rival technique called time division multiple access, used by several cellular phone companies. (Wall Street Journal, April 19, 1993, 7B.)

#20 Japanese telecommunications companies announced that they will join Motorola's Iridium project, a planned digital cellular telephone network linked by 66 orbiting satellites. (San Jose Mercury News, April 3, 1993, 11D.)

#The nation's local phone companies offered to build the "information superhighway" promoted by Vice President Al Gore if they are allowed to go back onto the long-distance phone business, to manufacture equipment, and to provide video programming over phone lines. (San Jose Mercury News, April 16, 1993, 3C.)

#Apple Computer, Inc. is fighting a $290 million claim by the IRS for back taxes for the years 1987 and 1988 relating to the value of property transferred between foreign and domestic units of the company. (San Jose Mercury News, April 3, 1993, 9D.)

#A federal judge overturned a jury verdict that AMD did not have the right to use Intel microcode in AMD chips, and granted a new trial. The basis for the court's ruling was that Intel had failed to produce critical documents that would have allowed AMD fairly to present its defense. The verdict had stopped AMD from selling a clone of Intel's 486 microprocessor. Within 2 weeks, Intel sued AMD alleging that AMD's 486 clones and an AMD chip not yet on the market violate Intel copyrights. (San Jose Mercury News, April 17, 1993, 1A, and April 29, 1993, 1C; New York Times, April 17, 1993, p.17.)

#The Commerce Department has imposed permanent import duties of up to 11.45% on Korean-made computer memory chips, following an International Trade Commission finding of "dumping" by South Korean manufacturers. (San Jose Mercury News, April 23, 1993, 1C.)

#Taiwan has adopted a set of copyright law revisions. (San Jose Mercury News, April 23, 1993, 3C.)


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#The International Trade Commission has agreed to investigate claims by a Mississippi inventor that 20 computer disk-drive manufacturers are violating a patent he holds for placing carbon coating on computer disks by importing drives that use the technology. One manufacturer, Connor Peripherals Inc., has filed suit to declare the inventor's patent invalid. (San Jose Mercury News, April 27, 1993, 9E.)

CyberLex (tm) is published solely as an educational service. Copyright (c) 1993 Jonathan Rosenoer; All Rights Reserved. CyberLex is a trademark of Jonathan Rosenoer.


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JUDGE'S DECISION IN SJ GAMES VS. SECRET SERVICE

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS AUSTIN DIVISION

STEVE JACKSON GAMES INCORPORATED, et al., Plaintiffs,

v.

UNITED STATES SECRET SERVICE, UNITED STATES OF AMERICA, et al., Defendants

_Opinion_

I. Facts

The issues remaining at trial in this lawsuit involves the Plaintiffs Steve Jackson Games, Incorporated, Steve Jackson, Elizabeth McCoy, Walter Milliken, and Steffan O'Sullivan's causes of action against the United States Secret Service and the United States of America pursuant to three statutes, "Private Protection Act", 42 U.S.C. 2000aa _et seq_.; "Wire and Electronic Communications Interception and Interception of Oral Communication' Act, 18 U.S.C. 2510, et seq.; and "Stored Wire and Electronic Communications and Transactional Records Access" Act, 18 U.S.C 2701, _et seq_. All other issues and parties have been withdrawn by agreement of these remaining parties.

The individual party plaintiffs are residents of the states of Texas and New Hampshire, and the corporate plaintiff is a Texas corporation with its principal place of business in Austin, Texas.

The Plaintiff Steve Jackson started Steve Jackson Games in 1980 and subsequently incorporated his business. Steve Jackson Games, Incorporated, publishes books, magazines, box games, and related products (F1.) More than 50 percent of the corporation's revenues are derived from its publications. In addition, Steve Jackson Games, Incorporated, beginning in the mid-1980s and continuing through this litigation, operated from one of its computers an electronic bulletin board system called Illuminati. This bulletin board posts information to the inquiring public about Steve Jackson Games' products and activities; provides a medium for receiving and passing on information from the corporation's employees, writers, customers, and its game enthusiasts; and, finally, affords its users electronic mail whereby, with the use of selected passwords, its users can send and receive electronic mail (E-mail) in both public and private modes. In February of 1990, there were 365 users of the Illuminati bulletin board.

Steve Jackson was both the owner and employee of Steve Jackson Games, Incorporated, and authored many of its publications; he used both Illuminati's public and private programs for electronic mail and his use ranged from business records of the corporation, contracts with his writers, communication with his writers regarding articles which were intended to be published by the corporation, to private communications with his business associates and friends. Elizabeth McCoy's use of the Illuminati

http://www.2600.com/secret/sj/sj-decision.html (1 of 13)4/16/2006 11:15:34 AM

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bulletin board involved her participation as a game player, her critiques as to the games and publications of the corporation, and her private communications with associates and friends. William Milliken's use of the Illuminati bulletin board was apparently limited to private communicates to associates and friends. Steffan O'Sullivan's use of the Illuminati bulletin board included writings for publication by Steve Jackson Games, Inc., his business dealings with the corporation, and public and private communications with associates and friends.

Importantly, prior to March l, 1990, and at all other times, there has never been any basis for suspicion that any of the Plaintiffs have engaged in any criminal activity, violated any law, or attempted to communicate, publish, or store any illegally obtained information or otherwise provide access to any illegally obtained information or to solicit any information which was to be used illegally.

In October of 1988, Henry Kluepfel, Director of Network Security Technology (an affiliate Bell Company), was advised a sensitive, proprietary computer document of Bell South relating to Bell's "911 program" had been made available to the public on a computer bulletin board in Illinois. Kluepfel reported this information to Bell South and requested instructions, but received no response. In April of 1989, Kluepfel confirmed the 911 Bell document was available on the Illinois computer bulletin board and learned the document was additionally available without any proprietary notice on at least another computer bulletin board and had been or was being published in a computer bulletin board newsletter in edited form. In July of 1989, Kluepfel was finally instructed by Bell South to report the "intrusion of its computer network to the Secret Service and that the document taken was "sensitive" and "proprietary. Kluepfel had previously worked with the Secret Service and was known as an expert and reliable informant on computer "hacking." (F2) Thereafter, Kluepfel met Assistant U. S. Attorney William Cook in Chicago and thereafter communicated with Cook and Secret Service Agent Tim Foley. Agent Foley was in charge of this particular investigation.

Around February 6, l990, Kluepfel learned that the 911 document was available on a computer billboard entitled "Phoenix" which was operated by Loyd Blankenship in Austin, Texas. Kluepfel "downloaded" the document to put in readable form and then advised these facts to the Secret Service. Prior to February 26, 1990, Kluepfel learned that Blankenship not only operated the Phoenix bulletin board, but he was a user of the Illinois bulletin board wherein the 911 document was first disclosed, was an employee of Steve Jackson Games, Inc., and a user of the Steve Jackson Games, Inc.'s bulletin board "Illuminati." Kluepfel's investigation also determined that Blankenship was a 'co-sysop" of the Illuminati bulletin board, which means that he had the ability to review anything on the Illuminati bulletin board and, importantly, maybe able to delete anything on the system. Blankenship's bulletin board Phoenix had published "hacker" information and had solicited "hacker" information relating to passwords, ostensibly to be analyzed in some type of decryption scheme. By February 26, 1990, Kluepfel determined that the Phoenix bulletin board was no longer accessible as he could not "dial" or "log into" it. He reported this to Agent Foley. While Kluepfel advised Agent Foley that Blankenship was an employee of Steve Jackson Games, Inc., and was a user and co-sysop of Illuminati, Kluepfel never had any information whereby he was suspicious of any criminal activity by any of the Plaintiffs in this cause. Kluepfel was, and is, knowledgeable in the operation of computers, computer bulletin boards, the publishing of materials and document by computers, the communications through computer bulletin boards (both


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public and private communications), and could have "logged" into the Illuminati bulletin board at any time and reviewed all of the information on the bulletin board except for the private communications referred to by the Plaintiffs as electronic communications or electronic mail, but did not do so. Kluepfel had legitimate concerns, both about the 911 document stolen from Bell South and the possibility of a decryption system which could utilize passwords in rapid fashion and could result in intrusions of computer systems, including those of the Bell System.

In February of 1990, Agent Foley was also knowledgeable about computer bulletin boards and he too could have "logged" into Illuminati, become a user and reviewed all public communications on the bulletin board, but did not do so.

By February 28, 1990, when the search warrant affidavit was executed, Agent Foley had received information from reliable sources (Kluepfel, Williams, Spain, Kibbler, Coutorie, and Niedorf, and possibly others (F3)) there had been an unlawful intrusion on the Bell South computer program, the 911 Bell South document was a sensitive and proprietary document, and that computer hackers were attempting to utilize a decryption procedure whereby unlawful intrusions could be made to computer programs including the Defense Department, and these hackers were soliciting passwords so that the decryption procedure could become operational. In addition, Agent Foley was advised Loyd Blankenship had operated his Phoenix bulletin board from his home, had published the 911 Bell South document in edited form, and had published and communicated that a decryption strategy was available and other "hackers" should submit selective passwords to finalize the decryption scheme for intrusions into computer systems by using a rapid deployment of passwords. Agent Foley was also advised that Blankenship was an employee of Steve Jackson Games and had access to the Illuminati bulletin board as a user and a co-sysop and he may well (and in fact did) have the ability to delete any documents or information in the Steve Jackson Games computers and Illuminati bulletin board. The only information Agent Foley had regarding Steve Jackson Games, Inc. and Steve Jackson was that he thought this was a company that put out games, but he also reviewed a printout of Illuminati on February 25, 1990, which read, "Greetings, Mortal! You have entered the secret computer system of the Illuminati, the on-line home of the world's oldest and largest secret conspiracy. 5124474449300/1200/2400BAUD fronted by Steve Jackson Games, Incorporated. Fnord." The evidence in this case strongly suggests Agent Foley, without any further investigation, misconstrued this information to believe the Illuminati bulletin board was similar in purpose to Blankenship's Phoenix bulletin board, which provided information to and was used by "hackers." Agent Foley believed, in good faith, at the time of the execution of his affidavit on February 28, 1990, there was probable cause to believe Blankenship had the 911 Bell South document and information relating to the decryption scheme stored in his computer at home or perhaps in computers, disks, or in the Illuminati bulletin board at his place of employment at Steve Jackson Games, Inc.; that these materials were involved in criminal activities; and that Blankenship had the ability to delete any information stored on any of these computers and/or disks.

Unfortunately, although he was an attorney and expressly represented this fact in his affidavit, Agent Foley was not aware of the Privacy Protection Act, 42 U.S.C. 2000aa _et seq._, and he conducted no investigation about Steve Jackson Games, Incorporated, although a reasonable investigation of only several hours would have revealed Steve Jackson Games, Inc. was, in fact, a legitimate publisher of


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information to the public and Mr. Jackson would have cooperated in the investigation. Agent Foley did not know the individual Plaintiffs but did know they were users of Illuminati as he had a list of all users prior to February 28, 1990. Agent Foley did know and understand the Illuminati bulletin board would have users and probably would have stored private electronic communications between users. Notwithstanding the failure of any investigation regarding Steve Jackson Games, Agent Foley and Assistant U. S. Attorney Cook intended to seize and review all of the information and documents in any computer accessible to Blankenship, regardless of what other incidental information would be seized. These intentions were expressly stated in their application for a search warrant and the warrant itself. (F4)

Foley's affidavit, executed on February 28, 1990, was sufficient under the law for the issuance of a search warrant by the United States Magistrate Judge. The Court does not find from a preponderance of the evidence that the admitted errors in Foley's affidavit were intentional and so material to make the affidavit and issuance of the warrant legally improper. _See, Franks v. Delaware_, 438 U.S. 154, 98 S.Ct. 2674 (1978). The factual errors in the affidavit include the Bell 911 document was a computer program; the Bell 911 document was engineered at a cost of $79,449; the Bell 911 document had been "slightly" edited; articles in _Phrack_ were described as "hacker tutorials;" the Bell 911 document published in Phrack contained a proprietary notice; Blankenship was a computer programmer for Steve Jackson Games, Inc.; Blankenship's alias "Mentor" was listed as an Illuminati bulletin board user; Coutorie, prior to February 28, 1990, provided Foley with information on Steve Jackson Games, Inc.; and that Kluepfel had "logged" into Illuminati. The affidavit and warrant preparation was simply sloppy and not carefully done. Therefore, the Court denies the Plaintiff's contentions relating to the alleged improprieties involved in the issuance of the search warrant.

On March 1, 1990, Agents Foley and Golden executed the search warrant. At the time of the execution, each agent had available computer experts who had been flown to Austin to advise and review the stored information in the computers, the bulletin boards, and disks seized. These computer experts certainly had the ability to review the stored information and, importantly, to copy all information contained in the computers and disks within hours.

During the search of Steve Jackson Games and the seizure of the three computers, over 300 computer disks, and other materials, Agent Golden was orally advised by a Steve Jackson Games, Inc. Employee that Steve Jackson Games, Inc. was in the publishing business. Unfortunately, Agent Golden, like Foley, was unaware of the Privacy Protection Act and apparently attached no significance to this information. The evidence is undisputed that Assistant U. S. Attorney Cook would have stopped the search at the time of this notification had he been contacted.

By March 2, 1990, Agent Foley knew Steve Jackson Games, Inc. was in the publishing business and the seizure included documents intended for publication to the public, including a book and other forms of information. He also knew or had the ability to learn the seizure of the Illuminati bulletin board included private and public electronic communications and E-mail. By March 2, 1990, Agent Foley knew that Steve Jackson Games, Incorporated, and its attorneys in Dallas and Austin, were requesting the immediate return of the properties and information seized, that transcripts of publications and the back-


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up materials had been seized, and that the seizure of the documents, including business records of Steve Jackson Games, Inc., and their back-up was certain to economically damage Steve Jackson Games, Inc. While Agent Foley had a legitimate concern there might be some type of program designed to delete the materials, documents, or stored information he was seeking, he admits there was no valid reason why all information seized could not have been duplicated and returned to Steve Jackson Games _within a period of hours and no more than eight days_ from the seizure. In fact, it was months (late June 1990) before the majority of the seized materials was returned. Agent Foley simply was unaware of the law and erroneously believed he had substantial criminal information which obviously was not present, as to date, no arrests or criminal charges have ever been filed against anyone, including Blankenship.

In addition, Agent Foley must have known his seizure of computers, printers, disks and other materials and his refusal to provide copies represented a risk of substantial harm to Steve Jackson Games, Inc. -- under circumstances where he had no reason to believe the corporation or its owner was involved in criminal activity.

The Secret Service denies that its personnel or its delegates read the private electronic communications stored in the seized materials and specifically allege that this information was reviewed by use of key search words only. Additionally, the Secret Service denies the deletion of any information seized with two exceptions of sensitive" or "illegal" information, the deletion of which was consented to by Steve Jackson. However, the preponderance of the evidence, including common sense (F5), establishes that the Secret Service personnel or its delegates did read all electronic communications seized and did delete certain information and communications in addition to the two documents admitted deleted. The deletions by the Secret Service, other than the two documents consented to by Steve Jackson, were done without consent and cannot be justified.

By March 2, 1990, Agent Foley, Agent Golden, and the Secret Service, if aware of the Privacy Protection Act, would have known that they had, by a search warrant, seized work products of materials from a person or entity reasonably believed to have a purpose to disseminate to the public a "book" or "similar form of public communication."

The failure of the Secret Service after March 1, 1990, to -- promptly -- return the seized products of Steve Jackson Games, Incorporated cannot be justified and unquestionably caused economic damage to the corporation.

By March 1, 1990, Steve Jackson Games, Incorporated was apparently recovering from acute financial problems and suffering severe cash flow problems. The seizure of the work product and delays of publication, whether by three weeks or several months, directly impacted on Steve Jackson Games, Incorporated. Eight employees were terminated because they could not be paid as revenues from sales came in much later than expected. However, it is also clear from a preponderance of the evidence that after the calendar year 1990, the publicity surrounding this seizure and the nature of the products sold by Steve Jackson Games, Incorporated had the effect of increasing, not decreasing, sales. In fact, Steve Jackson Games, Incorporated developed a specific game for sale based upon the March 1, 1990, seizure.


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The Court declines to find from a preponderance of the evidence there was any economic damage to Steve Jackson Games, Incorporated after the calendar year 1990 as a result of the seizure of March 1, 1990. (F6)

As a result of the seizure of March 1, 1990, and the retention of the equipment and documents seized, Steve Jackson Games, Incorporated sustained out-of-pocket expenses of $8,781.00. The personnel at this corporation had to regroup, rewrite, and duplicate substantial prior efforts to publish the book _Gurps Cyberpunk_ and other documents stored in the computers and the Illuminati bulletin board, explain to their clientele and users of the bulletin board the difficulties of their continuing business to maintain their clientele, to purchase or lease substitute equipment and supplies, to re-establish the bulletin board, and to get the business of Steve Jackson Games, Inc. back in order. The Court has reviewed the evidence regarding annual sales and net income of Steve Jackson Games, Incorporated for 1990 and the years before and after and finds from a preponderance of the evidence there was a 6 percent loss of sales in 1990 due to the seizure and related problems. The evidence was undisputed that there was a 42 percent profit on sales of publications of Steve Jackson Games, Incorporated. Thus, Steve Jackson Games, Incorporated sustained damages in loss of sales in 1990 of $100,617.00 for a loss of profit of $42,259.00 as a direct and proximate result of the seizure of March 1, 1990, and the retention of the documents seized. After 1990, the net sales of Steve Jackson Games, Incorporated continued to increase annually in a traditional proportion as the sales had been increasing from 1988. Thus, from a preponderance of the evidence, the loss of $42,259.00 is consistent with the net income figures of Steve Jackson Games, Incorporated in the years immediately following and preceding 1990.

Regarding damages to Steve Jackson, personally, his own testimony is that by 1990 he was becoming more active in the management of Steve Jackson Games, Incorporated, and spending less time in creative pursuits such as writing. Steve Jackson Games, Incorporated was in such financial condition that Chapter 11 proceedings in bankruptcy were contemplated. Thereafter, the testimony clearly established that Steve Jackson Games reasserted himself in management and was spending substantial time managing the corporation. The Court declines to find from a preponderance of the evidence that Steve Jackson personally sustained any compensatory damages as a result of the conduct of the United States Secret Service.

Elizabeth McCoy, Walter Milliken and Steffan O'Sullivan also allege compensatory damages. These Plaintiffs all had stored electronic communications, or E-mail, on the Illuminati bulletin board at the time of seizure. All three of these Plaintiffs testified that they had public and private communications in storage at the time of the seizure. Steve Jackson, Elizabeth McCoy, Walter Milliken and Steffan O'Sullivan all testified that following June of 1990 some of their stored electronic communications, or E-mail, had been deleted. It is clear, as hereinafter set out, that the conduct of the United States Secret Service violated two of the three statutes which the causes of action of the Plaintiffs are based and, therefore, there are statutory damages involved, but the Court declines to find from a preponderance of the evidence that any of the individual Plaintiffs sustained any compensatory damages.

II.a.


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PRIVACY PROTECTION ACT

(First Amendment Privacy Protection)

42 U.S.C. 2000aa et seq.

The United States Secret Service, by Agent Foley and Assistant United States Attorney Cox, sought and obtained an order from a United States Magistrate Judge to _search_ for and _seize_ and thereafter _read_ the information stored and contained in "computer hardware (including, but not limited to, central processing unit(s) monitors, memory devices, modem(s), programming equipment, communication equipment, disks, and printers) 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 network 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 compute 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 U.S.C. 2314) and interstate transportation of computer access information (18 U.S.C. 1030(a)(6)).' See, Warrant Application and Order.

On March 1, 1990, the Secret Service seized the following property on the premises of Steve Jackson Games, Inc.: Compuadd keyboard; Packard-Bell monitor; DKT computer; cardboard box containing disks, miscellaneous papers and circuit boards; Splat Master gun with "Mentor" on barrel; Hewlett-Packard laser jet printer; BTC keyboard with cover; IBM personal computer 5150 (disassembled); Seagate Tech hard disk; 2400 modem 1649-1795 with power supply and disk; IBM keyboard; Amdek mode 310A; bulletin board back-up files (approximately 150); Empac International Corporation XT computer; "WWIV" users manual; red box of floppy disks; miscellaneous papers and notes from desk; floppy disk entitled "Phoenix setup." _See_, Warrant Return.

The evidence establishes the actual information seized, including both the primary source and back-up materials of the draft of _Gurps Cyberpunk_, a book intended for immediate publication (within days to weeks), drafts of magazine and magazine articles to be published, business records of Steve Jackson Games, Incorporated (including contracts and drafts of articles by writers of Steve Jackson Games, Incorporated), the Illuminati bulletin board and its contents (including public announcements, published newsletter articles submitted to the public for review, public comment on the articles submitted and electronic mail containing both private and public communications). Notwithstanding over 300 floppy disks being seized, the evidence introduced during trial was not clear as to what additional information was seized during the search warrant execution. However, the evidence is clear that on March 1, 1990, "work product materials," as defined in 42 U.S.C. 2000aa-7(b), was obtained as well as materials constituting "documentary materials" as defined in the same provision. (F7)


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The Privacy Protection Act, 42 U.S.C. 2000aa, dictates: "Notwithstanding any other law, it shall be unlawful for a government officer or employee, in connection with the investigation . . . of a criminal offense to search for or seize any work product materials possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper, broadcast, or other similar form of public communication . . . ." _See_, 42 U.S.C. Sec. 2000aa(a).

Assuming Agent Foley was knowledgeable of the Privacy Protection Act (which he was not), neither he nor Assistant United States Attorney Cox had any information which would lead them to believe that Steve Jackson Games, Incorporated published books and materials and had a purpose to disseminate to the public its publications. Their testimony is simply they thought it a producer of games. As heretofore stated, the Court feels Agent Foley failed to make a reasonable investigation of Steve Jackson Games, Incorporated when it was apparent his intention was to take substantial properties belonging to the corporation, the removal of which could have a substantial effect on the continuation of business. Agent Foley, it appears, in his zeal to obtain evidence for the criminal investigation, simply concluded Steve Jackson Games, Incorporated was somehow involved in Blankenship's alleged activities because of the wording of the Illuminati bulletin board menu. In any event, the Court declines to find from a preponderance of the evidence that on March 1, 1990, Agent Foley or any other employee or agent of the United States had reason to believe that property seized would be the work product materials of a person believed to have a purpose to disseminate to the public a newspaper, book, broadcast or other similar form of public communication. (F8)

During the search on March 1, and on March 2, 1990, the Secret Service was specifically advised of facts that put its employees on notice of probable violations of the Privacy Protection Act. It is no excuse that Agents Foley and Golden were not knowledgeable of the law. On March 2, 1990, and thereafter, the conduct of the United States Secret Service was in violation of 42 U.S.C. 2000aa _et seq_. It is clear the Secret Service continued the seizure of property of Steve Jackson Games, Incorporated including information and documents through late June of 1990. Immediate arrangements could and should have been made on March 2, 1990, whereby copies of all information seized could have been made. The government could and should have requested Steve Jackson as chief operating officer of the corporation to cooperate and provide the information available under the law. The Secret Service's refusal to return information and property requested by Mr. Jackson and his lawyers in Dallas and Austin constituted a violation of the statute. Regarding any information seized that would constitute "documentary materials" (whereby the defensive theory of 42 U.S.C. 2000aa(b)(3) might apply) there would have been no problem as the property was in the possession of the United States Secret Service and their experts and Steve Jackson were present to ensure no destruction, alteration or concealment of information contained therein. In any event, it is the seizure of the "work product materials" that leads to the liability of the United States Secret Service and the United States in this case. Pursuant to 42 U.S.C. 2000aa-6, the Court finds from a preponderance of the evidence that Steve Jackson Games, Incorporated is entitled to judgment against the United States Secret Service and the United States of America for its expenses of $8,781.00 and its economic damages of $42,259.00. The Court declines to find from a preponderance of the evidence other damages of Steve Jackson Games, Incorporated or liability of the United States Secret Service or the United States of America to any other Plaintiff under the provisions of the Privacy Protection Act.


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b.

WIRE AND ELECTRONIC COMMUNICATIONS INTERCEPTION AND INTERCEPTION OF ORAL COMMUNICATIONS 18 U.S.C. 2510 et seq.

The Plaintiffs allege the United States Secret Service's conduct also violated 18 U.S.C. 2510, et seq., as it constituted intentional interceptions of "electronic communication." They allege the interception occurred at the time of seizure or, perhaps, at the time of review of the communication subsequent to the seizure. There is no question the individual Plaintiffs had private communications stored in Illuminati at the time of the seizure and the court has found from a preponderance of the evidence the Secret Service intended not only to seize and read these communications, but, in fact, did read the communications and thereafter deleted or destroyed some communications either intentionally or accidentally. The Defendants contend there is no violation of this particular statute under the facts of this case because there never was any unlawful "interception" within the meaning of the statute. Alternatively, the Defendants contend that the "good faith reliance" on the search warrant issued by the United States Magistrate Judge is a complete defense under Section 2520.

The Government relies on the 1976 Fifth Circuit case of the _United States v. Turk_, 526 F.2d 654 (5th Cir. 1976), _cert denied_, 429 U.S. 823, 97 S.Ct. 74 (1976), and its interpretation of the statutory definition of "interception." In _Turk_, police officers listened to the contents of a cassette tape without first obtaining a warrant. The court concluded this was not an "interception" under 18 U.S.C. Sec. 2510 et seq.

Whether the seizure and replaying of the cassette tape by the officers was also an "interception" depends on the definition to be given "aural acquisition.' Under one conceivable reading, and 'aural acquisition" could be said to occur whenever someone physically hears the contents of a communication, and thus the use of the tape player by the officers to hear the previously recorded conversation might fall within the definition set out above. No explicit limitation of coverage to contemporaneous "acquisitions" appears in the Act.

We believe that a different interpretation -- one which would exclude from the definition of "intercept" the replaying of a previously recorded conversation -- has a much firmer basis in the language of Sec. 2510(4) and in logic, and corresponds more closely to the policies reflected in the legislative history. The words acquisition... through the use of any ... device" suggest that the central concern is with the activity engaged in a the time of the oral communication which causes such communication to be overheard by uninvited listeners. If a person secrets a recorder in a room and thereby records a conversation between two others, an "acquisition" occurs at the time the recording is made. This acquisition itself might be said to be "aural" because the contents of the conversation are preserved in 2 form which permits the later aural disclosure of the contents. Alternatively, a court facing the issue might conclude that an "aural acquisition" is accomplished only when two steps are completed -- the initial acquisition by the device and the hearing of the communication by the person or persons responsible for the recording. Either of these definitions would require participation by the one charged


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with an "interception" in the contemporaneous acquisition of the communication through the use to the device. The argument that a new and different aural acquisition" occurs each time a recording of an oral communication is replayed is unpersuasive. That would mean that innumerable "interceptions," and thus violations of the Act, could follow from a single recording .

_Id._, at 657-658 (footnotes omitted). While the Fifth Circuit authority relates to the predecessor statute, Congress intended no change in the existing definition of 'intercept" in amending the statute in 1986. _See_, S. Rep. No. 541, 99th Cong., 2nd Sess. 13 (1986), _reprinted in_ 1986 U.S.C.C.A.N. 3555, 3567 ("Section 101(a)(3) of the ELECTRONIC COMMUNICATIONS PRIVACY ACT amends the definition of the term "intercept" in current section 2510(4) of electronic communications. The definition of "intercept" under current law is retained with respect to wire and oral communications except that the term "or other" is inserted after "aural." This amendment clarifies that it is illegal to intercept the non-voice portion of a wire communication."). The Court finds this argument persuasive when considering the Congressional enactment of the Stored Wire and Electronic Communications and Transactional Records Access Act, 18 U.S.C. 2701, _et seq_.

The Court declines to find liability for any Plaintiff against the Defendants pursuant to the Wire and Electronic Communications Interception and Interception of Oral Communications Act, 18 U.S.C. 2510, et seq., and specifically holds that the alleged "interceptions" under the facts of this case are not 'interceptions contemplated by the Wire and Electronic Communications Interception and Interception of Oral Communications Act. It simply has no applicability to the facts of this case.

c.

STORED WIRE AND ELECTRONIC COMMUNICATIONS AND TRANSACTIONAL RECORDS ACCESS 18 U.S.C. Sec. 2701 et seq.

Prior to February 28, 1990, Agent Foley, Assistant United States Attorney Cox, and the computer consultants working with them were cognizant of public computer bulletin boards and the use of electronic communications and E-mail through them. Each of the persons involved in this investigation, including Agent Foley, had the knowledge and opportunity to log into the Illuminati bulletin board, review its menu and user lists, obtain passwords, and thereafter review all information available to the public. In fact, Agent Foley erroneously thought Kluepfel had done this when a printout of Illuminati documents dated February 25, 1990, was recieved. When Foley applied for the search warrant on February 28, 1990, he knew the Illuminati bulletin board provided services to the public whereby its users could store public and private electronic communications. While Foley admits no knowledge of the Privacy Protection Act and its provisions protecting publishers of information 'o the public, he testified he was knowledgeable regarding the Wire and Electronic Communications Interception and Interception of Oral Communications Act. But, Foley never thought of the law's applicability under the facts of this case. Steve Jackson Games, Inc., through its Illuminati bulletin board services, was a "remote computing service" within the definition of Section 2711, and, therefore, the only procedure available to the Secret Service to obtain _"disclosure"_ of the contents of electronic communications


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was to comply with this statute. _See_, 18 U.S.C. 2703. Agent Foley and the Secret Service, however, wanted more than "disclosure' of the contents of the communication. As the search warrant application evidences, the Secret Service wanted _seizure_ of all information and the authority to review and read all electronic communications, both public and private. A court order for such disclosure is only to issue if "there is a reason to believe the contents of a[n] . . . electronic communication . . . are relevant to a legitimate law enforcement inquiry." _See_, 18 U.S.C. Sec. 2703(d). Agent Foley did not advise the United States Magistrate Judge, by affidavit or otherwise, that the Illuminati bulletin board contained private electronic communications between users or how the disclosure of the content of these communications could relate to his investigation. Foley's only knowledge was that Blankenship had published part of the 911 document and decryption information in his Phoenix bulletin board, was employed at Steve Jackson Games, Inc., and could have the ability to store and delete these alleged unlawful documents in the computers or Illuminati bulletin board at Steve Jackson Games, Incorporated. At Agent Foley's specific request, the application and affidavit for the search warrant were sealed. The evidence establishes the Plaintiffs were not able to ascertain the reasons for the March 1, 1990 seizure until after the return of most of the property in June of 1990, and then only by the efforts of the offices of both United States Senators of the State of Texas. The procedures followed by the Secret Service in this case virtually eliminated the safeguards contained in the statute. For example, no Plaintiff was on notice that the search or seizure order was made pursuant to this statute and that Steve Jackson Games, Incorporated could move to quash or modify the order or eliminate or reduce any undue burden on it by reason of the order. _See_, 18 U.S.C. Sec. 2703(d). The provisions of the statute regarding the preparation of back-up copies of the documents or information seized were never utilized or available. _See_, 18 U.S.C. Sec. 2704. Agent Foley stated his concern was to prevent the destruction of the documents' content and for the Secret Service to take the time necessary to carefully review all of the information seized. He feared Blankenship could possibly delete the incriminating documents or could have programmed destruction in some manner. Notwithstanding that any alteration or destruction by Blankenship, Steve Jackson, or anyone else would constitute a criminal offense under this statute, Foley and the Secret Service seized -- not just obtained disclosure of the content -- all of the electronic communications stored in the Illuminati bulletin board involving the Plaintiffs in this case. This conduct exceeded the Government's authority under the statute.

The Government Defendants contend there is no liability for alleged violation of the statute as Foley and the Secret Service had a "good faith" reliance on the February 28, 1990, court order/search warrant. The Court declines to find this defense by a preponderance of the evidence in this case.

Steve Jackson Games, Incorporated, as the provider and each individual Plaintiffs as either subscribers or customers were "aggrieved" by the conduct of the Secret Service in the violation of this statute. While the Court declines to find from a preponderance of the credible evidence the compensatory damages sought by each Plaintiff, the Court will assess the statutory damages of $1,000.00 for each Plaintiff.

III. SUMMARY

This is a complex case. It is still not clear how sensitive and/or proprietary the 911 document. was (2nd is) or how genuinely harmful the potential decryption scheme may have been or if either were


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discovered by the Secret Service in the information seized on March 1, 1990. The fact that no criminal charges have ever been filed and the investigation remains "on going" is, of course, not conclusive.

The complexity of this case results from the Secret Service's insufficient investigation and its lack of knowledge of the specific laws that could apply to their conduct on February 28, 1990 and thereafter. It appears obvious neither the government employees nor the Plaintiffs or their lawyers contemplated the statute upon which this case is brought back in February, March, April, May or June of 1990. But this does not provide assistance to the defense of the case. The Secret Service and its personnel are the entities that citizens, like each of the Plaintiffs, rely upon and look to protect their rights and properties. The Secret Service conduct resulted in the seizure of property, products, business records, business documents, and electronic communications of a corporation and four individual citizens that the statutes were intended to protect.

It may well be, as the Government Defendants contend, these statutes relied upon by the Plaintiffs should not apply to the facts of this case, as these holdings may result in the government having great difficulties in obtaining information or computer documents -representing illegal activities. But this Court cannot amend or rewrite the statutes involved. The Secret Service must go to the Congress for relief. Until that time, this Court recommends better education, investigation and strict compliance with the statutes as written.

The Plaintiffs are ordered to submit application for attorney's fees and costs with appropriate supporting affidavits within ten (10) days of the date of this order. The Defendants will have ten days thereafter to file their responses.

SIGNED this the 12 day of March, 1993.

Sam Sparks, United States District Judge

FOOTNOTES

1. While the content of these publications are not similar to those of daily newspapers, news magazines, or other publications usually thought of by this Court as disseminating information to the public, these products come within the literal language of the Privacy Protection Act.

2. A "hacker" is an individual who accesses another's computer system without authority.

3. Kluepfel, Williams, Spain and Kibbler are employees of Bell South; Coutorie is a University of Texas Systems investigator assigned to investigate computer hacking; and Niedorf is a hacker involved in the Illinois bulletin board system.

4. The Court does fault Agent Foley and the Secret Service on the failure to make any investigation of


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Steve Jackson Games, Inc. prior to March 1, 1990, and to contact Steve Jackson in an attempt to enlist his cooperation and obtain information from him as there was never any basis to suspect Steve Jackson or Steve Jackson Games, Inc. of any criminal activity, and there could be no questions the seizure of computers, disks, and bulletin board and all information thereon, including all back-up materials would have an adverse effect (including completely stopping all activities) on the business of Steve Jackson Games, Inc. and the users of Illuminati bulletin board.

5. The application and the search warrant itself was worded by Foley and Cook so that all information would be "read" by the Secret Service.

6. The Court finds the testimony of Joanne Midwikis, an accountant who testified on behalf of Steve Jackson Games, Inc. and Steve Jackson, on damages suffered by Steve Jackson Games, Inc. and Steve Jackson was not credible.

7. If the Secret Service, in the performance of executing Court order, had only obtained and taken the 911 document or alleged decryption materials, application of the definitions of "documentary materials" and "work product materials" would logically result in no violation of the statute under the circumstances of this case. It was the seizing all documents and information and, thereafter, the failure to promptly return the information seized which leads to violation of the statute.

8. The legislative history to the Privacy Protection Act states:

...the Committee recognized a problem for the law enforcement officer, who seeking to comply with the statute, might be uncertain whether the materials he sought were work product or nonwork product and that they were intended for publication. Therefore, in the interests of allowing for some objective measure for judgment by the office, the Committee has provided that the work product must be possessed by someone "reasonably believed" to have a purpose to communicate to the public.

S. Rep. No. 874, 96th Cong., 2nd Sess., 10 (1980), _reprinted in_ 1980 U.S.C.C.A.N. 3950, 3957. As the Court has stated, Agent Foley with only a few hours of investigation would have "reasonably believed" Steve Jackson Games, Incorporated had "a purpose to communicate to the public." Therefore, under an objective standard, assuming a reasonable investigation, Agent Foley and the Secret Service violated the statute on March 1, 1990. However, Agent Foley was not aware of the Privacy Protection Act and was therefore not "seeking to comply" with its requirements. Consequently, the Court found on March 1, 1990 neither Agent Foley or any other employee or agent of the United States "reasonably believed" the materials seized were work product or Steve Jackson Games, Incorporated had a "purpose to disseminate to the public."


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Fifth Circuit Opinion On Appeal

STEVE JACKSON GAMES, INCORPORATED, et al.,Plaintiffs-Appellants, v. UNITED STATES SECRET SERVICE, et al., Defendants, United States Secret Service and United States of America,Defendants- Appellees. No. 93-8661. United States Court of Appeals, Fifth Circuit. Oct. 31, 1994.

Peter D. Kennedy, R. James George, Jr., George, Donaldson &Ford, Austin, TX, for appellants.

Sharon Steele, Washington, DC, for amicus curiae ElectronicFrontier Foundation.

Scott McIntosh, Barbara Herwig, U.S. Dept. of Justice,Washington, DC, for appellees.

Appeal from the United States District Court for the WesternDistrict of Texas.

Before HIGGINBOTHAM, JONES and BARKSDALE, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

The narrow issue before us is whether the seizure of a computer, used to operate an electronic bulletin board system, and containing private electronic mail which had been sent to (stored on) the bulletin board, but not read (retrieved) by the intended recipients, constitutes an unlawful intercept under the Federal Wiretap Act, 18 U.S.C. s 2510, et seq., as amended by Title I of the Electronic Communications Privacy Act of 1986, Pub.L. No. 99-508, Title I, 100 Stat. 1848 (1986). We hold that it is not, and therefore AFFIRM.

I.

The district court's findings of fact are not in dispute. See Steve Jackson Games, Inc. v. United States Secret Service, 816 F.Supp. 432 (W.D.Tex.1993). Appellant Steve Jackson Games, Incorporated (SJG), publishes books, magazines, role-playing games, and related products. Starting in the mid-1980s, SJG operated an electronic bulletin board system, called "Illuminati" (BBS), from one of its computers. SJG

http://www.2600.com/secret/sj/sj-appeals.html (1 of 9)4/16/2006 11:17:46 AM

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used the BBS to post public information about its business, games, publications, and the role-playing hobby; to facilitate play-testing of games being developed; and to communicate with its customers and free-lance writers by electronic mail (E- mail).

Central to the issue before us, the BBS also offered customers the ability to send and receive private E-mail. Private E-mail was stored on the BBS computer's hard disk drive temporarily, until the addressees "called" the BBS (using their computers and modems) and read their mail. After reading their E- mail, the recipients could choose to either store it on the BBS computer's hard drive or delete it. In February 1990, there were 365 BBS users. Among other uses, appellants Steve Jackson, Elizabeth McCoy, William Milliken, and Steffan O'Sullivan used the BBS for communication by private E-mail.

In October 1988, Henry Kluepfel, Director of Network Security Technology (an affiliate Bell Company), began investigating the unauthorized duplication and distribution of a computerized text file, containing information about Bell's emergency call system. In July 1989, Kluepfel informed Secret Service Agent Foley and an Assistant United States Attorney in Chicago about the unauthorized distribution. In early February 1990, Kluepfel learned that the document was available on the "Phoenix Project" computer bulletin board, which was operated by Loyd Blankenship in Austin, Texas; that Blankenship was an SJG employee; and that, as a co-systems operator of the BBS, Blankenship had the ability to review and, perhaps, delete any data on the BBS.

On February 28, 1990, Agent Foley applied for a warrant to search SJG's premises and Blankenship's residence for evidence of violations of 18 U.S.C. ss 1030 (proscribes interstate transportation of computer access information) and 2314 (proscribes interstate transportation of stolen property). A search warrant for SJG was issued that same day, authorizing the seizure of, inter alia,

[c]omputer hardware ... and computer software ... and ... documents relating to the use of the computer system ..., and financial documents and licensing documentation relative to the computer programs and equipment at ... [SJG] ... which constitute evidence ... of federal crimes.... 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.

The next day, March 1, the warrant was executed by the Secret Service, including Agents Foley and Golden. Among the items seized was the computer which operated the BBS. At the time of the seizure, 162 items of unread, private E-mail were stored on the BBS, including items addressed to the individual appellants. Despite the Secret Service's denial, the district court found that Secret Service personnel or delegates read and deleted the private E-mail stored on the BBS.

Appellants filed suit in May 1991 against, among others, the Secret Service and the United States, claiming, inter alia, violations of the Privacy Protection Act, 42 U.S.C. s 2000aa, et seq. [FN1]; the Federal Wiretap Act, as amended by Title I of the Electronic Communications Privacy Act (ECPA), 18 U.S.C. ss 2510-2521 (proscribes, inter alia, the intentional interception of electronic communications);


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and Title II of the ECPA, 18 U.S.C. ss 2701-2711 (proscribes, inter alia, intentional access, without authorization, to stored electronic communications). [FN2]

The district court held that the Secret Service violated the Privacy Protection Act, and awarded actual damages of $51,040 to SJG; and that it violated Title II of the ECPA by seizing stored electronic communications without complying with the statutory provisions, and awarded the statutory damages of $1,000 to each of the individual appellants. And, it awarded appellants $195,000 in attorneys' fees and approximately $57,000 in costs. But, it held that the Secret Service did not "intercept" the E-mail in violation of Title I of the ECPA, 18 U.S.C. s 2511(1)(a), because its acquisition of the contents of the electronic communications was not contemporaneous with the transmission of those communications.

II.

As stated, the sole issue is a very narrow one: whether the seizure of a computer on which is stored private E-mail that has been sent to an electronic bulletin board, but not yet read (retrieved) by the recipients, constitutes an "intercept" proscribed by 18 U.S.C. s 2511(1)(a). [FN3] Section 2511 was enacted in 1968 as part of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, often referred to as the Federal Wiretap Act. Prior to the 1986 amendment by Title I of the ECPA, it covered only wire and oral communications. Title I of the ECPA extended that coverage to electronic communications. [FN4] In relevant part, s 2511(1)(a) proscribes "intentionally intercept[ing] ... any wire, oral, or electronic communication", unless the intercept is authorized by court order or by other exceptions not relevant here. Section 2520 authorizes, inter alia, persons whose electronic communications are intercepted in violation of s 2511 to bring a civil action against the interceptor for actual damages, or for statutory damages of $10,000 per violation or $100 per day of the violation, whichever is greater. 18 U.S.C. s 2520. [FN5]

The Act defines "intercept" as "the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device." 18 U.S.C. s 2510(4). The district court, relying on our court's interpretation of intercept in United States v. Turk, 526 F.2d 654 (5th Cir.), cert. denied, 429 U.S. 823, 97 S.Ct. 74, 50 L.Ed.2d 84 (1976), held that the Secret Service did not intercept the communications, because its acquisition of the contents of those communications was not contemporaneous with their transmission. In Turk, the government seized from a suspect's vehicle an audio tape of a prior conversation between the suspect and Turk. (Restated, when the conversation took place, it was not recorded contemporaneously by the government.) Our court held that replaying the previously recorded conversation was not an "intercept", because an intercept "require[s] participation by the one charged with an 'interception' in the contemporaneous acquisition of the communication through the use of the device". Id. at 658.

Appellants agree with Turk's holding, but contend that it is not applicable, because it "says nothing about government action that both acquires the communication prior to its delivery, and prevents that delivery." (Emphasis by appellants.) Along that line, appellants note correctly that Turk's interpretation of "intercept" predates the ECPA, and assert, in essence, that the information stored on the BBS could


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still be "intercepted" under the Act, even though it was not in transit. They maintain that to hold otherwise does violence to Congress' purpose in enacting the ECPA, to include providing protection for E-mail and bulletin boards. For the most part, appellants fail to even discuss the pertinent provisions of the Act, much less address their application. Instead, they point simply to Congress' intent in enacting the ECPA and appeal to logic (i.e., to seize something before it is received is to intercept it). But, obviously, the language of the Act controls. In that regard, appellees counter that "Title II, not Title I, ... governs the seizure of stored electronic communications such as unread e-mail messages", and note that appellants have recovered damages under Title II. Understanding the Act requires understanding and applying its many technical terms as defined by the Act, as well as engaging in painstaking, methodical analysis. As appellees note, the issue is not whether E-mail can be "intercepted"; it can. Instead, at issue is what constitutes an "intercept".

Prior to the 1986 amendment by the ECPA, the Wiretap Act defined "intercept" as the "aural acquisition" of the contents of wire or oral communications through the use of a device. 18 U.S.C. s 2510(4) (1968). The ECPA amended this definition to include the "aural or other acquisition of the contents of ... wire, electronic, or oral communications...." 18 U.S.C. s 2510(4) (1986) (emphasis added for new terms). The significance of the addition of the words "or other" in the 1986 amendment to the definition of "intercept" becomes clear when the definitions of "aural" and "electronic communication" are examined; electronic communications (which include the nonvoice portions of wire communications), as defined by the Act, cannot be acquired aurally.

Webster's Third New International Dictionary (1986) defines "aural" as "of or relating to the ear" or "of or relating to the sense of hearing". Id. at 144. And, the Act defines "aural transfer" as "a transfer containing the human voice at any point between and including the point of origin and the point of reception." 18 U.S.C. s 2510(18). This definition is extremely important for purposes of understanding the definition of a "wire communication", which is defined by the Act as

any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception (including the use of such connection in a switching station) ... and such term includes any electronic storage of such communication.

18 U.S.C. s 2510(1) (emphasis added). In contrast, as noted, an "electronic communication" is defined as "any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system ... but does not include ... any wire or oral communication...." 18 U.S.C. s 2510(12) (emphasis added).

Critical to the issue before us is the fact that, unlike the definition of "wire communication", the definition of "electronic communication" does not include electronic storage of such communications. See 18 U.S.C. s 2510(12). See note 4, supra. [FN6] "Electronic storage" is defined as


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(A) any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and (B) any storage of such communication by an electronic communication service for purposes of backup protection of such communication....

18 U.S.C. s 2510(17) (emphasis added). The E-mail in issue was in "electronic storage". Congress' use of the word "transfer" in the definition of "electronic communication", and its omission in that definition of the phrase "any electronic storage of such communication" (part of the definition of "wire communication") reflects that Congress did not intend for "intercept" to apply to "electronic communications" when those communications are in "electronic storage". [FN7]

We could stop here, because "[i]ndisputably, the goal of statutory construction is to ascertain legislative intent through the plain language of a statute--without looking to legislative history or other extraneous sources". Stone v. Caplan (Matter of Stone), 10 F.3d 285, 289 (5th Cir.1994). But, when interpreting a statute as complex as the Wiretap Act, which is famous (if not infamous) for its lack of clarity, see, e.g., Forsyth v. Barr, 19 F.3d 1527, 1542-43 (5th Cir.), cert. denied, --- U.S. ----, --- S.Ct. ----, --- L.Ed.2d ---- (1994), we consider it appropriate to note the legislative history for confirmation of our understanding of Congress' intent. See id. at 1544.

As the district court noted, the ECPA's legislative history makes it crystal clear that Congress did not intend to change the definition of "intercept" as it existed at the time of the amendment. See 816 F.Supp. at 442 (citing S.Rep. No. 99-541, 99th Cong., 2d Sess. 13 (1986), reprinted in 1986 U.S.C.C.A.N. 3555, 3567). The Senate Report explains: Section 101(a)(3) of the [ECPA] amends the definition of the term "intercept" in current section 2510(4) of title 18 to cover electronic communications. The definition of "intercept" under current law is retained with respect to wire and oral communications except that the term "or other" is inserted after "aural." This amendment clarifies that it is illegal to intercept the nonvoice portion of a wire communication. For example, it is illegal to intercept the data or digitized portion of a voice communication. 1986 U.S.C.C.A.N. at 3567.

Our conclusion is reinforced further by consideration of the fact that Title II of the ECPA clearly applies to the conduct of the Secret Service in this case. Needless to say, when construing a statute, we do not confine our interpretation to the one portion at issue but, instead, consider the statute as a whole. See, e.g., United States v. McCord, --- F.3d ----, ----, 1994 WL 523211, at *6 (5th Cir.1994) (citing N. Singer, 2A Sutherland Statutory Construction, s 46.05, at 103 (5th ed. 1992)). Title II generally proscribes unauthorized access to stored wire or electronic communications. Section 2701(a) provides:

Except as provided in subsection (c) of this section whoever--

(1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or

(2) intentionally exceeds an authorization to access that facility; and thereby obtains,


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alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system shall be punished....

18 U.S.C. s 2701(a) (emphasis added).

As stated, the district court found that the Secret Service violated s 2701 when it intentionally accesse[d] without authorization a facility [the computer] through which an electronic communication service [the BBS] is provided ... and thereby obtain[ed] [and] prevent[ed] authorized access [by appellants] to a[n] ... electronic communication while it is in electronic storage in such system. 18 U.S.C. s 2701(a). The Secret Service does not challenge this ruling.

We find no indication in either the Act or its legislative history that Congress intended for conduct that is clearly prohibited by Title II to furnish the basis for a civil remedy under Title I as well. Indeed, there are persuasive indications that it had no such intention.

First, the substantive and procedural requirements for authorization to intercept electronic communications are quite different from those for accessing stored electronic communications. For example, a governmental entity may gain access to the contents of electronic communications that have been in electronic storage for less than 180 days by obtaining a warrant. See 18 U.S.C. s 2703(a). But there are more stringent, complicated requirements for the interception of electronic communications; a court order is required. See 18 U.S.C. s 2518.

Second, other requirements applicable to the interception of electronic communications, such as those governing minimization, duration, and the types of crimes that may be investigated, are not imposed when the communications at issue are not in the process of being transmitted at the moment of seizure, but instead are in electronic storage. For example, a court order authorizing interception of electronic communications is required to include a directive that the order shall be executed "in such a way as to minimize the interception of communications not otherwise subject to interception". 18 U.S.C. s 2518(5). Title II of the ECPA does not contain this requirement for warrants authorizing access to stored electronic communications. The purpose of the minimization requirement is to implement "the constitutional obligation of avoiding, to the greatest possible extent, seizure of conversations which have no relationship to the crimes being investigated or the purpose for which electronic surveillance has been authorized". James G. Carr, The Law of Electronic Surveillance, s 5.7(a) at 5-28 (1994).

Obviously, when intercepting electronic communications, law enforcement officers cannot know in advance which, if any, of the intercepted communications will be relevant to the crime under investigation, and often will have to obtain access to the contents of the communications in order to make such a determination. Interception thus poses a significant risk that officers will obtain access to communications which have no relevance to the investigation they are conducting. That risk is present to a lesser degree, and can be controlled more easily, in the context of stored electronic communications, because, as the Secret Service advised the district court, technology exists by which relevant communications can be located without the necessity of reviewing the entire contents of all of the stored


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communications. For example, the Secret Service claimed (although the district court found otherwise) that it reviewed the private E-mail on the BBS by use of key word searches.

Next, as noted, court orders authorizing an intercept of electronic communications are subject to strict requirements as to duration. An intercept may not be authorized "for any period longer than is necessary to achieve the objective of the authorization, nor in any event longer than thirty days". 18 U.S.C. s 2518(5). There is no such requirement for access to stored communications.

Finally, as also noted, the limitations as to the types of crimes that may be investigated through an intercept, see 18 U.S.C. s 2516, have no counterpart in Title II of the ECPA. See, e.g., 18 U.S.C. s 2703(d) (court may order a provider of electronic communication service or remote computing service to disclose to a governmental entity the contents of a stored electronic communication on a showing that the information sought is "relevant to a legitimate law enforcement inquiry").

In light of the substantial differences between the statutory procedures and requirements for obtaining authorization to intercept electronic communications, on the one hand, and to gain access to the contents of stored electronic communications, on the other, it is most unlikely that Congress intended to require law enforcement officers to satisfy the more stringent requirements for an intercept in order to gain access to the contents of stored electronic communications. [FN8]

At oral argument, appellants contended (for the first time) that Title II's reference in s 2701(c) to s 2518 (which sets forth the procedures for the authorized interception of wire, oral, or electronic communications) reflects that Congress intended considerable overlap between Titles I and II of the ECPA. [FN9] As stated, s 2701(a) prohibits unauthorized access to stored wire or electronic communications. Subsection (c) of s 2701 sets forth the exceptions to liability under subsection (a), which include conduct authorized:

(1) by the person or entity providing a wire or electronic communications service;

(2) by a user of that service with respect to a communication of or intended for that user; or

(3) in section 2703, 2704 or 2518 of this title.

18 U.S.C. s 2701(c) (emphasis added). [FN10]

Appellants overemphasize the significance of this reference to s 2518. As discussed in notes 6-7, supra, it is clear that Congress intended to treat wire communications differently from electronic communications. Access to stored electronic communications may be obtained pursuant to a search warrant, 18 U.S.C. s 2703; but, access to stored wire communications requires a court order pursuant to s 2518. Because s 2701 covers both stored wire and electronic communications, it was necessary in subsection (c) to refer to the different provisions authorizing access to each.


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III.

For the foregoing reasons, the judgment is AFFIRMED.

FN1. Section 2000aa(a) provides that it is unlawful for a government officer or employee, in connection with the investigation ... of a criminal offense, to search for or seize any work product materials possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication.... Among the items seized was a draft of GURPS Cyberpunk, a book intended by SJG for immediate publication. It was one of a series of fantasy role-playing game books SJG published. "GURPS" is an acronym for SJG's "Generic Universal Roleplaying System". "Cyberpunk" refers to a science fiction literary genre which became popular in the 1980s, which is characterized by the fictional interaction of humans with technology and the fictional struggle for power between individuals, corporations, and government.

FN2. Kluepfel, the Assistant United States Attorney, and Agents Foley and Golden were also sued. In addition to the statutory claims, appellants also claimed violations of the First and Fourth Amendments to the United States Constitution. And, in September 1992, they added state law claims for conversion and invasion of privacy. Prior to trial, the claims against the individuals were dismissed, and appellants withdrew their constitutional and state law claims.

FN3. Appellants raised two other issues regarding damages, but later advised that they have been settled. And, prior to briefing, the Secret Service dismissed its cross-appeal.

FN4. An "electronic communication" is defined as: any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system that affects interstate or foreign commerce, but does not include-- (A) the radio portion of a cordless telephone communication that is transmitted between the cordless telephone handset and the base unit; (B) any wire or oral communication; (C) any communication made through a tone-only paging device; or (D) any communication from a tracking device (as defined in section 3117 of this title).... 18 U.S.C. s 2510(12).

FN5. Title I of the ECPA increased the statutory damages for unlawful interception from $1,000 to $10,000. See Bess v. Bess, 929 F.2d 1332, 1334 (8th Cir.1991). On the other hand, as noted, Title II authorizes an award of "the actual damages suffered by the plaintiff and any profits made by the violator as a result of the violation, but in no case ... less than the sum of $1000". 18 U.S.C. s 2707(c). As discussed, the individual appellants each received Title II statutory damages of $1,000.

FN6. Wire and electronic communications are subject to different treatment under the Wiretap Act. The Act's exclusionary rule, 18 U.S.C. s 2515, applies to the interception of wire communications, including such communications in electronic storage, see 18 U.S.C. s 2510(1), but not to the interception of electronic communications. See 18 U.S.C. s 2518(10)(a); United States v. Meriwether, 917 F.2d 955, 960 (6th Cir.1990); S.Rep. No. 99-541, 99th Cong., 2d Sess. 23 (1986), reprinted in 1986 U.S.C.C.A.N.


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3555, 3577. And, the types of crimes that may be investigated by means of surveillance directed at electronic communications, 18 U.S.C. s 2516(3) ("any federal felony"), are not as limited as those that may be investigated by means of surveillance directed at wire or oral communications. See 18 U.S.C. s 2516(1) (specifically listed felonies).

FN7. Stored wire communications are subject to different treatment than stored electronic communications. Generally, a search warrant, rather than a court order, is required to obtain access to the contents of a stored electronic communication. See 18 U.S.C. s 2703(a). But, compliance with the more stringent requirements of s 2518, including obtaining a court order, is necessary to obtain access to a stored wire communication, because s 2703 expressly applies only to stored electronic communications, not to stored wire communications. See James G. Carr, The Law of Electronic Surveillance, s 4.10, at 4-126--4-127 (1994) (citing H.R.Rep. No. 99-647, 99th Cong., 2d Sess. 67-68 (1986)).

FN8. The ECPA legislative history's explanation of the prohibitions regarding disclosure also persuades us of the soundness of Turk's interpretation of "intercept" and our understanding of the distinctions Congress intended to draw between communications being transmitted and communications in electronic storage. In describing Title II's prohibitions against disclosure of the contents of stored communications, the Senate Report points out that s 2702(a) (part of Title II) "generally prohibits the provider of a wire or electronic communication service to the public from knowingly divulging the contents of any communication while in electronic storage by that service to any person other than the addressee or intended recipient." S.Rep. No. 99-541, 97th Cong. 2nd Sess. 37, 1986 U.S.C.C.A.N. 3555, 3591 (emphasis added). It then goes on to state that s 2511(3) of the Wiretap Act, as amended by Title I of the ECPA, "prohibits such a provider from divulging the contents of a communication while it is in transmission". Id. (emphasis added).

FN9. It goes without saying that we generally will not consider issues raised for the first time at oral argument. For this rare exception, the parties, as ordered, filed supplemental briefs on this point.

FN10. Section 2703 sets forth the requirements for governmental access to the contents of electronic (but not wire) communications. For electronic communications that have been in electronic storage for 180 days or less, the government can gain access to the contents pursuant to a federal or state warrant. 18 U.S.C. s 2703(a). For communications that are maintained by a remote computing service and that have been in storage for more than 180 days, the government can gain access by obtaining a warrant, by administrative or grand jury subpoena, or by obtaining a court order pursuant to s 2703(d). 18 U.S.C. s 2703(b). Section 2704 also deals only with electronic communications; it provides, inter alia, that a governmental entity may include in its subpoena or court order a requirement that the service provider create and maintain a duplicate of the contents of the electronic communications sought. 18 U.S.C. s 2704.


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Afterword: The Hacker Crackdown Three Years Later

Three years in cyberspace is like thirty years anyplace real. It feels as if a generation has passed since I wrote this book. In terms of the generations of computing machinery involved, that's pretty much the case.

The basic shape of cyberspace has changed drastically since 1990. A new U.S. Administration is in power whose personnel are, if anything, only too aware of the nature and potential of electronic networks. It's now clear to all players concerned that the status quo is dead-and-gone in American media and telecommunications, and almost any territory on the electronic frontier is up for grabs. Interactive multimedia, cable-phone alliances, the Information Superhighway, fiber-to-the-curb, laptops and palmtops, the explosive growth of cellular and the Internet -- the earth trembles visibly.

The year 1990 was not a pleasant one for AT&T. By 1993, however, AT&T had successfully devoured the computer company NCR in an unfriendly takeover, finally giving the pole-climbers a major piece of the digital action. AT&T managed to rid itself of ownership of the troublesome UNIX operating system, selling it to Novell, a netware company, which was itself preparing for a savage market dust-up with operating-system titan Microsoft. Furthermore, AT&T acquired McCaw Cellular in a gigantic merger, giving AT&T a potential wireless whip-hand over its former progeny, the RBOCs. The RBOCs themselves were now AT&T's clearest potential rivals, as the Chinese firewalls between regulated monopoly and frenzied digital entrepreneurism began to melt and collapse headlong.

AT&T, mocked by industry analysts in 1990, was reaping awestruck praise by commentators in 1993. AT&T had managed to avoid any more major software crashes in its switching stations. AT&T's newfound reputation as "the nimble giant" was all the sweeter, since AT&T's traditional rival giant in the world of multinational computing, IBM, was almost prostrate by 1993. IBM's vision of the commercial computer-network of the future, "Prodigy," had managed to spend $900 million without a whole heck of a lot to show for it, while AT&T, by contrast, was boldly speculating on the possibilities of personal communicators and hedging its bets with investments in handwritten interfaces. In 1990 AT&T had looked bad; but in 1993 AT&T looked like the future.

At least, AT&T's advertising looked like the future. Similar public attention was riveted on the massive $22 billion megamerger between RBOC Bell Atlantic and cable-TV giant Tele-Communications Inc. Nynex was buying into cable company Viacom International. BellSouth was buying stock in Prime Management, Southwestern Bell acquiring a cable company in Washington DC, and so forth. By stark contrast, the Internet, a noncommercial entity which officially did not even exist, had no advertising budget at all. And yet, almost below the level of governmental and corporate awareness, the Internet was stealthily devouring everything in its path, growing at a rate that defied comprehension. Kids who might have been eager computer-intruders a mere five years earlier were now surfing the Internet, where their natural urge to explore led them into cyberspace landscapes of such mindboggling vastness that the very idea of hacking passwords seemed rather a waste of time.

http://www.2600.com/secret/sj/sj-sterling1.html (1 of 7)4/16/2006 11:18:34 AM

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By 1993, there had not been a solid, knock 'em down, panic-striking, teenage-hacker computer-intrusion scandal in many long months. There had, of course, been some striking and well-publicized acts of illicit computer access, but they had been committed by adult white-collar industry insiders in clear pursuit of personal or commercial advantage. The kids, by contrast, all seemed to be on IRC, Internet Relay Chat.

Or, perhaps, frolicking out in the endless glass-roots network of personal bulletin board systems. In 1993, there were an estimated 60,000 boards in America; the population of boards had fully doubled since Operation Sundevil in 1990. The hobby was transmuting fitfully into a genuine industry. The board community were no longer obscure hobbyists; many were still hobbyists and proud of it, but board sysops and advanced board users had become a far more cohesive and politically aware community, no longer allowing themselves to be obscure.

The specter of cyberspace in the late 1980s, of outwitted authorities trembling in fear before teenage hacker whiz-kids, seemed downright antiquated by 1993. Law enforcement emphasis had changed, and the favorite electronic villain of 1993 was not the vandal child, but the victimizer of children, the digital child pornographer. "Operation Longarm," a child-pornography computer raid carried out by the previously little-known cyberspace rangers of the U.S. Customs Service, was almost the size of Operation Sundevil, but received very little notice by comparison.

The huge and well-organized "Operation Disconnect," an FBI strike against telephone rip-off con-artists, was actually larger than Sundevil. "Operation Disconnect" had its brief moment in the sun of publicity, and then vanished utterly. It was unfortunate that a law enforcement affair as apparently well-conducted as Operation Disconnect, which pursued telecom adult career criminals a hundred times more morally repugnant than teenage hackers, should have received so little attention and fanfare, especially compared to the abortive Sundevil and the basically disastrous efforts of the Chicago Computer Fraud and Abuse Task Force. But the life of an electronic policeman is seldom easy.

If any law enforcement event truly deserved full-scale press coverage (while somehow managing to escape it), it was the amazing saga of New York State Police Senior Investigator Don Delaney Versus the Orchard Street Finger-Hackers. This story probably represents the real future of professional telecommunications crime in America. The finger-hackers sold, and still sell, stolen long-distance phone service to a captive clientele of illegal aliens in New York City. This clientele is desperate to call home, yet as a group, illegal aliens have few legal means of obtaining standard phone service, since their very presence in the United States is against the law. The finger-hackers of Orchard Street were very unusual "hackers," with an astonishing lack of any kind of genuine technological knowledge. And yet these New York call-sell thieves showed a street-level ingenuity appalling in its single-minded sense of larceny.

There was no dissident-hacker rhetoric about freedom-of-information among the finger-hackers. Most of them came out of the cocaine-dealing fraternity, and they retailed stolen calls with the same street-crime techniques of lookouts and bagholders that a crack gang would employ. This was down-and-dirty, urban, ethnic, organized crime, carried out by crime families every day, for cash on the barrelhead, in the harsh world of the streets. The finger-hackers dominated certain payphones in certain strikingly unsavory


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neighborhoods. They provided a service no one else would give to a clientele with little to lose.

With such a vast supply of electronic crime at hand, Don Delaney rocketed from a background in homicide to teaching telecom crime at FLETC in less than three years. Few can rival Delaney's hands-on, street-level experience in phone fraud. Anyone in 1993 who still believes telecommunications crime to be something rare and arcane should have a few words with Mr Delaney. Don Delaney has also written two fine essays, on telecom fraud and computer crime, in Joseph Grau's Criminal and Civil Investigations Handbook (McGraw Hill 1993).

Phrack was still publishing in 1993, now under the able editorship of Erik Bloodaxe. Bloodaxe made a determined attempt to get law enforcement and corporate security to pay real money for their electronic copies of Phrack, but, as usual, these stalwart defenders of intellectual property preferred to pirate the magazine. Bloodaxe has still not gotten back any of his property from the seizure raids of March 1, 1990. Neither has the Mentor, who is still the managing editor of Steve Jackson Games.

Nor has Robert Izenberg, who has suspended his court struggle to get his machinery back. Mr Izenberg has calculated that his $20,000 of equipment seized in 1990 is, in 1993, worth $4,000 at most. The missing software, also gone out his door, was long ago replaced. He might, he says, sue for the sake of principle, but he feels that the people who seized his machinery have already been discredited, and won't be doing any more seizures. And even if his machinery were returned -- and in good repair, which is doubtful -- it will be essentially worthless by 1995. Robert Izenberg no longer works for IBM, but has a job programming for a major telecommunications company in Austin.

Steve Jackson won his case against the Secret Service on March 12, 1993, just over three years after the federal raid on his enterprise. Thanks to the delaying tactics available through the legal doctrine of "qualified immunity," Jackson was tactically forced to drop his suit against the individuals William Cook, Tim Foley, Barbara Golden and Henry Kluepfel. (Cook, Foley, Golden and Kluepfel did, however, testify during the trial.)

The Secret Service fought vigorously in the case, battling Jackson's lawyers right down the line, on the (mostly previously untried) legal turf of the Electronic Communications Privacy Act and the Privacy Protection Act of 1980. The Secret Service denied they were legally or morally responsible for seizing the work of a publisher. They claimed that (1) Jackson's gaming "books" weren't real books anyhow, and (2) the Secret Service didn't realize SJG Inc was a "publisher" when they raided his offices, and (3) the books only vanished by accident because they merely happened to be inside the computers the agents were appropriating.

The Secret Service also denied any wrongdoing in reading and erasing all the supposedly "private" e-mail inside Jackson's seized board, Illuminati. The USSS attorneys claimed the seizure did not violate the Electronic Communications Privacy Act, because they weren't actually "intercepting" electronic mail that was moving on a wire, but only electronic mail that was quietly sitting on a disk inside Jackson's computer. They also claimed that USSS agents hadn't read any of the private mail on Illuminati; and


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anyway, even supposing that they had, they were allowed to do that by the subpoena.

The Jackson case became even more peculiar when the Secret Service attorneys went so far as to allege that the federal raid against the gaming company had actually improved Jackson's business thanks to the ensuing nationwide publicity.

It was a long and rather involved trial. The judge seemed most perturbed, not by the arcane matters of electronic law, but by the fact that the Secret Service could have avoided almost all the consequent trouble simply by giving Jackson his computers back in short order. The Secret Service easily could have looked at everything in Jackson's computers, recorded everything, and given the machinery back, and there would have been no major scandal or federal court suit. On the contrary, everybody simply would have had a good laugh. Unfortunately, it appeared that this idea had never entered the heads of the Chicago-based investigators. They seemed to have concluded unilaterally, and without due course of law, that the world would be better off if Steve Jackson didn't have computers. Golden and Foley claimed that they had both never even heard of the Privacy Protection Act. Cook had heard of the Act, but he'd decided on his own that the Privacy Protection Act had nothing to do with Steve Jackson.

The Jackson case was also a very politicized trial, both sides deliberately angling for a long-term legal precedent that would stake-out big claims for their interests in cyberspace. Jackson and his EFF advisors tried hard to establish that the least e-mail remark of the lonely electronic pamphleteer deserves the same somber civil-rights protection as that afforded The New York Times. By stark contrast, the Secret Service's attorneys argued boldly that the contents of an electronic bulletin board have no more expectation of privacy than a heap of postcards. In the final analysis, very little was firmly nailed down. Formally, the legal rulings in the Jackson case apply only in the federal Western District of Texas. It was, however, established that these were real civil-liberties issues that powerful people were prepared to go to the courthouse over; the seizure of bulletin board systems, though it still goes on, can be a perilous act for the seizer. The Secret Service owes Steve Jackson $50,000 in damages, and a thousand dollars each to three of Jackson's angry and offended board users. And Steve Jackson, rather than owning the single-line bulletin board system "Illuminati" seized in 1990, now rejoices in possession of a huge privately-owned Internet node, "io.com," with dozens of phone-lines on its own T-1 trunk.

Jackson has made the entire blow-by-blow narrative of his case available electronically, for interested parties. And yet, the Jackson case may still not be over; a Secret Service appeal seems likely and the EFF is also gravely dissatisfied with the ruling on electronic interception.

The WELL, home of the American electronic civil libertarian movement, added two thousand more users and dropped its aging Sequent computer in favor of a snappy new Sun Sparcstation. Search-and-seizure dicussions on the WELL are now taking a decided back-seat to the current hot topic in digital civil liberties, unbreakable public-key encryption for private citizens.

The Electronic Frontier Foundation left its modest home in Boston to move inside the Washington Beltway of the Clinton Administration. Its new executive director, ECPA pioneer and longtime ACLU


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activist Jerry Berman, gained a reputation of a man adept as dining with tigers, as the EFF devoted its attention to networking at the highest levels of the computer and telecommunications industry. EFF's pro-encryption lobby and anti-wiretapping initiative were especially impressive, successfully assembling a herd of highly variegated industry camels under the same EFF tent, in open and powerful opposition to the electronic ambitions of the FBI and the NSA.

EFF had transmuted at light-speed from an insurrection to an institution. EFF Co-Founder Mitch Kapor once again sidestepped the bureaucratic consequences of his own success, by remaining in Boston and adapting the role of EFF guru and gray eminence. John Perry Barlow, for his part, left Wyoming, quit the Republican Party, and moved to New York City, accompanied by his swarm of cellular phones. Mike Godwin left Boston for Washington as EFF's official legal adviser to the electronically afflicted.

After the Neidorf trial, Dorothy Denning further proved her firm scholastic independence-of-mind by speaking up boldly on the usefulness and social value of federal wiretapping. Many civil libertarians, who regarded the practice of wiretapping with deep occult horror, were crestfallen to the point of comedy when nationally known "hacker sympathizer" Dorothy Denning sternly defended police and public interests in official eavesdropping. However, no amount of public uproar seemed to swerve the "quaint" Dr. Denning in the slightest. She not only made up her own mind, she made it up in public and then stuck to her guns.

In 1993, the stalwarts of the Masters of Deception, Phiber Optik, Acid Phreak and Scorpion, finally fell afoul of the machineries of legal prosecution. Acid Phreak and Scorpion were sent to prison for six months, six months of home detention, 750 hours of community service, and, oddly, a $50 fine for conspiracy to commit computer crime. Phiber Optik, the computer intruder with perhaps the highest public profile in the entire world, took the longest to plead guilty, but, facing the possibility of ten years in jail, he finally did so. He was sentenced to a year and a day in prison.

As for the Atlanta wing of the Legion of Doom, Prophet, Leftist and Urvile... Urvile now works for a software company in Atlanta. He is still on probation and still repaying his enormous fine. In fifteen months, he will once again be allowed to own a personal computer. He is still a convicted federal felon, but has not had any legal difficulties since leaving prison. He has lost contact with Prophet and Leftist. Unfortunately, so have I, though not through lack of honest effort.

Knight Lightning, now 24, is a technical writer for the federal government in Washington DC. He has still not been accepted into law school, but having spent more than his share of time in the company of attorneys, he's come to think that maybe an MBA would be more to the point. He still owes his attorneys $30,000, but the sum is dwindling steadily since he is manfully working two jobs. Knight Lightning customarily wears a suit and tie and carries a valise. He has a federal security clearance.

Unindicted Phrack co-editor Taran King is also a technical writer in Washington DC, and recently got married.


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Terminus did his time, got out of prison, and currently lives in Silicon Valley where he is running a full-scale Internet node, "netsys.com." He programs professionally for a company specializing in satellite links for the Internet.

Carlton Fitzpatrick still teaches at the Federal Law Enforcement Training Center, but FLETC found that the issues involved in sponsoring and running a bulletin board system are rather more complex than they at first appear to be.

Gail Thackeray briefly considered going into private security, but then changed tack, and joined the Maricopa County District Attorney's Office (with a salary). She is still vigorously prosecuting electronic racketeering in Phoenix, Arizona.

The fourth consecutive Computers, Freedom and Privacy Conference will take place in March 1994 in Chicago.

As for Bruce Sterling... well *8-). I thankfully abandoned my brief career as a true-crime journalist and wrote a new science fiction novel, Heavy Weather, and assembled a new collection of short stories, Globalhead. I also write nonfiction regularly, for the popular-science column in The Magazine of Fantasy and Science Fiction.

I like life better on the far side of the boundary between fantasy and reality; but I've come to recognize that reality has an unfortunate way of annexing fantasy for its own purposes. That's why I'm on the Police Liaison Committee for EFF-Austin, a local electronic civil liberties group ([email protected]). I don't think I will ever get over my experience of the Hacker Crackdown, and I expect to be involved in electronic civil liberties activism for the rest of my life.

It wouldn't be hard to find material for another book on computer crime and civil liberties issues. I truly believe that I could write another book much like this one, every year. Cyberspace is very big. There's a lot going on out there, far more than can be adequately covered by the tiny, though growing, cadre of network-literate reporters. I do wish I could do more work on this topic, because the various people of cyberspace are an element of our society that definitely requires sustained study and attention.

But there's only one of me, and I have a lot on my mind, and, like most science fiction writers, I have a lot more imagination than discipline. Having done my stint as an electronic-frontier reporter, my hat is off to those stalwart few who do it every day. I may return to this topic some day, but I have no real plans to do so. However, I didn't have any real plans to write "Hacker Crackdown," either. Things happen, nowadays. There are landslides in cyberspace. I'll just have to try and stay alert and on my feet.

The electronic landscape changes with astounding speed. We are living through the fastest technological transformation in human history. I was glad to have a chance to document cyberspace during one moment in its long mutation; a kind of strobe-flash of the maelstrom. This book is already out-of-date, though, and it will be quite obsolete in another five years. It seems a pity.


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However, in about fifty years, I think this book might seem quite interesting. And in a hundred years, this book should seem mind-bogglingly archaic and bizarre, and will probably seem far weirder to an audience in 2092 than it ever seemed to the contemporary readership.

Keeping up in cyberspace requires a great deal of sustained attention. Personally, I keep tabs with the milieu by reading the invaluable electronic magazine Computer underground Digest ([email protected] with the subject header: SUB CuD and a message that says: SUB CuD your name your.full.internet@address). I also read Jack Rickard's bracingly iconoclastic Boardwatch Magazine for print news of the BBS and online community. And, needless to say, I read Wired, the first magazine of the 1990s that actually looks and acts like it really belongs in this decade. There are other ways to learn, of course, but these three outlets will guide your efforts very well.

When I myself want to publish something electronically, which I'm doing with increasing frequency, I generally put it on the gopher at Texas Internet Consulting, who are my, well, Texan Internet consultants (tic.com). This book can be found there. I think it is a worthwhile act to let this work go free.

From thence, one's bread floats out onto the dark waters of cyberspace, only to return someday, tenfold. And of course, thoroughly soggy, and riddled with an entire amazing ecosystem of bizarre and gnawingly hungry cybermarine life-forms. For this author at least, that's all that really counts.

Thanks for your attention *8-)

Bruce Sterling [email protected] -- New Years' Day 1994, Austin Texas


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Bruce Sterling's Speech to the High Technology Crime Investigation Association - Lake Tahoe, Nov. 1994

Literary Freeware -- Not for Commercial Use

Good morning, my name's Bruce Sterling, and I'm a sometime computer crime journalist and longtime science fiction writer from Austin Texas. I'm the guy who wrote HACKER CRACKDOWN, which is the book you're getting on one of those floppy disks that are being distributed at this gig like party favors.

People in law enforcement often ask me, Mr Sterling, if you're a science fiction writer like you say you are, then why should you care about American computer police and private security? And also, how come my kids can never find any copies of your sci-fi novels? Well, my publishers do their best. The truth of the matter is that I've survived my brief career as a computer-crime journalist. I'm now back to writing science fiction full time, like I want to do and like I ought to do. I really can't help the rest of it.

It's true that HACKER CRACKDOWN is still available on the stands at your friendly local bookstore --maybe a better chance if it's a computer bookstore. In fact it's in its second paperback printing, which is considered pretty good news in my business. The critics have been very kind about that book. But even though I'm sure I could write another book like HACKER CRACKDOWN every year for the rest of my life, I'm just not gonna do that.

Instead, let me show you some items out of this bag. This is HACKER CRACKDOWN, the paperback. And see, this is a book of my short stories that has come out since I published HACKER CRACKDOWN! And here's a brand new hardback novel of mine which came out just last month! Hard physical evidence of my career as a fiction writer! I know these wacko cyberpunk sci-fi books are of basically zero relevance to you guys, but I'm absurdly proud of them, so I just had to show them off.

So why did I write HACKER CRACKDOWN in the first place? Well, I figured that somebody ought to do it, and nobody else was willing, that's why. When I first got interested in Operation Sundevil and the Legion of Doom and the raid on Steve Jackson Games and so forth, it was 1990. All these issues were very obscure. It was the middle of the Bush Administration. There was no information superhighway vice president. There was no WIRED magazine. There was no Electronic Frontier Foundation. There was no Clipper Chip and no Digital Telephony Initiative. There was no PGP and no World Wide Web. There were a few books around, and a couple of movies, that glamorized computer crackers, but there had never been a popular book written about American computer cops.

When I got started researching HACKER CRACKDOWN, my first and only nonfiction book, I didn't even think I was going to write any such book. There were four other journalists hot on the case who were all rather better qualified than I was. But one by one they all dropped out. Eventually I realized that either I was going to write it, or nobody was ever going to tell the story. All those strange events and peculiar happenings would have passed, and left no public record. I couldn't help but feel that if I didn't


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take the trouble and effort to tell people what had happened, it would probably all have to happen all over again. And again and again, until people finally noticed it and were willing to talk about it publicly.

Nowadays it's very different. There are about a million journalists with Internet addresses now. There are other books around, like for instance Hafner and Markoff's CYBERPUNK OUTLAWS AND HACKERS, which is a far better book about hackers than my book is. Mungo and Clough's book APPROACHING ZERO has a pretty interesting take on the European virus scene. Joshua Quittner has a book coming out on the Masters of Deception hacking group. Then there's this other very recent book I have here, CYBERSPACE AND THE LAW by Cavazos and Morin, which is a pretty good practical handbook on digital civil liberties issues. This book explains in pretty good legal detail exactly what kind of stunts with your modem are likely to get you into trouble. This is a useful service for keeping people out of hot water, which is pretty much what my book was intended to do, only this book does it better. And there have been a lot of magazine and newspaper articles published.

Basically, I'm no longer needed as a computer crime journalist. The world is full of computer journalists now, and the stuff I was writing about four years ago, is hot and sexy and popular now. That's why I don't have to write it any more. I was ahead of my time. I'm supposed to be ahead of my time. I'm a science fiction writer. Believe it or not, I'm needed to write science fiction. Taking a science fiction writer and turning him into a journalist is like stealing pencils from a blind man's cup.

So frankly, I haven't been keeping up with you guys, and your odd and unusual world, with the same gusto I did in 90 and 91. Nowadays, I spend all my time researching science fiction. I spent most of 92 and 93 learning about tornadoes and the Greenhouse Effect. At the moment, I'm really interested in photography, cosmetics and computer interfaces. In 95 and 96 I'll be interested in something else. That may seem kind of odd and dilettantish on my part. It doesn't show much intellectual staying power. But my intellectual life doesn't have to make any sense. Because I'm a science fiction writer.

Even though I'm not in the computer crime game any more, I do maintain an interest. For a lot of pretty good reasons. I still read most of the computer crime journalism that's out there. And I'll tell you one thing about it. There's way, way too much blather about teenage computer intruders, and nowhere near enough coverage of computer cops. Computer cops are a hundred times more interesting than sneaky teenagers with kodes and kards. A guy like Carlton Fitzpatrick should be a hundred times more famous than some wretched hacker kid like Mark Abene. A group like the FCIC is a hundred times more influential and important and interesting than the Chaos Computer Club, Hack-Tic, and the 2600 group all put together.

The United States Secret Service is a heavy outfit. It's astounding how little has ever been written or published about Secret Service people, and their lives, and their history, and how life really looks to them. Cops are really good material for a journalist or a fiction writer. Cops see things most human beings never see. Even private security people have a lot to say for themselves. Computer-intrusion hackers and phone phreaks, by contrast, are basically pretty damned boring.


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You know, I used to go actively looking for hackers, but I don't bother any more. I don't have to. Hackers come looking for me these days. And they find me, because I make no particular effort to hide. I get these phone calls -- I mean, I know a lot of you have gotten these hacker phone calls -- but for me they go a lot like this:

Ring ring. "Hello?"

"Is this Bruce Sterling?"

"Yeah, you got him."

"Are you the guy who wrote HACKER CRACKDOWN?"

"Yeah, that's me, dude. What's on your mind?"

"Uh, nothing -- I just wanted to know if you were there!"

"Well, okay, I'm here. If you ever get anything on your mind, you let me know." Click, buzz. I get dozens of calls like that.

And, pretty often, I'll get another call about 24 hours later, and it'll be the same kid, only this time he has ten hacker buddies with him on some illegal bridge call. They're the Scarlet Scorpion and the Electric Ninja and the Flaming Rutabaga, and they really want me to log onto their pirate bulletin board system, the Smurfs in Hell BBS somewhere in Wisconsin or Ohio or Idaho. I thank them politely for the invitation and I tell them I kind of have a lot of previous engagements, and then they leave me alone.

I also get a lot of call from journalists. Journalists doing computer crime stories. I've somehow acquired a reputation as a guy who knows something about computer crime and who is willing to talk to journalists. And I do that, too. Because I have nothing to lose. Why shouldn't I talk to another journalist? He's got a boss, I don't. He's got a deadline, I don't. I know more or less what I'm talking about, he usually doesn't have a ghost of a clue. And suppose I say something really rude or tactless or crazy, and it gets printed in public. So what? I'm a science fiction writer! What are they supposed to do to me -- take away my tenure?

Hackers will also talk to journalists. Hackers brag all the time. Computer cops, however, have not had a stellar record in their press relations. I think this is sad. I understand that there's a genuine need for operational discretion and so forth, but since a lot of computer cops are experts in telecommunications, you'd think they'd come up with some neat trick to get around these limitations.

Let's consider, for instance, the Kevin Mitnick problem. We all know who this guy Mitnick is. If you don't know who Kevin Mitnick is, raise your hand.... Right, I thought so. Kevin Mitnick is a hacker and he's on the lam at the moment, he's a wanted fugitive. The FBI tried to nab Kevin a few months back at a


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computer civil liberties convention in Chicago and apprehended the wrong guy. That was pretty embarrassing, frankly. I was there, I saw it, I also saw the FBI trying to explain later to about five hundred enraged self-righteous liberals, and it was pretty sad. The local FBI office came a cropper because they didn't really know what Kevin Mitnick looked like.

I don't know what Mitnick looks like either, even though I've written about him a little bit, and my question is, how come? How come there's no publicly accessible WorldWideWeb page with mugshots of wanted computer-crime fugitives? Even the US Postal Service has got this much together, and they don't even have modems. Why don't the FBI and the USSS have public relations stations in cyberspace? For that matter, why doesn't the HTCIA have its own Internet site? All the computer businesses have Internet sites now, unless they're totally out of it. Why aren't computer cops in much, much better rapport with the computer community through computer networks? You don't have to grant live interviews with every journalist in sight if you don't want to, I can understand that that can create a big mess sometimes. But just put some data up in public, for heaven's sake. Crime statistics. Wanted posters. Security advice. Antivirus programs, whatever. Stuff that will help the cyberspace community that you are supposed to be protecting and serving.

I know there are people in computer law enforcement who are ready and willing and able to do this, but they can't make it happen because of too much bureaucracy and, frankly, too much useless hermetic secrecy. Computer cops ought to publicly walk the beat in cyberspace a lot more, and stop hiding your light under a bushel. What is your problem, exactly? Are you afraid somebody might find out that you exist?

I think that this is an amazing oversight and a total no-brainer on your part, to be the cops in an information society and not be willing to get online big-time and really push your information -- but maybe that's just me. I enjoy publicity, personally. I think it's good for people. I talk a lot, because I'm just an opinionated guy. I can't help it. A writer without an opinion is like a farmer without a plow, or a professor without a chalkboard, or a cop without a computer --it's just something basically useless and unnatural.

I don't mind talking to you this morning, I'm perfectly willing to talk to you, but since I'm not a cop or a prosecutor, I don't really have much of genuine nuts-and-bolts value to offer to you ladies and gentlemen. It's sheer arrogance on my part to lecture you on how to do your jobs. But since I was asked to come here, I can at least offer you my opinions. Since they're probably not worth much, I figure I ought to at least be frank about them.

First the good part. Let me tell you about a few recent events in your milieu that I have no conceptual difficulties with. Case in point. Some guy up around San Francisco is cloning off cellphones, and he's burning EPROMs and pirating cellular ID's, and he's moved about a thousand of these hot phones to his running buddies in the mob in Singapore, and they've bought him a real nice sports car with the proceeds. The Secret Service shows up at the guy's house, catches him with his little soldering irons in hand, busts him, hauls him downtown, calls a press conference after the bust, says that this activity is a


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big problem for cellphone companies and they're gonna turn up the heat on people who do this stuff. I have no problem with this situation. I even take a certain grim satisfaction in it. Is this a crime? Yes. Is this guy a bad guy with evil intent? Yes. Is law enforcement performing its basic duty here? Yes it is. Do I mind if corporate private security is kinda pitching in behind the scenes and protecting their own commercial interests here? No, not really. Is there some major civil liberties and free expression angle involved in this guy's ripping off cellular companies? No. Is there a threat to privacy here? Yeah -- him, the perpetrator. Is the Secret Service emptily boasting and grandstanding when they hang this guy out to dry in public? No, this looks like legitimate deterrence to me, and if they want a little glory out of it, well hell we all want a little glory sometimes. We can't survive without a little glory. Take the dumb bastard away with my blessing.

Okay, some group of Vietnamese Triad types hijack a truckload of chips in Silicon Valley, then move the loot overseas to the Asian black market through some smuggling network that got bored with running heroin. Are these guys "Robin Hoods of the Electronic Frontier?" I don't think so. Am I all impressed because some warlord in the Golden Triangle may be getting free computation services, and information wants to be free? No, this doesn't strike me as a positive development, frankly. Is organized crime a menace to our society? Yeah! It is!

I can't say I've ever had anything much to do --knowingly that is --with wiseguy types, but I spent a little time in Moscow recently, and in Italy too at the height of their Tangentopoly kickback scandal, and you know, organized crime and endemic corruption are very serious problems indeed. You get enough of that evil crap going on in your society and it's like nobody can breathe. A protection racket -- I never quite grasped how that worked and what it meant to victims, till I spent a couple of weeks in Moscow last December. That's a nasty piece of work, that stuff.

Another case. Some joker gets himself a job in a long distance provider, and he writes a PIN-trapping network program and he gets his mitts on about eight zillion PINs and he sells them for a buck apiece to his hacker buddies all over the US and Europe. Do I think this is clever? Yeah, it's pretty ingenious. Do I think it's a crime? Yes, I think this is a criminal act. I think this guy is basically corrupt. Do I think free or cheap long distance is a good idea? Yeah I do actually; I think if there were a very low flat rate on long distance, then you would see usage skyrocket so drastically that long distance providers would actually make more money in the long run. I'd like to see them try that experiment some time; I don't think the way they run phone companies in 1994 is the only possible way to run them successfully. I think phone companies are probably gonna have to change their act pretty drastically if they expect to survive in the 21st century's media environment.

But you know, that's not this guy's lookout. He's not the one to make that business decision. Theft is not an act of reform. He's abusing a position of trust as an employee in order to illegally line his own pockets. I think this guy is a crook.

So I have no problems with those recent law enforcement operations. I wish they'd gotten more publicity, and I'm kinda sorry that I wasn't able to give them more publicity myself, but at least I've


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heard of them, and I was paying some attention when they happened. Now I want to talk about some stuff that bugs me.

I'm an author and I'm interested in free expression, and it's only natural because that's my bailiwick. Free expression is a problem for writers, and it's always been a problem, and it's probably always gonna be a problem. We in the West have these ancient and honored tradition of Western free speech and freedom of the press, and in the US we have this rather more up-to-date concept of "freedom of information." But even so, there is an enormous amount of "information" today which is highly problematic. Just because freedom of the press was in the Constitution didn't mean that people were able to stop thinking about what press-freedom really means in real life, and fighting about it and suing each other about it. We Americans have lots of problems with our freedom of the press and our freedom of speech. Problems like libel and slander. Incitement to riot. Obscenity. Child pornography. Flag-burning. Cross-burning. Race-hate propaganda. Political correctness. Sexist language. Mrs. Gore's Parents Music Resource Council. Movie ratings. Plagiarism. Photocopying rights. A journalist's so-called right to protect his sources. Fair-use doctrine. Lawyer-client confidentiality. Paid political announcements. Banning ads for liquor and cigarettes. The fairness doctrine for broadcasters. School textbook censors. National security. Military secrets. Industrial trade secrets. Arts funding for so-called obscenity. Even religious blasphemy such as Salman Rushdie's famous novel SATANIC VERSES, which is hated so violently by the kind of people who like to blow up the World Trade Center. All these huge problems about what people can say to each other, under what circumstances. And that's without computers and computer networks.

Every single one of those problems is applicable to cyberspace. Computers don't make any of these old free-expression problems go away; on the contrary, they intensify them, and they introduce a bunch of new problems. Problems like software piracy. Encryption. Wire-fraud. Interstate transportation of stolen digital property. Free expression on privately owned networks. So-called "data-mining" to invade personal privacy. Employers spying on employee e-mail. Intellectual rights over electronic publications. Computer search and seizure practice. Legal liability for network crashes. Computer intrusion, and on and on and on. These are real problems. They're out there. They're out there now. And in the future they're only going to get worse. And there's going to be a bunch of new problems that nobody's even imagined yet.

I worry about these issues because guys in a position like mine ought to worry about these issues. I can't say I've ever suffered much personally because of censorship, or through my government's objections to what I have to say. On the contrary, the current US government likes me so much that it kind of makes me nervous. But I've written ten books, and I don't think I've ever written a book that could have been legally published in its entirety fifty years ago. Because my books talk about things that people just didn't talk about much fifty years ago, like sex for instance. In my books, my characters talk like normal people talk nowadays, which is to say that they cuss a lot. Even in HACKER CRACKDOWN there are sections where people use obscenities in conversations, and by the way the people I was quoting were computer cops.

I'm forty years old; I can remember when people didn't use the word "condom" in public. Nowadays, if you don't know what a condom is and how to use it, there's a pretty good chance you're gonna die.


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Standards change a lot. Culture changes a lot. The laws supposedly governing this behavior are very gray and riddled with contradictions and compromises. There are some people who don't want our culture to change, or they want to change it even faster in some direction they've got their own ideas about. When police get involved in cultural struggles it's always very highly politicized. The chances of its ending well are not good.

It's been quite a while since there was a really good ripping computer-intrusion scandal in the news. Nowadays the hotbutton issue is porn. Kidporn and other porn. I don't have much sympathy for kidporn people, I think the exploitation of children is a vile and grotesque criminal act, but I've seen some computer porn cases lately that look pretty problematic and peculiar to me. I don't think there's a lot to be gained by playing up the terrifying menace of porn on networks. Porn is just too treacherous an issue to be of much use to anybody. It's not a firm and dependable place in which to take a stand on how we ought to run our networks.

For instance, there's this Amateur Action case. We've got this guy and his wife in California, and they're selling some pretty seriously vile material off their bulletin board. They get indicted in Tennessee. What is that about? Do we really think that people in Memphis can enforce their pornographic community standards on people in California? I'd be genuinely impressed if a prosecutor got a jury in California to indict and convict some pornographer in Tennessee. I'd figure that Tennessee guy had to be some kind of pretty heavy-duty pornographer. Doing that in the other direction is like shooting fish in a barrel. There's something cheap about it. This doesn't smell like an airtight criminal case to me. This smells to me like some guy from Tennessee trying to enforce his own local cultural standards via a long-distance phone line. That may not be the actual truth about the case, but that's what the case looks like. It's real hard to make a porn case look good at any time. If it's a weak case, then the prosecutor looks like a bluenosed goody-goody wimp. If it's a strong case, then the whole mess is so disgusting that nobody even wants to think about it or even look hard at the evidence. Porn is a no-win situation when it comes to the basic social purpose of instilling law and order on networks.

I think you could make a pretty good case in Tennessee that people in California are a bunch of flakey perverted lunatics, but I also think that in California you can make a pretty good case that people from Tennessee are a bunch of hillbilly fundamentalist wackos. You start playing off one community against another, pretty soon you're out of the realm of criminal law, and into the realm of trying to control people's cultural behavior with a nightstick. There's not a lot to be gained by this fight. You may intimidate a few pornographers here and there, but you're also likely to seriously infuriate a bunch of bystanders. It's not a fight you can win, even if you win a case, or two cases, or ten cases. People in California are never gonna behave in a way that satisfies people in Tennessee. People in California have more money and more power and more influence than people in Tennessee. People in California invented Hollywood and Silicon Valley, and people in Tennessee invented ways to put smut labels on rock and roll albums.

This is what Pat Buchanan and Newt Gingrich are talking about when they talk about cultural war in America. And this is what politically correct people talk about when they launch eighteen harassment lawsuits because some kid on some campus computer network said something that some ultrafeminist


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radical found demeaning. If I were a cop, I would be very careful of looking like a pawn in some cultural warfare by ambitious radical politicians. The country's infested with zealots now, zealots to the left and right. A lot of these people are fanatics motivated by fear and anger, and they don't care two pins about public order, or the people who maintain it and keep the peace in our society. They don't give a damn about justice, they have their own agendas. They'll seize on any chance they can get to make the other side shut up and knuckle under. They don't want a debate. They just want to crush their enemies by whatever means necessary. If they can use cops to do it, great! Cops are expendable.

There's another porn case that bugs me even more. There's this guy in Oklahoma City who had a big FidoNet bulletin board, and a storefront where he sold CD-ROMs. Some of them, a few, were porn CD-ROMs. The Oklahoma City police catch this local hacker kid and of course he squeals like they always do, and he says don't nail me, nail this other adult guy, he's a pornographer. So off the police go to raid this guy's place of business, and while they're at it they carry some minicams and they broadcast their raid on that night's Oklahoma City evening news. This was a really high-tech and innovative thing to do, but it was also a really reckless cowboy thing to do, because it left no political fallback position. They were now utterly committed to crucifying this guy, because otherwise it was too much of a political embarrassment. They couldn't just shrug and say, "Well we've just busted this guy for selling a few lousy CD-ROMs that anybody in the country can mail-order with impunity out of the back of a computer magazine." They had to assemble a jury, with a couple of fundamentalist ministers on it, and show the most rancid graphic image files to the twelve good people and true. And you know, sure enough it was judged in a court to be pornography. I don't think there was much doubt that it was pornography, and I don't doubt that any jury in Oklahoma City would have called it pornography by the local Oklahoma City community standards. This guy got convicted. Lost the trial. Lost his business. Went to jail. His wife sued for divorce. He lost custody of his kids. He's a convict. His life is in ruins.

The hell of it, I don't think this guy was a pornographer by any genuine definition. He had no previous convictions. Never been in trouble, didn't have a bad character. Had an honorable war record in Vietnam. Paid his taxes. People who knew him personally spoke very highly of him. He wasn't some loony sleazebag. He was just a guy selling disks that other people just like him sell all over the country, without anyone blinking an eye. As far as I can figure it, the Oklahoma City police and an Oklahoma prosecutor skinned this guy and nailed his hide to the side of a barn, just because they didn't want to look bad. I think a serious injustice was done here.

I also think it was a terrible public relations move. There's a magazine out called BOARDWATCH, practically everybody who runs a bulletin board system in this country reads it. When the editor of this magazine heard about the outcome of this case, he basically went nonlinear. He wrote this scorching furious editorial berating the authorities. The Oklahoma City prosecutor sent his little message all right, and it went over the Oklahoma City evening news, and probably made him look pretty good, locally, personally. But this magazine sent a much bigger and much angrier message, which went all over the country to a perfect target computer-industry audience of BBS sysops. This editor's message was that the Oklahoma City police are a bunch of crazed no-neck gestapo, who don't know nothing about nothing, and hate anybody who does. I think that the genuine cause of computer law and order was very much harmed by this case.


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It seems to me that there are a couple of useful lessons to be learned here. The first, of course, is don't sell porn in Oklahoma City. And the second lesson is, if your city's on an antiporn crusade and you're a cop, it's a good idea to drop by the local porn outlets and openly tell the merchants that porn is illegal. Tell them straight out that you know they have some porn, and they'd better knock it off. If they've got any sense, they'll take this word from the wise and stop breaking the local community standards forthwith. If they go on doing it, well, presumably they're hardened porn merchants of some kind, and when they get into trouble with ambitious local prosecutors they'll have no one to blame but themselves. Don't jump in headfirst with an agenda and a videocam. Because it's real easy to wade hip deep into a blaze of publicity, but it's real hard to wade back out without getting the sticky stuff all over you.

Well, it's generally a thankless lot being an American computer cop. You know this, I know this. I even regret having to bring these matters up, though I feel that I ought to, given the circumstances. I do, however, see one large ray of light in the American computer law enforcement scene, and that is the behavior of computer cops in other countries. American computer cops have had to suffer under the spotlights because they were the first people in the world doing this sort of activity. But now we're starting to see other law enforcement people weighing in in other countries. To judge by early indications, the situation's going to be a lot worse overseas.

Italy, for instance. The Italian finance police recently decided that everybody on FidoNet was a software pirate, so they went out and seized somewhere between fifty and a hundred bulletin boards. Accounts are confused, not least because most of the accounts are in Italian. Nothing much has appeared in the way of charges or convictions, and there's been a lot of anguished squawling from deeply alienated and radicalized Italian computer people. Italy is a country where entire political parties have been annihilated because of endemic corruption and bribery scandals. A country where organized crime shoots judges and blows up churches with car bombs. They got a guy running the country now who is basically Ted Turner in Italian drag --he owns a bunch of television stations -- and here his federal cops have gone out and busted a bunch of left-wing bulletin board systems. It's not doing much good for the software piracy problem and it's sure not helping the local political situation. In Italy politics are so weird that the Italian Communist Party has a national reputation as the party of honest government. The Communists hate the guts of this new Prime Minister, and he's in bed with the neo-fascist ultra-right and a bunch of local ethnic separatists who want to cut the country in half. That's a very strange and volatile scene.

The hell of it is, in the long run I think the Italians are going to turn out to be one of the better countries at handling computer crime. Wait till we start hearing from the Poles, the Romanians, the Chinese, the Serbs, the Turks, the Pakistanis, the Saudis.

Here in America we're actually getting used to this stuff, a little bit, sort of. We have a White House with its own Internet address and its own World Wide Web page. Owning and using a modem is fashionable in the USA. American law enforcement agencies are increasingly equipped with a clue. In Europe you have computers all over the place, but they are imbedded in a patchwork of PTTs and peculiar local jurisdictions and even more peculiar and archaic local laws. I think the chances of some social toxic


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reaction from computing and telecommunications are much higher in Europe and Asia than in the USA. I think that in a few more years, American cops are going to earn a global reputation as being very much on top of this stuff. I think there's a fairly good chance that the various interested parties in the USA can find some kind of workable accommodation and common ground on most of the important social issues. There won't be so much blundering around, not so many unpleasant surprises, not so much panic and hysteria.

As for the computer crime scene, I think it's pretty likely that American computer crime is going to look relatively low-key, compared to the eventual rise of ex-Soviet computer crime, and Eastern European computer crime, and Southeast Asian computer crime.

I'm a science fiction writer, and I like to speculate about the future. I think American computer police are going to have a hard row to hoe, because they are almost always going to be the first in the world to catch hell from these issues. Certain bad things are naturally going to happen here first, because we're the people who are inventing almost all the possibilities. But I also feel that it's not very likely that bad things will reach their full extremity of awfulness here. It's quite possible that American computer police will make some really awful mistakes, but I can almost guarantee that other people's police will make mistakes worse by an order of magnitude. American police may hit people with sticks, but other people's police are going to hit people with axes and cattle prods. Computers will probably help people manage better in those countries where people can actually manage. In countries that are falling apart, overcrowded countries with degraded environments and deep social problems, computers might well make things fall apart even faster.

Countries that have offshore money-laundries are gonna have offshore data laundries. Countries that now have lousy oppressive governments and smart, determined terrorist revolutionaries, are gonna have lousy oppressive governments and smart determined terrorist revolutionaries with computers. Not too long after that, they're going to have tyrannical revolutionary governments run by zealots with computers, and then we're likely to see just how close to Big Brother a government can really get. Dealing with these people is going to be a big problem for us.

Other people have worse problems than we do, and I suppose that's some comfort to us in a way. But we've got our problems here, too. It's no use hiding from them. Since 1980 the American prison population has risen by one hundred and eighty eight percent. In 1993 we had 948,881 prisoners in federal or state correctional facilities. I appreciate the hard work it took to put these nearly one million people into American prisons, but you know, I can't say that the knowledge that there are a million people in prison in my country really makes me feel much safer. Quite the contrary, really. Does it make keeping public order easier when there are so many people around with no future and no stake in the status quo and nothing left to lose? I don't think it does.

We've got a governor's race in my state that's a nasty piece of work -- the incumbent and the challenger are practically wrestling in public for the privilege of putting on a black hood and jabbing people with the needle. That's not a pretty sight. I hear a lot about vengeance and punishment lately, but I don't hear


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a lot about justice. I hear a lot about rights and lawsuits, but I don't hear a lot about debate and public goodwill and public civility. I think it's past time in this country that we stopped demonizing one another, and tried to see each other as human beings and listen seriously to each other. And personally, I think I've talked enough this morning. It's time for me to listen to you guys for a while.

I confess that in my weaker moments I've had the bad taste to become a journalist. But I didn't come here to write anything about you, I've given that up for now. I'm here as a citizen and an interested party. I was glad to be invited to come here, because I was sure I'd learn something that I ought to know. I appreciate your patience and attention very much, and I hope you'll see that I mean to return the favor. Thanks. Thanks a lot.


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THE TOP TEN MEDIA ERRORS ABOUT THE SJ GAMES RAID

updated 10-12-94

As this story has developed, occasional errors crept into news stories - and many of them have taken on a life of their own. Some reporters, working from their clipping files, have turned out stories that are almost 100% free of facts. There are a lot of those floating around . . . but here are our Top Ten.

10. Steve Jackson Games is a computer game company.

No we're not. None of our games are computer games. We use computers to WRITE the games, like every other publisher in the '90s. The game that was seized, GURPS CYBERPUNK, was about computers. And we ran a computer BBS where people DISCUSSED games. But we're not a computer game company any more than George Bush is a gardener.

9. GURPS Cyberpunk is a computer game.

No it's not. Aieeeeee! It's a roleplaying game. It is not played on a computer. It's played on a table, with dice.

8. We're out of business.

No we're not. It's been reported that we are bankrupt, or filing for bankruptcy. It was very close - we DID have to lay off half our staff, and it was a while before we were out of the woods . . . but we're not dead.

7. We were raided by the FBI.

No we weren't. We were raided by the US Secret Service. The FBI had nothing to do with it. (In fact, when Bill Cook, the assistant US attorney named in our suit, was doing his "research," he talked to the FBI. They told him he didn't have a case. We have this from FBI sources!)

6. Some of our staff members were arrested by the Secret Service and charged with hacking.

No they weren't. No member of our staff was arrested, indicted, or charged. Nobody was even QUESTIONED after the day of the raid.

5. This was part of Operation Sun Devil.

No it wasn't. Sun Devil was a totally separate project, aimed at credit card fraud. Because it had a neat name, it got a lot of headlines. Since computers were involved, some reporters got the two confused. The

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Secret Service helped the confusion along by refusing to comment on what was, or wasn't part of Sun Devil. Sun Devil was not a "hacker" investigation. So says Gail Thackeray, who was its spearhead.

4. The raid was after GURPS Cyberpunk.

No it wasn't. The Secret Service suspected one of our staffers of wrongdoing, using his computer at home. They had nothing connecting his alleged misdeeds with our office, but they raided us anyway, and took a lot of things. One of the things they took was the GURPS Cyberpunk manuscript. Their agents were very critical of it, and on March 2 in their office, one of them called it a "handbook for computer crime." Since their warrant was sealed, and they wouldn't comment, our best guess was that they were trying to suppress the book. They did suppress it, but apparently it was through bureaucratic inertia and stonewalling rather than because it was a target of the raid.

3. There was a hacker threat to sabotage the 911 system.

No there wasn't. This story has been cynically spread by phone company employees (who know better) and by Secret Service spokesmen (who probably believe it, because they still don't understand any of this). They're using this story to panic the media, to try to justify the illegal things they've done and the huge amount of money they've spent. What happened was this: A student got access to a phone company computer and copied a text file - not a program. This file was nothing but administrative information, and was publicly available elsewhere. Bell South tried to value it at $79,000, but in court they admitted that they sold copies for under $20. There was no way this file could be used to hurt the 911 system, even if anybody had wanted to. To say otherwise shows an incredible ignorance of the facts. It's as though a banker claimed "This criminal made an illegal copy of the list of our Board of Directors. He can use that to break into our vault."

2. We have an employee named Lloyd Blankenship.

Loyd spells his name with one L.

And the Number One "false fact" ever reported about this story . . .

1. Steve Jackson Games is the second largest game company in the USA.

Don't we wish!

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On November 6, 1992, the Secret Service shut down a 2600 Meeting in what has proven to be an ill-fated and embarrassing move for them. What they failed to take into account was how quickly word of this action would spread within the hacker community and, eventually, into the mainstream. The Secret Service was not prepared for this and apparently never expected their role in the operation to be revealed. (Local security at the Pentagon City Mall in Washington, DC had been instructed by the Secret Service to shut down the meeting and take names and addresses. What they hadn't counted on was the security chief telling a reporter that his orders came from the Secret Service.)

Immediately after the incident, Computer Professionals for Social Responsibility (CPSR) took on the case on behalf of the Washington DC 2600 Meeting. They have been trying to get information out of the Secret Service ever since.

● 2600 Editorial

● Letter to the Washington Post.

● CPSR/EPIC summary of events.

● Some of the early reports from C.U.D.

● The Secret Service response to the initial F.O.I.A. request.

● The CPSR sues the Secret Service to get information.

● THe CPSR issues a press release on the lawsuit.

● Special Agent William F. Burch of the Secret Service submits an affidavit on the agency's involvement in the meeting's shutdown.

● CPSR files a legal memorandum in May 1993 that opposes

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the Secret Service's motion to dismiss the case.

● In July 1994, The Secret Service is ordered to release documents concerning the incident.

● EPIC files a brief in the U.S. Court of Appeals.

● An Appellate Decision is reached on January 2, 1996 which again tells the Secret Service they cannot withhold information.

[email protected]

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It just hasn't been a good year for malls.

First there was the incident in June at a hacker gathering in St. Louis called Summercon. Mall cops at the Northwest Plaza told the hackers they weren't allowed to wear baseball caps backwards. The hackers, in their innocent naivete, questioned authority. It happened again, this time at the November 6th 2600 meeting in Washington DC. But clothing wasn't the issue in this incident. Instead, the mall cops didn't like the hackers' very existence. Or so it seemed.

It started like most other 2600 meetings - people gather at tables in a food court and start talking to each other. Remarkably similar to what real people do. But these were no ordinary people. These were hackers and the mall police had plans for them. According to an eyewitness: "At about 5:15 someone noticed two people on the second story taking pictures of the group with a camera. Most of the members saw the two people walk away with a camera in hand and we started looking around for more people. [One hacker] noted that he didn't like the guys standing up on the 'fed perch' on the second level and that they looked like feds.... At about 5:30... a mall security guard stopped me and told me to sit down because I was to be detained for questioning or some shit like that. I complied and waited. Now about eight guards were there surrounding the meeting. One guard approached the group and said that he saw someone with a 'stun gun' of some sort and would like to search the person's bag.... The stun gun turned out to be a Whisper 2000 listening device. Also the guard took possesion of [a hacker's] handcuffs and asked what he needed them for and so on. At this point the guard asked for ID's from everyone. Most all people refused to comply with this order. At this time the guard called in to their dispatcher and their boss got on the radio and said that he was coming down to see what the 'hell is going on' with us. About two minutes later a gentleman in a suit arrived. Apparently he was the boss and he ordered the guards to get ID's.

"The guards used very coercive tactics to obtain ID's from threatening to call people's parents to calling the Arlington County police and having them force us to produce ID. They got ID's from most people, but some still refused to produce ID's. At this time a guard approached another person at the meeting and asked to search his bag too. This person gave consent to search the bag and the guard discovered a [not stolen] credit card verification machine. At this point the guards radioed in to call the Arlington County Police. About 10 minutes later the police arrived, demanded, and got ID's from the remaining holdouts and the mall security quickly wrote down all pertinent information from telephone numbers to social security numbers to date of births and addresses.

"The guards at no time disclosed what would be done with the information and responded that it was 'none of your business' when I inquired about it. When I asked about the illegal searches they were conducting they stated that they were within their rights because it was private property and they could do 'whatever we want, and you'll play by our rules or we'll arrest you.' Arrest me for what I haven't a clue. I asked why they seized the papers and electronic equipment from the bags and they said that it was 'evidence' and could be retrieved when they want us to get it. A wireless telephone bug was seized from my person.... I told them that it was a wireless intercom modification for a phone. When they said

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that they would keep it until Monday I pressed the issue that they were not entitled to it and I would take it now whether they liked it or not. At this time the guy in the suit said, 'Bring it here and let me look at it.' In his infinite electronics wisdom [he] concluded that it would be OK for me to have it.

"During the entire episode a rather large crowd had gathered in the mall, including several people who other hackers identified as Secret Service agents. I cannot confirm this however. Most of the hackers who arrived late were not allowed into the scene but many observed the officers with cameras and some had their film taken and were handled in a very beligerrent manner by the mall cops."

What It Was All About

The actions of the mall police were outrageous in the eyes of most. But if this were simply another entry in a list of stupid things that mall cops have done, it wouldn't really have much significance. And, as many of us already know, this was indeed a most significant event. Bright and early on Monday, Brock Meeks, a reporter for Communications Daily, called the mall police and spoke with Al Johnson, director of Security for the Pentagon City Mall. They had the following conversation:

Meeks: I'd like to ask you a few questions about an incident where some of your security guards broke up a meeting of some hackers on Friday (Nov. 6).

Al Johnson: They broke up some meeting of hackers?

Meeks: Yes.

Johnson: I don't know about breaking any meeting up. Who... first of all I can't talk to you on the phone, if you want to come in, I don't talk to the press on the phone.

Meeks: OK.

Johnson: Ahh... maybe you outta call the Secret Service, they're handling this whole thing. We, we were just here.

Meeks: The Secret Service was part of this?

Johnson: Well, FBI, Secret Service, everybody was here, so you might want to call their office and talk to them. There's not much I can really tell you here.

Meeks: OK.

Johnson: Our involvement was minimum, you know, minimal.


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Meeks: I see, but your folks were acting on....

Johnson: We didn't break anything... I... we didn't... as far as I know, well I can't say much on the phone. But I, well, somebody's awfully paranoid apparently. Where'd you get this information from?

Meeks: Umm.... from computer bulletin boards.

Johnson: Bulletin boards?

Meeks: Yep.

Johnson: When did you get it?

Meeks: I got it, ah, Sunday night.

Johnson: Sunday night?

Meeks: Yep.

Johnson: [small laugh] Ah, yeah, you gotta call the FBI and the Secret Service. There's not much I can do for you here.

Meeks: Ok. Al, if I come down there will you talk to me down there?

Johnson: No. I can't talk to you at all. Fact is, there's nothing to talk about. Our involvement in anything was minimal, I don't know where this information came from as far as bulletin boards, and breaking meetings up and you know....

Meeks: Well, the Arlington police were down there too. I mean I've talked to several of the kids that were involved.

Johnson: Um-hmmm.

Meeks: They said, that ah, members of your, of the mall security forces, ah, or security staff, searched them, confiscated some material and didn't give it back. Did any of this happen?

Johnson: Like I said, I'm not, I'm not able to talk to you... we have a policy that we don't talk to the press about anything like that. You can call the Secret Service, call the FBI, they're the ones that ramrodded this whole thing, and you talk to them, we're out of this


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basically, you know, as far as I'm concerned here.

Meeks: Ok. Is there a contact person over there that you can....

Johnson: Ah... you know, I don't have a contact person. These people were working on their own, undercover, we never got any names, but they definitely, we saw identification, they were here.

Meeks: They were there. So it was all the Secret Service and none of your men?

Johnson: Ah, nah, that's not what I said. But they're the ones you want to talk to.

At the meeting, several attendees had overheard mention of Secret Service involvement by both the mall police and the Arlington police. Here, though, was clearcut indisputable evidence. And it was even captured on tape!

Calls by other reporters yielded a different response by Johnson, who started saying that there was no Secret Service involvement and that he had never said there was. He was unaware at the time that a tape recording of his comments existed. When this fact became clear, Al Johnson faded away from the public spotlight. The obvious conclusion to draw is that reporter Meeks got to Johnson before the Secret Service was able to. In fact, a couple of weeks later at a hacker court appearance in New York, a Secret Service agent would be overheard commenting on how badly they had screwed up in DC. Very few people failed to see the significance of this latest Secret Service action. Outrage was expressed in many different forums, over the Internet, on radio programs, over the phone, through the mail, and in independent media outlets. Mainstream media (as usual) missed the boat on this one. While the story did manage to make the front page of the Washington Post (November 13), the issue of Secret Service involvement in illegal searches and intimidation tactics wasn't gone into nearly enough. Rather, this seemed to be accepted as standard practice and what was unusual, and even cause for concern, was the fact that hackers actually mingle with the rest of America in shopping malls. It's probably not necessary for us to point out the dangers of accepting what the Secret Service did to us. Most of our readers know that accepting one atrocity is the best way of ensuring another. If we allow a small piece of our freedom to be taken away, the hunger pangs for another piece will be even stronger. That is why we will not tolerate such activities and that is why we have begun to fight back.

While a mall can technically be considered private property, in reality it is an area where the public gathers. In a large part of our country, malls have replaced town squares as places to meet and see your friends. We have trouble with, and don't intend to passively accept, policies which allow people to be removed from malls simply because of who they are. This is especially repugnant when the people are mall customers who aren't even being accused of anything!

We intend to continue to meet in such areas and will only stop when it becomes illegal for anybody to meet in such a place. Since we have meetings all over the country and have been meeting in New York


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for more than five years without incident, we don't really anticipate this to be a problem. In fact, we doubt we ever would have had a problem at the Pentagon City mall if the Secret Service hadn't "ramrodded" their way through.

At the December meeting, hackers from New York came to the Pentagon City mall to show support. A total of about 75 people came to this meeting, ranging from 12 year old kids to people who read about it in the Washington Post. The mall cops stayed away and there were no incidents (except that they threw out Brock Meeks for asking too many questions and for trying to track down Al Johnson). We don't anticipate any problems at future meetings here. The Pentagon City mall is a great place to get together and we intend to continue meeting there. We also estimate that our little group spent about $1000 in the food court alone.

We have a little saying at 2600 that seems to hold true for each time we get hassled or challenged. Every time we're attacked, we only get stronger. This latest incident is no exception. We've had more people from various parts of the country contact us wanting to start meetings in their cities. Attendance at the meetings has gone up. And people "outside the loop" are finally beginning to see that hackers are not criminals. After all, do criminals meet openly and welcome outsiders?

In addition, there is now the question of legality. Every legal expert we've spoken with tells us that these actions are clearly outside the boundaries of due process. Those responsible may only now be realizing the potential legal trouble they're in. It's very likely they thought that the hackers would be intimidated and wouldn't tell anybody what happened. Perhaps this train of thought works when the intimidated parties are criminals with something to hide. In this case, the hackers immediately got in touch with the New York 2600 meeting, the Washington Post, the Electronic Frontier Foundation, Computer Professionals for Social Responsibility, and the American Civil Liberties Union. Word of the harrassment swept across the nation within minutes. The authorities were not prepared for this. There just wasn't enough time for a cover-up and this is what did them in.

Freedom of Information Act requests (FOIAs) have already been filed with the Secret Service. This is the first of many legal steps that are now being contemplated. It's time we put a stop to this abuse of power and it's also time for the Secret Service to stop sneaking around shopping malls spying on teenagers and start getting back to something important.

For those of you interested in starting up meetings in your city, we ask that you contact us by phone at 516-751-2600. We don't have a whole lot of guidelines but we do ask that you use common sense. Pick an open setting with plenty of space and access to payphones. It's far preferable if the payphones can accept incoming calls. Unfortunately, you must be prepared for the kind of unpleasantness that took place in Washington DC. The mature and professional reaction of the DC hackers is what really made the difference in this case.

As far as what actually goes on at a 2600 meeting, there are no rules. Obviously, it's best if you don't cause any problems and don't do anything illegal. New people should be welcomed, regardless of their


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views or your suspicions. All kinds of information should be shared without fear. But most of all, meetings are for the purpose of getting hackers openly involved with the rest of the world so they can see for themselves what we're all about. Since it's obvious the media won't soon dispel the myths, it's really up to us now.


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[The Washington Post had a front page story about the shutdown a week after it occurred. However, the article quickly turned into a shock piece about computer hackers meeting openly in a public mall and failed to address the real issue of harrassment by the Secret Service. That article led to this letter to the editor by Emmanuel Goldstein. It was never printed.]

TO THE EDITOR:

While managing to convey some of the facts concerning the Pentagon City Mall hacker incident on November 6, "Hackers Allege Harassment at Mall" (November 13, page A1) fails to focus on the startling revelation of federal government involvement and the ominous implications of such an action. The article also does little to lessen the near hysteria that is pumped into the general public every time the word "hacker" is mentioned.

Let us take a good look at what has been confirmed so far. A group of computer hackers gathered at a local mall as they do once a month. Similar meetings have been going on in other cities for years without incident. This gathering was not for the purposes of causing trouble and nobody has accused the hackers of doing anything wrong. Rather, the gathering was simply a place to meet and socialize. This is what people seem to do in food courts and it was the hackers' intention to do nothing more.

When mall security personnel surrounded the group and demanded that they all submit to a search, it became very clear that something bizarre was happening. Those who resisted were threatened with arrest. Everyone's names were written down, everyone's bags gone through. One person attempted to write down the badge numbers of the people doing this. The list was snatched out of his hand and ripped to pieces. Another hacker attempted to catch the episode on film. He was apprehended and the film was ripped from his camera. School books, notepads, and personal property were seized. Much of it has still not been returned. The group was held for close to an hour and then told to stay out of the mall or be arrested.

This kind of treatment is enough to shock most people, particularly when coupled with the overwhelming evidence and eyewitness accounts confirming no unusual or disruptive behavior on the part of the group. It is against everything that our society stands for to subject people to random searches and official intimidation, simply because of their interests, lifestyles, or the way they look. This occurrence alone would warrant condemnation of a blatant abuse of power. But the story doesn't end there.

The harassment of the hackers by the mall police was only the most obvious element. Where the most attention should be focused at this point is on the United States Secret Service which, according to Al Johnson, head of mall security, "ramrodded" the whole thing. Other media sources, such as the industry newsletter Communications Daily, were told by Johnson that the Secret Service was all over the mall that day and that they had, in effect, ordered the harassment. Arlington police confirm that the Secret Service was at the mall that day.

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It is understood that the Secret Service, as a branch of the Treasury Department, investigates credit card fraud. Credit card fraud, in turn, can be accomplished through computer crime. Some computer hackers could conceivably use their talents to accomplish computer crime. Thus we arrive at the current Secret Service policy, which appears to treat everybody in the hacker world as if they were a proven counterfeiter. This feeling is grounded in misperceptions and an apprehension that borders on panic. Not helping the situation any is the everpresent generation gap - most hackers are young and most government officials are not.

Apart from being disturbed by the gross generalizations that comprise their policy, it seems a tremendous waste of resources to use our Secret Service to spy on public gatherings in shopping malls. It seems certain to be a violation of our rights to allow them to disrupt these meetings and intimidate the participants, albeit indirectly. Like any other governmental agency, it is expected that the Secret Service follow the rules and not violate the constitutional rights of citizens.

If such actions are not publicly condemned, we will in effect be granting a license for their continuance and expansion. The incident above sounds like something from the darkest days of the Soviet Union when human rights activists were intimidated by government agents and their subordinates. True, these are technology enthusiasts, not activists. But who they are is not the issue. We cannot permit governmental abuse of any person or group simply because they may be controversial.

Why do hackers evoke such controversy? Their mere presence is an inconvenience to those who want so desperately to believe the emperor is wearing clothes. Hackers have a tendency of pointing out the obvious inadequacies of the computer systems we entrust with such a large and growing part of our lives. Many people don't want to be told how flimsily these various systems are held together and how so much personal data is readily available to so many. Because hackers manage to demonstrate how simple it is to get and manipulate this information, they are held fully responsible for the security holes themselves. But, contrary to most media perceptions, hackers have very little interest in looking at other people's personal files. Ironically, they tend to value privacy more than the rest of us because they know firsthand how vulnerable it is. Over the years, hackers have gone to the media to expose weaknesses in our credit reporting agencies, the grading system for New York City public schools, military computer systems, voice mail systems, and even commonly used pushbutton locks that give a false sense of security. Not one of these examples resulted in significant media attention and, consequently, adequate security was either delayed or not implemented at all. Conversely, whenever the government chooses to prosecute a hacker, most media attention focuses on what the hacker "could have done" had he been malicious. This reinforces the inaccurate depiction of hackers as the major threat to our privacy and completely ignores the failure of the system itself.

By coming out publicly and meeting with other hackers and non-hackers in an open atmosphere, we have dispelled many of the myths and helped foster an environment conducive to learning. But the message we received at the Pentagon City Mall tells us to hide, be secretive, and not trust anybody. Perhaps that's how the Secret Service wants hackers to behave. But we are not criminals and we refuse to act as such simply because we are perceived that way by uninformed bureaucrats.


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Regardless of our individual outlooks on the hacker issue, we should be outraged and extremely frightened to see the Secret Service act as they did. Whether or not we believe that hackers are decent people, we must agree that they are entitled to the same constitutional freedoms the rest of us take for granted. Any less is tantamount to a very dangerous and ill-advised precedent.

Emmanuel GoldsteinEditor, 2600 Magazine - The Hacker Quarterly516-751-2600

(NOTE - 2600 Magazine coordinates monthly hacker meetings throughout the country.)


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In November 1992, a group of young people affiliated with the computer magazine "2600" were confronted by mall security personnel, local police officers and several unidentified individuals in the Pentagon City mall in Virginia. The group members were ordered to identify themselves and to submit to searches of their personal property. Their names were recorded and some of their property was confiscated.

Computer Professionals for Social Responsibility (CPSR) filed suit in federal court in early 1993 seeking the release of relevant Secret Service records under the Freedom of Information Act. The litigation of the case is being handled by the Electronic Privacy Information Center (EPIC).

In July 1994, U.S. District Judge Louis Oberdorfer ordered the Secret Service to release the vast majority of documents it maintains on the incident. The government appealed that decision to the U.S. Court of Appeals for the District of Columbia Circuit. In a brief filed on June 2, 1995, EPIC and CPSR argued that the withheld documents demonstrate Secret Service misconduct and that the FOIA exemptions cited by the agency do not apply.

In an opinion issued on January 2, 1996, the federal appeals court partially rejected the Secret Service's attempt to withhold relevant information. The court ordered the agency to disclose some of the material it maintains concerning the incident. The Pentagon City incident has been described as an example of over-zealous law enforcement activities directed against so-called computer "hackers." The case raises significant issues of free speech and assembly, privacy and government accountability.

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Computer underground Digest Wed Nov 11, 1992 Volume 4 : Issue 57

Editors: Jim Thomas and Gordon Meyer ([email protected]) Archivist: Brendan Kehoe Shadow-Archivists: Dan Carosone / Paul Southworth Ralph Sims / Jyrki Kuoppala Coyp Editor: Etaion Shrdlu, Junior

CONTENTS, #4.57 (Nov 11, 1992)File 1--2600 Meeting Disrupted by Secret Service?FIle 2--2600 Meeting Disrupted by Law EnforcementFIle 3--Reports Of "Raid" On 2600 Washington MeetingFIle 4--More first-hand AccountsFIle 5--Confusion About Secret Service Role In "2600 Washington Raid"FIle 6--Conflicting Stories In 2600 Raid; CPSR Files FOIAFIle 7--Transcript from Al Johnson Interview

Date: Wed 11 Nov 1992 18:23:55From: ModeratorsSubject: File 1--2600 Meeting Disrupted by Secret Service?

On Friday, November 6, the Washington, D.C. 2600 meeting took place at the Pentagon City Mall, but was broken up by mall security police. There is preliminary evidence that the disruption may have involved the United States Secret Service. If the USSS was involved in using private security forces to disrupt civilians, their action appears to not only exceed its mandate, but to be blatantly illegal. The followings posts describe the details, but the basic facts are these:

1. The Mall's private security police appeared to engage in a well-organized and well-coordinated sweep of those participating in the meeting. Although there are restrictions that may limit gatherings on mall property, there was no apparent indication that the sweep was prompted by such restrictions.

2. The Mall's head of security, Al Johnson (703-415-3410) claimed that the FBI and USSS "ramrodded" the operation. Although he has since denied making the claim, his comments were recorded by Brock Meeks, a reporter for CommDaily. Meeks subsequently called both the FBI and Secret Service. The FBI denied any participation. Meeks' report of the USSS response suggests they were present at the time. We have read a transcript of Al Johnson's response to Meeks, and Johnson explicitly and unequivocally states that he considered it a USSS operation and that as far as he's concerned, the mall police are "out of it," and he referred Meeks to the USSS (See transcript in file #7).

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3. Either Al Johnson is lying or Meeks fabricated the tape. Meeks is a highly respected journalist known for accuracy and credibility. His integrity has never been questioned, and we find it incomprehensible that he fabricated the tape. It seems more likely that Johnson either glibly named external agencies to cover up the actions of security forces or that he initially spoke the truth then realized (or was told) that he should not indicate external involvement. The USSS's response, which appears to make them complicit in, if not initiaters of, the action, indicates, as John McMullen's final article reveals, that they were fully aware of the incident.

4. Computer Professionals for Social Responsibility (CPSR) has filed a Freedom of Information request with the USSS in an attempt to obtain further information of USSS involvement.

If, in fact, the USSS was involved, it reflects an outrageous and totally unacceptable abuse of authority and power. If they were involved, it indicates that they have learned little from the Operation Sun Devil abuses and that it is time to curtail their power. If they were involved, their actions represent a direct challenge to Constitutional principles of freedom of speech and assembly.

If those attending the 2600 meeting violated mall policies against assembly that limit the size and nature of public gatherings, it is fully legitimate for mall security personnel to intervene. However, if the intervention was a premediated action in which the USSS participated, then the forces designated to protect the Constitution have over-stepped their bounds and threaten once again to subvert the principles they are sworn to protect.

This is not simply a cyberspace issue. If the USSS was involved, it raises the issue of the relationship between government police actions and the Constitutional freedoms that ostensibly protect us against unwarranted control of basic rights. It is an issue that should be of concern to everyone. Slippery slopes are highly dangerous terrain.

The following posts provide additional details. The Newsbytes pieces are reproduced here with permission.

Date: Tue, 10 Nov 1992 08:52:13 -0500From: [email protected]: File 2--2600 Meeting Disrupted by Law Enforcement

On Friday, November 6th, the 2600 meeting in Washington DC was disrupted by assorted law enforcement people. Details are still coming in at this point but there are some details that have been corroborated by a number of people. This is what we know: Shortly after the gathering commenced at the Pentagon City Mall, the 30 or so people who were there were surrounded by mall security who demanded that everyone consent to searches. They were told that if they refused to be searched, they'd be arrested. Everyone's bags were gone through and lots of personal property was confiscated including


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notebooks, school work, various tools, a computer keyboard, and many other items. The security guards were in radio contact with others on a balcony who had been watching the group. One of the attendees was detained by security who would neither arrest him nor let him go. After about 10 minutes, he was released. Some property was returned but much was not. No receipts were given and, at one point, the security guards denied having anything at all. They then said that if they did have anything, the attendees would have to return the next week with proof of ownership. The mall police were later joined by local Virginia police, who told the group they would be arrested if they didn't leave the mall immediately. In addition to searching everybody, the police took down the names of everyone present.

At this point it doesn't look as if there was anything illegal going on or anything illegal in anyone's possession. It also should be noted that the mall police said they were acting on behalf of the Secret Service. The local police would only say they were gathering information for an "outside party".

The following is from Bob Stratton, one of our people on the scene:

I hope that someone like Inhuman might be able to fill in the details, but just as a brief...

I showed up late to the 2600 meeting in DC tonight, and I found everyone outside on the sidewalk instead of in the food court of the normal meeting place. Evidently they were hassled severely by the mall security officers, who took ID, confiscated all manner of property, tore up the list of officers' names being compiled by one attendee, and threatened to confiscate a camera being used by one attendee to record the whole fiasco.

The real police were called, and evidently made but a cursory appearance, though some comment about working with the Secret Service was made. The worst thing is that the private security officers who took property later denied it, and people are now in a quandary as to the best mechanism for recovery of their property.

I was fortunate enough to have missed the worst of it, though I do regret that I wasn't there earlier if only to tell the rent-a-cops what I thought of them, and my knowledge of my rights.

I know that several of the attendees called up to New York, to Emmanuel Goldstein, and I'm interested in hearing his take on things.

Film at 11.

--Strat


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Date: Tue, 10 Nov 1992 09:17:34From: [email protected]: File 3--Reports Of "Raid" On 2600 Washington Meeting

((The following will appear on Newsbytes tomorrow. Newsbytes is a commercial copyrighted service and this article is posted with the express permission of the author (reposting is prohibited)))

WASHINGTON, D.C., U.S.A., 1992 NOV 7 (NB) -- Eric Corley, a/k/a "Emmanuel Goldstein", editor and publisher of 2600 Magazine: The Hacker Quarterly has told Newsbytes that the Friday, November November 6th 2600 meeting held in the Pentagon City Mall, outside of Washington, DC. was disrupted by threats of arrest by mall security officers and Arlington, VA police.

2600 Magazine promotes monthly meetings of hackers, press and other interested parties throughout the country. The meetings are held in public locations on the first Friday evening of the month and the groups often contact each other by telephone during the meetings. Corley told Newsbytes that meetings were held that evening in New York, Washington, Philadelphia, Cambridge, St. Louis, Chicago, Los Angeles and San Francisco. Corley said "While I am sure that meetings have been observed by law enforcement agencies, this is the only time that we have been harassed. It is definitely a freedom of speech issue."

According to Craig Neidorf, who was present at the meeting handing out applications for Computer Professionals For Social Responsibility (CPSR), "I saw the security officers focusing on us. Then they started to come toward us from a number of directions under what seemed to be the direction of a person with a walkie-talkie on a balcony. When they approached, I left the group and observed the security personnel encircling the group of about 30 gatherers. The group was mainly composed of high school and college students. The guards demanded to search the knapsacks and bags of the gatherers. They confiscated material, including CPSR applications, a copy of Mondo 2000 (a magazine) and other material. They also confiscated film from a person trying to take pictures of the guards and, when a hacker called "HackRat" attempted to copy down the names of the guards, they took his pencil and paper."

Neidorf continued, "I left to go outside and rejoined the group when they were ejected from the mall. The guards continued challenging the group and told them that they would be arrested if they returned. When one of the people began to take pictures of the guards, the apparent supervisor became excited and threatening but did not confiscate the film."

Neidorf also said "I think that the raid was planned. They hit right about 6:00 and they identified our group as "hackers" and said that they knew that this group met every month."

Neidorf's story was supported by a Washington "hacker" called "Inhuman", who told Newsbytes "I arrived at the meeting late and saw the group being detained by the guards. I walked along with the group as they were being ushered out and when I asked a person who seemed to be in authority his


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name, he pointed at a badge with his name written in script on it. I couldn't make out the name and, when I mentioned that to the person, he said 'If you can't read it, too bad.' I did read his name, 'C. Thomas', from another badge."

Inhuman also told Newsbytes that, while he did not hear it said, he was told by a number of people that the guards said that they were 'acting on behalf of the Secret Service. "I was also told that there were two police officers there from the Arlington County Police present but I did not see them."

Another attendee, Doug Luce posted an account of his on an NY BBS and gave Newsbytes permission to quote Luce wrote "I also got to the DC meeting very late; 7:45 or so. It seemed like a coordinated harassment episode, not geared toward busting anyone, but designed to get people riled up, and maybe not come back to the mall. A couple of the things I overheard: someone had brought a keyboard to sell, and the cops had harassed him about it, saying 'You aren't selling anything in my mall without a vendors permit!' Blaize (another attendee) says that maybe his handcuffing Hack Rat might have set the cops off; or maybe it was the Whisper 2000 that the cops were convinced was a stun gun. The word is that there was stuff taken and not given back, wires and soldering tools. There is also the rumor that the cops were going through everyone's bags and belongings, and that some people were detained. While the thrust of the effort seemed to be mall security, there are conflicting reports about supporting personnel. Some people said that the SS (Secret Service) might have been there, others thought the FBI or plainclothes city officers were assisting (or coordinating). Supposedly, several of them had removed their name tags before moving in."

Luce's reference to possible Secret Service involvement was supported by a 19 year-old college student known as the "Lithium Bandit", who told Newsbytes "I got to the mall about 6:15 and saw the group being detained by approximately 5 Arlington County police and 5 security guards. When I walked over to see what was going on, a security guard asked me for an ID and I refused to show it saying that I was about to leave. The guard said that I couldn't leave and told me that I had to see a police officer. When I did, the officer demanded ID and, when I once again refused, informed me that I could be detained for up to 10 hours for refusing to produce identification. I gave in and produced my school ID which the police gave to the security people who copied down my name and social security number."

Lithium Bandit continued "When I asked the police what was behind this action, I was told that they couldn't answer but that "the Secret Service is involved and we are within our rights doing this. I and some others later went to the Arlington police station to attempt to get more information. I was told only that there was a report of the use of a stolen credit card and 2 officers sent to investigate -- they later admitted that it was 5. While I was detained, I heard no mention of a credit card and there was no one arrested."

Marc Rotenberg, director of CPSR's Washington office, told Newsbytes "I have really no details on the incident yet but I am very concerned about the reports and confiscation of CPSR applications, if true, is outrageous. I will find out more facts on Monday.


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Newsbytes was told by the Pentagon City Mall office that any information concerning the action would have to come from the director of security, Al Johnson, who will not be available until Monday. The Arlington Country Police referred Newsbytes to a "press briefing recording" which had not been updated since the morning before the incident.

Corley told Newsbytes "there have been no reports of misbehavior by any of these people. They were obviously singled out because they were hackers. It's as if they were being singled out as an ethnic group. I admire the way the group responded -- in a courteous fashion but it is inexcusable that it happened. I will be at the next Washington meeting to insure that it doesn't happen again."

The manager of one of New York state's largest malls provided background information to Newsbytes on the rights of malls to police those on mall property, saying "The primary purpose of a mall is to sell. The interior of the mall is private property and is subject to the regulations of the mall. The only requirement is that the regulations be enforced in an even-handed manner. I do not allow political activities in my mall so I could not make an exception for Democrats. We do allow community groups to meet but they must request space at least two weeks before the meeting and must have proper insurance. Our regulations also say that groups of more than 4 may not congregate in the mall. We would ask groups larger than that to disperse. We would also ask for identification from those who violate our regulations so that we may bar them from the mall for a period of 6 months."

She added "Some people feel that mall atriums and food courts are public space. They are not and the industry is united on this. If the malls were to receive tax benefits for the common space and public service in snow removal and the like, it could possibly be a public area but malls are taxed on the entire space and are totally private property, subject to their own regulations. If a group of 20 or more congregated in my mall, they would be asked to leave."

Date: Tue, 10 Nov 1992 08:52:13 -0500From: [email protected]: File 4--More first-hand Accounts

((MODERATORS NOTE: The following first-hand accounts were collected by Emmanuel Goldstein, editor of 2600)).

ACCOUNT #1:

This is my personal statement as to exactly what happened during the DC 2600 raid on Friday, November 7th 1992. Granted I cannot remember the exact dialogue that was exchanged, I will get the general meaning of everything said and done, by both parties.


2600 Magazine

I arrived at the 2600 meeting, with Loki, at approximately 4:30pm. We headed towards the food court after looking throughout a few electronics stores in interest to grab a bite to eat. After eating, we proceeded to the fourth floor, to scope out on everything before the meeting actually started. On the way up to the fourth floor, we ran into Tomellicas. We consulted for a few minutes, and then all went up to the fourth floor. We continued to hang out on the fourth floor, and then we saw Albatross back down on the first floor, so we hollered on got his attention, then proceeded back up to the fourth floor. Shortly after, Psionic Nemesis arrived on the scene. We continued to hang out, then proceeded back to the first floor.

After arriving down on the first floor, we moved tables together, rearranged the seating layout, then proceeded with the meeting. Knight Lightning arrived a little before 6:00 and handed out some literature, along with a kooky little button. People slowly arrived, and the meeting was underway.

At this point, the fed scene started to pick up drastically. Tomellicas was snapping pictures of every single fed (or what appeared to be) there. After chatting for awhile longer, Techno Caster, Hack Rat, and a few others arrived (maybe not in that order). Hack Rat came over to my table, or part of the table, where I slapped my handcuffs that I had brought on him. At this time, Techno Caster had showed his Whisper 2000 to Metal Head. Immediately there after, several members of the Mall Security task force surrounded the area, demanding to see the 'stun gun'. Naturally denying everything about a stun gun, the hostility grew. Finally one of the guards saw what they thought was the stun gun, and pointed at the Whisper 2000, which was in the hands of (I think) Metal Head. Metal Head told the officers "This? This is *the* Whisper 2000!", the guard examined it, questioned what we had it for, and basically just pestered us some more.

One of the guards (who seemed to be the leader at this point) came over across the table from me, and was looking at the stuff on the center of the table, in front of Loki and myself. Then, over his walkie-talkie, I heard them say something about handcuffs. Without hesitating, the guard said "Who has the handcuffs?", I then said "I do." At this point the guard was examining my handcuffs, and questioned me as to why I had them. Basically telling him just because I felt like it, did nothing but aggravate him, and the situation. He then asked me to produce identification. I asked as to why and the discussion went on for about sixty seconds, when I just decided to give him my ID because I was just plain sick of this ignorant discussion. He copied everything down from it, and asked me what my name was. I simply asked him if he was having trouble reading it, and he sneered at me. At this point, the rest of the guards started taking identification from others. The guard who had took my ID had asked Loki, sitting right across one side of the table from me, to see the contents of his backpack. Loki declined, and the guard asked again. The guard switched topics, and asked Loki to produce identification. Loki then handed him about 4 different forms of ID, the only thing he was missing was a birth certificate. The guard asked to see the contents of his bag, and once again Loki declined. The argument went back and forth for another minute or two, when Loki boldly exclaimed "You cannot search my bag, but I will show you what is in it." Loki proceeded to show him everything in the bag at this point. After pulling a few things that looked very suspicious to the guard out of his bag (read: after pulling a few soldered connections, a bundle of phone cable, and a couple of electronic devices out of his bag...). At this time, I turned to my


2600 Magazine

left to see a rather large guy wearing a nice suit who appeared to be taking over the command of the rent-a-cops. I immediately asked him his name, or two see some form of identification after he was doing the same to other people at the meeting. He flat out said "No.". So I just sighed at the entire ignorance of the man. Tomellicas quickly snapped a few pictures of him, and other guards there who wouldn't identify themselves. The guard literally took the film out of Tomellicas's camera at this point. Hack Rat had proceeded to make a list of the guards names who were involved. After the guards noticed this, they took the list Hack Rat had compiled, and ripped it up, keeping the shreds. At this point, on the other side of my table, I watched Loki zipping his bag back up after having a few things taken out of it. The big guy in the suit came and studied the stuff that had been taken out of his bag and asked Loki what he was doing with it. After exchanging words for about 2 minutes, the big guy proceeded to research Loki's bag. Noted that Loki gave no permission for the guy to search it, he just plain started going through it. At this point I wanted my handcuffs back, and I was out of there. I couldn't handle this sort of police harassment and basic bullshit. I told the guard I wanted my handcuffs back, and he refused. I asked for a receipt, and he refused. I said "I'm leaving, I have better things to do than to be harassed by a buncha rent-a-cops." he proceeded to say "Sit back down.". At this point I just figured I might as well do whatever they wanted so I could just go home and see the Bulls game.

This irrelevant search continued to go on for roughly a little less than two hours. None of the guards would give us any reason for why we were being detained, or why we were being searched. After sitting there for roughly two hours, we were all starting to get a little (lot) uptight about the whole situation and starting demanding we know why we were being held there and searched. One of the guards said that he thought we had a stun gun and that's why we were being searched. I made it really clear to him that (a) stun guns are not illegal in the state of virginia, and (b) after we showed him what he (they) saw, and he saw that it was hardly a stun gun, but an amplified sound device for deaf people, that he had no right to search us any further, let alone everyone there.

Denying that these laws were infact true, he told me to shut up. Laughing at his idiocy, I just sat there, preparing for hari-kari. Finally, after about another thirty minutes of bullshit, we were told to leave the mall immediately. Not understanding why, myself and others questioned him as to why we were being detained, searched, and kicked out. He gave no reason, except to say that this was private property, and that if we did not leave, we would be arrested, by the one Arlington County cop now on the scene. Just wanting to go see the Bulls game, I proceeded to leave, with Hack Rat, Tomellicas, and someone else who I forgot was at this time. We left the scene, and proceeded to Crystal City Underground, where we met up with Techno Caster and a couple others discussing the torment we had all just experienced.

Let alone the embarrassment of all the people watching us over the balcony.

Saturday, November 7th, 1992. Hack Rat and I thought it would be wise to contact the Pentagon Mall Security office on three-way. I called information, obtained the number (703/415-3410). I called the number and a lady picked up on the other end. I told her that I would like to speak with whoever was in charge, or present at the raid in the food court last night. She told me that nobody was there, they were either sick, or not working today. I told her "Out of the roughly 8 people there last night, they are all sick? That's bullshit. I want to speak with someone who was there last night, or I want all of the officers


2600 Magazine

names, and the name of the person in charge." She told me I'd have to call back in 30 minutes. I wait.

Thirty minutes later, Hack Rat and I call back. The same lady answers and I ask to speak to someone present, or the man in charge of the food court raid last night. She said please hold. I was transfered somewhere. A man picked up the phone, this voice was very familiar, and I could easily match it with the guy who took my handcuffs from me, the one who told me to shut up. I asked him what his name was, and the names of everyone there, and of whoever was in charge. He said that he was not allowed to give that information out. After dealing with the idiocy for another 5 minutes, tension grew along with the hostility.

After a little more social engineering, I was able to bs a name out of him. Al Johnson, who was supposedly the head of security.

After this, I called up Loki. We called Fenris Wolf on three way. Fenris told us that one of his parental units called the mall security office to find that Loki's bag had been 'turned over to federal authorities'.

Loki, never given a receipt for his bag, even after asking, was extremely pissed at this point.

The Mad Hatter

ACCOUNT #2:

dead cow #16 @1 [imic]

Sun Nov 08 15:21:42 1992

here's my story, as i witnessed it.

i was coming down the escalator when i noticed that there were a bunch of people standing around and all these cops in the center. so i rushed up to the center and asked the cops what was going on. the cop said "i have nothing to say to you" so i asked who i could talk to. he said that nobody had anything to say, that no one would talk to me. then i was questioned about my relation to this group. i denied any relation. i was then asked to leave, at which point i moved over to a group of 2600 people standing at a distance observing. i attempted to ask them what was going on, but at that point the mall cop wearing a bike outfit (what was with that guy?) asked us to leave. i walked most of the way to the door then stopped to remove my camera from my bag, meanwhile asking if i could stay long enough to use the bathroom. they told me that i had to use the metro bathroom. i said that i didn't think there was one. they said yes, ask the attendant. i then got my camera out and asked if i could take a picture. the guard said, in a threatening voice, that if i took his pic he would take my film. i put the camera in my pocket. i had a couple of old motherboards in my hands, they asked me what they were, i said they were old


2600 Magazine

motherboards, they asked each other if (some guy who's name i didn't catch) would be interested in these. i said they could have them if they wanted, they were worth about $2. they said, no, they weren't gonna take them, just leave. i stalled a few more times, and then they said that if i stalled one mor time i would be arrested. i left the mall at that pt.

we then went up the metro escalator, and stood around in a group at the top of the escalator. the mall cops were there, in the mall driveway, in their car. at some point, a group of mall cops came out and were very belligerent with someone. i stood back at a distance and took a picture, then turned away and started walking. the cops yelled after me, i gave my camera to another person. they wanted my film, i said i didn't have the camera. gentry jumped in and started arguing with the man, telling him that it was legal to take the picture. the man became very angry with gentry, and then started yelling about how he was here not to warn us about leaving the area, but to tell us to move our cars (all our cars were parked someplace else) from the curb, where there were SOME cars, because the arlington cops were coming. we said that we didn't have any cars, and he ignored that and proceded to warn us again. then he turned and gestured at gentry with his hand. at the same point gentry brought his hand up to scratch his head, and the hands met. the mall cop became very angry and told gentry that if he touched the mall cop again he would do some thing (i forget the threat) then we started talking about the camera, and the mall cop denied that he had ever wanted the film. after that, the mall cop left. then we left.

that's what happened..

dc

ACCOUNT #3:

Inhuman November 8th, 1992

What follows is my account of the events as I observed them at Pentagon City Fashion Center Mall on the evening of Friday, November 6th.

I arrived at the mall around 6:45 p.m., almost two hours after the meeting began. I recognized a group of people on the food court to be part of the meeting and started heading towards them. At this point, I noticed that there were several mall security personnel and perhaps other law enforcement officials (I'm not sure) spread throughout the meeting area. Most were just standing there, some were talking to the meeting-goers.

Since nothing too dangerous seemed to be happening, I walked into the middle of the meeting area, looking at all the guards. I asked one of the meeting-goers what was going on and he said "We're being detained." I then asked one of the guards (a young caucasian blonde male in a blue spandex biking outfit) what was going on. He replied, "You'll find out from your friends afterwards. Why don't you go


2600 Magazine

wait with your friends over there.", indicating the group of people I entered the mall with.

I left the food court. Some of the guards looked slightly upset that I was leaving, but made no move to stop me. I waited out-of-view of the food court for about five minutes and then returned. At this point, meeting-goers were just beginning to leave the food court area in the direction of the mall exit, apparently having been released from their detention. Guards remained on the outskirts of the group, directing them towards the exit.

I asked one of the guards (a middle-aged heavy-set african-american male) if we had to leave, and he said yes. When I protested, he threatened to arrest me for trespassing since "this is private property." When I asked what his name was, he pointed to his name tag. The name tag had nothing more than a legal signature on it, which was quite unreadable. When asked him what his name was again, explaining that I couldn't read his name tag, he said, "You can't read my name tag? Too bad." Then I noticed he had another name tag with "C. Thomas" clearly printed on it. At this point, Dead Cow, who was nearby, asked if he could take the guard's picture. The guard said that if he did, he would take the film out of the camera. When then left the mall, along with the rest of the group.

We waited in the Metrorail (D.C. public transportation) access tunnel directly outside of the mall for a while, gathering information from each other and deciding on a course of action.

We went upstairs and outside, to a small bank of payphones near the Metro entrance and near the mall's outside entrance. One of the meeting-goers, Lithium Bandit, called the Washington Post and recounted the story, hoping to get a reporter to the scene. They said they would call back if they were interested. Several suggestions were made to call News Channel 8, a cable 24-hours-a-day local news channel, but the call was never made. About twenty of us remained at this point, there having been around forty total.

About ten minutes later, the mall security guards reappeared. I was on the phone with Emmanuel Goldstein at the time, so I didn't see the initial interactions, and I'm still not clear what they were trying to tell us to do this time, as we were no longer on private property. At some point, Dead Cow took his camera out and took a couple pictures of the scene. At this, the guards, especially C. Thomas, became incensed. Thomas demanded the film, somehow claiming that Dead Cow was not allowed to take a picture of him. The film remained in our possesion. Then Gentry, another meeting-goer, began to get in an argument with C. Thomas over Dead Cow's right to take his picture, and the general rights violations that had occured already. At some point, Gentry apparently touched C. Thomas in an inadvertent manner. Thomas then yelled very loudly, "Don't TOUCH me!" and made some threat about what he would do if Gentry touched him again.

People began to leave now, to regroup at the Crystal City Underground, including me, so thus ends my account.


2600 Magazine

Date: Tue, 10 Nov 1992 09:17:35From: [email protected]: File 5--Confusion About Secret Service Role D.C. "Raid"

((The following will appear on Newsbytes. Newsbytes is a copyrighted commercial service and its material may not be reproduced. This article is posted with the express permission of the authors.))

WASHINGTON, D.C., U.S.A., 1992 NOV 7 (NB) -- In the aftermath of an action on Friday, November 6th by members of the Pentagon City Mall Police and police from Arlington County, VA in which those attending a 2600 meeting at the mall were ordered from the premises, conflicting stories continue to appear.

Attendees at the meeting have contended to Newsbytes that members of the mall police told them that they were "acting on behalf of the Secret Service.". They also maintain that the mall police confiscated material from knapsacks and took film from someone attempting to photograph the action and a list of the names of security officers that one attendee was attempting to compile.

Al Johnson, chief of security for the mall, denied these allegations to Newsbytes, saying "No one said that we were acting on behalf of the Secret Service. We were merely enforcing our regulations. While the group was not disruptive, it had pulled tables together and was having a meeting in our food court area. The food court is for people eating and is not for meetings. We therefore asked the people to leave."

Johnson denied that security personnel took away any film or lists and further said "We did not confiscate any material. The group refused to own up to who owned material on the tables and in the vicinity so we collected it as lost material. If it turns out that anything did belong to any of those people, they are welcome to come in and, after making proper identification, take the material."

In a conversation early on November 9th, Robert Rasor, Secret Service agent-in-charge of computer crime investigations, told Newsbytes that having mall security forces represent the Secret Service is not something that was done and, that to his knowledge, the Secret Service had no involvement with any Pentagon City mall actions on the previous Friday.

A Newsbytes call to the Arlington County police was returned by a Detective Nuneville who said that her instructions were to refer all questions concerning the matter to agent David Adams of the Secret Service. She told Newsbytes that Adams would be providing all information concerning the involvement of both the Arlington Police and the Secret Service in the incident.

Adams told Newsbytes "The mall police were not acting as agents for the Secret Service. Beyond that, I can not confirm or deny that there is an ongoing investigation."

Adams also told Newsbytes that "While I cannot speak for the Arlington police, I understand that their


2600 Magazine

involvement was due to an incident unrelated to the investigation."

Marc Rotenberg, director of the Washington office of Computer Professionals for Social Responsibility (CPSR), told Newsbytes "CPSR has reason to believe that the detention of people at the Pentagon City Mall last Friday was undertaken at the behest of the Secret Service, which is a federal agency. If that is the case, then there was an illegal search of people at the mall. There was no warrant and no indication of probable illegal activity. This raises constitutional issues. We have undertaken the filing of a Freedom of Information Act (FOIA) request to determine the scope, involvement and purpose of the Secret Service in this action."

2600 meetings are held on the evening of the first Friday of each month in public places and malls in New York City, Washington, Philadelphia, Cambridge, St. Louis, Chicago, Los Angeles and San Francisco. They are promoted by 2600 Magazine: The Hacker Quarterly and are attended by a variety of persons interested in telecommunications and so-called "hacker issues". The New York meeting, the oldest of its kind, is regularly attended by Eric Corley a/k/a Emmanuel Goldstein, editor and publisher of 2600, hackers, journalists, corporate communications professionals and other interested parties. It is known to have been the subject of surveillance at various times by law enforcement agencies conducting investigations into allegations of computer crime.

Corley told Newsbytes "While I'm sure that meetings have been observed by law enforcement agencies, this is the only time that we have been harassed. It's definitely a freedom of speech issue." Corley also that he plans to be at the December meeting in Washington "to insure that it doesn't happen again."

Date: Tue, 10 Nov 1992 09:17:34From: [email protected]: File 6--Conflicting Stories In 2600 Raid; CPSR Files FOIA

((The following will appear on Newsbytes. Newsbytes is a copyrighted commercial service and its material may not be reproduced. This article is posted with the express permission of the authors.))

WASHINGTON, D.C., U.S.A., 1992 NOV 11 (NB) -- In the on-going investigation of possible Secret Service involvement in the Friday, November 6th ejection of attendees at a "2600 meeting" from the premises of the Pentagon City Mall, diametrically opposed statements have come from the same source.

Al Johnson, chief of security for the Pentagon City Mall told Newsbytes on Monday, November 9th "No one said that we were acting on behalf of the Secret Service. We were merely enforcing our regulations. While the group was not disruptive, it had pulled tables together and was having a meeting in our food court area. The food court is for people eating and is not for meetings. We therefore asked the people to leave."


2600 Magazine

On the same day, Johnson was quoted was quoted in a Communications Daily article by Brock Meeks as saying "As far as I'm concerned, we're out of this. The Secret Service, the FBI, they're the ones that ramrodded this whole thing."

Newsbytes contacted Meeks to discuss the discrepancies in the stories and were informed that the conversation with Johnson had been taped and was available for review. The Newsbytes reporter listened to the tape (and reviewed a transcript). On the tape, Johnson was clearly heard to make the statement quoted by Meeks.

He also said "maybe you outta call the Secret Service, they're handling this whole thing. We, we were just here", and, in response to a Meeks question about a Secret Service contact, "Ah.. you know, I don't have a contact person. These people were working on their own, undercover, we never got any names, but they definitely, we saw identification, they were here."

Newsbytes contacted Johnson again on the morning of Wednesday, November 11 and asked him once again whether there was any Secret Service involvement in the action. Johnson said "No, I told you that they were not involved." When it was mentioned that there was a story in Communications Daily, quoting him to the contrary, Johnson said "I never told Meeks that. There was no Secret Service involvement"

Informed of the possible existence of a tape quoting him to the contrary. Johnson said "Meeks taped me? He can't do that. I'll show him that I'm not fooling around. I'll have him arrested."

Johnson also said "He asked me if the Secret Service was involved; I just told him that, if he thought they were, he should call them and ask them."

Then Johnson again told Newsbytes that the incident was "just a mall problem. There were too many people congregating."

[NOTE: Newsbytes stands by its accurate reporting of Johnson's statements. It also affirms that the story by Meeks accurately reflects the material taped during his interview]

In a related matter, Marc Rotenberg, director of the Washington office of Computer Professionals For Social Responsibility (CPSR) has announced that CPSR has filed a Freedom of Information Act (FOIA) request with the Secret Service asking for information concerning Secret Service involvement in the incident.

Rotenberg told Newsbytes that the Secret Service has 10 days to respond to the request. He also said that CPSR "is exploring other legal options in this matter."

The Secret Service, in earlier conversations with Newsbytes, has denied that the mall security was working on its behalf.


2600 Magazine

In the incident itself, a group attending the informal meeting was disbanded and, according to attendees, had property confiscated. They also contend that security guards took film from someone photographing the confiscation as well as a list that someone was making of the guard's names. In his November 9th conversation with Newsbytes, Johnson denied that security personnel took away any film or lists and further said "We did not confiscate any material. The group refused to own up to who owned material on the tables and in the vicinity so we collected it as lost material. If it turns out that anything did belong to any of those people, they are welcome to come in and, after making proper identification, take the material."

2600 meetings are promoted by 2600 Magazine: The Hacker Quarterly and are held on the evening of the first Friday of each month in public places and malls in New York City, Washington, Philadelphia, Cambridge, St. Louis, Chicago, Los Angeles and San Francisco. They are regularly attended by a variety of persons interested in telecommunications and so-called "hacker issues".

(Barbara E. McMullen & John F. McMullen/19921111)

Date: Wed 11 Nov 1992 19:34:56From: ModeratorsSubject: File 7--Transcript from Al Johnson Interview

((MODERATORS' NOTE: Al Johnson, Director of Security for the Pentagon City Mall, has denied saying that the US Secret Service was involved in the 2600 disruption, and he has given other news sources a different version than he gave to Brock Meeks. The following are Al Johnson's original comments as transcribed from the original conversation. We leave it to readers to decide for themselves what Al Johnson said in the initial interview.))

Further information may be obtained from Brock Meeks at:(202) 872-9202 ex. 271; or2115 Ward Ct. NW, Washington, DC 20037

Transcript of interview with Mr. Al Johnson, Dir. Security for Pentagon City Mall

B. Meeks: I'd like to ask you a few questions about an incident where some of your security guards broke up a meeting of some hackers on Friday (Nov. 6).

Al Johnson: They broke up some meeting of hackers?


2600 Magazine

B. Meeks: Yes.

AJ: I don't know about breaking any meeting up. Who... first of all I can't talk to you on the phone, if you want to come in, I don't talk to the press on the phone.

B. Meeks: OK

AJ: Ahh... maybe you outta call the Secret Service, they're handling this whole thing. We, we were just here.

B. Meeks: the Secret Service was part of this?

AJ: Well, FBI, Secret Service, everybody was here, so you might want to call their office and talk to them. There's not much I can really tell you here.

B. Meeks: OK

AJ: Our involvement was minimum, you know, minimal.

B. Meeks: I see, but your folks were acting on...

AJ: We didn't break anything... I.. we didn't.. as far as I know, well I can't say much on the phone. But I, well, somebody's awfully paranoid apparently. Where'd you get this information from?

B. Meeks: Umm.... from computer bulletin boards

AJ: Bulletin Boards?

B. Meeks: Yep.

AJ: When did you get it?

B. Meeks: I got it, ah, Sunday night.

AJ: Sunday night?

B. Meeks: Yep.

AJ: [small laugh] Ah, yeah, you gotta call the FBI and the Secret Service there's not much I can do for you here.


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B. Meeks: Ok. Al, if I come down there will you talk to me to down there?

AJ: No. I can't talk to you at all. Fact is, there's nothing to talk about. Our involvement in anything was minimal, I don't know where this information came from as far as bulletin boards, and breaking meetin's up and you know...

B. Meeks: Well, the Arlington police were down there too. I mean I've talked to several of the kids that were involved.

AJ: Um-hmmm

B. Meeks: They said, that ah, members of your, of the mall security forces, ah, or security staff, searched them, confiscated some material and didn't give it back. Did any of this happen?

AJ: Like I said, I'm not, I'm not able to talk to you... we have a policy that we don't talk to the press about anything like that. You can call the Secret Service, call the FBI, they're the ones that ramrodded this whole thing, and you talk to them, we're out of this basically, you know, as far as I'm concerned here.

B. Meeks: Ok. Is there a contact person over there that you can...

AJ: Ah.. you know, I don't have a contact person. These people were working on their own, undercover, we never got any names, but they definitely, we saw identification, they were here.

B. Meeks: They were there. So it was all the Secret Service and none of your men?

AJ: Ah, nah, that's not what I said. But they're the ones you want to talk to. There's nothing I can really ya. Okay?

B. Meeks: Okay.

AJ: Thanks.

B. Meeks: Bye.


2600 Magazine

**************************************************************** * Document from the CPSR Privacy/Information Archive * * FTP/Gopher/WAIS: cpsr.org email: [email protected] "help" * * * * For more information contact: [email protected] * * 415-322-3778 * ****************************************************************

One month after being sued under the Freedom of Information Act (FOIA), the Secret Service has officially acknowledged that it possesses "information relating to the breakup of a meeting of individuals at the Pentagon City Mall in Arlington, Virginia." The admission, contained in a letter to Computer Professionals for Social Responsibility (CPSR), confirms widespread suspicions that the agency played a role in the detention and search of individuals affiliated with "2600" Magazine at the suburban Washington mall on November 6, 1992.

CPSR filed suit against the Secret Service on February 4 after the agency failed to respond to the organization's FOIA request within the statutory time limit. In its recent response, the Secret Service released copies of three news clippings concerning the Pentagon City incident but withheld other information "because the documents in the requested file contain information compiled for law enforcement purposes." While the agency asserts that it possesses no "documentation created by the Secret Service chronicling, reporting, or describing the breakup of the meeting," it does admit to possessing "information provided to the Secret Service by a confidential source which is information relating to the breakup of [the] meeting." Federal agencies classify other law enforcement agencies and corporate entities, as well as individuals, as "confidential sources."

The propriety of the Secret Service's decision to withhold the material will be determined in CPSR's pending federal lawsuit. A copy of the agency's letter is reprinted below.

David L. Sobel [email protected] Counsel CPSR Washington Office

************************************************

DEPARTMENT OF THE TREASURY UNITED STATES SECRET SERVICE

MAR 5 1993

920508

http://www.2600.com/secret/pc/pc-ssletter.html (1 of 3)4/16/2006 11:23:11 AM

2600 Magazine

David L. SobelLegal CounselComputer Professionals forSocial Responsibility666 Pennsylvania Avenue, S.E.Suite 303Washington, D.C. 20003

Dear Mr. Sobel:

This is in response to your Freedom of Information Act (FOIA) request for access to "copies of all records related to the breakup of a meeting of individuals affiliated with "2600 Magazine" at the Pentagon City Mall in Arlington, Virginia on November 6, 1992."

Enclosed, please find copies of materials which are responsive to your request and are being released to you in their entirety.

Other information has been withheld because the documents in the requested file contain information compiled for law enforcement purposes. Pursuant to Title 5, United States Code, Section 552(b)(7)(A); (C); and (D), the information has been exempted since disclosure could reasonably be expected to interfere with enforcement proceedings; could reasonably be expected to constitute an unwarranted invasion of personal privacy to other persons; and could reasonably be expected to disclose the identity of a confidential source and/or information furnished by a confidential source. The citations of the above exemptions are not to be construed as the only exemptions that are available under the Freedom of Information Act.

In regard to this matter it is, however, noted that your FOIA request is somewhat vague and very broadly written. Please be advised, that the information being withheld consists of information provided to the Secret Service by a confidential source which is information relating to the breakup of a meeting of individuals at the Pentagon City Mall in Arlington, Virginia, and, therefore, appears to be responsive to your request as it was written. If, however, the information you are seeking is information concerning the Secret Service's involvement in the breakup of this meeting, such as any type of documentation created by the Secret service chronicling, reporting, or describing the breakup of the meeting, please be advised that no such information exists.

If you disagree with our determination, you have the right of administrative appeal within 35 days by writing to Freedom of Information Appeal, Deputy Director, U. S. Secret Service, 1800 G Street, N.W., Washington, D.C. 20223. If you choose to file an administrative appeal, please explain the basis of your appeal.


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Sincerely,

/Sig/ Melvin E. Laska ATSAIC Freedom of Information & Privacy Acts Officer

Enclosure


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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

COMPUTER PROFESSIONALS FOR ) SOCIAL RESPONSIBILITY )666 Pennsylvania Avenue, S.E. )Suite 303 )Washington, DC 20003, ) ) Plaintiff, ) )v. ) C.A. No. 93-0231 )UNITED STATES SECRET SERVICE )1800 G Street, N.W. )Washington, DC 20223, ) ) Defendant. )________________________________________)

COMPLAINT FOR INJUNCTIVE RELIEF

1. This is an action under the Freedom of Information Act ("FOIA"), 5 U.S.C. ¤ 552, for injunctive and other appropriate relief and seeking the disclosure and release of agency records improperly withheld from plaintiff by defendant United States Secret Service.

Jurisdiction and Venue

2. This court has both subject matter jurisdiction over this action and personal jurisdiction over the parties pursuant to 5 U.S.C. ¤ 552(a)(4)(B). This court also has jurisdiction over this action pursuant to 28 U.S.C. ¤ 1331. Venue lies in this district under 5 U.S.C. ¤ 552(a)(4)(B).

The Parties

3. Plaintiff Computer Professionals for Social Responsibility is a non-profit membership organization, incorporated in the state of California, with an office and full-time staff in Washington, DC. Plaintiff's

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membership includes a Nobel Laureate and four recipients of the Turing Award, the highest honor in computer science. Plaintiff's activities include the review of federal computing policies to determine their possible impact on civil liberties interests. Among its other activities, plaintiff has prepared reports and presented testimony on computer technology issues at the request of congressional committees. In pursuit of its mission, plaintiff has submitted several requests to defendant Secret Service under the FOIA seeking information concerning the agency's exercise of its jurisdiction to investigate computer crime. 4. Defendant United States Secret Service is an establishment within the Department of the Treasury. The Secret Service is an agency within the meaning of 5 U.S.C. ¤ 552(e). The Secret Service has primary federal jurisdiction over the investigation of computer crime.

The Documents at Issue and Plaintiff's FOIA Request

5. On November 6, 1992, a group of individuals affiliated with 2600 Magazine assembled in the public food court area of the Pentagon City Mall in Arlington, Virginia. 2600 Magazine contains articles and letters from its readers concerning computer and telecommunications technology and related issues. The magazine has published articles of public interest since 1984. The magazine publicizes monthly gatherings around the country to enable its readers to meet one another, socialize and exchange information of mutual interest.

6. Soon after the group had assembled, it was confronted by mall security personnel, officers of the Arlington County Police and other unidentified individuals. The group members were ordered to provide identification and their names were recorded by mall security personnel. Several of the group members were ordered to submit to searches of their personal property, some of which was seized by mall security personnel and not returned for several days. The group members were finally ordered to disperse and leave the premises of the mall.

7. During the course of the aforementioned search, membership materials of plaintiff organization, CPSR, were seized.

8. According to a mall security official and representatives of the Arlington County Police, agents of defendant Secret Service were present during the incident and had directed the activities of the mall security personnel. The presence and involvement of Secret Service agents were reported in the media several days after the incident.

9. By letter to defendant Secret Service dated November 10, 1992, plaintiff requested copies of all agency records "pertaining to the breakup of a meeting of individuals affiliated with '2600 Magazine' at the Pentagon City Mall in Arlington, Virginia, on November 6, 1992."

10. By letter to plaintiff dated December 9, 1992 (but received by plaintiff on December 22, 1992), defendant Secret Service asserted that it would "neither confirm nor deny the existence of investigatory information pertaining to the individuals" referenced in plaintiff's request unless plaintiff provided "properly notarized releases" from the individuals. Defendant further stated that the letter "is not a denial


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of [plaintiff's] request," and that "[u]pon receipt of a perfected request, a search of files will be conducted."

11. By letter to defendant Secret Service dated December 22, 1992, plaintiff noted that its request did not seek "information identifying particular individuals," but rather "the disclosure of information concerning the Secret Service's involvement in an incident that has been widely publicized in [the] media." Plaintiff further noted that, to the extent that the requested information contains references to particular individuals, "the agency might be entitled to invoke [FOIA exemptions] to protect the privacy of those individuals." Finally, plaintiff requested that its letter be treated as an administrative appeal if "the Secret Service does not intend to process [plaintiff's] request as submitted."

12. By letter to plaintiff dated January 7, 1993, defendant Secret Service stated that "[a] search of files responsive to [plaintiff's] request is being conducted" and advised plaintiff that "[w]hen the results of the search are known, you will be contacted."

13. To date, defendant Secret Service has not released any information responsive to plaintiff's request.

14. Plaintiff has exhausted the applicable administrative remedies.

15. Defendant Secret Service has wrongfully withheld the requested records from plaintiff.

Requested Relief

WHEREFORE, plaintiff prays that this Court:

A. order defendant Secret Service to disclose the requestedrecords in their entirety and make copies available to plaintiff;B. provide for expeditious proceedings in this action;C. award plaintiff its costs and reasonable attorneys feesincurred in this action; andD. grant such other relief as the Court may deem just and proper.

Respectfully submitted,

_________________________ DAVID L. SOBEL D.C. Bar No. 360418 MARC ROTENBERG D.C. Bar No. 422825


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Computer Professionals for Social Responsibility 666 Pennsylvania Avenue, S.E. Suite 303 Washington, DC 20003

Counsel for Plaintiff


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CPSR SEEKS RECORDS ON ILLEGAL SEARCH: QUESTIONS SECRET SERVICE RAID

Computer Professionals for Social Responsibility (CPSR) filed suit in federal court today seeking information on the role of the Secret Service in the disruption of a meeting of computer users last November. The incident, which occurred at the Pentagon City Mall in Arlington, Virginia, has been described as an example of overzealous law enforcement activities directed against so-called computer "hackers."

On November 6, 1992, a group of people affiliated with the computer magazine "2600" were confronted by mall security personnel, local police officers and several unidentified individuals. The group members were ordered to identify themselves and to submit to searches of their personal property. Their names were recorded by mall security personnel and some of their property was confiscated. However, no charges were ever brought against any of the individuals at the meeting.

The Secret Service has not formally acknowledged its role in the November incident. However, a mall security official and the Arlington County Police have said that Secret Service agents were present and directed the activities of the mall security personnel.

"If this was a Secret Service operation, it raises serious constitutional questions. It is unlawful for the government to disrupt a meeting of people who are peaceably assembled and to seize their personal property. We have filed this FOIA suit to determine the precise role of the Secret Service in this affair," said CPSR Washington Director Marc Rotenberg.

CPSR submitted a Freedom of Information Act (FOIA) request to the Secret Service several days after the incident. To date, the agency has failed to respond. Under the law FOIA requesters may file suit in federal court when an agency has not complied with the legally imposed time limits.

CPSR, a national membership organization that protects civil liberties for computer users, previously filed a FOIA suit against the Secret Service after the agency was criticized for several poorly conducted investigations of computer users. Documents disclosed to CPSR from the Operation Sun Devil case revealed that the agency monitored publicly accessible electronic "bulletin boards."

CPSR has recommended the development of guidelines for computer crime investigations an called for a reassessment of the Secret Service's role in the computer crime field.

For CPSR membership information, contact CPSR ¥ PO Box 717 ¥ Palo Alto, CA 94302-0717 (415) 322-3778 Email: [email protected].

Copies of CPSR documents are available via FTP and Gopher from cpsr.org, folder /cpsr

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The Secret Service recently admitted that it possesses six previously unacknowledged documents relating to the break-up of a 2600 meeting at Pentagon City Mall last November. In conjunction with that admission, the agency has filed an affidavit executed by the Special Agent in Charge of its Washington field office. The affidavit, which is re-printed below, provides the most detailed explanation yet of the Secret Service's role in this affair.

The most important parts of the affidavit appear to be paragraphs 22-24, which state that "the Secret Service received information from a business indicating that that business' PBX had been manipulated," and that the business provided the agency with "certain information concerning the individual(s) who had entered the system." Based on these statements, here is the best guess of what happened: 1) the "victim business" had some reason to believe that the individual involved had some relationship to 2600; 2) the business passed this information on to the Secret Service; 3) the Secret Service knew that people associated with 2600 met at the mall on a regular basis; and 4) the Secret Service recruited the mall security personnel to identify the individuals attending the monthly meetings.

The litigation of CPSR's FOIA case against the Secret Service is proceeding, and new information will continue to be posted as it is obtained.

CPSR is a national organization of individuals concerned about the impact of computer technology on society. The best way to support CPSR's work is to become a member. For more information, write to .

David Sobel CPSR Legal Counsel [email protected]

=================================================================


Computer Professionals )for Social Responsibility, ) ) Plaintiff ) ) Civil Action No. 93-0231 v. ) )United States Secret Service, ) ) Defendant )

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PUBLIC DECLARATION OF WILLIAM F. BURCH, SPECIAL AGENT IN CHARGE, UNITED STATES SECRET SERVICE, WASHINGTON FIELD OFFICE

I, William F. Burch hereby depose and say:

1. I am the Special Agent in Charge (SAIC) of the United States Secret Service (hereinafter Secret Service), Washington Field office having held this position since January 24, 1993. I have been employed as a Special Agent of the Secret Service since January 20, 1969.

2. I am providing this declaration in connection with the above-captioned civil action arising under the Freedom of Information Act (FOIA). The purpose of this declaration is to address matters raised by the plaintiff in Plaintiff's Memorandum in Opposition to Defendant's Motion for Summary Judgement and in Support of Plaintiff's Cross-motion for Summary Judgement (hereinafter Plaintiff's Memorandum).

3. This declaration is provided for the public record and is somewhat limited, as the records which are at issue in this case were compiled by the Secret Service in the course of a criminal matter which is currently open and ongoing. I have, however, also provided a separate and more detailed declaration for in camera review by this Court.

4. In my position as the Special Agent in Charge of the Washington Field Office, I am aware that plaintiff submitted to the Secret Service a FOIA request for information in the possession of the Secret Service which concerns "the breakup of a meeting of individuals" associated with the "2600 Club" at the "Pentagon City Mall in Arlington, Virginia on November 6, 1992."

5. In January of 1993, my office received a written request from the Secret Service's Freedom of Information and Privacy Acts (FOI/PA) Office asking that my office search its records to determine if it maintained information concerning plaintiff's FOIA request.

6. Pursuant to this request my office realized that it was maintaining records concerning an ongoing criminal matter and that these records might contain information which was responsive to plaintiff's FOIA request.

7. It was then directed that a copy of all records concerning this criminal investigation be provided to Secret Service headquarters.

8. In May of this year I was asked to provide an in camera and a public declaration concerning the underlying criminal investigation and the records concerning that investigation which related to plaintiff's FOIA request.

9. In the original draft of these declarations I noted that they referred only to certain newspaper articles and two specific records. Through my discussions with the "case agent" assigned to the underlying criminal matter, I was, however, personally aware that my office maintained certain additional records


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which appeared to concern plaintiff's FOIA request.

10. Upon further review I found that inadvertently copies of certain records which were in the possession of my office and which appeared to be responsive to plaintiff's FOIA request were not in the possession of the Secret Service FOI/PA.

11. Copies of all records maintained by my office which records concern plaintiff's FOIA request, and which records were in the possession of my office at the time this office's original search for material responsive to plaintiff's FOIA request,l have now been provided to Secret Service headquarters.

------------------------1 The underlying criminal investigation has continued and, therefore, additional records have been compiled by the Secret Service in regard to that investigation.

12. Additionally, a record by record, page by page comparison has been made of the information maintained in the Washington Field Office, which information was in the possession of the Secret Service at the time of my office's original search for information responsive to plaintiff's FOIA request, with the copies of the records which have now been provided to Secret Service headcluarters. This comparison showed that these two groups of records are now identical.

13. The records which concern plaintiff's FOIA request, with the exception of the newspaper articles, had been provided to the Secret Service fron a confidential source and had been compiled for law enforcement purposes.

14. The information contained in these records was compiled in order to identify and to further investigate individual(s) who are considered to be possible suspect(s) in a criminal investigation being conducted by the Secret Service, which investigation relates to a violation of Title 18 of the United States Code, Section 1029, and/or 1030, "Fraud and related activity in connection with access devices," and "Fraud and related activity in connection with computers."

15. More specifically, the Secret Service has reason to believe that the suspect(s) in this case had gained access to a Public Branch Exchange (PBX) owned by a private company and manipulated that PBX so as to enable the commission of several tens of thousands of dollars of telephone toll fraud.

16. It is my understanding that at the request of my office the records at issue in this case, with the exception of the newspaper articles, were withheld from release due to the ongoing nature of the enforcement proceeding, as to release the information could constitute an invasion of the privacy of certain individuals, as the records at issue had been provided to the Secret Service by a confidential source, and as to release the records would reveal the identity of confidential sources.

17. I have been advised that plaintiff is now claiming that the Secret Service's action in withholding these records was improper. In particular, I have been advised that plaintiff is alleging that the records


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have been improperly withheld as the Secret Service does not have the authority to conduct investigations in the area of computer crime, and, as the Secret Service is not conducting a criminal investigation, but "'merely engaging in a general monitoring of private individuals activities' .... or conducting an inquiry 'for purposes of harassment'." Plaintiff's Memorandum, page 5.

18. While I am not an expert in the proprieties of releasing or withholding information under the FOIA, as the Special Agent in Charge of the Secret Service's Washington Field office, I can provide relevant information concerning the Secret Service's investigative authority and the underlying criminal investigation through which the records in question came into the possession of the Secret Service.

19. The Secret Service is a criminal law enforcement agency which operates under the provisions of Title 18 of the United States Code, Section 3056. Under Section 3056, Subsection (b), the Secret Service is specifically authorized to detect and arrest any person who violates federal criminal laws relating to coins, obligations, and securities of the United States and foreign governments, electronic fund transfers, credit or debit card fraud, false identification documents or devices, false identification documents and devices, and certain laws relating to financial institutions. Additionally, pursuant to Title 18 of the United States Code, Sections 1029 and 1030, the Secret Service is specifically charged with the authority to investigate offenses concerning fraud and related activity in connection with computers and/or access devices. See Title 18 U.S.C. 1030(d), Fraud and related activity in connection with computers ("The United States States Secret Service shall ... have the authority to investigate offenses under this section."). Contrary to plaintiff's argument, the Secret Service does, therefore, have clear statutory authority to conduct criminal investigations relating to computer fraud.

20. With regard to plaintiff's allegation that the Secret Service was "merely engaging in a general monitoring of private individuals' activities" .... or conducting an inquiry "for purposes of harassment," (Plaintiff's Memorandum, page 5), I would state that there is absolutely no truth to plaintiff's suggestion.

21. The records which are at issue in this case were provided to the Secret Service by a confidential source and were compiled by the Secret Service for law enforcement purposes -- the identification of possible suspect(s) in a criminal investigation and the further investigation of the suspect(s).

22. In connection with its law enforcement responsibilities, the Secret Service received information from a business indicating that that business' PBX had been manipulated and that as a result the business had been the victim of long distance telephone toll fraud.

23. The victim business provided the Secret Service with information which might lead to the individual(s) who had manipulated the system or utilized the manipulated system to steal telephone time.

24 The victim business had access to certain information concerning the individual(s) who had entered the system, but could not directly identify the individual(s) involved. It was, through a follow-up investigation and an attempt to identify the individual(s) who had committed this fraud, that the Secret


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Service came into the possession of the information which is at issue in this case.

25. The details of the law enforcement proceeding which underlies this matter are set out in my in camera declaration. I believe, however, that the generic facts as described above show that the records which are at issue in this case were compiled by the Secret Service for valid law enforcement purposes.

26. I am aware that plaintiff is arguing that the records at issue have been improperly withheld as the records consist of information which is already known to the subject(s) of the investigation. To the knowledge of the Secret Service, however, this is not correct. At this time the Secret Service has no reason to believe that the suspect(s) in its investigation, or the plaintiff in this case, are aware of the nature of the Secret Service's investigation, who is under investigation by the Secret Service, what information is in the possession of the Secret Service, or who has provided information to the Secret Service in regard to this matter.

27. I am also aware that the plaintiff argues that "the shopping mall was clearly the source of the records being withheld." Again contrary to plaintiff's argument, to date there has been no public statement that the "Mall" is the source of the information which is being withheld.

28. Additionally, the Secret Service recently contacted the source to determine the position of the source in regard to this matter. At this time, the source reiterated the source's original position and understanding that the fact that it had provided certain information to the Secret Service would not be revealed.

29. Further, the records at issue also contain information concerning a second source of information which source has since provided information to the Secret Service in regard to the underlying criminal case.

30. Due to the nature of the investigative work conducted by the Secret Service, this agency must protect from exposure the sources which the Secret Service utilizes to gain information in the course of its criminal investigations. In the course of its investigative function the Secret Service routinely receives information from various sources with the understanding that, unless the source is needed to provide testimony or records in a criminal trial, the fact of that source's cooperation will not be revealed to the public. Further, information is often provided by a source with the understanding that at the time of a criminal trial a subpoena will be issued to protect the fact of the earlier cooperation of the source. Therefore, if such confidential sources are compromised by premature exposure, the result could have a chilling effect on the law enforcement function of the Secret Service in that, in the future, such sources would be less cooperative with the Secret Service, and federal law enforcement in general.

31. It is, then, reasonable and necessary that the Secret service preserve its relationship with confidential sources by protecting from release information which would expose the cooperation of such sources with the Secret Service.


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32. As I have attempted to describe above, the records which are being withheld in this case are records which were compiled by the Secret Service for law enforcement purposes. Further, the release of the records could result in interference with an open enforcement proceeding, an invasion of the personal privacy of third parties, reveal information provided by a confidential source and compromise the future cooperation of a confidential source, by revealing the cooperation of those sources with the Secret Service. My office has, therefore, requested that the records involved in this matter continue to be withheld.

I declare under penalty of perjury that the foregoing is true to the best of my knowledge and belief.

/Signed/ William F. Burch Special Agent in Charge Washington Field Office

10 ==================================================================


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Computer Professionals for Social Responsibility (CPSR) today filed its brief in federal district court in Washington, DC, challenging the Secret Service's withholding of information relating to the break-up of a meeting of individuals affiliated with 2600 Magazine last fall. The brief is re-printed below. All footnotes and certain citations have been omitted.

For information concerning CPSR's litigation activities, contact:

David Sobel, CPSR Legal Counsel

For information concerning CPSR generally, contact:

============================================================


COMPUTER PROFESSIONALS FOR ) SOCIAL RESPONSIBILITY, ) ) Plaintiff, ) )v. ) C.A. No. 93-0231-LFO )UNITED STATES SECRET SERVICE ) ) Defendant. )_______________________________)

PLAINTIFF'S MEMORANDUM IN OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND IN SUPPORT OF PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGMENT

Plaintiff initiated this action on February 4, 1993, challenging defendant Secret Service's failure to release certain agency records requested under the Freedom of Information Act ("FOIA"), 5 U.S.C. Sec. 552. Specifically, plaintiff seeks disclosure of Secret Service records concerning "the breakup of a meeting of individuals affiliated with '2600 Magazine' at the Pentagon City Mall in Arlington, Virginia on November 6, 1992." The Secret Service filed its motion for summary judgment on April 19, 1993. Plaintiff opposes the agency's motion and cross-moves for summary judgment.

Background

On November 6, 1992, a group of young people gathered in the food court at Pentagon City Mall in Arlington, Virginia, to socialize and discuss their common hobby -- computer technology. Most of the

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attendees were readers of "2600 Magazine," a quarterly journal devoted to computer and telecommunications issues. The gathering was a regular, monthly event promoted by the magazine. See "Hackers Allege Harassment at Mall," Washington Post, November 12, 1992.

Shortly after the group had gathered, "they were surrounded by a few mall security guards and at least one agent from the Secret Service." Officers of the Arlington County Police were also present. The security guards demanded that the group members produce identification and compiled a list of names. The personal belongings of several attendees were confiscated and the group was evicted from the mall.

Several days later, plaintiff submitted a FOIA request to the Secret Service seeking agency records concerning the incident. The agency produced several newspaper articles describing the incident, but withheld two records which, according to the agency, "were provided to the Secret Service by a confidential source, and each consists solely of information identifying individuals." Defendant asserts that these two documents -- apparently lists of names compiled by the mall security guards -- are exempt from disclosure under FOIA Exemptions 7(A), 7(C) and 7(D). Plaintiff disputes the applicability of these exemptions to the withheld material.

Argument

I. The Withheld Information was not Compiled for a Valid Law Enforcement Purpose

Under the facts of this case, defendant has failed to meet its burden of establishing the threshold requirement of Exemption 7 -- that the information was compiled for valid law enforcement purposes. Without elaboration, defendant merely asserts that "[t]he two records being withheld ... are located in investigative files maintained by the Secret Service that pertain to and are compiled in connection with a criminal investigation being conducted pursuant to the Secret Service's statutory authority to investigate allegations of fraud." Def. Mem. at 3. This assertion falls far short of the showing an agency must make in order to invoke the protection of Exemption 7.

In Pratt v. Webster, 673 F.2d 408 (D.C. Cir. 1982), the D.C. Circuit established a two-part test for determining whether the Exemption 7 threshold has been met.

First, the agency's investigatory activities that give rise to the documents sought must be related to the enforcement of federal laws or to the maintenance of national security. To satisfy this requirement of a "nexus," the agency should be able to identify a particular individual or a particular incident as the object of its investigation and the connection between that individual or incident and a possible security risk or violation of federal law. The possible violation or security risk is necessary to establish that the agency acted within its principal function of law enforcement, rather than merely engaging in a general monitoring of private individuals' activities. ...

Second, the nexus between the investigation and one of the agency's law enforcement duties must


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be based on information sufficient to support at least "a colorable claim" of its rationality. ... Of course, the agency's basis for the claimed connection between the object of the investigation and the asserted law enforcement duty cannot be pretextual or wholly unbelievable.

673 .2d at 420-421 (emphasis, citations and footnote omitted). Since the passage of the 1986 FOIA amendments, the court of appeals has slightly restated the Pratt test so that the agency must demonstrate a nexus "between [its] activity" (rather than its investigation) "and its law enforcement duties." Keys v. Department of Justice, 830 F.2d 337, 340 (D.C. Cir. 1987).

As the court of appeals noted, the reason for requiring the showing of a "nexus" is to ensure that the agency was not "merely engaging in a general monitoring of private individuals' activities." Other courts have also recognized that "[i]f an agency 'was merely monitoring the subject for purposes unrelated to enforcement of federal law,' a threshold showing has not been made." Rosenfeld v. Department of Justice, 761 F. Supp. 1440, 1444 (N.D. Cal. 1991). See also King v. Department of Justice, 830 F. 2d 210, 230 (D.C. Cir. 1987) (court not required "to sanction agency claims that are pretextual or otherwise strain credulity"); Shaw v. Federal Bureau of Investigation, 749 F.2d 58, 63 (D.C. Cir. 1984) ("mere existence of a plausible criminal investigatory reason to investigate would not protect the files of an inquiry explicitly conducted ... for purposes of harassment").

In this case, the agency has not even attempted to make the requisite showing. It has not "identif[ied] a particular individual or a particular incident as the object of its investigation and the connection between that individual or incident and a possible ... violation of federal law," as Pratt requires. Rather, the circumstances strongly suggest that the Secret Service was "merely engaging in a general monitoring of private individuals' activities" (Pratt), or conducting an inquiry "for purposes of harassment" (Shaw).

If, as the agency's representations suggest, the Secret Service obtained a listing of individuals lawfully assembled at a shopping mall in order to identify computer "hackers," without benefit of probable cause or even articulable facts justifying such an "investigation," Exemption 7 cannot protect the collected information from disclosure. Indeed, as the Second Circuit has noted, "unauthorized or illegal investigative tactics may not be shielded from the public by use of FOIA exemptions." Kuzma v. Internal Revenue Service, 775 F.2d 66, 69 (2d Cir. 1985), citing Weissman v. Central Intelligence Agency, 565 F.2d 692, 696 (D.C. Cir. 1977) (other citation omitted). The agency has offered no evidence that would rebut the inference that it is improperly collecting the names of individuals engaged in constitutionally protected activity.

The Secret Service has not met its burden of establishing the "law enforcement purposes" threshold. Nor has it demonstrated that any of the requisite harms would flow from disclosure, so as to meet the specific provisions of Exemptions 7(A), 7(C) or 7(D).

II. Disclosure Would not Interfere with a Pending Law Enforcement Proceeding

In support of its 7(A) claim, defendant again asserts, without elaboration, that the disputed records were


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obtained "in the course of a criminal investigation that is being conducted pursuant to the Secret Service's authority to investigate access device and computer fraud." Defendant further asserts that disclosure of the information "could reasonably be expected to interfere" with that investigation. As plaintiff has shown, the existence of a qualifying "investigation" has not been established. Nor, as we discuss below, could the disclosure of the withheld information be reasonably expected to interfere with defendant's vague inquiry.

Given the unique nature of FOIA litigation, plaintiff (and the court, absent ex parte submissions) must draw logical conclusions based upon defendant's representations. Here, defendant represents that 1) the records relate to the incident at Pentagon City Mall; 2) the records were obtained from a "confidential" source; and 3) the records consist "solely of information identifying individuals." Given that a list of names was compiled by mall security guards and that a record consisting "solely of information identifying individuals" is -- by definition -- a list of names, plaintiff and the court logically can assume that the compilation of names is being withheld.

The individuals who were required to identify themselves, and whose names were subsequently recorded, obviously know that they were present at the mall and that their names were taken. Under these circumstances, it is patently absurd for the agency to assert that

[t]he premature release of the identities of the individual(s) at issue could easily result in interference to the Secret Service's investigation by alerting these individual(s) that they are under investigation and thus allowing the individual(s) to alter their behavior and/or evidence.

In Campbell v. Department of Health and Human Services, 682 F.2d 256, 259 (D.C. Cir. 1982), the D.C. Circuit reached the obvious conclusion that Exemption 7(A) does not apply to information that was provided by the subject of an investigation -- it applies only to information "not in the possession of known or potential defendants." See also Grasso v. Internal Revenue Service, 785 F.2d 70, 77 (3d Cir. 1986) (where plaintiff sought disclosure of his own statement to agency, "[t]he concerns to which Exemption 7(A) is addressed are patently inapplicable"). Under the facts of this case, defendant's meager assertion of "interference" defies logic and cannot be sustained.

III. The Privacy Protection of Exemption 7(C) is Inapplicable in this Case

Defendant next seeks to shield the information from disclosure on the ground that it is seeking to protect the privacy of the individuals named in the records. Applying the balancing test of Exemption 7(C), the agency asserts that there is a substantial privacy interest involved and "no public benefit in the release of the names."

As for privacy interests, defendant claims that the disclosure of an individual's name in a "law enforcement file ... carries stigmatizing connotations." As noted, there is substantial question as to whether the withheld material qualifies as a "law enforcement" record. Indeed, the individuals themselves believe that their names were recorded for purposes of harassment, not law enforcement, and


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they cooperated with the news media to expose what they believe to be improper conduct on the part of the Secret Service.

As is set forth in the attached affidavit of counsel, a number of the young people who were detained at the mall have sought plaintiff's assistance in securing the release of relevant Secret Service records. By letter dated November 20, 1992, plaintiff submitted a FOIA request to the agency seeking information concerning eight individuals, and provided privacy releases executed by those individuals. The agency claimed that it possessed no information relating to those individuals. Plaintiff believes it is likely that some, if not all, of those individuals are identified in the material defendant is withholding. Given that plaintiff provided privacy releases to the agency, the invocation of Exemption 7(C) to withhold those names is indefensible.

The newspaper articles attached to defendant's motion belie the claim that there is no public interest in the disclosure of the requested information. The front page of the Washington Post reported the allegation that the Secret Service orchestrated the incident at Pentagon City Mall in order to monitor and harass the young people who gathered there. The individuals themselves have attempted to publicize the incident and gain the release of relevant agency records. The balance between privacy interests and public interest clearly weighs in favor of disclosure.

IV. The "Confidential Source" Protection of Exemption 7(D) is not Available in this Case

Finally, defendants invoke Exemption 7(D), emphasizing that the statutory definition of "confidential source" includes "any private institution." Again, the circumstances of this case render the exemption claim absurd -- the shopping mall was clearly the source of the information maintained by the agency and it has not attempted to conceal its cooperation with the Secret Service.

Shortly after the incident, the mall's security director, Allan Johnson, was interviewed by Communications Daily. According to an article that appeared in that publication, Johnson acknowledged that the mall's security staff was working under the direction of the Secret Service. "The Secret Service ... ramrodded this whole thing," according to Johnson. "Secret Service Undercover Hacker Investigation Goes Awry," Communications Daily, November 10, 1992, at 2. This admission belies defendants' suggestion that "[s]ources who provide ... information during the course of a criminal investigation do so under the assumption that their identities and cooperation will remain confidential ...."

As defendants concede, promises of confidentiality will be implied, but only "in the absence of evidence to the contrary." In this case, the evidence suggests that the source of the information has sought to deflect responsibility for the incident by asserting that it was, indeed, acting at the request of the Secret Service. The agency appears to be more concerned with protecting itself than with protecting the identity of a source that is in no way "confidential." Exemption 7(D) can not be used for that purpose.

CONCLUSION


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Defendants' motion for summary judgment should be denied; plaintiff's cross-motion for summary judgment should be granted.

==================================================================


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COMPUTER PROFESSIONALS FOR ) SOCIAL RESPONSIBILITY, ) ) Plaintiff, ) ) v. ) Civil Action No. 93-0231-LFO ) UNITED STATES SECRET SERVICE, ) ) Defendant. )_________________________________)

MEMORANDUM

Plaintiff brought this action under the Freedom of Information Act, 5 U.S.C. Sec. 552 et seq., to obtain any documents in defendant's possession relating to the breakup of a meeting of computer enthusiasts that took place on November 6, 1992 at the Pentagon City mall in Arlington, Virginia. The attendees, apparently affiliated with a computer magazine called 2600 and referred to in media accounts of the incident as computer "hackers," were dispersed shortly after their arrival by Arlington County Police and mall security officers.[1] According to plaintiff, the officers took names of attendees and confiscated some of their personal property before ordering them to leave the mall. Plaintiff also avers that an agent or agents of defendant participated in the incident.

Plaintiff submitted its FOIA request to defendant on November 10, 1992. Several months later, defendant released to plaintiff several newspaper articles about the incident. Defendant informed plaintiff that it was withholding two additional responsive documents pursuant to FOIA exemptions 7 (A), (C), and (D). The parties filed cross-motions for summary judgment. During the pendency of these motions, defendant discovered six additional responsive documents in its Washington, D.C. field office. Defendant submitted a supplementary declaration and memorandum in which it stated that it would withhold the six new documents under the same three FOIA exemptions claimed for the two earlier documents. Defendant subsequently filed an additional declaration _in camera_. Plaintiff has moved to strike defendant's _in camera_ submission.

I.

Plaintiff objects to defendant's _in camera_ submission on the ground that permitting such submissions

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in FOIA actions undermines the adversarial structure of Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974), by preventing the plaintiff from expressing its views as to the government's reasons for withholding documents. See Yeager v. DEA, 678 F.2d 315, 324-25 (D.C. Cir. 1982). As plaintiff contends, _in camera_ submissions should only be permitted in those instances where they are "absolutely necessary" to resolve the case. Id. This is such an instance. Defendant has made a thorough effort to explain as much of its case as possible in its public filings. However, the confidential nature of the criminal investigation underlying defendant's withholding of documents makes _in camera_ review the exclusive means of weighing specific aspects of defendant's claims. Accordingly, plaintiff's motion to strike defendant's _in camera_ submission will be denied, and that submission will be considered in ruling on the parties' cross-motions for summary judgment.

II.

FOIA exemption 7 permits the withholding of several categories of "records or information compiled for law enforcement purposes." 5 U.S.C. Sec. 552(b)(7). Initially, plaintiff argues that defendant has categorically failed to satisfy the threshold requirement for invoking exemption 7 because defendant has failed to demonstrate that the information at issue relates to a criminal investigation.

Defendant's public declarations specify the nature of the underlying criminal investigation, and its _in camera_ submission discusses that investigation with even greater specificity. This is a case to which exemption 7 might properly be applied. Defendant has withheld documents based on three provisions of that exemption.

A.

FOIA exemption 7(C) permits the withholding of information that "could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. Sec. 552 (b)(7)(C). Defendant argues that exemption 7(C) applies in this case because of "the 'strong interest' of individuals, whether they be suspects, witnesses, or investigators, 'in not being associated unwarrantedly with alleged criminal activity.'" Dunkelberger v. Department of Justice, 906 F.2d 779, 781 (D.C. Cir. 1990) (citation omitted).

The cases defendant cites in support its exemption 7(C) claim generally involve persons whose connection with a criminal file could embarrass or endanger them -- for example, persons investigated but not charged in criminal matters. See, e.g., Fund for Constitutional Government v. National Archives and Records Service, 656 F.2d 856, 861-66 (D.C. Cir. 1981). Defendant has not suggested that the meeting at issue here is the object of any criminal investigation. The incident occurred in plain view of the patrons of a busy shopping mall. The mere fact that defendant has maintained materials relating to the incident in connection with a criminal investigation does not mark participants in the meeting with the "stigma" of being associated with a criminal investigation, which defendant identifies as the gravamen of its 7(C) claim. Indeed, several participants in the meeting have executed privacy waivers in connection with a later FOIA request from defendant, which suggests that they do not perceive release of the material defendant is withholding as a threat to their privacy interests. Exemption 7(C) is not an


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appropriate basis for withholding responsive documents in this case.

B.

Defendant next invokes FOIA exemption 7(D), which permits the withholding of documents that "could reasonably be expected to disclose the identity of a confidential source ... and ... information furnished by a confidential source." 5 U.S.C. Sec. 552(b)(7)(D). To support its claim of this exemption, defendant initially cited the law of this Circuit that "in the absence of evidence to the contrary, promises of confidentiality are 'inherently implicit' when the FBI solicits information." Keys v. Department of Justice, 830 F.2d 337, 345 (D.C. Cir. 1987) (citations omitted). However, during the pendency of this motion, the Supreme Court in Department of Justice v. Landano, 113 S.Ct. 2014 (1993), eliminated the Keys presumption. The Court held that exemption 7(D) only applies where there is an actual promise of confidentiality, or circumstances from which such a promise may be inferred -- for example, a type of crime that makes recriminations against sources likely. Id. at 2023. After Landano, which defendant concedes governs the exemption 7(D) claim in this case, defendant's sole basis for applying exemption 7(D) is a statement in its supplemental memorandum that defendant "recently contacted" the source, which told defendant that the source understood the information to have been provided on a confidential basis. Supplemental Declaration of Melvin E. Laska (June 18, 1993) at para. 49. Such a post hoc rationalization is inadequate. At no time has defendant offered any evidence of an express or implied promise of confidentiality at the time the source provided the information. Thus, defendant's exemption 7(D) claim does not survive Landano.

C.

Defendant's strongest claim for withholding certain responsive documents is based on FOIA exemption 7(A) That exemption permits an agency to withhold responsive documents that "could reasonably be expected to interfere with law enforcement proceedings." 5 U.S.C. Sec. 552(b)(7)(A). Defendant has represented that it is maintaining the withheld documents as part of a particular, ongoing criminal investigation. It has elaborated on this representation in its _in camera_ submission. Withholding of documents is appropriate under exemption 7(A) if release of the documents would interfere with the ongoing investigation in any of the ways defendant enumerates: by alerting individuals that they are under investigation, thus allowing them to alter their behavior; by exposing or chilling the participation of informants or witnesses; or by providing premature access to the government's strategy or the nature, focus, and limits of its case. See generally NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 239-241 (1978).

Defendant, however, has failed to demonstrate that the release of each of the documents it has withheld would interfere with the ongoing investigation in any of these ways. Defendant's public filings state that the investigation involves allegations made by, a private corporation of telephone fraud. See Defendant's Supplemental Memorandum of Points and Authorities in Support of Defendant's Motion for Summary Judgment (June 25, 1993) at 3. Thus, defendant cannot fear the possibility that release of the withheld documents might reveal defendant's involvement in this type of investigation. Similarly, the fact that the


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documents at issue are responsive to plaintiff's FOIA request indicates that those documents concern the breakup of the November 6, 1992 meeting at Pentagon City. Thus, defendant cannot claim exemption 7(A) to withhold documents based on the possibility that the documents would reveal that investigators were interested in that meeting. The only documents at issue that defendant might properly withhold under exemption 7(A) would fall into one of the following three categories: information identifying the individual(s) under investigation and stating that they are under investigation; information identifying any witness(es) or informant(s) of the activity under criminal investigation and stating that they are witnesses or informants; and information revealing the particular strategy or parameters of the criminal investigation, such as the name of the corporation complaining of telephone fraud, the dates of the suspected criminal activity, or any conclusions defendant's agents have drawn in connection with the investigation. Beyond information in these specific categories, defendant has failed to explain how release of any withheld documents would interfere with any ongoing criminal investigation. Accordingly, the accompanying Order instructs defendant to redact from the withheld documents information that falls into the three specific categories described in this paragraph and to release the redacted documents to plaintiff.

Date: July 1, 1994 /sig/

Louis F. Oberdorfer UNITED STATES DISTRICT JUDGE


COMPUTER PROFESSIONALS FOR ) SOCIAL RESPONSIBILITY, ) ) Plaintiff, ) ) v. ) Civil Action No. 93-0231-LFO ) UNITED STATES SECRET SERVICE, )


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) Defendant. )_________________________________)

ORDER

For the reasons stated in the accompanying Memorandum, it is this 1st day of July 1994, hereby

ORDERED: that plaintiff's motion to strike defendant's _in camera_ submission should be, and is hereby, DENIED; and it is further

ORDERED: that defendant's motion for summary judgment should be, and is hereby, GRANTED in part with respect to FOIA exemption 7(A); and it is further

ORDERED: that plaintiff's cross-motion for summary judgment should be, and is hereby, GRANTED with respect to FOIA exemptions 7(C) and (D) and is GRANTED in part with respect to FOIA exemption 7(A); and it is further

ORDERED: that defendant shall redact from the withheld documents information that falls into the three specific categories described in the accompanying Memorandum and shall release the redacted documents to plaintiff.

/sig/

Louis F. Oberdorfer UNITED STATES DISTRICT JUDGE


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==================================================================== Note: Footnotes are marked as "/*/" in the text and are printed at the end of this document. ====================================================================

IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT ____________________________

Nos. 94-5247, 94-5381 (Consolidated) [Page Proof Copy] ____________________________

COMPUTER PROFESSIONALS FOR SOCIAL RESPONSIBILITY,

Plaintiff-Appellee,

v. UNITED STATES SECRET SERVICE,

Defendant-Appellant.

____________________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________

BRIEF FOR APPELLEE ____________________________

RELEVANT STATUTORY PROVISIONS

The pertinent provisions of the Freedom of Information Act ("FOIA"), 5 U.S.C. Sec. 552, are set forth in an Addendum to the Brief for Appellant.

STATEMENT OF THE CASE

A. Nature of the Case

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This is a FOIA case involving a controversial incident in which agents of the United States Secret Service ("Secret Service," "the agency," or "defendant") apparently persuaded private security guards to conduct a detention, interrogation and search of peaceably assembled individuals without benefit of probable cause or a judicial warrant. The record demonstrates that the Secret Service initially sought to conceal its involvement in the incident and subsequently revised certain material facts relevant to the incident and its processing of plaintiff's FOIA request.

After litigation of the merits, including the submission of four agency declarations (one of which was filed under seal and reviewed by the court in camera), the district court (Oberdorfer, D.J.) on July 1, 1994, flatly rejected the Secret Service's claims under FOIA Exemption 7(D) & (C) and held that the agency was entitled to withhold only a limited amount of information under Exemption 7(A). JA ___ [July 1 Mem.]. The Secret Service filed an untimely motion for reconsideration, which the court denied. JA ___ [Oct. 7 Mem. & Order]. These appeals followed.

B. Statement of the Facts

On November 6, 1992, a group of young people gathered in the public food court at Pentagon City Mall in Arlington, Virginia, to socialize and discuss their common hobby -- computer technology. Most of the attendees were readers of 2600 Magazine, a quarterly journal devoted to computer and telecommunications issues. The gathering was a regular, monthly event promoted by the magazine. See "Hackers Allege Harassment at Mall," Washington Post, November 12, 1992 , JA ___ [1st Laska Dec. Ex. 5].

Shortly after the group had gathered, "they were surrounded by a few mall security guards and at least one agent from the Secret Service." Id. Officers of the Arlington County Police were also present. The security guards demanded that the group members produce identification and then compiled a list of names of those present. The personal belongings of several attendees were confiscated and the group was evicted from the mall. Id. Significantly for purposes of this appeal, the mall's security director subsequently acknowledged his staff's cooperation with the Secret Service in an interview with the news media. JA ___ [Pl. Cross-Mot. Ex. B].

Several days later, on November 10, 1992, plaintiff /1/ submitted a FOIA request to the Secret Service seeking agency records concerning the incident, "particularly ... information concerning the involvement of the Secret Service in the detention of the individuals and the confiscation of their property." JA ___ [1st Laska Dec., Ex. 1]. The agency initially asserted that it would "neither confirm nor deny the existence of investigatory information pertaining to the individuals" detained and identified during the incident unless plaintiff provided "properly notarized releases" from those individuals. Plaintiff immediately reiterated its interest in information concerning "the Secret Service's involvement in an incident that has been widely publicized in [the news] media." JA ___ [1st Laska Dec., Ex. 3].

Upon the agency's failure to timely produce responsive documents, plaintiff filed the instant suit on February 4, 1993. Through the litigation of the case, information about the Secret Service's involvement


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slowly came to light. Initially (on March 5, 1993), the agency produced several newspaper articles describing the incident, but withheld two records that, according to the agency, "were provided to the Secret Service by a confidential source, and each consists solely of information identifying individuals." JA ___ [1st Laska Dec.] Para. 10. The Secret Service asserted that these two documents -- apparently lists of names compiled by the mall security guards -- were exempt from disclosure under FOIA Exemptions 7(A), 7(C) and 7(D)./2/

On April 19, 1993, in support of its motion for summary judgment, defendant filed a sworn declaration asserting that only two agency records were responsive to plaintiff's request. JA ___ [1st Laska Dec.] Para. 10. The declaration merely identified the underlying agency inquiry as "a criminal investigation which was being conducted ... under the authority of Title 18, of the United States Code, Sections 1029, 1030(d), and 3056." JA ___ [1st Laska Dec.] Para. 13. The agency submission provided only generic assertions concerning the alleged "confidential" source of the information. JA __ [1st Laska Dec. Para.15(C)]. Significantly, the sworn declaration did not mention any "understanding" on the part of the source, nor did it contain any information specific to the particular source or the circumstances surrounding the particular investigation at issue in the case.

In response to the agency's submission, plaintiff filed a cross-motion for summary judgment on May 18, 1993. CR 7. Plaintiff initially asserted that the Secret Service had failed to establish the threshold "law enforcement purpose" required for invocation of FOIA Exemption 7./3/ Plaintiff also challenged the agency's contention that release of the withheld information would interfere with an ongoing investigation, reveal a confidential source, and invade personal privacy. In support of its privacy argument, plaintiff submitted an affidavit executed by counsel stating that a number of the individuals detained at the shopping mall sought plaintiff's assistance in securing the release of relevant Secret Service records. Counsel further represented that plaintiff had submitted a separate FOIA request to the agency on November 20, 1992, accompanied by privacy releases executed by eight of those individuals, and that the Secret Service had claimed that it possessed no information relating to those individuals. JA ___ [Sobel Aff.]./4/

Midway through the briefing of the parties' dispositive motions, on June 18, 1993, the agency submitted two additional declarations: a supplemental declaration executed by the agency's initial declarant, Melvin E. Laska ("2d Laska Dec."); and the "Public Declaration of William F. Burch" ("Burch Dec.") the Special Agent in Charge of the agency's Washington Field Office./5/ The new declarations were significant in several respects. First, they revealed the previously undisclosed existence of six additional documents responsive to plaintiff's FOIA request, initially overlooked due to "an administrative error." JA ___ [2d Laska Dec.] Para. 9; JA __ [Burch Dec.] Para. 10./6/ Second, the new declarations provided the first description of the investigation underlying the agency's collection of the withheld information. Finally, the submissions constituted the agency's attempt to meet the standard for "confidential source" protection announced by the Supreme Court several weeks earlier in Department of Justice v. Landano, 113 S.Ct. 2014 (1993).

The Burch declaration revealed that the Secret Service initiated an investigation after it had received "information from a business indicating that that business' PBX [public branch exchange] had been


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manipulated and that as a result the business had been the victim of long distance telephone toll fraud." JA ___ [Burch Dec.] Para. 22. It was, according to Mr. Burch, "through a follow-up investigation and an attempt to identify the individual(s) who had committed this fraud that the Secret Service came into possession of the information which is at issue in this case." JA ___ [Burch Dec.] Para. 24./7/

Most significantly for purposes of this appeal, the agency declarations sought to address the applicability of the Supreme Court's Landano decision to the withheld records. The assertions were largely generic. Mr. Laska stated that "[i]n the case of criminal investigations concerning computer fraud and related matters the Secret Service does not release the names or identities of those who provide information ... as the release of such information could result in harassment of those sources." JA ___ [2d Laska Dec.] Para. 51. Likewise, Mr. Burch asserted that "[d]ue to the nature of the investigative work conducted by the Secret Service, this agency must protect from exposure the sources which the Secret Service utilizes to gain information in the course of its criminal investigations." JA ___ [Burch Dec.] Para. 30.

In the only specific reference to the particular source at issue here, both declarants asserted that

the Secret Service recently contacted the source of the records at issue in this case to determine the position of that source in regard to this matter. At this time, the source reiterated the source's original position and understanding that the fact that it had provided certain records to the Secret Service would not be revealed to the general public.

JA ___ [2d Laska Dec.] Para. 49; JA ___ [Burch Dec.] Para. 28. Notwithstanding the declarants' assertion that the source had "reiterated" its "original position and understanding," this was the first agency reference to the source's alleged state of mind at the time the information was provided.

C. The District Court's Decision

On July 1, 1994, the district court ruled on the parties' cross-motions for summary judgment. JA ___ [7/1/94 Order]. After reviewing four agency declarations -- including an in camera submission entered over plaintiff's objection (CR 18) -- the court concluded that the Secret Service had failed to meet its burden of demonstrating that all of the withheld material was exempt from disclosure./8/ The court concluded that the agency had established the Exemption 7 threshold (information compiled for a "law enforcement purpose"), JA ___ [July 1 Mem. at 3], but rejected the agency's contention that disclosure of the information "could reasonably be expected to disclose the identity of a confidential source," as required by Exemption 7(D). JA ___ - ___ [Id. at 4- 5]. Applying the standard recently announced in Landano, the district court held that

defendant's sole basis for applying exemption 7(D) is a statement in its supplemental memorandum that defendant "recently contacted" the source, which told defendant that the source understood the information to have been provided on a confidential basis. Such a post hoc rationalization is inadequate. At no time has defendant offered any evidence of an express or implied promise of confidentiality at the time the source provided the information. Thus,


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defendant's exemption 7(D) claim does not survive Landano.

JA ___ [Id. at 5] (citation omitted).

The district court also rejected the agency's claim that disclosure of the withheld information "could reasonably be expected to constitute an unwarranted invasion of personal privacy," as required by Exemption 7(C). The court first noted that the cases cited by the Secret Service "generally involve persons whose connection with a criminal file could embarrass or endanger them -- for example, persons investigated but not charged in criminal matters." JA ___ [Id. at 3], citing Fund for Constitutional Government v. National Archives and Records Service, 656 F.2d 856, 861-66 (D.C. Cir. 1981). Noting that the agency never "suggested that the meeting at issue here is the object of any criminal investigation" and that "[t]he incident occurred in plain view of the patrons of a busy shopping mall," the court held that

[t]he mere fact that defendant has maintained materials relating to the incident in connection with a criminal investigation does not mark participants in the meeting with the "stigma" of being associated with a criminal investigation, which defendant identifies as the gravamen of its 7(C) claim. ... Exemption 7(C) is not an appropriate basis for withholding responsive documents in this case.

JA ___ [July 1 Mem. at 3]. To illustrate the logic of its conclusion, the court noted that "several participants in the meeting have executed privacy waivers in connection with a later FOIA request from defendant, which suggests that they do not perceive release of the material defendant is withholding as a threat to their privacy interests." Id./9/

On July 18, 1994, relying upon Fed. R. Civ. P. 59(e), the agency filed a motion for reconsideration of the district court's decision on the merits. CR 29./10/ That motion, however, was not served within ten days as required by the Rule. The agency subsequently attempted to re-cast its motion as one made under the provisions of Fed. R. Civ. P. 60(b)(1) or (b)(6). CR 34. By Memorandum and Order dated October 7, 1994, the district court denied the agency's reconsideration motion as untimely. JA ___ - ___ [Oct. 7 Mem. & Order].

Following the government's appeal of the relevant rulings, on December 16, 1994, the district court stayed its judgment pending the outcome of appellate review. CR 45.

SUMMARY OF ARGUMENT

1. The district court, after having reviewed four agency affidavits, correctly applied FOIA Exemptions 7(D) and 7(C). The Secret Service clearly failed to meet its burden of demonstrating that the disputed material is exempt from disclosure.

a. At the time that it collected the information withheld under Exemption 7(D), the Secret Service


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relied upon then- unsettled authority holding that all law enforcement sources may be deemed presumptively confidential. In the early stages of the litigation below, the agency submitted declarations reflecting that view and containing no information concerning the specific circumstances relevant here. After the Supreme Court rejected the presumption of confidentiality in Landano, the agency changed course. It retroactively and unsuccessfully attempted to show that there had been an "implied assurance" of confidentiality.

The agency first presented two "generic circumstances" that purportedly met the standard of proof announced in Landano; "the general practice of the Secret Service in handling this sort of information" and "a concern for potential 'retaliation or harassment' of sources." The "general practice" rationale is merely a restatement of the presumption rejected in Landano. The retaliation claim falls far short of what the Supreme Court envisioned in Landano, where it discussed the expectation of confidentiality held by "witnesses to a gang-related murder." The Secret Service's attempt to equate such violent crimes to investigations of telephone toll fraud are unavailing.

The agency also asserted that it had contacted the source of the information after Landano was decided and that the source had "reiterated" its "original" understanding that its cooperation would be kept confidential. This was, in fact, the first time that the agency addressed the source's alleged state of mind at the time the information was obtained. If the source had, at the outset, articulated an expectation of confidentiality, this case would involve an express assurance of confidentiality -- a claim the agency has specifically waived. Furthermore, the apparent source of the information acknowledged its cooperation with the Secret Service in an interview with the news media. Under these circumstances, the district court correctly held that the agency's assertion was a "post hoc rationalization" belatedly put forward to come within the holding of Landano.

b. The Secret Service similarly failed to establish the applicability of Exemption 7(C)'s personal privacy protection to the disputed material. The district court properly found that the requisite "stigma" of being associated with alleged misconduct or illegal activity was missing in this case. Indeed, the individuals whose names were obtained by the agency were merely assembled lawfully and peacefully in a public place. Under these circumstances, the privacy interests Exemption 7(C) seeks to protect are not implicated.

The public interest in disclosure, however, is substantial. The requested information concerns precisely the sort of agency activity that is central to the purposes of the FOIA, as the Supreme Court has held in Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989). The incident at issue in this case was the subject of news media attention, and the general issue of improper Secret Service investigative activity has been addressed in other litigation and is clearly a matter of substantial public interest. The balance of interests in this case clearly weighs in favor of disclosure.

2. The agency's untimely motion for reconsideration was properly denied below. The agency filed its motion under the provisions of Fed. R. Civ. P. 59(e), but later sought to have it entertained under Rule 60(b). This Court has never sanctioned the use of Rule 60(b) as a substitute for Rule 59(e)


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and has expressed disfavor for such a procedure. Indeed, interpreting the two rules as being interchangeable vehicles for reconsideration would wreak havoc on the appeals process. The agency has failed to meet its substantial burden of demonstrating that the district court abused its discretion.

ARGUMENT

I. THE DISTRICT COURT WAS CLEARLY CORRECT IN ORDERING DISCLOSURE OF THE WITHHELD RECORDS UNDER THE FOIA.

This is a highly unusual FOIA case, albeit one that is relatively simple to decide. Indeed, the same facts that render this case sui generis also demonstrate the correctness of the district court's holding: the apparent deputization of private security guards to conduct searches and detentions; an alleged "confidential" source that acknowledged its cooperation to the news media; a belated agency representation concerning the source's expectation of confidentiality; and disingenuous "personal privacy" claims made on behalf of the very individuals the agency harassed because of their reading habits and lawful activities.

As we demonstrate below, the district court was clearly correct in rejecting the Secret Service's attempts to withhold the disputed records under FOIA Exemptions 7(D) and 7(C)./11/

A. The Agency Failed To Meet Its Burden Of Proof Under Landano; The District Court's Exemption 7(D) Analysis Is Correct

Challenging the ruling below, the agency correctly notes that the Exemption 7(D) issue is "whether the government can demonstrate an 'implied' assurance of confidentiality in the furnishing of the information in question." Brief for Appellant at 21 (footnote omitted). Significantly, the agency has specifically disclaimed "an express assurance of confidentiality in this case." Id., n. 8.

Having correctly framed the issue, the agency proceeds to fail (as it did below) in its attempt to make the requisite showing. Indeed, after taking four bites at the apple in the district court through the submission of various declarations, the Secret Service never came close to meeting the "confidentiality" standard announced in Landano. As the district court held,"[a]t no time has defendant offered any evidence of an express or implied promise of confidentiality at the time the source provided the information." JA ___ [July 1 Mem. at 5]. Indeed, in the face of facts specific to this case suggesting that the source had no expectation of confidentiality, the agency merely presented two generic factors and, as the district court found, a "post hoc rationalization." Id.

1. The Supreme Court in Landano rejected the notion that a law enforcement agency could meet its burden under Exemption 7(D) "simply by asserting that a source communicated with the [agency] during the course of a criminal investigation." Department of Justice v. Landano, 113 S.Ct. 2014, 2023 (1993). As this Court has observed, the Supreme Court "rejected the position that confidentiality is 'inherently implicit' in the context of all criminal investigations, and instead required law enforcement


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agencies seeking to withhold material under FOIA exemption 7(D) to make particularized Vaughn submissions establishing confidentiality." Steinberg v. Department of Justice, 23 F.3d 548, 550-551 (D.C. Cir. 1994) (citations omitted)./12/

As it recognized in Steinberg, this Court had previously held the presumptive view of confidentiality rejected in Landano. 23 F.3d at 550 (citing Dow Jones & Co. v. Department of Justice, 917 F.2d 571 (D.C. Cir. 1990)). See also Schmerler v. Federal Bureau of Investigation, 900 F.2d 333 (D.C. Cir. 1990); Keys v. Department of Justice, 830 F.2d 337 (D.C. Cir. 1987). The crux of the agency's shortcoming in this case is that it chose to rely upon the least stringent Exemption 7(D) standard articulated by the courts at the time that it obtained the disputed information.

The agency candidly states that "[a]dmittedly, when the government made its first submission below, it relied upon the mere fact of source cooperation in a criminal investigation under this Court's pre-Landano precedents." Brief for Appellant at 25 (citations omitted). The obvious, though unstated, corollary of that admission is that the Secret Service also "relied upon the mere fact of source cooperation" when it received information from the source in November 1992.

Notwithstanding the agency's assertion here, such reliance was not necessarily reasonable at that time. The legal issue was unsettled, with some courts having rejected the presumption of confidentiality. See, e.g., Weiner v. Federal Bureau of Investigation, 943 F.2d 972 (9th Cir. 1991), cert. denied, 112 S.Ct. 3013 (1992); Lame v. Department of Justice, 654 F.2d 917 (3d Cir. 1981); see also Landano, 113 S.Ct. at 2019 (noting "conflict among the Courts of Appeals over the nature of the [government's] evidentiary burden under Exemption 7(D)"). Indeed, the Supreme Court had already granted certiorari in Landano at the time of the incident at issue here. 113 S.Ct. 51 (1992) (cert. granted, October 5, 1992)./13/

The agency's reliance upon a presumption of source confidentiality at the time it obtained the information required it to fit a square peg into a round hole after the Supreme Court ruled in Landano. Not surprisingly, that effort was unsuccessful. We address in turn the shortcomings of the agency's "generic" assertions and its claim that the source belatedly articulated an expectation of confidentiality.

2. In its latest attempt to come within Landano, the Secret Service points to two "generic circumstances" which purportedly demonstrate an implied assurance of confidentiality. Brief for Appellant at 24-27.

a. The first such circumstance is "the general practice of the Secret Service in handling this sort of information." Id. at 25. As the agency characterizes its showing below,

the Secret Service explained it "routinely receives information * * * with the understanding that * * * the fact of that source's cooperation will not be revealed to the public" and that its efforts to "protect from exposure the sources which (it) utilizes to gain information" routinely involves such practices as the later issuance of subpoenas "to protect the fact of the earlier cooperation of the source." In short, the Service routinely treats source information confidentially.


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Id., citing JA ___ [Burch Pub. Dec. Para. 30] (emphasis added).

The proffered rationale falls far short of the type of showing Landano requires. The agency's reliance upon the manner in which it "routinely" handles source information adds nothing to the resolution of the issue and, indeed, is almost identical to the very presumption the Supreme Court rejected. The core of the holding in Landano was that "it is unreasonable to infer that all FBI criminal investigative sources are confidential," 113 S.Ct. at 2023, but that "[m]ore narrowly defined circumstances, however, can provide a basis for inferring confidentiality," id. at 2024. The agency's discussion of "routine" procedures cannot fairly be characterized as "narrowly defined."

Attempting to give its showing an unwarranted veneer, the Secret Service asserts that "the Supreme Court explained that the manner by which the agency treats the information may be sufficient to 'justify the inference' of confidentiality ...." Brief for Appellant at 25. The agency proceeds to quote selectively from Landano, the complete and pertinent portion of which makes plain that the Court is discussing the confidentiality of paid informants:

For example, as the courts below recognized, and [the requester] concedes, it is reasonable to infer that paid informants normally expect their cooperation with the FBI to be kept confidential. The nature of the informant's ongoing relationship with the Bureau, and the fact that the Bureau typically communicates with informants "only at locations and under circumstances which assure the contact will not be noticed," justify the inference.

113 S.Ct. at 2023 (citations omitted).

Here, of course, there has never been any suggestion that the source was a paid informant. Indeed, as we discuss, infra, there was nothing stealthy about the circumstances surrounding the collection of the information at issue in this case.

b. The second "generic circumstance" the agency relies upon is "a concern for potential 'retaliation or harassment' of sources." Brief for Appellant at 25, citing JA ___ [1st Laska Dec. at 9]. Amplifying this generic factor only faintly, the agency cites the post-Landano declaration of Mr. Laska in support of the proposition that "a potential for retaliation is present in this case, as it is in similar cases of computer crime." Id. at 26, citing JA ___ [2d Laska Dec. Para. 51].

The agency's reference to Landano in this context is unavailing. Id. at 25 ("the Supreme Court specifically pointed to the potential for harassment of sources as an example of the 'generic' circumstances contemplated by its decision"). Again, reference to the relevant language in Landano is instructive:

There may well be other generic circumstances [in addition to paid informants] in which an implied assurance of confidentiality fairly can be inferred. The Court of Appeals suggested that


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the fact that the investigation in this case concerned the potentially gang-related shooting of a police officer was probative. We agree that the character of the crime at issue may be relevant to determining whether a source cooperated with the FBI with an implied assurance of confidentiality. So too may the source's relation to the crime. Most people would think that witnesses to a gang-related murder likely would be unwilling to speak to the Bureau except on the condition of confidentiality.

113 S.Ct. at 2023 (emphasis added). See also Massey v. Federal Bureau of Investigation, 3 F.3d 620, 623 (2d Cir. 1993) (Supreme Court noted in Landano that "there may be certain 'generic circumstances' under which confidentiality can be inferred, for example ... where an informant provides information concerning offenses such as gang-related shootings") (citations omitted).

The Secret Service would have this Court read the very meaning out of Landano's discussion of retaliation and the "character of the crime at issue." If the Supreme Court's analysis means anything, it is that a "gang-related murder" should not be equated with "the commission of several tens of thousands of dollars of telephone toll fraud," Brief for Appellant at 26. Were this Court to accept the agency's contention, it would be difficult to conceive of a case in which the "character of the crime" would not lead to an inference of confidentiality. Such a result would, in effect, restore the very presumption the Supreme Court has rejected./14/

3. In addition to its presentation of two "generic" rationales for the invocation of Exemption 7(D), the agency asserted below (after Landano) that

the Secret Service recently contacted the source of the records at issue in this case to determine the position of that source in regard to this matter. At this time, the source reiterated the source's original position and understanding that the fact that it had provided certain records to the Secret Service would not be revealed to the general public.

JA ___ [2d Laska Dec. Para. 49]; JA ___ [Burch Dec. Para. 28].

As noted previously, despite the declarants' assertion that the source had "recently ... reiterated" its "original position and understanding," this was the first time the agency addressed the source's alleged state of mind. The district court properly held that

[s]uch a post hoc rationalization is inadequate. At no time has defendant offered any evidence of an express or implied promise of confidentiality at the time the source provided the information. Thus, defendant's exemption 7(D) claim does not survive Landano.

JA ___ [July 1 Mem. at 5] (emphasis added).

As the district court obviously recognized, the agency's claim raised several troubling questions. First, and most apparent, was the missing element of the purported "reiteration" -- the agency never claimed


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(either before or after Landano) that the source had previously expressed any expectation of confidentiality. If, as the agency implied but never demonstrated, the source had expressed such an understanding at the time the information was provided, logic suggests that the agency would have introduced that highly probative fact before Landano.

Even assuming that, pre-Landano, the agency had some reasonable justification for failing to mention the source's obliquely alleged contemporaneous statement concerning its expectation of confidentiality,/15/ its subsequent failure to cite such a statement is unfathomable. As noted, the Secret Service has specifically disclaimed reliance upon an express assurance of confidentiality in this case. Brief for Appellant at 21, n.8. Nonetheless, the "reiterated" understanding upon which the agency relies would, if articulated contemporaneously with the provision of the disputed information, demonstrate such an express assurance. Indeed, the agency's position on this issue, as reflected in its brief, is somewhat muddled. The Secret Service argues that

Landano emphasized the importance of a "generic" showing of confidentiality for certain classes of cases because it recognized that it is [sic] "often is not possible" to obtain a statement directly from the source concerning its understanding on that issue. 113 S.Ct. at 2020. Such was, in fact, the case in Landano itself. Id. By contrast, in this case the government presented such evidence -- information which, the government submits, constitutes the best evidence on the issue of "implied" confidentiality. As Messrs. Laska and Burch both attest, the Secret Service "contacted the source of the records at issue in this case" and "the source reiterated the source's original position and understanding that the fact that it had provided certain information to the Secret Service would not be revealed."

Brief for Appellant at 23-24 (emphasis in original; citations omitted).

The portion of Landano the agency cites clearly refers to "explicit promises of confidentiality to particular sources" and notes that "[t]hat sort of proof apparently often is not possible." 113 S.Ct. at 2020. If, as the agency now contends, it has "presented such evidence" in this case, the agency either has waived an airtight claim of express confidentiality or has fundamentally misunderstood Landano.

Finally, the record below contained strong evidence suggesting that the apparent source of the disputed information -- the shopping mall and its security personnel -- in fact had no expectation of confidentiality. In an interview with Communications Daily, Allan Johnson, director of security for the Pentagon City Mall, "said his staff was working under [the] direction of [the] Secret Service." JA ___ [Comm. Daily 11/10/92 at 2]. The publication quoted Johnson as acknowledging that "[t]he Secret Service, FBI, everybody was here," and that "[t]he Secret Service, the FBI, they're the ones that ramrodded this whole thing." Id. These statements, coupled with the fact that, as the district court found, the incident "occurred in plain view of the patrons of a busy shopping mall," JA ___ [July 1 Mem. at 4], strongly militate against an inference of confidentiality. Cf., Landano, 113 S.Ct. at 2023 (discussing FBI contact with informants "only at locations and under circumstances which assure the contact will not be noticed").


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In sum, the district court correctly held that the Secret Service failed to meet its burden of establishing an inference of source confidentiality as required by Landano.

B. The Agency Failed To Meet Its Burden Under Exemption 7(C); The District Court's Holding Is Correct

The unique circumstances of this case also cut against the agency's invocation of Exemption 7(C). The district court correctly held that "the mere fact that defendant has maintained materials relating to the [Pentagon City Mall] incident in connection with a criminal investigation does not mark participants in the meeting with the 'stigma' of being associated with a criminal investigation." JA ___ [July 1 Mem. at 3]. The court noted that "[t]he incident occurred in plain view of the patrons of a busy shopping mall," and that the execution of privacy waivers by several of the participants suggests that individuals associated with the incident "do not perceive release of the material defendant is withholding as a threat to their privacy interests." Id.

In analyzing the Exemption 7(C) issue, the Court must balance the privacy interests involved in the withheld information against the public interest in disclosure. Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 762 (1989); see also Fund for Constitutional Government v. National Archives and Records Service, 656 F.2d 856, 862 (D.C. Cir. 1981). As the Supreme Court explained in Reporters Committee,

[the] basic policy of "'full agency disclosure unless information is exempted under clearly delineated statutory language,'" indeed focuses on the citizens' right to be informed about "what their government is up to." Official information that sheds light on an agency's performance of its statutory duties falls squarely within that statutory purpose. That purpose, however, is not fostered by disclosure of information about private citizens that ... reveals little or nothing about an agency's own conduct.

Id. at 773, quoting Department of Air Force v. Rose, 425 U.S. 352, 360-361 (1976) (other citations omitted). Given the absence of any threat to personal privacy in this case and the substantial public interest in release of the disputed material, Exemption 7(C) is no bar to disclosure./16/

1. The agency contends that the district court erred when it relied in part upon the fact that the breakup of the meeting and collection of names "occurred in plain view of the patrons of a busy shopping mall." Brief for Appellant at 31. Defendant apparently misapprehends the court's reference to the circumstances surrounding the incident. The district court cited those circumstances in support of the conclusion that information concerning the presence of particular individuals at the gathering "does not mark participants in the meeting with the 'stigma' of being associated with a criminal investigation," JA ___ [July 1 Mem. at 4], a key element of the analysis under Exemption 7(C).

The question of "stigma" is central to an evaluation of the privacy interests at stake in a particular case. As this Court noted in McCutchen v. Department of Health and Human Services, 30 F.3d 183, 187 (D.C.


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Cir. 1994), personal privacy interests are implicated when "the stigma that hangs over the targets of law enforcement investigations [is] on the line." See also Bast v. Department of Justice, 665 F.2d 1251, 1254 (D.C. Cir. 1981) (exemption "recognizes the stigma potentially associated with law enforcement investigations"). Likewise, in Dunkelberger v. Department of Justice, 906 F.2d 779 (D.C. Cir. 1990), the Court emphasized that "Exemption 7(C) takes particular note of the 'strong interest' of individuals, whether they be suspects, witnesses, or investigators, 'in not being associated unwarrantedly with alleged criminal activity.'" Id. at 781, quoting Stern v. Federal Bureau of Investigation, 737 F.2d 84, 91- 92 (D.C. Cir. 1984). See also Dunkelberger, 906 F.2d at 781-782 (individual's "interest in not being associated unwarrantedly with the misconduct alleged").

As the district court found, there is simply no "stigma" involved in this case. The record amply demonstrates that the individuals caught up in the Secret Service's indirect collection of names were engaged in wholly lawful activity and were peaceably assembled in a public place. The mere fact that the agency decided that those individuals might be of investigative "interest" solely because they "evidenced an interest in the technical intricacies of the telephone system" by virtue of their reading habits and attendance at a public meeting, Brief for Appellant at 26, n.10, does not establish the sort of "stigma" the cited cases envision. Indeed, in a very real sense these individuals were the victims of an investigation gone awry, not its targets./17/

The agency makes much of the district court's supposed reliance upon the fact that "several participants in the meeting have executed privacy waivers in connection with a later FOIA request ...." Brief for Appellant at 37, quoting JA ___ [July 1 Mem. at 4]. Again, the agency misapprehends the court's analysis. The court merely took note of the waivers and observed that the individuals' desire to see the information disclosed "suggests that they do not perceive release of the material defendant is withholding as a threat to their privacy interests." JA ___ [July 1 Mem. at 4]. This was but one additional factor that indicated a lack of "stigma" associated with the withheld material. The agency is simply wrong when it characterizes the district court as having "conclud[ed] that the privacy waivers ... required rejection of the government's Exemption 7(C) claims." Brief for Appellant at 41.

2. Notwithstanding the agency's assertion that "there is simply no public interest in disclosure of the information at issue here," Brief for Appellant at 36 (emphasis in original), that interest is in fact substantial. Information concerning the Secret Service's involvement in the incident at Pentagon City Mall falls squarely within the Reporters Committee description; "shed[ding] light on an agency's performance of its statutory duties" and informing citizens about "what their government is up to." 489 U.S. at 773.

The agency's claim is remarkable given that the Secret Service itself saw fit to collect and maintain "several responsive newspaper clippings" concerning the event, which it eventually released pursuant to plaintiff's FOIA request. Brief for Appellant at 5, citing JA ___-___ [1st Laska Dec. Ex. 5]. One of those articles, which the district court cited, appeared in the Washington Post. See JA ___ [July 1 Mem. at 1, n.1]. It is difficult to imagine a more probative indication of public interest in governmental activity.


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The investigative activities of the Secret Service have also been the subject of civil litigation in which the agency's conduct has been judicially criticized. Thus, in Steve Jackson Games, Inc. v. U.S. Secret Service, 816 F.Supp. 432, 444 (W.D. Tex. 1993), affirmed, 36 F.3d 457 (5th Cir. 1994), the court found that

[t]he complexity of this case results from the Secret Service's insufficient investigation and its lack of knowledge of the specific laws that could apply to their conduct .... The Secret Service and its personnel are the entities that citizens ... rely upon and look to protect their rights and properties. The Secret Service conduct resulted in the seizure of property, products, business records, business documents, and electronic communications of a corporation and four individual citizens that the statutes were intended to protect.

The information at issue in this case clearly sheds light on the manner in which the Secret Service conducts its investigation in furtherance of its statutory authority. Given the minimal privacy interests at stake and the substantial public interest in this information, the district court was clearly correct in holding that the agency failed to meet its burden under FOIA Exemption 7(C).

II. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN DENYING THE AGENCY'S MOTION FOR RECONSIDERATION

Acknowledging that its motion for reconsideration was untimely under the provisions of Fed. R. Civ. P. 59(e),/18/ Brief for Appellant at 42, the agency nonetheless asserts that the district court somehow abused its discretion in declining to entertain the motion under Fed. R. Civ. P. 60(b). The agency's position lacks merit and is contrary to the orderly disposition of actions envisioned by the Federal Rules./19/

1. The agency must meet an exceedingly high burden in its attempt to overturn the district court's refusal to reconsider the merits. As this Court held in Twelve John Does v. District of Columbia, 841 F.2d 1133, 1138 (D.C. Cir. 1988),

the district judge, who is in the best position to discern and assess all the facts, is vested with a large measure of discretion in deciding whether to grant a Rule 60(b) motion, and the district court's grant or denial of relief under Rule 60(b), unless rooted in an error of law, may be reversed only for abuse of discretion.

citing Browder v. Director, 434 U.S. 257 (1978) (other citations omitted).

In this case, the agency apparently acknowledges that no "error of law" is at issue, as its contention is that the district court abused its discretion. Neither the facts nor the law support that contention.


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2. The agency initially represented that its motion for reconsideration was made "pursuant to Fed. R. Civ. P. 59(e)." CR 29. Indeed, "[c]ourts have routinely construed papers captioned 'motion to reconsider' as a motion to alter or amend the judgment under Rule 59(e)." Emory v. Secretary of Navy, 819 F.2d 291, 293 (D.C. Cir. 1987) (citations omitted). Upon its realization that its motion had not been served in compliance with the Rule, defendant changed course, arguing that the motion should nonetheless be considered by the district court pursuant to Fed. R. Civ. P. 60(b)(1) and/or (6). CR 34. The agency had little choice -- under the provisions of Fed. R. Civ. P. 6(b), the Court may not extend the time in which reconsideration can be requested. "Rule 59(e) motions are expressly limited to the 10-day period following entry of judgment, and the District Court simply has no power to extend that time limitation." Center for Nuclear Responsibility v. Nuclear Regulatory Commission, 781 F.2d 935, 941 (D.C. Cir. 1986) (citation and footnote omitted). See also Rivera, 840 F.2d at 154 (Rule 59(e) deadline "is one of the few limitary periods which the court has no power to enlarge").

As the district court properly held, the agency's belated reliance upon Rule 60(b) was misplaced. The Rule provides, in pertinent part, that

[o]n motion and upon such terms as are just, the court may relieve a party ... from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; ... or (6) any other reason justifying relief from the operation of the judgment.

Defendant's motion plainly stated that it was made "pursuant to Fed. R. Civ. P. 59(e) ... on the basis that [the judgment] contains both errors of fact and law." CR 29. As this Court has observed, "allowing substantive modifications to be made under Rule 60(b) eviscerates the 10-day time limitation imposed by Rule 59(e) on motions to 'alter or amend the judgment.'" Center for Nuclear Responsibility, 781 F.2d at 939. The agency's belated attempt to recast its motion under Rule 60(b) is unavailing. "'Any motion that draws into question the correctness of the judgment is functionally a motion under Civil Rule 59(e), whatever its label.'" St. Mary's Hospital Medical Center v. Heckler, 753 F.2d 1362, 1365 (7th Cir. 1985) (citation omitted).

Defendant asks this Court to ignore the time limit imposed by Rule 59(e) and to treat Rules 59(e) and 60(b) as interchangeable vehicles for reconsideration of a final judgment. If, as the agency suggests, a motion styled as one under Rule 59(e) can be simply converted to one under Rule 60(b) when it is served more than ten days after entry of judgment, Rule 59(e) is a nullity./20/

3. The agency cites several cases in support of the proposition that claims of substantive legal error may be addressed under Rule 60(b)(1). Brief for Appellant at 44, n.19. These citations are unpersuasive. None of the cited cases addresses a situation like the one present here, where a party styles a motion as being made under Rule 59(e), fails to comply with the time limit contained in that rule, and subsequently seeks to "convert" the motion to evade the time limit. Indeed, "[i]t is generally held that when a motion can fairly be characterized as one under Rule 59(e) ... it must be filed within the 10-day period and will not be treated as a motion under Rule 60(b)(1)." J. Moore & J. Lucas, 7 Moore's Federal Practice, Para. 60.22[3] at 187-188 (2d ed. 1993) (footnote omitted)./21/


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Significantly, this Court has never held that alleged errors in legal reasoning can be raised under Rule 60(b) absent an intervening change in the law. In Center for Nuclear Responsibility, the Court noted that the circuits have split on the issue. Surveying the caselaw, the Court assessed the competing rationales and, as previously noted, observed that, inter alia, "allowing substantive modifications to be made under Rule 60(b) eviscerates the 10-day time limitation imposed by Rule 59(e) on motions to 'alter or amend the judgment.'" 781 F.2d at 939. Such considerations are clearly relevant here. The Court further noted that

use of Rule 60(b) to correct substantive legal errors indirectly extends the appeal period. Because an unsuccessful litigant could appeal the denial of his Rule 60(b) motion, he is thus allowed an extension of time during which to file an appeal and to gain review of the District Court's judgment.

Id. (footnote omitted).

The Court then turned to an assessment of the authority permitting the use of the Rule to address claims of substantive error and observed that

[p]roponents of the use of Rule 60(b) ... often argue that allowing a court to correct its own legal errors has the beneficial effect of eliminating needless appeals. This benefit may be illusory, however, given that the litigant who was originally successful is likely to appeal the modification of the original judgment.

Id. (emphasis added; footnote and citations omitted).

The Court next discussed its earlier opinion in D.C. Federation of Civic Associations v. Volpe, 520 F.2d 451 (D.C. Cir. 1975), where the Court held that the district court should, under Rule 60(b), "reconsider an order which was inconsistent with an intervening decision of this Court." 520 F.2d at 453. In Center for Nuclear Responsibility, the Court reiterated that Volpe "involved the unique situation where the controlling law of the circuit had changed between the time of the judgment and the time of the motion." 781 F.2d at 940 (emphasis added)./22/

While this Court found it unnecessary to define the scope of Rule 60(b) in Center for Nuclear Responsibility, the decision can fairly be read as disfavoring the use of the rule as a substitute for Rule 59(e).

Finally, plaintiff notes the language of this Court's opinion in Good Luck Nursing Home, Inc. v. Harris, 636 F.2d 572, 577 (D.C. Cir. 1990): "Rule 60(b) cannot ... be employed simply to rescue a litigant from strategic choices that later turn out to be improvident." (citations omitted). Cognizant that this language strongly undercuts its position, the agency asserts that "no such 'strategic choices' are involved here." Brief for Appellant at 46, n.20. The agency proceeds to discuss its failure to timely serve its Rule 59(e) motion, but does not address its failure to satisfy the evidentiary requirements of Landano.


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Good Luck Nursing Home addresses this precise situation, holding that "a party that has stipulated to certain facts or has not presented known facts helpful to its cause when it had the chance cannot ordinarily avail itself on rule 60(b) after an adverse judgment has been handed down." 636 F. 2d at 577 (emphasis added; citations omitted). The presentation of such facts post-judgment, through the proffer of its second in camera declaration, is apparently what the agency seeks here./23/

In sum, the district court acted well within its discretion in denying the agency's motion for reconsideration.

CONCLUSION

For the foregoing reasons, the judgment of the district court should be affirmed.

Respectfully Submitted,

/sig/ _________________________________ DAVID L. SOBEL

MARC ROTENBERG

Electronic Privacy Information Center 666 Pennsylvania Ave., S.E. Suite 301 Washington, DC 20003 (202) 544-9240

Counsel for Appellee

June 2, 1995

FOOTNOTES

1 Plaintiff Computer Professionals for Social Responsibility ("CPSR") is a non-profit membership organization, incorporated in the state of California. CPSR's membership includes a Nobel Laureate and four recipients of the Turing Award, the highest honor in computer science. CPSR's activities include


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the review of federal computing policies to determine their possible impact on civil liberties interests. Among its other activities, CPSR has prepared reports and presented testimony on computer technology issues at the request of congressional committees. In pursuit of its mission, CPSR has periodically submitted FOIA requests to the Secret Service seeking information concerning the agency's exercise of its jurisdiction to investigate computer crime. JA ___ [Compl. ¦ 3].

2 In its brief, the Secret Service reveals that the underlying law enforcement investigation was closed on March 14, 1995. As such, "the government no longer intends to assert Exemption 7(A) in this case." Brief for Appellant at 13-14. The exemptions remaining at issue are 7(C) (personal privacy) and 7(D) (confidential source material).

3 Citing Keys v. Department of Justice, 830 F.2d 337, 340 (D.C. Cir. 1987), plaintiff argued that an agency must demonstrate a nexus "between [the relevant] activity" and its "law enforcement duties." Plaintiff noted that this nexus requirement ensures that the agency was not "merely engaging in a general monitoring of private individuals' activities." Pratt v. Webster, 673 F.2d 408, 420 (D.C. Cir. 1982). See also King v. Department of Justice, 830 F. 2d 210, 230 (D.C. Cir. 1987) (court not required "to sanction agency claims that are pretextual or otherwise strain credulity"); Shaw v. Federal Bureau of Investigation, 749 F.2d 58, 63 (D.C. Cir. 1984) ("mere existence of a plausible criminal investigatory reason to investigate would not protect the files of an inquiry explicitly conducted ... for purposes of harassment").

4 The status of information concerning the eight individuals who executed privacy waivers is one of several issues on which the agency's position is contradictory. In his second declaration, Secret Service FOIA Officer Laska asserted that the information withheld from plaintiff on privacy grounds "is not identifiable information concerning any of the individuals who submitted the releases to the Secret Service." JA ___ [2d Laska Dec. ¦ 39]. Contrary to that unequivocal assertion, the agency now reveals in its brief that "a small portion of one of the categories of withheld information is identifiable to an individual who might be one of those for whom plaintiff has submitted a privacy waiver." Brief for Appellant at 41 (citation omitted; emphasis in original).

5 On August 4, 1993, plaintiff filed a supplemental summary judgment memorandum, in which plaintiff addressed the contents of the two new declarations. Nine days later, on August 13, 1993, the Secret Service noticed the filing under seal of the fourth agency affidavit -- an in camera declaration executed by Mr. Burch. CR 26.

6 Plaintiff argued below that the belated acknowledgment of six agency records concerning the incident at the Pentagon City Mall lent additional credence to plaintiff's suggestion that the Secret Service had sought to conceal its involvement in a highly questionable "investigatory" activity.

7 With the filing of the government's brief in this appeal, the true circumstances surrounding the shopping mall incident have finally come to light. The agency observes that 2600 Magazine "apparently includes a variety of technical information about the telephone system," Brief for Appellant at 4 n.2, and


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asserts that "[o]bviously, a meeting of individuals 'affiliated with [the publication] would be of interest to [a toll fraud] investigation since those individuals have, by their conduct, evidenced an interest in the technical intricacies of the telephone system." Id. at 26 n.10 (citations omitted). The agency has not yet explained why, if the investigative activity was appropriate, it was not openly conducted by the agency itself rather than private mall security guards. Under the rationale offered by the Secret Service, it is far from clear that a federal law enforcement agency could have lawfully obtained the names of these individuals in a more direct and identifiable manner.

8 The court first denied plaintiff's motion to strike the in camera Burch declaration, holding that such a submission was "absolutely necessary" to resolve the case. JA ___ [July 1 Mem. at 2], citing Yeager v. Drug Enforcement Administration, 678 F.2d 315, 324-25 (D.C. Cir. 1982).

9 The court also held that the Secret Service was entitled to withhold only three specific categories of information under Exemption 7(A): information "identifying the individual(s) under investigation and stating that they are under investigation"; information "identifying any witness(es) or informant(s) of the activity under criminal investigation and stating that they are witnesses or informants"; and information "revealing the particular strategy or parameters of the investigation ...." JA ___ - ___ [July 1 Mem. 6-7]. Because the underlying investigation has been closed, the government "no longer intends to assert Exemption 7(A) in this case." Brief for Appellant at 14, citing Mapother v. Department of Justice, 3 F.2d 1533 (D.C. Cir. 1993).

10 Defendant's motion for reconsideration was accompanied by the fifth agency affidavit proffered in this case (and the second filed under seal) -- the in camera declaration of James P. O'Neill, Mr. Laska's successor as the Secret Service's FOIA Officer.

11 We address the two exemptions in the order employed by the agency. See Brief for Appellant at 19, 30.

12 Curiously, the agency fails to mention this Court's above- quoted characterization of Landano, which does not fully comport with the agency's own reading of the decision. The agency does, however, cite Steinberg in its discussion of the applicable standard of review, Brief for Appellant at 18.

13 Supreme Court decisions, of course, have retroactive effect unless the Court expressly provides for "prospective application." See, e.g., Stovall v. Denno, 388 U.S. 293 (1967). In Stovall, which broke new ground on the exclusionary rule, the Court noted that "[l]aw enforcement authorities relied on [the] virtually unanimous weight of authority, now no longer valid," and expressly held that the newly announced rules "should not be made retroactive." Id. at 300. In Landano, the Court was aware that several circuits had adopted a "presumption" of source confidentiality, and that law enforcement agencies had relied upon that authority (as the FBI had in that case). The Court nonetheless declined to give its decision only prospective application.

14 The district court clearly took the agency's retaliation claim into account, and rejected it. In


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discussing Landano, the court noted that the Supreme Court "held that exemption 7(D) only applies where there is an actual promise of confidentiality, or circumstances from which such a promise may be inferred -- for example, a type of crime that makes recriminations against sources likely." JA ___ [July 1 Mem. at 5]. The district court was fully apprised of the "type of crime" at issue in this case, noting that the agency's "public declarations specify the nature of the underlying criminal investigation, and its in camera submission discusses that investigation with even greater specificity." JA ___ [July 1 Mem. at 3].

15 The best justification the agency can muster for its failure to mention "the source's position" earlier in the litigation is the rather anemic assertion that "[t]his was not a new fabrication (as the district court's characterization impliedly suggests) but rather documentation of a set of circumstances which had previously existed but which had not required documentation under prior law." Brief for Appellant at 29. The agency still has not presented any evidence to support its assertion that the source communicated an understanding of confidentiality at the time the information was provided.

16 Plaintiff does not minimize the importance of personal privacy in appropriate cases. Indeed, plaintiff has participated as amicus curiae in several significant cases involving privacy issues, in support of personal privacy interests. See, e.g., Greidinger v. Davis, 988 F.2d 1344 (4th Cir. 1993); State ex rel. Beacon Journal Publishing Co. v. City of Akron, 70 Ohio St. 3d, 640 N.E.2d 164 (1994). In addition, plaintiff co-sponsors the Electronic Privacy Information Center, an organization dedicated to the promotion and protection of personal privacy in the electronic age. See, Wired, June 1995 at 41.

17 Given the unusual circumstances surrounding this case, the agency's reliance upon Safecard Services, Inc. v. Securities and Exchange Commission, 926 F.2d 1197 (D.C. Cir. 1991), is wholly misplaced. See Brief for Appellant at 36. In that case, the Court held that

unless there is compelling evidence that the agency denying the FOIA request is engaged in illegal activity, and access to the names of private individuals appearing in the agency's law enforcement files is necessary in order to confirm or refute that evidence, there is no reason to believe that the incremental public interest in such information would ever be significant.

Id. at 1205-1206.

Here, the circumstances surrounding the collection of the individuals' names raise substantial questions concerning the legality of the agency's actions. The facts suggest that the Secret Service engaged the assistance of private security personnel to accomplish what it could not, under color of federal law, accomplish itself -- the detention and search of law-abiding citizens without probable cause or the presentation of a judicial warrant. As we discuss, infra, these circumstances also weigh heavily on the "public interest" side of the Exemption 7(C) analysis and favor disclosure.

18 Fed. R. Civ. P. 59(e) provides that "[a] motion to alter or amend the judgment shall be served not later than 10 days after entry of judgment." (emphasis added). "The timeliness of a motion to alter or amend a judgment is determined by the date it is served, not by the date it is filed." Rivera v. M/T


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Fossarina, 840 F.2d 152, 154 (1st Cir. 1988) (emphasis in original; citations omitted). Defendant filed, but did not serve, its motion within the requisite time period.

19 The nature of the relief the agency seeks with respect to the issue of reconsideration is not entirely clear. Should this Court hold that the district court erred on the FOIA merits, it would be unnecessary to reach this procedural issue. Conversely, if the Court affirms the district court on the merits, a remand for reconsideration below would be absurd. In the district court, and now here, defendant has used the reconsideration issue in an attempt to introduce evidence proffered after the entry of judgment. As we discuss infra, defendant has never asserted that its motion was proper under Rule 60(b)(2), which is the appropriate vehicle for the post-judgment introduction of new evidence.

The agency's most likely motivation is to have this Court accept its invitation to review the post-judgment in camera declaration it proffered in support of its untimely motion for reconsideration. See Brief for Appellant at 47, n.21. As we discuss, infra, this Court disfavors the use of Rule 60(b) to supplement the record after the entry of judgment.

20 A motion under Rule 59(e) tolls the time for appeal under F.R.A.P. 4(a), while a motion under Rule 60(b) does not. Center for Nuclear Responsibility, 781 F.2d at 939. As such, the approach the agency suggests would wreak havoc upon the appeals process. See generally, id. at 942 ("In a very real sense, the rules are the tools of the trade. Allowing [parties] to evade compliance with these rules blunts the tools fashioned to govern procedure in our courts ... and could produce mischievous results in the long run") (citation omitted).

21 See also J. Moore & J. Lucas, 6A Moore's Federal Practice, ¦ 59.17 at 316-317 (2d ed. 1994):

[I]f the ground for relief be of such character as to warrant relief under Rule 59 and were known to a party within time to obtain relief thereunder, then that factor would surely be relevant as to the "reasonable time" limitation of Rule 60(b), if the party did not avail himself of the opportunity afforded by Rule 59, but thereafter moved under Rule 60(b).

(footnote omitted).

22 The agency describes Volpe as merely "involving a change in law," Brief for Appellant at 43, and then maintains that this case involves "an intervening change in law," id. at 45. The agency's attempt to bring this case within the Volpe exception is unavailing -- unlike here, in Volpe "the controlling law of the circuit had changed between the time of the judgment and the time of the motion." In this case, the district court ruled after Landano announced a change in the law and the agency was merely unhappy with the outcome.

23 The agency did not assert below that its motion was proper under Rule 60(b)(2), which provides relief from a final judgment on the basis of "newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial ..." It is thus apparent that the supporting material proffered by the agency cannot be characterized as "newly discovered," and that the Rules


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therefore provide no mechanism whereby the agency could properly enter the disputed material into the record subsequent to the entry of judgment.


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UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 14, 1995 Decided January 2, 1996

No. 94-5247

COMPUTER PROFESSIONALS FOR SOCIAL RESPONSIBILITY, APPELLEE

v.

UNITED STATES SECRET SERVICE, APPELLANT

__________

Consolidated with No. 94 5381

__________

Appeals from the United States District Court for the District of Columbia (No. 93cv00231)

__________

John P. Schnitker, Attorney, United States Department of Justice, with whom Frank W. Hunger, Assistant Attorney General, Eric H. Holder, Jr., United States Attorney, and Leonard Schaitman, Attorney, United States Department of Justice, were on the briefs, argued the cause for appellant. John D. Bates, R. Craig Lawrence, Claire M. Whitaker, and Susan A. Nellor, Assistant United States Attorneys, entered appearances for appellant.

David L. Sobel, with whom Marc Rotenberg was on the briefs, argued the cause for appellee.

Before BUCKLEY, WILLIAMS, and HENDERSON, Circuit Judges.

http://www.2600.com/secret/pc/pc-appellate.html (1 of 10)4/16/2006 11:26:55 AM

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Opinion for the court filed by Circuit Judge BUCKLEY.

BUCKLEY, Circuit Judge: On November 12, 1992, the Wash- ington Post carried a story suggesting that the United States Secret Service might have been involved in the breakup of a meeting of young "computer hackers" at a Virginia shopping mall. Shortly thereafter, appellee Computer Professionals for Social Responsibility filed a Freedom of Information Act request in which it asked the Secret Service for copies of all records relating to the incident. The Service released copies of various newspaper clippings but declined to disclose any other documents on the basis that they were exempt from disclosure under provisions of the Act that protect certain categories of information that is compiled for law enforcement purposes. In the meantime, Computer Professionals had filed this action seeking disclosure in district court.

While the district court confirmed that the records were related to an ongoing criminal investigation, it held that the Secret Service had failed to establish that any of them fell within Exemptions 7(C) and (D) of the Act, which protect, respectively, the privacy of individuals and the identity of, and information provided by, confidential sources. The court, however, permitted the Service to withhold records whose release would interfere with its law enforcement proceedings.

Having inspected the materials submitted to the district court by the Service, including those submitted with its motion for reconsideration, we conclude that the Service properly invoked Exemption 7(D) with respect to one source that provided information under an expectation that it would remain confidential, but that the district court properly found that it had failed to establish such an expectation as to its other sources. We also find that the court erred in ruling that the privacy interests of the individuals named in the Service's records were not protected by Exemption 7(C).

I. BACKGROUND

On November 6, 1992, a group of young people gathered in the food court of the Pentagon City Mall in Arlington, Virgi- nia, for the monthly meeting of the "2600 Club." The Club was named after the 2600 Magazine, a journal devoted to computer and telecommunications topics which, in turn, was named for the hertz frequency that once enabled telephone "hackers" to use a whistle instead of coins to make long distance calls. According to the newspaper account, at some point during the meeting, members of the mall security staff approached these individuals, asked for identifications, compiled a list of names, confiscated some bags containing computer books and printouts, and asked them to leave. The article also stated that "at least one agent from the Secret Service" was on the scene.

Four days later, appellee Computer Professionals for Social Responsibility ("CPSR") sent the Secret Service a request, pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. Sec. 552 (1995), asking for copies of all Secret Service records "related to the breakup of a meeting of individuals affiliated with '2600 Magazine' at the Pentagon City Mall in Arlington Virginia on November 6, 1992." Joint Appendix ("J.A.") at 31. CPSR said that it was "particularly interested in information concerning the involvement of the Secret Ser- vice in the detention of the individuals and the confiscation of their


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property." Id. Treating the letter as a third-party request, the Secret Service stated, in response, that "without properly notarized releases, this office can neither confirm nor deny the existence of investigatory information pertaining to the individuals." J.A. at 34. CPSR replied that "the request does not seek information identifying particular individuals. Rather, we seek the disclosure of information concerning the Secret Service's involvement in an incident that has been widely publicized in [the] media...." J.A. at 35. The Secret Service thereupon began to process the request, and so notified CPSR.

In searching its records, the Secret Service found several newspaper articles describing the breakup of the meeting, as well as two agency records. According to the Service's Freedom of Information and Privacy Acts Officer, these records were provided "by a confidential source, and each consists solely of information identifying individuals." Decla- ration of Agent Melvin E. Laska, reprinted in J.A. at 21-30 ("Laska Declaration"). On March 5, 1993, one month after CPSR filed this action to compel release of the records, the Secret Service provided CPSR with the newspaper clippings but notified it that the two records were being withheld pursuant to FOIA Exemptions 7(A), 7(C), and 7(D). These exemptions apply to

records or information compiled for law enforcement purposes, but only to the extent that [their] production ... (A) could reasonably be expected to interfere with enforcement proceedings, ... (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy, [or] (D) could reasonably be expected to disclose the identity of a confidential source ... [or] information furnished by a confidential source.

5 U.S.C. Sec. 552(b)(7)(A), (C) & (D).

In April 1993, both parties submitted motions for summary judgment. In support of its motion, CPSR presented an affidavit stating that eight of the individuals detained at the mall had authorized the release of any records relating to them. For its part, the Secret Service relied on the declaration of Melvin E. Laska, which affirmed that the information in question had been received from a confidential source in the course of a criminal investigation conducted under the authority of 18 U.S.C. Secs. 1029 ("Fraud and related activity in connection with access devices") and 1030 ("Fraud and related activity in connection with computers") and explained its reasons for withholding the two documents. As the Service later revealed, the investigation had been initiated after a private company reported that it had been the victim of long distance telephone fraud.

Before the district court ruled on the motions, the Supreme Court issued its decision in Department of Justice v. Landa- no, 113 S. Ct. 2014 (1993), in which it held that the Govern- ment is not entitled to a presumption that all sources supply- ing information to law enforcement agencies in the course of criminal investigations are confidential sources within the meaning of FOIA Exemption 7(D). Id. at 2021-23. The Secret Service then submitted two additional affidavits. In one of these, Agent Laska stated that, after further review of the FOIA request, he learned of six additional records that were responsive to CPSR's request. Supplemental Declara- tion of Melvin E. Laska, reprinted in J.A. at 50. He claimed that these were also exempt under FOIA because they were provided by a confidential


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source or sources and identified possible suspects and witnesses in an ongoing criminal investigation.

The second affidavit was provided by the agent in charge of the Service's Washington Field Office. Declaration of Wil- liam F. Burch, reprinted in J.A. at 68-77 ("Burch Declara- tion"). This affidavit was offered to establish that the documents met the criteria for confidential treatment set forth in Landano. Agent Burch stated that he had contacted the source of these records and that it had "reiterated" its original understanding that the information provided the Se- cret Service would not be revealed. The agent further explained that the additional materials contained information about a second source that had since provided the Secret Service with information relating to the underlying criminal investigation.

Following an in camera review of a sealed document provided by Agent Burch, the district court granted CPSR's motion as to Exemptions 7(C) and 7(D). Computer Profes- sionals for Social Responsibility v. United States Secret Service, Civ. No. 93-0231-LFO, slip op. (July 1,1994) ("July 1 mem. op."). Although the court confirmed that the records had been "compiled for law enforcement purposes" and thus satisfied the threshold requirement for application of Exemp- tion 7, id. at 3, it concluded that the release of the materials would not constitute a threat to anyone's privacy interest. Id. at 4. It also found the source's reiteration of its expectation of confidentiality to be an inadequate "post hoc rationalization" and would not satisfy the requirements of Landano. Id. at 5. Finally, the court granted the Service's motion, in limited respects, with regard to Exemption 7(A). Id. at 5-7.

On July 18, 1994, the Secret Service filed a motion for reconsideration under Rule 59(e) of the Federal Rules of Civil Procedure. The Service supported its motion with a second in camera declaration, which was submitted by Agent Las- ka's successor, Agent James O'Neill ("second in camera submission"). Because the motion was not served on CPSR's counsel until July 25, which was beyond the ten statutory days required by the Rule, the court denied it as untimely in a memorandum opinion issued on August 7, 1994 ("Aug. 7 mem. op."). The court also refused the Government's request that it treat the motion as having been filed under Rule 60(b). Id. at 5.

The Secret Service appeals the orders denying both its motion for summary judgment and its motion for reconsideration. Because the Secret Service's investigation was brought to a conclusion in the interval between the issuance of the district court's orders and the hearing of this appeal, the Service no longer invokes Exemption 7(A), which protects information whose disclosure "could reasonably be expected to interfere with enforcement proceedings." 5 U.S.C. Sec. 552(b)(7)(A).

II. DISCUSSION

We review orders granting summary judgment de novo. "In the FOIA context this requires that we ascertain whether the agency has sustained its burden of demonstrating that the documents requested are ... exempt from disclosure under the FOIA." Gallant v. NLRB, 26 F.3d 168, 171 (D.C. Cir. 1994).

On appeal, the Secret Service asserts that contrary to the district court's analysis of Landano and Exemption 7(D), it had submitted adequate evidence of an implied expectation of confidentiality; that


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the district court also erred in its analysis of Exemption 7(C) by discounting the privacy interests at stake and by failing to examine the public interest side of the balance; and that the court abused its discretion in denying its motion for reconsideration. Because information submitted by the Service with its motion for reconsideration is critical to our analysis of its Exemption 7(D) claim, we first address the agency's contention that its motion should have been granted.

A. Motion for Reconsideration

The Secret Service acknowledges that its motion for reconsideration had not been served on the plaintiff within the ten days required by Rule 59(e), but it maintains that the district court should have treated the motion as having been filed under Rule 60(b). This the court declined to do because the Service had failed to point to an intervening change in, or obvious error of, law that would have warranted rehearing under Rule 60(b)(1) and because it could not find the extraordinary circumstances that might have brought the motion within Rule 60(b)(6). Aug. 7 mem. op. at 5.

Rule 60(b) provides, in relevant part, that

[o]n motion and upon such terms as are just, the court may relieve a party . . . from a final judgment, order, or proceeding for . . . (1) mistake, inadvertence, surprise, or excusable neglect; . . . or (6) any other reason justifying relief from the operation of the judgment.

Fed. R. Civ. P. 60(b). An untimely motion under Rule 59(e) may be considered as a motion under Rule 60(b) if it states grounds for relief under the latter rule. Butler v. Pearson 636 F.2d 527, 529 (D.C. Cir. 1980) (citing 6A Moore's Federal Practice Para. 59.04(7) (2d ed. 1979)); Mares v. Busby, 34 F.3d 533, 535 (7th Cir. 1994). The district court read the Service's motion as essentially alleging that its summary judgment order made substantive errors of law. We have previously declined to decide whether errors in legal reasoning may be corrected by Rule 60(b)(1) motions. Center for Nuclear Responsibility, Inc. v. United States Nuclear Regulatory Comm'n, 781 F.2d 935, 939-40 (D.C. Cir. 1986). We do not address that issue here because we find that the motion may properly be considered under Rule 60(b)(6).

We have noted that

the district judge, who is in the best position to discern and assess all the facts, is vested with a large measure of discretion in deciding whether to grant a Rule 60(b) motion, and the district court's grant or denial of relief under Rule 60(b), unless rooted in an error of law, may be reversed only for abuse of discretion.

Twelve John Does v. District of Columbia, 841 F.2d 1133, 1138 (D.C. Cir. 1988). We have also recognized that under Rule 60(b)(6) "relief should be only sparingly used." Good Luck Nursing Home, Inc. v. Harris, 636 F.2d 572, 577 (D.C. Cir. 1980). It applies only to extraordinary circumstances. Cf. Ackermann v. United States, 340 U.S. 193, 199 (1950). Nevertheless, we have stated:


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When a party timely presents a previously undisclosed fact so central to the litigation that it shows the initial judgment to have been manifestly unjust, reconsideration under rule 60(b)(6) is proper even though the original failure to present that information was inexcusable.

Good Luck Nursing Home, 636 F.2d at 577. In this case, the previously undisclosed evidence confirms that one source had indeed provided information under an expectation of confidentiality. Thus it was "central to the litigation"; and if the court had taken it into consideration, the new evidence would have affected the outcome.

It is true, of course, that "a party that ... has not presented known facts helpful to its cause when it had the chance cannot ordinarily avail itself [of] rule 60(b) after an adverse judgment has been handed down." Id. This case, however, is not the ordinary one. To the contrary, it involves not only the interests of the Secret Service, but that of a third party whose identity and information are expressly protected by FOIA. Furthermore, the new information was submitted to the district court just eighteen days after the court had issued its decision -- considerably less than the three-month delay found acceptable in Good Luck Nursing Home -- and did no more than demonstrate the accuracy of a representation that the court had dismissed as a "post hoc rationalization." While it is true that a district court enjoys significant discretion in deciding whether to grant or deny a Rule 60(b) motion, given the unusual circumstances of this case and its effect on the interests of a third party, we believe it was incumbent on the court to examine the second in camera submission in order to determine whether its ruling on the Exemption 7(D) issue had been based on a correct understanding of the underlying facts. We are confident that had it done so, it would have taken the necessary corrective action.

In the interest of judicial economy, and because we review orders granting summary judgment de novo, we will not remand the case to enable the district court to make this determination. Instead, we will take the new evidence into account as we review the Government's claims under Exemp- tions 7(C) and (D).

B. FOIA Exemption 7(C)

Exemption 7(C) protects records or information compiled for law enforcement purposes that "could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. Sec. 552(b)(7)(C). In determining whether material falls within this provision, "a court must balance the public interest in disclosure against the interest Congress intended the Exemption to protect." Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 776 (1989). In Stern v. FBI, 737 F.2d 84, 91-92 (D.C. Cir. 1984), we stated that before a court decides whether information falls within Exemption 7(C), it must first identify both the privacy interests that are at stake and the public interest in disclosure. "Having identified the competing interests in [a] case, we must balance them." Id. at 92.

We have stated that "Exemption 7(C) takes particular note of the strong interest of individuals, whether they be suspects, witnesses, or investigators, in not being associated unwarrantedly with alleged criminal activity." Dunkelberger v. Department of Justice, 906 F.2d 779, 781 (D.C. Cir. 1990) (internal


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quotation marks omitted). That interest extends to

persons who are not the subjects of the investigation [but who] may nonetheless have their privacy invaded by having their identities and information about them revealed in connection with the investigation.

Burge v. Eastburn, 934 F.2d 577, 579 (5th Cir. 1991) (citation omitted) (withholding statements by relatives of murder victim). Accord McDonnell v. United States, 4 F.3d 1227, 1255 (3d Cir. 1993) ("interviewees and witnesses also have a substantial privacy interest because disclosure may result in embarrassment and harassment").

The Secret Service's records contain the names of informants, witnesses, and potential suspects who are relevant to its criminal investigation, which clearly fall within the scope of Exemption 7(C). CPSR maintains, however, that the records also contain information relating to individuals who attended the meeting of the 2600 Club; and it argues that the exemption does not authorize the Service to withhold this information because, in its view, no stigma could attach to persons who "were engaged in wholly lawful activity and were peaceably assembled in a public place." Brief for Appellee at 27. We disagree. Even if we were to assume that the Service's records contain such information and even if those individuals were not suspects, their public identification with a meeting that had reportedly attracted the attention of law enforcement officials would subject them to a degree of interest that would impinge upon their privacy. We conclude, then, that Exemption 7(C) permits the Service to withhold the names and identifying information of persons appearing in its records so long as their privacy interest in not being connected in any way with a criminal investigation outweighs the public interest in disclosure. That privacy interest, however, may be waived. Therefore, if the Service's records contain information relating to any one of the eight individuals who provided CPSR with waivers of their privacy rights, it must disclose that information so long as it was not provided by a confidential source and therefore protected from disclosure by Exemption 7(D) and so long as it is redacted to protect the interests of individuals who have not waived their rights.

This brings us to the next step in the balancing process, which is to identify the public interest that is to be served by the disclosure of the information sought by CPSR. The Supreme Court has stated that FOIA is focused "on the citizens' right to be informed about what their government is up to." Reporters Committee, 489 U.S. at 773 (internal quotation marks omitted). Therefore, we determine the public interest "by taking into account 'the nature of the requested document and its relationship to the basic purpose of the Freedom of Information Act to open agency action to the light of public scrutiny."' Dunkelberger, 906 F.2d at 781 (quoting Reporters Committee, 489 U.S. at 772).

CPSR asserts that information about the Secret Service's involvement in breaking up the meeting will shed light on the agency's performance of its duties and suggests that the Secret Service has engaged in illegal conduct. Yet when

governmental misconduct is alleged as the justification for disclosure, the public interest is


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insubstantial unless the requester puts forward compelling evidence that the agency denying the FOIA request is engaged in illegal activity and shows that the information sought is necessary in order to confirm or refute that evidence.

Davis v. Department of Justice, 968 F.2d 1276, 1282 (D.C. Cir. 1992) (internal quotation marks omitted). "A mere desire to review how an agency is doing its job, coupled with allegations that it is not, does not create a public interest sufficient to override the privacy interests protected by Ex- emption 7(C)." McCutchen v. Department of Health & Hu- man Servs., 30 F.3d 183, 188 (D.C. Cir. 1994). CPSR has offered no evidence that the Secret Service has engaged in illegal activity.

Thus, while we have identified significant privacy interests that would be compromised by disclosing the names of individuals appearing in the requested records, we can find no public interest that would be served by their disclosure. This being the case, "[w]e need not linger over the balance; something ... outweighs nothing every time." National Ass'n of Retired Fed. Employees v. Horner, 879 F.2d 873, 879 (D.C. Cir. 1989). Accordingly, we conclude the Secret Service was justified in refusing to disclose the names and identifying information contained in the records of its investigation except in the case of individuals, if any, who have waived their rights under FOIA and who are identified in information provided by other than a confidential source. We also hold that the Secret Service may withhold the name of the company that reported the computer fraud because, even if not itself protected, its disclosure might permit the identification of the corporate officer who reported the crime to the Ser- vice.

C. FOIA Exemption 7(D)

FOIA Exemption 7(D) protects records or information compiled by criminal law enforcement authorities in the course of criminal investigations if their release could reasonably be expected to disclose the identity of, as well as information provided by, a confidential source. See 5 U.S.C. Sec. 552(b)(7)(D).

Until recently, this circuit (and six others) presumed "that information obtained by an agency during the course of a criminal investigation has been procured pursuant to an assurance of confidentiality." Parker v. Department of Jus- tice, 934 F.2d 375, 378 (D.C. Cir. 1991). During the pendency of this litigation, however, the Supreme Court ruled that

the Government is not entitled to a presumption that a source is confidential within the meaning of Exemption 7(D) whenever the source provides information to [an agency] in the course of a criminal investigation.

Department of Justice v. Landano, 113 S. Ct. 2014, 2024 (1993). Nevertheless, the Court stated that

when certain circumstances characteristically support an inference of confidentiality, the Government ... should be able to claim ... Exemption 7(D) without detailing the circumstances surrounding a particular interview.


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Id. at 2022. Thus, "[t]here may well be . .. generic circumstances in which an implied assurance of confidentiality fairly can be inferred." Id. at 2023.

We note at the outset that more than one source of information is involved here. Our inspection of the Secret Service's in camera submissions reveals four sources: the private company that informed the Service that it had been the victim of long-distance telephone toll fraud, two sources that the Service questioned in the course of its investigation, and the source referred to in the Burch Declaration. Al- though the Secret Service makes a general claim that all the information in its records was provided under an expectation of confidentiality, it only sought to confirm that expectation with respect to the information provided by the fourth source.

In support of its generic claim, the Secret Service argues that its general practice establishes an implied assurance of confidentiality. It points, first, to the fact that it routinely receives information with the understanding that the source's cooperation will not be revealed to the public. Second, when it becomes necessary for it to make confidential information public in the prosecution of a case, the Service routinely protects the source through such measures as the issuance of a subpoena for the information in order to disguise the fact that it had previously been volunteered. Finally, the Service argues that cases involving computer crimes pose the same potential for retaliation or harassment that the Supreme Court, in Landano, cited as examples of the "generic circumstances" (e.g., gang-related murders) that could support an inference of confidentiality. See 113 S. Ct. at 2023.

With respect to the Service's first two arguments, we make the following observations. While the Supreme Court, in Landano, acknowledged that "certain circumstances characteristically support an inference of confidentiality,'' id. at 2022, the manner in which an agency "routinely" handles information is not sufficient to establish an implied assurance of confidentiality as to any particular source. The key is

not whether the requested document is of the type that the agency usually treats as confidential, but whether the particular source spoke with an understanding that the communication would remain confidential.

Id. at 2019 (emphasis in original). Because the Service acknowledged that its sources had not been advised of its routine practices, such practices do not support an inference of confidentiality.

Furthermore, the Service offered no evidence that a fear of retaliation by hackers is sufficiently widespread to justify an inference that sources of information relating to computer crimes expect their identities and the information they provide to be kept confidential. Under the circumstances, we cannot fault the district court's refusal to accept the Service's suggestion that such sources are entitled to the generic presumption of confidentiality that the Supreme Court appears willing to extend to sources of information concerning gang-related crimes. See Landano, 113 S. Ct. at 2023.


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The Secret Service, however, was able to establish in its second in camera submission that one of its sources had in fact submitted information in the expectation that he would not be identified. This was the source that was described, in the Burch Declaration, as having "reiterated [its] original position and understanding that the fact that it had provided certain information to the Secret Service would not be revealed." J.A. at 75. Because the record contained no evidence of a prior iteration of this understanding, we can understand why the district court found it hard to assign any clear meaning to the assertion. July 1 mem. op. at 6. The second in camera submission, however, contains an affidavit in which the source confirms that "it was [its] understanding and belief that the information and materials provided, as well as [its] identity, would remain strictly confidential," along with new evidence that bears out the essential accuracy of Agent Burch's representation, notwithstanding his unfortunate use of the word "reiterated."

Based on the above, we conclude that the district court correctly found that the Secret Service had failed to establish that its sources were entitled to a generic inference of confidentiality under Exemption 7(D). In its second in camera submission, however, the Service was able to confirm that one of its sources fell within its scope. Accordingly, we hold that the Service may invoke Exemption 7(D) with respect to that source alone.

III. CONCLUSION

We find that only one of the Secret Service's sources qualifies as confidential under Exemption 7(D) of the Free- dom of Information Act. We hold, however, that Exemption 7(C) protects the privacy of all individuals who can be identified in the records of the Service's telephone fraud investigation because there is no public interest that would be advanced by their disclosure. Finally, because the Secret Ser- vice has terminated its investigation, it must disclose all information that it has withheld pursuant to Exemption 7(A) that is not protected by other exemptions of the Act. Thus, the district court's decision is affirmed in part and reversed in part, and the case is remanded for further action pursuant to this opinion.

It is so ordered.


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We realize the Secret Service can be confusing. Many people have no idea what it is they do. Others think they're not supposed to know because it's a secret. We hope to be able to dispel all of the myths and help to get the "secret" out of the Secret Service. After all, they've been doing a bang-up job wiping out the "service".

Did you know that the original goal of the Secret Service wasn't to protect living presidents, but rather, dead ones? And it wasn't until three living presidents *became* dead that the Secret Service was given the job of discouraging this?

Did you know the head of the Secret Service was appointed on Pearl Harbor Day and has a wife named Sandy?

Did you know that Bill and Hillary Clinton will get Secret Service protection for the rest of their lives but Chelsea is up the creek?

Find out why the White House Police disappeared.

See "secret" codenames used by the Secret Service to prevent us "ordinary citizens" from knowing what they're talking about! (Careful - people have gone to PRISON for having lists like this. But they were probably enemies of the state or else how could they have wound up in prison?)

"Ordinary citizens" like us can help the Secret Service by reporting *anything* suspicious to them.

At long last, you can see if the Secret Service has an office in your town so you can call them to report anything suspicious, or, if you're a suspicious person yourself, you can just drop by.

For your listening pleasure, a list of every known Secret Service radio frequency is provided along with an explanation of which are used for what and, when available, what offices use which frequencies. (Careful - people have gone to PRISON for having lists like this. But they weren't people like us or else how could they have wound up in prison?)

Did you know that Bill Clinton and Al Gore are the only two people in the world who can't tell the Secret Service to get lost? (We're not counting people who are ARRESTED by the Secret Service but, as we all know, they lost their "ordinary citizen" privileges as soon as they got the Secret Service angry at them.)

Did you know that all Secret Service Special Agents are born in Glynco, Georgia?

http://www.2600.com/secret/more.html (1 of 2)4/16/2006 11:27:34 AM

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Did you know that in nearly all Secret Service brochures, the first benefit mentioned is retirement? Did you know the last is promotion?

Finally, you'll have the chance of learning where others made mistakes. See how quickly you can become a threat to society by taking pictures of Secret Service agents in your own office! Or even in public areas. With the number of Secret Service agents prowling around, you should be careful where you point your lens. If you have security cameras around your home or office, you are at particular risk of capturing a forbidden image if you are visited. People who use live cameras that broadcast to the entire Internet are just asking for trouble. Pictures like the ones we have here are exactly what we're talking about.

● The frequencies used by the Secret Service.

● Secret Service codenames for people, places, and things.

● Hear about the Secret Service in their own words.

● A guide to all known Secret Service lairs.

● Secret Service Photo Album.

[email protected]

http://www.2600.com/secret/more.html (2 of 2)4/16/2006 11:27:34 AM


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Frequencies

From a variety of sources, every known frequency used by the Secret Service. Where possible, we list what the frequency is used for and/or by which division. Send any updates or corrections to [email protected].

● List #1

● List #2

[email protected]

http://www.2600.com/secret/more/freq.html4/16/2006 11:28:25 AM


Monitor the Secret Service!

Secret Service VHF radios are set up as follows:

Channel Designation

1 BAKER

2 CHARLIE

3 MIKE

4 TANGO

5 OSCAR

6 PAPA

7 BAKER REPEATER (165.7875/164.4000)

8 CHARLIE REPEATER (165.3750/166.4000)

Frequencies A through Z

Alpha 32.2300 WHCA-Transportation (vans) (possible DC base)

Baker 165.7875 USSS-Field Offices, President/VP/VIP security

Charlie 165.3750USSS-Field Offices/Protection, command post coordination (Nationwide Primary)

Delta 169.9250 WHCA-Marine Security Detachment, vans

Echo 407.8500 WHCA-SAM Uplink (Air Force 1 phone patch ground uplink)

Foxtrot 415.7000 WHCA-SAM Downlink (Air Force 1 phone patch aircraft downlink)

Golf 166.4000 USSS-Field Offices

165.7625 Input to 165.3750 repeaters

Hotel 167.9000 WHCA-V.P. Staff/White House Garage

165.6875

166.2125 President/VP Security

India 407.9250 USSS-Headquarters (Treasury Security Force)

166.2000

Juliet 170.0000 USSS-Paging/Camp David

Kilo 167.8250 Duplex Phone-Pres Res/LBJ, WHCA

Lima 168.7875 Duplex Phone-Pres Res/LBJ, WHCA (voice scramblers)

Lavender 418.1250 WHCA-Transportation

Mike 165.2125 USSS-Dignitary/Former Pres Protection, Counterfeit Division

November 166.7000 WHCA-White House Staff

http://www.2600.com/secret/more/freq1.html (1 of 4)4/16/2006 11:29:00 AM


Oscar 164.8875 USSS-Presidential Protection Division (PPD), WHCA

Papa 164.4000 USSS-Field Offices/Protection, input to 165.2125 repeaters

Quebec ---

Romeo 166.4000 Input to 165.7875 repeaters

164.4000 USSS-Repeater Outputs

Sierra 166.5125 WHCA-White House Staff

Tango 164.6500 USSS-Field Offices/Protection, Presidential/VP Security

Uniform 361.6000 AF-1 Communications

165.0875

Victor 164.1000 WHCA, Presidential/VP Protection

Whiskey 167.0250 WHCA-Paging

X-ray ******** SEE BELOW

Yankee 162.6875 WHCA-Presidential phone uplink or downlink

Zulu 171.2875 WHCA-Presidential phone downlink or uplink

The Treasury Common frequency is 166.4625.

X-ray is the reserve frequency pool and is not Treasury Common. Frequencies here are used whenever a new frequency is needed.

X-ray frequencies

164.7500164.8000165.2625165.3375165.4125165.5125165.6500165.6875165.8500165.9000166.0500166.2000166.5625166.5875166.6375166.8000167.9000



The most active frequencies used before and during a presidential or vice presidential visit are Baker, Charlie, Mike, and Tango, as well as any channel designated for use by the WHCA. The frequency used most as a nationwide primary repeater channel is Charlie, followed by Baker. Former presidents' security use Mike. Oscar is used for presidential protection nationwide and Papa is used for White House perimeter patrols.

Pres Nighthawk Aircraft Fleet (HMX)

Transport 46.7500

Transport 375.0000

VIP Transport Net 34.3500

Command Post 142.7500

Squadron Common 265.8000

USMC helicopters 46.7000, 46.7500, 46.8000, 122.8500, 375.0000

Other Phone Patches

Nationwide-2 407.4750 uplink

Nationwide-2 415.8000 downlink

Limousines (Local/DC) 407.4500 duplex

Limousines (Local/DC) 408.2000 duplex

USSS Uniform Division (All repeaters use PL 103.5 Hz)

Gray 418.3500/407.7500 White House

Orange 418.7750/414.9500 White House

Brown 414.8500/418.8000 Foreign Missions

Red 415.9750/419.7250 Foreign Missions

Silver 415.6500/419.1000 Foreign Missions

Yellow 414.6750/418.1500, 415.9500 WHCA ("Boardwalk") Foreign Missions Patrol Primary

Training Division: Beltsville, MD

Green 415.7500/407.8750

Black 415.1000/418.3250



Blue 414.8000

Violet 415.8000

Communications Division:

Gold 415.6750/419.0750

Other:

Lavender 418.1250 WHCA Transportation

White 407.6750

Technical Security Division (Special Use)

F-1 408.0000

F-2 411.0000

F-3 408.5000

F-4 408.9750

NOTES: Frequencies in 407 Mhz band are used for agents' body radios with "wristwatch" microphones.

WHCA stands for White House Communications Agency.

The PL used by the Secret Service is 103.5 Hz.

The above info was gathered from several sources. Not all sources agreed on the same frequencies.


Listing of SS Frequencies

A NUMERICAL LISTING OF EVERY KNOWN SECRET SERVICE FREQUENCY

Frequency Description

32.2300 (ABLE)

32.2300 (ALPHA) WHCA - TRANSPORTATION (VANS) (POSSIBLE DC BASE)

32.3200 (ABLE)

34.0700

34.3500 VIP TRANSPORT NET

46.7000 USMC HELICOPTERS

46.7500 TRANSPORT, USMC HELICOPTERS



142.7500 COMMAND POST

162.3750

162.6875 (YANKEE) WHCA - PRESIDENTIAL PHONE UPLINK OR DOWNLINK

163.0000

163.3625

163.4000

163.7375

163.7750

163.8125

163.9125

164.1000 (VICTOR) WHCA, PRESIDENTIAL/VP PROTECTION

164.4000 (PAPA) USSS - FIELD OFFICES/PROTECTION, INPUT TO 165.2125 REPEATERS

164.4000 (ROMEO) USSS - REPEATER OUTPUTS



164.6500(TANGO) USSS - FIELD OFFICES/PROTECTION, PRESIDENTIAL/VP SECURITY

164.7500 (X-RAY)

164.8000 (PAIRED WITH 165.8500)

164.8000 (X-RAY)

164.8875 (OSCAR) USSS - PRESIDENTIAL PROTECTION DIVISION (PPD), WHCA

165.0875 (PAIRED WITH 166.2000)

165.0875 (PAIRED WITH 166.2125)

165.0875 (UNIFORM)

165.2125(MIKE) USSS - DIGNITARY/FORMER PRES PROTECTION, COUNTERFEIT DIVISION

165.2250

165.2625 (X-RAY)

165.2875

165.3375 (X-RAY)

165.3750(CHARLIE) USSS - FIELD OFFICES/PROTECTION, COMMAND POST COORDINATION (NATIONWIDE PRIMARY)

165.4125 (X-RAY)

165.5125 (PAIRED WITH 166.4875)

165.5125 (X-RAY)

165.6500 (PAIRED WITH 166.6375)

165.6500 (X-RAY)

165.6750

165.6875 (HOTEL)

165.6875 (X-RAY)

165.6875 WASHINGTON FIELD OFFICE (PAIRED WITH 166.2125)



165.7625 (GOLF) INPUT TO 165.3750 REPEATERS

165.7875 (BAKER) USSS - FIELD OFFICES, PRESIDENT/VP/VIP SECURITY

165.8500 (PAIRED WITH 164.8000)

165.8500 (X-RAY)

165.8625

165.9000 (X-RAY)

165.9125

166.0500 (X-RAY)

166.2000 (INDIA)

166.2000 (PAIRED WITH 165.0875)

166.2000 (X-RAY)

166.2000 WASHINGTON FIELD OFFICE

166.2125 (HOTEL) PRESIDENT/VP SECURITY

166.2125 (PAIRED WITH 165.0875)

166.2125 WASHINGTON FIELD OFFICE (PAIRED WITH 165.6875)

166.3750

166.4000 (GOLF) USSS - FIELD OFFICES

166.4000 (ROMEO) INPUT TO 165.7875 REPEATERS

166.4625 TREASURY COMMON

166.4875 (PAIRED WITH 165.5125)

166.5125 (ALPHA)

166.5125 (SIERRA) WHCA - WHITE HOUSE STAFF

166.5625 (X-RAY)

166.5875 (X-RAY)

166.6375 (PAIRED WITH 165.6500)



166.6375 (X-RAY)

166.7000 (NOVEMBER) WHCA - WHITE HOUSE STAFF

166.8000 (X-RAY)

167.0250 (WHISKEY) WHCA - PAGING

167.3125

167.4500

167.6125

167.8250 (KILO) DUPLEX PHONE-PRES RES/LBJ, WHCA

167.9000 (HOTEL) WHCA - V.P. STAFF/WHITE HOUSE GARAGE

167.9000 (X-RAY)

168.2250

168.4000

168.4500

168.5750

168.7875 (LIMA) DUPLEX PHONE-PRES RES/LBJ, WHCA (VOICE SCRAMBLERS)

169.9250 (DELTA) WHCA - MARINE SECURITY DETACHMENT, VANS

170.0000 (JULIET) USSS PAGING/CAMP DAVID

171.2875 (ZULU) WHCA - PRESIDENTIAL PHONE DOWNLINK OR UPLINK

265.8000 SQUADRON COMMON

361.6000 (UNIFORM) AF-1 COMMUNICATIONS

375.0000 TRANSPORT, USMC HELICOPTERS

406.2625

406.4250

407.4500 WASHINGTON DC LIMOUSINES

407.4750 NATIONWIDE-2 UPLINK



407.6750 (WHITE)

407.7500 (GRAY) WHITE HOUSE (PAIRED WITH 418.3500)

407.8000

407.8250 SUIT RADIOS

407.8500(ECHO) WHCA - SAM UPLINK (AIR FORCE 1 PHONE PATCH GROUND UPLINK)

407.8750 (GREEN) TRAINING DIVISION (PAIRED WITH 415.7500)

407.8750 SUIT RADIOS

407.9250 (INDIA) USSS HEADQUARTERS (TREASURY SECURITY FORCE)

407.9500

407.9750

408.0000 TECHNICAL SECURITY DIVISION (F-1)

408.2000 WASHINGTON DC LIMOUSINES


408.6250 WHCA

408.6500 WHCA

408.6750 WHCA

408.7000 WHCA

408.7250 WHCA

408.7500 WHCA

408.7750 WHCA

408.8000 WHCA

408.8250 WHCA

408.8500 WHCA

408.8750 WHCA



408.9000 WHCA

408.9250 WHCA

408.9500 WHCA


408.9750 WHCA

409.9000 WHCA


414.6750 (YELLOW) WHCA, FOREIGN MISSIONS (PAIRED WITH 418.1500)

414.8000 (BLUE) TRAINING DIVISION

414.8500 (BROWN) FOREIGN MISSIONS (PAIRED WITH 418.8000)

414.9500 (ORANGE) WHITE HOUSE (PAIRED WITH 418.7750)

415.1000 (BLACK) TRAINING DIVISION (PAIRED WITH 418.3250)

415.6500 (SILVER) FOREIGN MISSIONS (PAIRED WITH 419.1000)

415.6750 (GOLD) COMMUNICATIONS DIVISION (PAIRED WITH 419.0750)

415.7000(FOXTROT) WHCA - SAM DOWNLINK (AIR FORCE 1 PHONE PATCH AIRCRAFT DOWNLINK)

415.7250

415.7500 (GREEN) TRAINING DIVISION (PAIRED WITH 407.8750)

415.8000 (VIOLET) TRAINING DIVISION

415.8000 NATIONWIDE-2 DOWNLINK

415.9500 WHCA FOREIGN MISSIONS PATROL PRIMARY

415.9750 (RED) FOREIGN MISSIONS (PAIRED WITH 419.7250)

417.7500

418.1250 (LAVENDER) WHCA TRANSPORTATION

418.1500 (YELLOW) WHCA, FOREIGN MISSIONS (PAIRED WITH 414.6750)



418.1750 WHCA

418.3250 (BLACK) TRAINING DIVISION (PAIRED WITH 415.1000)

418.3500 (GRAY) WHITE HOUSE (PAIRED WITH 407.7500)

418.6500 WHCA

418.7750 (ORANGE) WHITE HOUSE (PAIRED WITH 414.9500)

418.8000 (BROWN) FOREIGN MISSIONS (PAIRED WITH 414.8500)

419.0750 (GOLD) COMMUNICATIONS DIVISION (PAIRED WITH 415.6750)

419.1000 (SILVER) FOREIGN MISSIONS (PAIRED WITH 415.6500)

419.7250 (RED) FOREIGN MISSIONS (PAIRED WITH 415.9750)


Secret Service Codenames

Locations/Groups/Organizations

ACROBAT ANDREWS AIR FORCE BASE, MARYLAND

ANDY ANDREWS AIR FORCE BASE, MARYLAND

BACKSEAT SECRET SERVICE MOTORSCOOTER UNIT

BAGPIPE SECRET SERVICE LIASON UNIT

BAMBOO PRESIDENTIAL MOTORCADE

BANDBOX SECRET SERVICE WHITE HOUSE UNIT

BASEBALL SECRET SERVICE TRAINING DIVISION

BEEHIVE SECRET SERVICE TECH DEVELOPMENT DIVISION

BELLHOP ONE SECRET SERVICE ELIPSE MOTORSCOOTERS

BELLHOP TWO SECRET SERVICE WHITE HOUSE MOTORSCOOTERS

BIGTOP SECRET SERVICE TREASURY SECURITY DIVISION

BIRDSEYE DEPARTMENT OF STATE

BLACKBOARD SECRET SERVICE PROTECTIVE INTELLIGENCE DIVISION

BLACKTOP SECRET SERVICE FOREIGN MISSION UNIT

BLOWTORCH SECRET SERVICE EXECUTIVE PROTECTION COMMAND POST

BLUEPRINT SECRET SERVICE TECH SECURITY DIVISION

BOARDWALK SECRET SERVICE FOREIGN MISSION DIVISION

BOOKSTORE WHITE HOUSE COMMUNICATIONS CENTER

BRIMSTONE REAGAN RANCH, CALIFORNIA

BROADSIDE NYC VIP PROTECTION COMMAND POST

BUCKEYE CAMP DAVID, MARYLAND

BUCKSHOT NYC SPECIAL COORDINATION CENTER

BULLDOG DC VIP PROTECTION COMMAND POST

BUNGALOW SECRET SERVICE FOREIGN MISSION SUBSTATION

CABLEBOY ADVANCE TEAM (CARTER)

CACTUS CAMP DAVID, MARYLAND

CANDLESTICK VIP PORTABLE COMMUNICATIONS COMMAND POST

CARBINE CCT ANACOSTIA NAVAL AIR STATION, DC

CARNATION CCT, FT RITCHIE, MD

CARPET ARMY GARAGE, WHITE HOUSE

http://www.2600.com/secret/more/codes.html (1 of 8)4/16/2006 11:30:18 AM


CARTWHEEL NSA, FT. MEADE, MARYLAND

CEMENT MIXER WHITE HOUSE SITUATION ROOM

CHALLENGER PRESIDENTIAL NIGHTWATCH

CHANDELIER DEPARTMENT OF STATE

CHECKERBOARD ADVANCE TEAM (CARTER)

CHECKMATE ADVANCE TEAM (CARTER)

CLOUDBURST WHCA, ANACOSTIA NAVAL AIR STATION

CLOVERLEAF VICE PRESIDENT'S RESIDENCE

COACH HOUSE DULLES AIRPORT, WASHINGTON DC

COBWEB VICE PRESIDENT'S OFFICE

COMPANION BLAIR HOUSE, WASHINGTON DC

CROSSBOW WHCA OP'S DESK

CROWN WHITE HOUSE COMMUNICATIONS CENTER

CURBSIDE NATIONAL AIRPORT, WASHINGTON DC

DRIFTWOOD CARTER HOME, GEORGIA

ELM CAMP DAVID, MARYLAND

FIRESIDE SECRETARY OF STATE RESIDENCE

FOG HORN STATE DEPARTMENT SECURITY DIVISION

HANDSHAKE SECRET SERVICE OFFICE

HEADLIGHT SECRET SERVICE GARAGE, WASHINGTON DC

HILL TOP TREASURY DEPARTMENT

HORSEPOWER WHITE HOUSE PRESIDENTIAL PROTECTIVE DIV

HUDSON NIXON OFFICE, NEW YORK

LIGHTFOOT MADISON HOTEL, WASHINGTON DC

LIZARD SECRET SERVICE MOBILE COMMAND POST

MAGIC HELICOPTER COORDINATION COMMAND POST

PACEMAKER VICE PRESIDENT'S STAFF

PAVILLION VICE PRESIDENT'S OFFICE

PENINSULA NEW SENATE OFFICE BUILDING

PINCUSHION RAYBURN OFFICE BUILDING, WASHINGTON DC

PLAYGROUND HELICOPTER PAD, PENTAGON

PORK CHOP OLD SENATE OFFICE BUILDING

PROFESSOR LONGWORTH BUILDING, WASHINGTON, DC

PUNCH BOWL CAPITOL BUILDING

RIDGELINE REAGAN RESIDENCE, CALIFORNIA



RINGSIDE MADISON SQUARE GARDEN, NEW YORK

ROADHOUSE WALDORF ASTORIA, NEW YORK

SANDSTONE REAGAN RESIDENCE, CALIFORNIA

SHOTGUN NEW YORK CITY COMMAND POST

SKYMASTER ANDREWS AIR FORCE BASE COMMAND POST

STORE ROOM TRUMAN LIBRARY, MISSOURI

STORM KING NIXON RESIDENCE, NEW JERSEY

TOOL ROOM VICE PRESIDENT'S OFFICE

TOWER ANDREWS AIR FORCE BASE, MARYLAND

VOLCANO LBJ RANCH, TEXAS

WAREHOUSE SHERATON CENTER, NEW YORK

WINDSTONE REAGAN RESIDENCE, CALIFORNIA

OBJECTS AND EVENTS

ANGEL AIR FORCE ONE

CALIBER PORTABLE COMMUNICATIONS PACKAGE

CARAVAN VP FOLLOW CAR (CARTER)

CARBINE ONE PORTABLE COMMUNICATIONS PACKAGE

CARGO MRS. MONDALE'S CAR

CAROUSEL AIR FORCE TWO

CHARIOT MONDALE VEHICLE

COWPUNCHER AIR FORCE ONE

DOG POUND PRESS AIRCRAFT

ELECTRIC NATIONAL EMERGENCY COMMAND AIRCRAFT

FALCON PRESIDENT'S AIR COVER AIRCRAFT

FULLBACK STATE DEPARTMENT SECURITY VAN

HALFBACK PRESIDENT'S FOLLOW VEHICLE

HEDGEHOG FIRE TRUCK

HOLLY ARMY HELICOPTER

HORSEHIDE AMBULANCE

HUNTSMAN NEW YORK CITY SURVEILLANCE HELICOPTER

KNEECAP EMERGENCY ESCAPE AIRCRAFT

MARINE ONE PRESIDENT'S HELICOPTER

MARINE TWO VICE PRESIDENT'S HELICOPTER



NIGHTHAWK PRESIDENT'S HELICOPTER

PATROLLER VICE PRESIDENT'S HELICOPTER

PIVOT MEDEVAC - BETHESDA, MARYLAND

ROADRUNNER WHCA COMMUNICATIONS VAN

SATURN VICE PRESIDENT'S AIRCRAFT

SIGNATURE PRESS HELICOPTER

SOFTPACK A SHOTGUN

STAGECOACH PRESIDENT'S LIMOUSINE

TRACER VICE PRESIDENT'S LEAD VEHICLE

TRACKER VICE PRESIDENT'S FOLLOW VEHICLE

TRAIL BREAKER

VICE PRESIDENT'S OFFICIAL LIMO

TREASURE SHIP AIR FORCE TWO

WHEELS DOWN PRESIDENTIAL AIRCRAFT HAS LANDED

WHEELS UP PRESIDENTIAL AIRCRAFT HAS TAKEN OFF

PEOPLE

CALICO ELEANOR MONDALE

CAMEO JOAN MONDALE

CANNONBALL REAR ADMIRAL J.A. CHANEY

CAVALIER WALTER MONDALE

CEDAR MENACHEM BEGIN

CENTURION THEODORE MONDALE

CHESSMAN WILLIAM MONDALE

CHRISTOPHER BEBE REBOZO

CLAM CHOWDER RON NESSEN

CLAW HAMMER ALEXANDER HAIG

COPPERTONE ROSE KENNEDY

CRYSTAL CHASSIAH BEGIN MILO

DAILY PRINCE CHARLES

DANCER ROSALYNN CARTER

DASHER JIMMY CARTER

DEACON JIMMY CARTER

DECKHAND JEFF CARTER



DERBY JACK CARTER

DIAMOND CHIP CARTER

DIGGER JAMES CARTER IV

DRAGON WALTER MONDALE

DUCHESS SARAH CARTER

DUSTY JASON CARTER

DYNAMO AMY CARTER

EAGLE BILL CLINTON

EVERGREEN HILLARY CLINTON

FADEAWAY SECRETARY OF STATE

FAN JET JOHN BLOCK

FENCING MASTER SECRETARY OF TREASURY

FINLEY SECRETARY OF DEFENSE

FIREPLUG SECRETARY OF LABOR

FIRE TRUCK JAMES EDWARD

FISTFIGHT SECRETARY OF HEW

FLAG DAY SPEAKER, HOUSE OF REPRESENTATIVES

FLIVVER WILLIAM FRENCH SMITH

FLOTUS THE FIRST LADY

FLYING FISH SECRETARY OF THE INTERIOR

FOOTPRINT SENATOR STROM THURMOND

FOREFINGER JAN PIERCE

FORWARD LOOK NEIL BALDRIGGER

FOXCRAFT TERRELL BELL

HALO POPE JOHN PAUL II

HAWKEYE Z. BRZEZINSKI

HERCULES (NUMBER) COUNTER-SNIPER RESPONSE TEAM MEMBER

HOTSHOT DUTY OFFICER, WHCA

INSTRUCTOR EUGENE MCCARTHY

KITTYHAWK QUEEN ELIZABETH II

LANCER JOHN F. KENNEDY

LOCK MASTER JIMMY CARTER

LOTUS PETAL ROSALYNN CARTER

MIRACLE JOHN ANDERSON

NAPOLEON FRANK SINATRA



PASS KEY GERALD FORD

PESO SUSAN FORD

PINAFORE BETTY FORD

POTUS PRESIDENT OF THE UNITED STATES

PRINCIPAL PRINCE CHARLES

RADIANT DORIA REAGAN

RAINBOW NANCY REAGAN

RAWHIDE RONALD REAGAN

REDFERN QUEEN ELIZABETH II

REDWOOD GARY HART

RELIANT RONALD P. REAGAN

RHYME MAUREEN REAGAN

RIBBON PATTI REAGAN DAVIS

RIDDLER MICHAEL REAGAN

ROSEBUD MAUREEN REAGAN

SCARLET KELE ANDERSON

SCORECARD DAN QUAYLE

SEARCHLIGHT RICHARD NIXON

SHEEPSKIN GEORGE BUSH

SNAPSHOT HOWARD BAKER

SNOWBANK BARBARA BUSH

SNOWSTORM GEORGE BUSH

SPRINGTIME MAMIE EISENHOWER

STAIRCASE FIRST FAMILY DETAIL OFFICER

STARBURST JOHN ANDERSON

STARDUST JOHN ANDERSON

STARLIGHT PAT NIXON

STRAWBERRY ROSEMARY WOODS

SUNBURN TED KENNEDY

SUNDANCE ETHEL KENNEDY

SUNSHINE MARILYN QUAYLE

SUPERVISOR DAN QUAYLE

SWORDFISH PHILLIP CRANE

THUNDER JESSE JACKSON

TILLER DOROTHY BUSH



TIMBERWOLF GEORGE BUSH

TRANQUILITY BARBARA BUSH

TRAPLINE NEIL BUSH

TRIPPER J. BUSH

TUMBLER GEORGE BUSH, JR.

TUNER MARVIN BUSH

UNICORN PRINCE CHARLES

VICTORIA LADYBIRD JOHNSON

VOLUNTEER LYNDON JOHNSON

WELCOME J.R. HALDEMAN

WHALEBOAT RON ZIEGLER

WISDOM J. EHRLICHMAN

WOODCUTTER HENRY KISSINGER

UNKNOWN

APOLLO

BACKHOE

BALLFIELD

BAREFOOT

BUSCUIT

BULLPEN

BUNKER

CARBON

CASTLE

CHAMPION

CITADEL

CLOTHES BRUSH

CORKSCREW

FABLE

FIDDLER

FRACTION

GIMLET

GLADIOLA

GOFFER



HOBNAIL

KILEY

MUSTANG

PUSHBUTTON

RAINBOW TRAIL

REGISTER

ROB ROY

ROSEBUSH

SANDBOX

SAWHORSE

SHADOW

SMELTER

SPECTATOR

STUTTER

SUGARFOOT

TAILOR

TEMPLER

TINKERBELL

TRAFFIC

TRANSIT

WALNUT


In Their Own Words

The Secret Service: In their own words

● An introduction to the Secret Service.

● The Secret Service leader.

● The Secret Service story.

● Secret Service protection.

● Professional, administrative, and technical employment opportunities.

● Secret Service clerical opportunities.

● Special Agents.

● United States Secret Service Uniformed Division.

[email protected]

http://www.2600.com/secret/more/words.html4/16/2006 11:31:00 AM


2600 Magazine

The Secret Service is charged with protecting the life of the President and Vice President of the United States and their immediate families, the President-elect and Vice President-elect and their immediate families, former Presidents and their wives, the widows of former Presidents until death or remarriage, minor children of a former President until they reach 16 years of age, heads of a foreign state or foreign government, and at the direction of the President, official representatives of the United States performing special missions abroad. Furthermore, the Secret Service provides security at the White House complex, the Treasury Building and Treasury Annex, buildings which house Presidential offices, the Vice President's residence, and various foreign diplomatic missions in the Washington, D.C. metropolitan area or in other areas as designated by the President. The mission of the Secret Service includes investigations related to certain criminal violation of the Federal Deposit Insurance Act, the Federal Land Bank Act, and the Government Losses in Shipment Act. The Secret Service is also charged with the detection and arrest of any person committing any offense against the laws of the United States relating to coins, currency, stamps, Government bonds, checks, credit/debt card fraud, computer fraud, false identification crime, and other obligations or securities of the United States.

http://www.2600.com/secret/more/ss/ss_intro.html4/16/2006 11:31:31 AM

2600 Magazine

Eljay B. Bowron

DirectorUnited States Secret Service

Eljay B. Bowron was appointed as the 18th Director of the U.S. Secret Service on December 7, 1993.

Mr. Bowron's career with the Secret Service began as a special agent in the Chicago Field Office. He quickly rose to positions of high responsibility, both in the field and at headquarters. Over the course of his career, Mr. Bowron has served in a wide variety of assignments, reflecting the Service's diverse interests and responsibilities. His rapid progression to positions of greater responsibility culminated in his appointment as head of all the Service's protective operations--the position he held prior to his appointment as Director.

Mr. Bowron is a native of Detroit, Michigan. He received a bachelor's degree in criminal justice from Michigan State University. Mr. Bowron began his law enforcement career as an officer with the Detroit Police Department prior to joining the Secret Service in 1974.

Throughout his 19-year with the U.S. Secret Service, Director Bowron has been the recipient of numerous commendations and awards for outstanding service. He serves as a member of the International Association of Chiefs of Police.

Mr. Bowron and his wife Sandy, have one son.

http://www.2600.com/secret/more/ss/ss_honcho.html4/16/2006 11:32:02 AM

2600 Magazine

BEGINNINGS

The Investigative Mission

At the close of the Civil War, between one third and one half of all U.S. paper currency in circulation was counterfeit. On July 5, 1865, the Secret Service was created as a bureau under the Department of the Treasury to combat this threat to the nation's economy. Within less than a decade, counterfeiting was sharply reduced.

During its early years, the Secret Service investigated many cases unrelated to counterfeiting. These cases included the Teapot Dome oil scandals, the Ku Klux Klan, Government land frauds, and counterespionage activity during the Spanish American War and World War I. As other federal law enforcement agencies were created, the investigative jurisdiction of the Secret Service became limited to Treasury-related crimes.

The Protective Mission

In 1901, President William McKinley was assassinated in Buffalo, New York. He was the third President killed in 36 years, and the public demanded protection for U.S. Presidents. As a result, Congress directed the Secret Service to protect the new President, Theodore Roosevelt. In 1906, Congress finally enacted legislation making presidential protection a permanent Secret Service responsibility.

Protective responsibilities expanded greatly since that time, and the Secret Service completed a number of temporary protective duties. These assignments included providing security for the Declaration of Independence, the U.S. Constitution, the Gutenberg Bible, and other valuable documents during World War II; providing protection for a number of foreign leaders who visited the U.S. during World War II; and providing protection for Leonardo da Vinci's "Mona Lisa" while on exhibit in the United States.

EXPANSION

The Investigative Mission

The Secret Service continues to suppress the counterfeiting of currency and securities of the United States and of foreign governments. The Service is also responsible for investigating the fraud and forgery of U.S. checks, bonds, and other obligations. In 1984, Congress passed legislation expanding Secret Service investigative jurisdiction further to include fraud related to false identification documents and devices; fraud and related activities involving credit and debit cards; investigative authority relating to computer fraud; and, at the direction of the Secretary of the Treasury, authorization to investigate fraud associated with the electronic funds transfer system of the U.S. Treasury. In 1990, Congress further expanded the Service's jurisdiction regarding criminal violations against federally insured

http://www.2600.com/secret/more/ss/ss_story.html (1 of 3)4/16/2006 11:32:28 AM

2600 Magazine

financial institutions to include savings and loan investigations.

The Protective Mission

Secret Service protective responsibilities have increased dramatically since the days of President Roosevelt. Today the Service protects:

- the President, Vice President, the President-elect, Vice President-elect, and their immediate families;

- former Presidents and their spouses;

- children of former Presidents until age 16;

- visiting heads of foreign states or governments and their spouses, and other distinguished foreign visitors to the U.S.;

- major Presidential and Vice Presidential candidates and their spouses;

- other individuals at the direction of the President.

THE SECRET SERVICE UNIFORMED DIVISION

The first formal attempt to provide security at the White House occurred during the Civil War. The "Bucktail Brigade" (members of the 150th Regiment of the Pennsylvania Volunteers) and four officers from the Metropolitan Washington Police Force were assigned to protect White House property. On September 14, 1922, President Warren G. Harding created the White House Police under the supervision of the White House military aide's office. President Hoover decided that White House Police officers and Secret Service agents at the White House could better coordinate their efforts if they were under centralized control. In 1930, Congress placed the White House Police under the supervision of the U.S. Secret Service.

White House Police responsibilities expanded sharply in 1970 to include security for foreign diplomatic missions in the Washington, D.C., area. At the same time, the force was renamed the Executive Protective Service. In 1977, the name was changed again to the United States Secret Service Uniformed Division.

Today, Uniformed Division officers provide security at the White House, the Vice President's residence, buildings in which Presidential offices are located, the U.S. Treasury Building and the Treasury Annex, foreign diplomatic missions in the Washington, D.C., metropolitan area, and foreign diplomatic establishments in other parts of the U.S. as the President may direct. Uniformed Division officers carry out their protective responsibilities through a network of foot patrols, vehicular patrols, and fixed posts.


2600 Magazine

They provide additional assistance to the overall Secret Service protective mission through special support programs such as the canine, magnetometer, and countersniper units.

THE SECRET SERVICE TODAY

The Secret Service has approximately 4,600 employees, including the Uniformed Division. The Service has field offices located throughout the continental U.S.; in Alaska, Hawaii, and Puerto Rico; and liaison offices in Paris, France; London, England; Bonn, Germany; Rome, Italy; and Bangkok, Thailand.

The Service has more than 1,900 special agents who are rotated throughout their careers between investigative and protective assignments. Agents assigned to investigative duties in the Service's field offices also serve as a source of additional manpower for temporary protective details, such as those for candidates or visiting foreign dignitaries.

Numerous specialists in a wide variety of occupations contribute their expertise to the Secret Service's investigative and protective missions. They include security specialists, electronics engineers, communications technicians, research psychologists, computer experts, armorers, intelligence analysts, polygraph examiners, forensic experts, and professionals in many other fields.

THE SECRET SERVICE AND YOU

Because of the magnitude of its responsibilities, the Secret Service relies heavily on the support of outside organizations and individuals. State, county, and local law enforcement organizations are valued partners of the Service in every phase of its investigative and protective operations.

Ordinary citizens also assist the Service in various ways: by learning about counterfeiting and forgery; by taking steps to protect themselves from these crimes; and by reporting any suspicious occurrences to their local police or Secret Service office. The support of all Americans helps the Secret Service succeed in its dual investigative and protective missions.


2600 Magazine

After the assassination of President William McKinley in 1901, the Secret Service was directed by Congress to protect the President of the United States. This duty remains the primary responsibility of the United States Secret Service. Today the Secret Service is authorized to protect the following:

- the President, the Vice President (or other officer next in order of succession to the Office of President), the President-elect, and Vice President-elect;

- the immediate families of the above individuals;

- former Presidents and their spouses for their lifetimes, except that protection of a spouse will terminate in the event of remarriage;

- children of former Presidents until age 16;

- visiting heads of foreign states or governments and their spouses traveling with them, other distinguished foreign visitors to the U.S., and official representatives of the U.S. performing special missions abroad;

- major Presidential and Vice Presidential candidates, and within 120 days of the general Presidential election, the spouses of such candidates.

Secret Service protective methods are generally the same for all individuals protected. Permanent protectees, such as the President and First Lady, have details of special agents permanently assigned to them. Temporary protectees, such as candidates and foreign dignitaries, have details of special agents on temporary assignment from the Service's field offices. With the exception of the President, the President-elect, the Vice President, and the Vice President-elect, all individuals entitled to Secret Service protection may decline protection if they choose.

HOW PROTECTION WORKS

Work begins on a protectee's visit to a locality when a lead advance agent is assigned to draw up a security plan. Throughout the planning stages and the visit, the lead agent and his team work closely with the Special Agent in Charge and other personnel from the nearest district field office.

The advance team surveys each site to be visited. From these surveys, the members determine manpower, equipment, and other requirements. Protective research personnel on the advance team conduct electronic and environmental surveys; others select hospitals and evacuation routes for emergencies. Fire, rescue, and other public service personnel in the community are alerted. A command post is established with full communications facilities. The assistance of the military, state, county, and local law enforcement organizations is a vital part of the entire security operation.

Before the protectee's arrival, the lead advance agent holds briefings for all agents and other law

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enforcement representatives participating in the visit. Personnel are told where they will be posted and are alerted to specific problems associated with the visit. Intelligence information is discussed, identification specified, and emergency options outlined. Just prior to the arrival of the protectee, checkpoints are established, and access to the secured area is limited.

During the visit, Secret Service and local law enforcement personnel form a network of support for members of the detail surrounding the protectee. The Secret Service command post acts as the nerve center for protective activities, monitors emergencies, and keeps all participants in contact with one another.

After the visit, agents analyze every step of the protective operation, record unusual incidents, and suggest improvements for the future.

PROTECTIVE RESEARCH

Protective research is an important ingredient in all security operations. Protective research technicians and engineers develop, test, and maintain technical devices and equipment needed to secure a safe environment for the Service's protectees.

Agents and specialists assigned to protective research also evaluate information received from other law enforcement and intelligence agencies regarding individuals or groups who may pose a threat to protectees. Such information is critical to the Service's protective planning.

UNIFORMED DIVISION

The men and women of the Secret Service Uniformed Division are an integral part of the Service's protective program. First established in 1922 as the White House Police, they were renamed the United States Secret Service Uniformed Division in 1977.

Uniformed Division officers in the White House Branch are responsible for security at the Executive Mansion; the Treasury Building, Annex, and grounds; and the Old and New Executive Office Buildings. Uniformed Division officers clear all visitors, provide fixed posts, and patrol the White House Grounds.

The Foreign Missions Branch of the Uniformed Division safeguards foreign diplomatic missions in the Washington, D.C., area. Officers maintain foot and vehicular patrols in areas where embassies are located. They are assigned to fixed posts at locations where a threat has been received or at installations of countries involved in tense international situations. This Branch also provides security at the Vice President's residence and at the Blair House when foreign dignitaries are in residence.

Uniformed Division officers have additional duties, closely involving them in almost every phase of the Service's protective mission. The Administration and Program Support Branch officers operate


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magnetometers at the White House and at other sites to prevent persons from taking weapons into secure areas. Uniformed Division canine teams respond to bomb threats, suspicious packages, and other situations where explosive detection is necessary. The Uniformed Division countersniper team performs still other important security functions.

THE SERVICE'S DUAL MISSION

The protective responsibilities of the United States Secret Service represent only half of its mission. The Service was founded in 1865 as a bureau of the Treasury Department. It was originally established to suppress counterfeiting. Although suppressing the counterfeiting of U.S. currency and securities remains a primary mission of the Secret Service, our responsibilities have expanded to include: stolen or forged U.S. Government checks, bonds, and other Government obligations; fraud and related activity in connection with identification documents; and major fraud cases involving credit and debit cards, computers, automated teller machines, telecommunications, or electronic fund transfers.

Planning and maintaining security for individuals and property protected by the United States Secret Service is a complicated and demanding process. The Secret Service is able to fulfill its protective responsibilities because of the cooperation and assistance of private citizens and members of the law enforcement community.


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"The U.S. Secret Service is unique among Federal law enforcement agencies: it is charged with two distinct missions -- investigation and protection."

INVESTIGATION

The Secret Service was created in July 1865 as a bureau of the Department of the Treasury. At that time, approximately one-third of all currency in circulation was counterfeit, which posed a serious threat to the nation's economy. President Abraham Lincoln recognized the seriousness of the problem and created the Secret Service to investigate and suppress counterfeiting of U.S. currency. The increased size and complexity of the nation's monetary system have greatly expanded the Secret Service's investigative responsibilities.

Today, the Secret Service investigates any offense against the nation's currency, obligations, or securities. This includes: counterfeiting of currency; theft or forgery of U.S. Government checks, bonds, and other Government obligations; fraud and related activity in connection with identification documents and food stamps; fraud involving credit and debit cards and telecommunications; fraud associated with the electronic funds transfer system of the U.S. Treasury; and, financial institution fraud. Many of the financial crimes the Secret Service investigates today, such as telecommunications and telemarketing fraud, reflect the complex and highly technical nature of this nation's economy.

PROTECTION

After the assassination of President William McKinley in 1901, Congress directed the Secret Service to protect the President of the United States. This duty continues to be the primary responsibility of the Secret Service. The number of people authorized Secret Service protection has increased significantly from the original mandate. The Secret Service provides protection for: the President, Vice President, and their immediate families; the President-elect, Vice President-elect, and members of their immediate families; visiting heads of foreign states or governments and their spouses; former Presidents, their spouses and minor children; major Presidential and Vice Presidential candidates; and others at the direction of the President. In addition, the Secret Service is responsible for providing security for the White House Complex and any building in which Presidential offices are located; the Main Treasury Building and Annex, the official residence of the Vice President in Washington, D.C., and, approximately 450 foreign diplomatic missions in the Washington, D.C., metropolitan area and others throughout the United States.

CAREER OPPORTUNITIES

The professional, administrative, and technical positions provide direct and indirect support to missions of the Secret Service by analyzing intelligence data, maintaining database software data security, providing legal advice pertaining to asset forfeiture, and installing state-of-the-art telecommunications equipment to remote and Service-wide sites. Listed below is a sampling of professional, administrative, and technical positions available to applicants.

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PROFESSIONAL POSITIONS involve work which requires knowledge in a field of science or learning that is characteristically acquired through education or training equivalent to a bachelor's or higher degree with major study in a specialized field. The work of a professional occupation requires an individual to exercise discretion and judgment in applying a scholarly body of knowledge to various subject matters. The use of these skills results in important new discoveries and highly technical interpretations being made as well as the development of improved data, materials, techniques, and procedures to obtain desired results.

Professional positions include:

AccountantArchitectAttorneyChemistCivil EngineerElectronic EngineerNurse ConsultantOperations Research AnalystResearch PsychologistSocial Worker

ADMINISTRATIVE POSITIONS involve the application of a substantial body of knowledge of principles, concepts, and practices applicable to one or more fields of administration or management. Although the positions do not require a specialized educational background, they do involve analytical, research, writing, and judgmental skills and abilities. These skills are usually acquired through a general college education or through progressively responsible experience.

Administrative positions include:

Budget AnalystComputer SpecialistContract SpecialistCriminal Research SpecialistDocument AnalystFacilities Management AnalystFingerprint SpecialistIntelligence Research SpecialistManagement AnalystPersonnel Management SpecialistPhysical Security SpecialistProcurement Analyst


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Telecommunications SpecialistWriter/Editor

TECHNICAL POSITIONS are associated with the direct support of a professional or administrative field. The work is generally non-routine in nature and involves extensive practical knowledge which is either gained through on-the-job experience or specific training at a level less than that represented by a college education. Technical positions include:

Accounting TechnicianOperations Support TechnicianPhotographerProtective Support Technician

ELIGIBILITY

All applicants tentatively selected for a position must submit to urinalysis screening for illegal drug use prior to appointment. Actual appointment will be contingent upon the receipt of a negative drug test result.

All Secret Service positions require top secret security clearances. Some positions require the applicant to take a polygraph examination.

BENEFITS

- Retirement- Life and Health Insurance- Annual and Sick Leave- Holiday Pay- Awards/Promotions

CONCLUSION

Many excellent career opportunities exist within the Secret Service. Professional, administrative, and technical positions provide employees with an opportunity to obtain a comprehensive knowledge of all facets of the organization.

HOW TO APPLY

Submit a completed Application for Federal Employment (Standard Form 171) to: U.S. Secret Service, Personnel Division, Recruitment and Staffing Branch, 1800 G Street, N.W., Washington, DC 20223 (tel.: 202-435-5800).


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The United States Secret Service is a Federal law enforcement organization with headquarters in Washington, D.C., and over 100 offices throughout the United States and abroad. The principal missions of the Secret Service include protection of the President, the Vice President, their immediate families, former Presidents and their spouses, widows and minor children of former Presidents, major Presidential and Vice Presidential candidates and their spouses, visiting heads of foreign states or governments, other distinguished foreign visitors to the United States, and official representatives of the United States performing special missions abroad. Additionally, the Service is responsible for the suppression of the counterfeiting of United States currency and securities. Other major investigative responsibilities include credit and debit card fraud, computer fraud, electronic fund transfer fraud, forgery of Government checks and bonds, and other frauds involving securities and obligations of the United States.

AVAILABLE POSITIONS

The Secret Service is actively seeking new employees to fill its clerical and support ranks. Positions for which applicants are being sought include: clerk-typists; file clerks; secretaries (stenography or typing and various specialty clerks including training clerks, correspondence clerks, personnel clerks, payroll clerks, travel clerks, logistics clerks, property control clerks, and others.

PROMOTIONAL OPPORTUNITIES

Te Secret Service subscribes to the concept of promotion from within whenever possible. A significant proportion of Secret Service technician and specialists are promoted from the clerical ranks. The wide variety of clerical positions provides excellent career opportunities to progress to a number of different technical specialties.

BENEFITS

- Annual leave accrues at the rate of 13 to 26 days annually, based on length of employment. Prior Federal civilian or military service is creditable.

- Sick leave accumulates at the rate of 13 days per year without limit.

- Paid holidays.

- Low-cost health and life insurance may be obtained through Federal employee programs. Immediate families may be included in health benefit plans.

- Financial protection is provided, without cost to employees and their families, in the event of job-related injury or death.

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- Excellent retirement benefits.

- Additional retirement credit is granted for prior military or civilian government service.

HOW TO APPLY

Submit a completed application for Federal Employment, Standard Form 171, to: United States Secret Service, Personnel Division, Room 912, 1800 G Street, N.W., Washington, DC 20223. FOR FURTHER INFORMATION

In the Washington, D.C. Metropolitan Area, contact the Secret Service Personnel Division at (202) 535-5800. In other locations, contact the Secret Service field office nearest you. The telephone number is listed inside the front cover of telephone directories of most major metropolitan areas.

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Special agents of the United States Secret Service are charged with two missions: protection and investigation. During the course of their careers, special agents carry out assignments in both of these areas.

PROTECTION

After the assassination of President William McKinley in 1901, the Secret Service was directed by Congress to protect the President of the United States. This duty remains the primary responsibility of the United States Secret Service.

Today, special agents are authorized by law to protect: the President, the Vice President, (or other individuals next in order of succession to the Office of President), the President-elect and Vice President-elect; the immediate families of the above individuals; former Presidents, their spouses, and minor children; visiting heads of foreign states or governments and their spouses traveling with them, other distinguished foreign visitors to the United States, and official representatives of the United States performing special missions abroad; and major Presidential and Vice Presidential candidates and their spouses.

INVESTIGATION

The Secret Service was established in 1865 solely to suppress the counterfeiting of U.S. currency. Over the years, its investigative responsibilities have expanded along with the nation's increasingly complex monetary system.

Counterfeiting - Suppressing the counterfeiting of the currency and securities of the United States and of foreign governments remains a major responsibility of special agents. Today, the Service also investigates the counterfeiting of certain Government identification documents and devices.

Forgery - Each year, social security checks, retirement pensions, savings bonds, and other federal government disbursements are stolen and forged. The Secret Service is responsible for investigating these crimes that result in the loss of millions of dollars annually.

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Financial Crimes - The Secret Service investigates crimes associated with financial institutions. Today, our jurisdiction has expanded to include bank fraud, access device fraud involving credit and debit cards, telecommunication and computer crimes, fraudulent identification, fraudulent government and commercial securities, and electronic funds transfer fraud.

TRAINING

During the first year on the job, a special agent receives 5 months of formal classroom and simulation training. The remaining 7 months are spent in an on-the-job training program.

Special agents begin general investigative training at the Federal Law Enforcement Training Center in Glynco, Georgia. They continue to receive comprehensive and specialized protective and investigative training at Secret Service facilities in the Washington, D.C., area. The special agent training curriculum consists of protective techniques, investigative procedures, criminal law, rules of evidence, surveillance techniques, undercover operations, interviewing techniques, defensive measures, and emergency medicine. Special emphasis is placed on the jurisdictional areas of counterfeiting, forgery, financial crimes, and physical protection. Throughout their careers, special agents regularly participate in advanced training programs that enhance their ability to effectively accomplish the Secret Service mission.

EMPLOYMENT OPPORTUNITIES

Although the Secret Service is always interested in qualified applicants, opportunities for special agent positions are limited because of high competition and low attrition. Consequently, only the most qualified applicants are appointed.

Newly appointed special agents may be assigned to duty stations anywhere in the United States. Throughout their careers, agents may experience frequent travel and reassignments to Secret Service offices located throughout the United States or liaison assignments in foreign countries.


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BACKGROUND REQUIREMENTS

Prior to being considered for a special agent position, candidates must pass the Treasury Enforcement Agent Examination. Candidates may apply at a branch of the U.S. Office of Personnel Management or at the nearest Secret Service field office. A limited number of the most qualified applicants will receive a series of in-depth interviews. These candidates must successfully complete a polygraph examination and participate in a drug screening program as a condition of employment.

Applicants must also undergo a thorough background investigation. All appointees must be less than 37 years of age at the time of entrance on duty.

MEDICAL REQUIREMENTS

Since special agents must be in excellent physical condition, applicants must pass a comprehensive medical examination, provided by the Secret Service, prior to appointment. Weight must be in proportion to height. Distant vision must be at least 20/40 in each eye uncorrected and 20/20 in each eye corrected. Near vision must be at least 20/40 corrected.

EDUCATIONAL REQUIREMENTS

A bachelor's degree from an accredited college or university in any field of study meets the minimum qualifications for appointment at the GS-5 grade level. In some cases, an applicant may be accepted with a minimum of 3 years of experience, 2 of which are in criminal investigation, or with a comparable combination of experience and education. One additional year of specialized experience, Superior Academic Achievement (defined as a grade point average of 3.0 or higher on a 4.0 scale), or one year of graduate study in a directly related field meets the requirements for appointment at the GS-7 grade level.

PROMOTIONAL OPPORTUNITIES

Eligibility for promotion in the Service is based upon performance. The full


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performance level for a special agent is GS-12. Selection for promotion to positions above the GS-12 level is based on merit and as vacancies occur.

BENEFITS

Low-cost health and life insurance may be obtained through federal employee programs. Immediate families may be included in health benefit plans. Financial protection is provided, without cost, to agents and their families in the event of job-related injury or death.

Annual leave accrues at the rate of 13 to 26 days per year, based on length of employment. Prior federal, civilian, or military service is creditable. Sick leave accumulates at the rate of 13 days per year without limit.

The Secret Service offers comprehensive retirement programs for all employees. Additional retirement credit is granted for prior military or Government service, as authorized.


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The United States Secret Service Uniformed Division has one mission-- protection. Created by Congress on July 1, 1922, at the request of President Warren G. Harding, the force was originally called the White House Police. Its purpose was to provide protection for the Executive Mansion and grounds.

This remains the primary mission of the Uniformed Division; however, their responsibilities have expanded greatly over the years. Today the Uniformed Division is authorized to perform duties (as prescribed by the Director, U.S. Secret Service) in connection with the protection of:

- The White House Complex, the Main Treasury Building and Annex, and other Presidential offices;

- The President and members of the immediate family;

- The temporary official residence of the Vice President in the District of Columbia;

- The Vice President and members of the immediate family;

- Foreign diplomatic missions in the Washington, D.C., metropolitan area and throughout the United States, and its territories and possessions, as prescribed by statute.

Officers of the Uniformed Division carry out their protective responsibilities through special support programs and a network of foot patrols, vehicular patrols, and fixed posts.

TRAINING

New appointees receive intensive training at the Federal Law Enforcement Training Center in Glynco, Georgia, and specialized instruction at Secret Service training facilities in the Washington, D.C., area. Training includes course work in police procedures, psychology, police-community relations, criminal law, first aid, laws of arrest, search and seizure, and physical defense techniques. Classroom study is supplemented by on-the-job training and advanced in-service training programs. Firearms and physical fitness training are stressed throughout an officer's career.

EMPLOYMENT OPPORTUNITIES

The Secret Service Uniformed Division is always interested in qualified applicants. Career opportunities for those selected are excellent. During their careers, officers rotate tours of duty to ensure comprehensive knowledge of all branches of the organization. They may also compete for special assignments to further particular interests or expertise.

REQUIREMENTS

General

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Applicants must be United States citizens and have a high school diploma or equivalent. They must possess a valid automobile driver's license and qualify for top secret clearance. Applicants must be less than 35 years of age when appointed to a Uniformed Division Officer position. Prior to being considered, they must pass a written exam. Qualified applicants will then receive a personal interview and must complete a polygraph examination as a condition of employment. Medical Requirements

Applicants must pass a comprehensive medical examination, which is provided at no cost to the applicant. Vision must be at least 20/40 in each eye, correctable to 20/20. Weight must be in proportion to height.

Selected applicants should be prepared to wait an extended period of time while a thorough background investigation is conducted.

BENEFITS

- Overtime is compensated at the rate of time and one-half, or through compensatory time off.

- Uniforms and equipment are furnished and replaced at no cost to the officer.

- Officers are eligible for low-cost life insurance. Officers and their immediate families are eligible for membership in low cost Federal health benefit plans.

- Annual leave is earned at the rate of 13 to 26 days per year, based on length of employment. Prior Federal civilian or military service is creditable. Sick leave accumulates at the rate of 13 days per year without limit.

- Paid holidays.

- Excellent retirement benefits.

- Additional retirement credit is granted for prior military or government service, as authorized.

- Reasonable moving expenses to the Washington, D.C., area are paid.

For further information contact:United States Secret ServicePersonnel Division1800 G Street, N.W.Washington, DC 20223

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Visit Your Local Secret Service Office

We sent our scouts out searching for the Secret Service and they came back with reports of Secret Service offices everywhere! Here's what we have so far. If you have an office in your town that we somehow missed, we want to know! You can email us at [email protected]. We provided frequencies used at local offices when we could find them.

SECRET SERVICE10 CAUSEWAY STBOSTON, MA 02222-1047617-565-5640

SECRET SERVICE380 WESTMINSTER STPROVIDENCE, RI 02903-3246401-331-6456

SECRET SERVICE197 LOUDON RD SUITE 250CONCORD, NH 03301-3954603-228-3428

SECRET SERVICE151 FOREST AVEPORTLAND, ME 04101-1943207-780-3493

SECRET SERVICE265 CHURCH STNEW HAVEN, CT 06510-7013203-865-2449

SECRET SERVICE60 EVERGREEN PLEAST ORANGE, NJ 07018-2114201-645-2334NWK FO #1166.4875165.5125NWK FO #2166.8000165.6875

SECRET SERVICE

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34 HEADQUARTERS PLAZAMORRISTOWN, NJ 07960201-645-2334

SECRET SERVICEILLINOIS AVE & PACIFIC AVEATLANTIC CITY, NJ 08401609-347-0772

SECRET SERVICE101 CARNEGLE CENTERPRINCETON, NJ 08540609-989-2008

SECRET SERVICE6 WORLD TRADE CENTERNEW YORK, NY 10048-0206212-466-4399212-466-4400

SECRET SERVICE300 HAMILTON AVEWHITE PLAINS, NY 10601-1810914-682-6300

SECRET SERVICE560 BROADHOLLOW RDMELVILLE, NY 11747-3702516-249-0404

SECRET SERVICE445 BROADWAYALBANY, NY 12207-2928518-431-0205

SECRET SERVICEJAMES M HANLEY FEDERAL BUILDINGSYRACUSE, NY 13220315-448-0304

SECRET SERVICE111 W HURON ST



BUFFALO, NY 14202-2301716-846-4401

SECRET SERVICE100 STATE STROCHESTER, NY 14614-1309716-263-6830

SECRET SERVICE1000 LIBERTY AVEPITTSBURGH, PA 15290412-644-3384

SECRET SERVICE228 WALNUTHARRISBURG, PA 17100717-782-4811

SECRET SERVICEWASHINGTON AVE & LINDENSCRANTON, PA 18500717-346-5781

SECRET SERVICE600 ARCH STPHILADELPHIA, PA 19106-1611215-597-0600215-597-3311

SECRET SERVICE844 KINGWILMINGTON, DE 19880302-573-6188

SECRET SERVICE1050 CONN AVE NWWASHINGTON, DC 20004202-435-5100WFO166.4000165.6875CHARLIE



166.4000165.3750

SECRET SERVICE15TH & PA AVE NWWASHINGTON, DC 20004202-395-2020

SECRET SERVICEWASHINGTON, DC 20005202-435-7575

SECRET SERVICE100 S CHARLES STBALTIMORE, MD 21201-2725410-962-2200

SECRET SERVICE400 N 8TH STRICHMOND, VA 23240-1001804-771-2274166.4000165.8500

SECRET SERVICE200 GRANBY MALLNORFOLK, VA 23500804-441-3200

SECRET SERVICE105 FRANKLIN RD SWROANOKE, VA 24000540-345-4301

SECRET SERVICEONE VALLEY SQUARECHARLESTON, WV 25317304-347-5188

SECRET SERVICE4407 BLAND RDRALEIGH, NC 27609-6296



919-790-2834

SECRET SERVICE4530 PARK RDCHARLOTTE, NC 28209-3716704-523-9583CHARLIE166.5875165.3750

SECRET SERVICE272 N FRONT STWILMINGTON, NC 28401-3977910-343-4411

SECRET SERVICE1835 ASSEMBLY STCOLUMBIA, SC 29201-2430803-765-5446803-765-5448

SECRET SERVICE334 MEETING STCHARLESTON, SC 29403-6417803-727-4691803-722-6819

SECRET SERVICE7 NORTH LAURENS STGREENVILLE, SC 29601803-233-1490

SECRET SERVICE100 PEACHTREE ST NEATLANTA, GA 30301404-331-6111TANGO165.6875164.6500

SECRET SERVICESAVANNAH, GA 31401



912-652-4401

SECRET SERVICE235 ROOSEVELT AVELEESBURG, GA 31763912-430-8442

SECRET SERVICE7820 ARLINGTON EXPWYJACKSONVILLE, FL 32203904-724-4530

SECRET SERVICE114 E GREGORY STPENSACOLA, FL 32501-4970904-432-3234

SECRET SERVICE80 N HUGHEY AVEORLANDO, FL 32801-2231407-648-6333

SECRET SERVICE135 W CENTRAL BLVD SUITE 670ORLANDO, FL 32801-2430407-648-6333

SECRET SERVICE8375 NW 53RD STMIAMI, FL 33166-4650305-591-3660CHARLIE166.4000165.3750TANGO165.9000164.6500

SECRET SERVICE505 S FLAGLER DRWEST PALM BEACH, FL 33401-5923407-659-0184



SECRET SERVICE501 POLK ETAMPA, FL 33600813-228-2636BAKER166.4000165.7875

SECRET SERVICE2210 PECK STFORT MYERS, FL 33901-3631941-337-3966

SECRET SERVICE500 22ND ST SBIRMINHAM, AL 35234205-731-1144

SECRET SERVICE1 COMMERCE STMONTGOMERY, AL 36104-3542334-223-7601

SECRET SERVICE182 SAINT FRANCIS STMOBILE, AL 36602-3529334-441-5851

SECRET SERVICEFEDERAL BUILDING U S COURTNASHVILLE, TN 37203615-736-5841

SECRET SERVICEFEDERAL BUILDINGCHATTANOOGA, TN 37400615-752-5125

SECRET SERVICE710 LOCUST STKNOXVILLE, TN 37902-2540423-545-4627



SECRET SERVICE5350 POPLAR AVEMEMPHIS, TN 38119-3699901-766-7632CHARLIE164.4000165.3750

SECRET SERVICE911 JACKSON AVE EOXFORD, MS 38655-3632601-236-1563

SECRET SERVICE100 W CAPITOLJACKSON, MS 39202601-965-4436

SECRET SERVICE600 DR MARTIN LUTHER KING DRLOUISVILLE, KY 40202-2239502-582-5171

SECRET SERVICE1460 NEWTOWN PIKELEXINGTON, KY 40508606-233-2453

SECRET SERVICE500 S FRONT STCOLUMBUS, OH 43215-7619614-469-7370166.5625165.3375

SECRET SERVICE234 N SUMMIT STTOLEDO, OH 43604-1536419-259-6434165.4125164.8000



SECRET SERVICE6100 ROCKSIDE WOODS BLVDCLEVELAND, OH 44131-2334216-522-4365

SECRET SERVICEYOUNGSTOWN, OH 44512216-726-0180

SECRET SERVICE550 MAIN STCINCINNATI, OH 45202513-684-3585

SECRET SERVICE200 W 2ND STDAYTON, OH 45402-1430513-222-2013

SECRET SERVICEINDIANAPOLIS, IN 46204317-226-6444

SECRET SERVICE231 W LAFAYETTE BLVDDETROIT, MI 48226-2719313-226-6400165.2625164.7500

SECRET SERVICE110 MICHIGAN ST NWGRAND RAPIDS, MI 49503-2313616-456-2276

SECRET SERVICE210 WALNUT STDES MOINES, IA 50309-2103515-284-4565

SECRET SERVICE



517 E WISCONSIN AVEMILWAUKEE, WI 53295414-297-3587166.5625165.6875

SECRET SERVICE131 W WILSON STMADISON, WI 53703-3233608-264-5191

SECRET SERVICE110 S 4TH STMINNEAPOLIS, MN 55401-2221612-348-1800

SECRET SERVICE3RD & ROSSERBISMARCK, ND 58501701-255-3294

SECRET SERVICE300 S RIVERSIDE PLAZACHICAGO, IL 60606-6613312-353-5431

SECRET SERVICEMOLINE, IL 61265309-797-4000

SECRET SERVICE400 W MONROE STSPRINGFIELD, IL 62704-1800217-492-4033

SECRET SERVICE1114 MARKET STSAINT LOUIS, MO 63101-2043314-539-2238

SECRET SERVICE1150 GRAND BLVD



KANSAS CITY, MO 64106-2307816-374-6102

SECRET SERVICE901 ST LOUISSPRINGFIELD, MO 65806417-864-8340

SECRET SERVICE124 N WATER STWICHITA, KS 67202-1240316-267-1452

SECRET SERVICE225 N MARKET STWICHITA, KS 67202-2022316-269-6694

SECRET SERVICE215 N 17TH STOMAHA, NE 68102-4910402-221-4671

SECRET SERVICE500 CAMP STNEW ORLEANS, LA 70130-3313504-589-4041

SECRET SERVICEONE AMERICAN PLACEBATON ROUGE, LA 70801504-389-0763

SECRET SERVICE500 FANNIN STSHREVEPORT, LA 71101-3192318-676-3500

SECRET SERVICE111 CENTER STLITTLE ROCK, AR 72201-4402501-324-6241



SECRET SERVICE200 NW 5THOKLAHOMA CITY, OK 73102-3202405-231-4476

SECRET SERVICE125 W 15TH STTULSA, OK 74119-3827918-581-7272

SECRET SERVICE125 E JOHN W CARPENTER FRWYDALLAS, TX 75200214-655-2500CHARLIE166.4000165.3750DALLAS FO166.0500167.9000

SECRET SERVICE6101 S BROADWAY AVETYLER, TX 75703-4400903-534-2933

SECRET SERVICE602 SAWYER ST SUITE 500HOUSTON, TX 77007-7510713-868-2299

SECRET SERVICE727 E DURANGO BLVDSAN ANTONIO, TX 78206-1204210-229-6175

SECRET SERVICEPO BOX 2605CORPUS CHRISTI, TX 78403-2605512-888-3401



SECRET SERVICE802 N CARANCAHUA ST SUITE 1800CORPUS CHRISTI, TX 78470-0600512-888-3401

SECRET SERVICE200 S 10TH STMC ALLEN, TX 78501-4850210-630-5811

SECRET SERVICE300 E 8TH STAUSTIN, TX 78701-3204512-482-5103MIKE166.0500165.2125

SECRET SERVICE1205 TEXAS AVELUBBOCK, TX 79401-4037806-743-7347

SECRET SERVICEMIDLAND, TX 79701915-682-9900

SECRET SERVICE4849 N MESA ST SUITE 210EL PASO, TX 79912-5936915-533-6950

SECRET SERVICE1660 LINCOLN STDENVER, CO 80264-3101303-866-1010

SECRET SERVICECOLORADO SPRINGS, CO 80903719-632-3325

SECRET SERVICE



2120 CAPITOL AVECHEYENNE, WY 82001-3633307-772-2380

SECRET SERVICEBOISE, ID 83700208-334-1403

SECRET SERVICE57 W 200 SSALT LAKE CITY, UT 84101-1610801-524-5910

SECRET SERVICEPHOENIX, AZ 85012602-640-5580

SECRET SERVICE300 W CONGRESS STTUCSON, AZ 85701-1319520-670-4730

SECRET SERVICE505 MARQUETTE AVE NWALBUQUERQUE, NM 87102-2158505-766-3336

SECRET SERVICE600 S LAS VEGAS BLVDLAS VEGAS, NV 88901702-388-6571

SECRET SERVICE100 W LIBERTY STRENO, NV 89501-1962702-784-5354

SECRET SERVICE300 N LOS ANGELES STLOS ANGELES, CA 90012-3308213-894-4830CHARLIE



166.4000165.3750BAKER164.4000165.7875PALM SPRINGS165.5125

SECRET SERVICE255 E TEMPLE STLOS ANGELES, CA 90012-3334213-894-4830

SECRET SERVICE550 W C STSAN DIEGO, CA 92101-3540619-557-5640166.2000165.6875

SECRET SERVICE4371 LATHAM STRIVERSIDE, CA 92501-1731909-276-6781

SECRET SERVICE200 W SANTA ANA BLVDSANTA ANA, CA 92701-4134714-836-2805

SECRET SERVICEVENTURA, CA 93003805-339-9180

SECRET SERVICE5200 N PALM AVEFRESNO, CA 93704-2225209-487-5204

SECRET SERVICE345 SPEAR ST SUITE 530SAN FRANCISCO, CA 94105-1681



415-744-9026CHARLIE166.4000165.3750

SECRET SERVICESAN JOSE, CA 95113408-535-5288

SECRET SERVICE501 J ST SUITE 530SACRAMENTO, CA 95814-2336916-498-5141

SECRET SERVICE300 ALA MOANA BLVDHONOLULU, HI 96850-0001808-541-1912TANGO165.7875164.6500

SECRET SERVICE121 SW SALMON STPORTLAND, OR 97204-2901503-326-2162

SECRET SERVICE915 2NDSEATTLE, WA 98174206-220-6800

SECRET SERVICE222 W 7TH AVEANCHORAGE, AK 99513-7501907-271-5148


Secret Service Photo Album

This is a dangerous place to be. The main reason Bernie S. was thrown in federal prison had nothing to do with possession of crystals or hardware or software. He wasn't held without bail because of his electronic gear or even the books the Secret Service found in his home. It all centered around photos that Bernie had of undercover Secret Service agents visiting a friend's office. Those photos made their way to a 2600 meeting where a Fox TV crew was filming. Secret Service Agent Tom Varney and his cohorts have used the existence of these pictures as proof that Bernie S. was up to something and posed a major threat to society. They've also done a pretty good job of intimidating others into not taking more pictures. Now at last you can see what all the fuss was about as well as have a good look (well, the best we could manage) at the persons responsible for this whole charade.

Two agents step right in front of the camera.

http://www.2600.com/secret/more/photo.html (1 of 4)4/16/2006 11:40:22 AM


One agent picks his nose, something the Secret Service disapproves of strongly. (click to see larger view)



Tom Varney of the Secret Service (right) with Haverford Township Detective John Morris in tow.

Both had just testified that Bernie S. was still a major threat to society even after eight months of prison. Morris, incidentally, was the detective who threatened a Temple University student with legal action for criticizing the arrest of Bernie S. over the Internet.

[email protected]



http://www.2600.com/secret/more/ss1.gif

http://www.2600.com/secret/more/ss1.gif4/16/2006 11:42:25 AM

the secret service - big brother is watching you

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