STEVE JACKSON LAWSUIT: FULL TEXT OF COMPLAINT

JACKSUIT.TXT - Complete text of SJG's lawsuit from EFF

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Subject: STEVE JACKSON LAWSUIT: FULL TEXT OF COMPLAINT (long)

Summary: This document was filed May 1 in federal court in Austin, Texas

Keywords: search,seizure,hackers

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Date: 2 May 91 01:33:13 GMT

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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,

UNITED STATES SECRET SERVICE,

UNITED STATES OF AMERICA,

WILLIAM J. COOK, TIMOTHY M. FOLEY,

BARBARA GOLDEN, and HENRY M. KLUEPFEL,

Defendants.

COMPLAINT AND DEMAND FOR JURY TRIAL

I. INTRODUCTION AND SUMMARY

This is a civil action for damages to redress

violations of the Privacy Protection Act of 1980,

42 U.S.C. 2000aa et seq; the Electronic

Communications Privacy Act, as amended, 18 U.S.C.

2510 et seq and 2701 et seq; and the First and

Fourth Amendments to the United States

Constitution.

Plaintiffs are Steve Jackson Games

Incorporated ("SJG"), an award-winning publisher of

books, magazines, and games; its president and sole

owner Steve Jackson; and three other users of an

electronic bulletin board system operated by SJG.

Defendants are the United States Secret

Service, the United States of America, an Assistant

United States Attorney, Secret Service agents, and

a private individual who acted at the direction of

these federal officers and agents and under color

of federal authority.

Although neither Steve Jackson nor SJG was a

target of any criminal investigation, defendants

caused a general search of the business premises of

SJG and the wholesale seizure, retention, and

conversion of computer hardware and software and

all data and communications stored there.

Defendants seized and retained work product and

documentary materials relating to SJG books, games,

and magazines, thereby imposing a prior restraint

on the publication of such materials. Defendants

also seized and retained an entire electronic

bulletin board system, including all computer

hardware and software used to operate the system

and all data and communications stored on the

system, causing a prior restraint on the operation

of the system. Defendants also seized and retained

computer hardware and software, proprietary

information, records, and communications used by

SJG in the ordinary course of operating its

publishing business.

The search of this reputable publishing

business and resulting seizures constituted a

blatant violation of clearly established law. The

search and seizure violated the Privacy Protection

Act of 1980, which strictly prohibits law

enforcement officers from using search and seizure

procedures to obtain work product or documentary

materials from a publisher, except in narrow

circumstances not applicable here. The seizure and

retention of SJG's work product and bulletin board

system, as well as the seizure and retentionof the

computers used to prepare SJG publications and to

operate the bulletin board system, violated the

First Amendment. The search and seizure, which

encompassed proprietary business information and

private electronic communications as well as

materials protected by the First Amendment, also

violated the Fourth Amendment. Defendants

conducted an unconstitutional general search

pursuant to a facially invalid, general warrant.

The warrant was issued without probable cause to

believe that any evidence of criminal activity

would be found at SJG and was issued on the basis

of false and misleading information supplied by the

defendants. Defendants also invaded plaintiffs'

privacy by seizing and intercepting the plaintiffs'

private electronic communications in violation of

the Electronic Communications Privacy Act.

Defendants' wrongful and unlawful conduct

amounted to an assault by the government on the

plaintiffs, depriving them of their property, their

privacy, their First Amendment rights and

inflicting humiliation and great emotional distress

upon them.

II. DEFINITIONS

When used in this complaint, the following

words and phrases have the following meanings:

Computer Hardware: Computer hardware consists

of the mechanical, magnetic, electronic, and

electrical devices making up a computer system,

such as the central processing unit, computer

storage devices (disk drives, hard disks, floppy

disks), keyboard, monitor, and printing devices.

Computer Software: Computer software consists

of computer programs and related instructions and

documentation.

Computer Program: A computer program is a set

of instructions that, when executed on a computer,

cause the computer to process data.

Source Code: Source code is a set of

instructions written in computer programming

language readable by humans. Source code must be

"compiled," "assembled," or "interpreted" with the

use of a computer program before it is executable

by a computer.

Text File: A computer file is a collection of

data treated as a unit by a computer. A text file

is a memorandum, letter, or any other alphanumeric

text treated as a unit by a computer. A text file

can be retrieved from storage and viewed on a

computer monitor, printed on paper by a printer

compatible with the computer storing the data, or

transmitted to another computer.

Modem: A modem, or modulator-demodulator, is

an electronic device that makes possible the

transmission of data to or from a computer over

communications channels, including telephone lines.

Electronic mail: Electronic mail (e-mail) is a

data communication transmitted between users of a

computer system or network. E-mail is addressed to

one or more accounts on a computer system assigned

to specific users and is typically stored on the

system computer until read and deleted by the

addressee. The privacy of electronic mail is

typically secured by means of a password, so that

only individuals withknowledge of the account's

password can obtain access to mail sent to that

account.

Electronic Bulletin Board System (BBS): A BBS

is a computerized conferencing system that permits

communication and association between and among its

users. A systems operator ("sysop") manages the

BBS on a computer system that is equipped with

appropriate hardware and software to store text

files and communications and make them accessible

to users. Users of the BBS gain access to the

system using their own computers and modems and

normal telephone lines.

A BBS is similar to a traditional bulletin

board in that it allows users to transmit and

"post" information readable by other users. Common

features of a BBS include:

(1) Conferences in which users engage in an

ongoing exchange of information and ideas.

Conferences can be limited to a specific group of

users, creating an expectation of privacy, or open

to the general public.

(2) Archives containing electronically stored

text files accessible to users;

(3) Electronic mail service, in which the host

computer facilitates the delivery, receipt, and

storage of electronic mail sent between users.

Bulletin board systems may be maintained as

private systems or permit access to the general

public. They range in size from small systems

operated by individuals using personal computers in

their homes, to medium-sized systemsoperated by

groups or commercial organizations, to world-wide

networks of interconnected computers. The subject

matter and number of topics discussed on a BBS are

limited only by the choices of the system's

operators and users. Industry estimates indicate

that well over a million people in the United

States use bulletin board systems.

III. PARTIES

1. Plaintiff SJG is a corporation duly

organized and existing under the laws of the State

of Texas. At all relevant times, SJG was engaged

in the business of publishing adventure games and

related books and magazines. Its place of business

is 2700-A Metcalfe Road, Austin, Texas.

2. Plaintiff Steve Jackson ("Jackson"), the

president and sole owner of SJG, is an adult

resident of the State of Texas.

3. Plaintiffs Elizabeth McCoy, Walter

Milliken, and Steffan O'Sullivan are adult

residents of the State of New Hampshire. At all

relevant times, they were users of the electronic

bulletin board system provided and operated by SJG

and known as the "Illuminati Bulletin Board System"

("Illuminati BBS").

4. The United States Secret Service, an

agency within the Treasury Department, and the

United States of America sued in Counts I, IV, and

5. Defendant William J. Cook ("Cook") is an

adult resident of the State of Illinois. At all

relevant times,Cook was employed as an Assistant

United States Attorney assigned to the United

States Attorney's office in Chicago, Illinois.

Cook is sued in Counts II-V.

6. Defendant Timothy M. Foley ("Foley") is an

adult resident of the State of Illinois. At all

relevant times, Foley was employed as a Special

Agent of the United States Secret Service, assigned

to the office of the United States Secret Service

in Chicago, Illinois. At all relevant times, Foley

was an attorney licensed to practice law in the

State of Illinois. Foley is sued in Counts II-V.

7. Defendant Barbara Golden ("Golden") is an

adult resident of the State of Illinois. At all

relevant times, Golden was employed as a Special

Agent of the United States Secret Service assigned

to the Computer Fraud Section of the United States

Secret Service in Chicago, Illinois.

8. Defendant Henry M. Kluepfel ("Kluepfel")

is an adult resident of the state of New Jersey.

At all relevant times, Kluepfel was employed by

Bell Communications Research as a district manager.

Kluepfel is sued in Counts II-V.

III. JURISDICTION AND VENUE

9. This Court's jurisdiction is invoked

pursuant to 28 U.S.C. 1331 and 42 U.S.C. 2000aa-

6(h). Federal question jurisdiction is proper

because this is a civil action authorized and

instituted pursuant to the First and Fourth

Amendments to the United States Constitution, 42

U.S.C. 2000aa-6(a) and 6(h), and 18 U.S.C. 2707

and 2520.

10. Venue in the Western District of Texas is

proper under 28 U.S.C. 1391(b), because a

substantial part of the events or omissions giving

rise to the claims occurred within this District.

IV. STATEMENT OF CLAIMS

FACTUAL BACKGROUND

Steve Jackson Games

11. SJG, established in 1980 and incorporated

in 1984, is a publisher of books, magazines, and

adventure games.

(a) SJG books and games create imaginary worlds

whose settings range from prehistoric to futuristic

times and whose form encompass various literary

genres.

(b) The magazines published by SJG contain news,

information, and entertainment relating to the

adventure game industry and related literary

genres.

12. SJG games and publications are carried by

wholesale distributors throughout the United States

and abroad.

13. SJG books are sold by national retail

chain stores including B. Dalton, Bookstop, and

Waldenbooks.

14. Each year from 1981 through 1989, and

again in 1991, SJG board games, game books, and/or

magazines have been nominated for and/or received

the Origins Award. The Origins Award, administered

by the Game Manufacturers' Association, is the

adventure game industry's most prestigious award.

15. SJG is not, and has never been, in the

business of selling computer games, computer

programs, or other computer products.

16. On March 1, 1990, SJG had 17 employees.

Steve Jackson Games Computer Use

17. At all relevant times, SJG relied upon

computers for many aspects of its business,

including but not limited to the following uses:

(a) Like other publishers of books or magazines,

and like a newspaper publisher, SJG used computers

to compose, store, and prepare for publication the

text of its books, magazines, and games.

(b) SJG stored notes, source materials, and

other work product and documentary materials

relating to SJG publications on its computers.

create and store business records including, but

not limited to, correspondence, contracts, address

directories, budgetary and payroll information,

personnel information, and correspondence.

18. Since 1986, SJG has used a computer to

operate an electronic bulletin board system (BBS)

dedicated to communication of information about

adventure games, the game industry, related

literary genres, and to association among

individuals who share these interests.

(a) The BBS was named "Illuminati," after the

company's award-winning board game.

(b) At all relevant times, the Illuminati BBS

was operated by means of a computer located on the

business premises of SJG. The computer used to run

the Illuminati BBS (hereafter the "Illuminati

computer") was connected to the telephone number

512-447-4449. Users obtained access to

communications and information stored on the

Illuminati BBS from their own computers via

telephone lines.

communication and association among its users,

which included SJG employees, customers, retailers,

writers, artists, competitors, writers of science

fiction and fantasy, and others with an interest in

the adventure game industry or related literary

genres.

(d) SJG, Jackson, and SJG employees also used

the Illuminati BBS in the course of business to

communicate with customers, retailers, writers, and

artists; to provide customer service; to obtain

feedback on games and new game ideas; to obtain

general marketing information; to advertise its

games and publications, and to establish good will

and a sense of community with others who shared

common interests.

(e) As of February 1990, the Illuminati BBS had

over 300 users residing throughout the United

States and abroad.

(f) At all relevant times, plaintiffs SJG,

Jackson, McCoy, Milliken, and O'Sullivan were

active users of the Illuminati BBS.

(g) Each user account was assigned a password to

secure the privacy of the account.

(h) The Illuminati BBS gave users access to

general files of electronically stored information.

General files included, but were not limited to,

text files containing articles on adventure games

and game-related humor, including articles

published in SJG magazines and articles contributed

by users of the BBS, and text files containing game

rules. These general files were stored on the

Illuminati computer at SJG.

(i) The Illuminati BBS provided several public

conferences, in which users of the BBS could post

information readable by other users and read

information posted by others. The discussions in

the public conferences focused on SJG products,

publications and related literary genres. All

communications transmitted to these conferences

were stored in the Illuminati computer at SJG.

(j) SJG informed users of the Illuminati BBS

that

"any opinions expressed on the BBS, unless

specifically identified as the opinions or policy

of Steve Jackson Games Incorporated, are only those

of the person posting them. SJ Games will do its

best to remove any false, harmful or otherwise

obnoxious material posted, but accepts no

responsibility for material placed on this board

without its knowledge.

(k) The Illuminati BBS also provided private

conferences that were accessible only to certain

users authorized by SJG and not to the general

public. All communications transmitted to these

conferences were stored in the Illuminati computer

at SJG.

(l) The Illuminati BBS provided a private

electronic mail (e-mail) service, which permitted

the transmission of private communications between

users on the system as follows:

(i) E-mail transmitted to an account on the

Illuminati BBS was stored on the BBS computer until

deleted by the addressee.

(ii) The privacy of e-mail was secured by the

use of passwords.

(iii) The privacy of e-mail was also secured by

computer software that prevented the system

operator from reading e-mail inadvertently.

(iv) The privacy of e-mail was also secured by

SJG policy. SJG informed users of the Illuminati

BBS that "[e]lectronic mail is private."

(v) As a matter of policy, practice, and

customer expectations, SJG did not read e-mail

addressed to Illuminati users other than SJG.

(vi) At all relevant times, all plaintiffs used

the e-mail service on the Illuminati BBS.

(vii) On March 1, 1990, the Illuminati computer

contained stored e-mail sent to or from each of the

plaintiffs.

The Illegal Warrant and Application

19. On February 28, 1990, defendant Foley

filed an application with this Court, for a warrant

authorizing the search of the business premises of

SJG and seizure of "[c]omputer hardware (including,

but not limited to, central processing unit(s),

monitors, memory devices, modem(s), programming

equipment, communication equipment, disks, and

prints) and computer software (including, but not

limited to, memory disks, floppy disks, storage

media) and written material and documents relating

to the use of the computer system (including

networking access files), documentation relating to

the attacking of computers and advertising the

results of computer attacks (including telephone

numbers and location information), and financial

documents and licensing documentation relative to

the computer programs and equipment at the business

known as Steve Jackson Games which constitute

evidence, instrumentalities and fruits of federal

crimes, including interstate transportation of

stolen property (18 USC 2314) and interstate

transportation of computer access information (18

USC 1030(a)(6)). This warrant is for the seizure

of the above described computer and computer data

and for the authorization to read information

stored and contained on the above described

computer and computer data."

A copy of the application and supporting affidavit

of defendant Foley (hereafter "Foley affidavit")

are attached as Exhibit "A" and incorporated herein

by reference.

20. The search warrant was sought as part of

an investigation being conducted jointly by

defendant Cook and the United States Attorney's

office in Chicago; defendants Foley, Golden, and

the Chicago field office of the United States

Secret Service; and defendant Kluepfel.

21. On information and belief, neither SJG

nor Jackson nor any of the plaintiffs were targets

of this investigation.

22. The Foley affidavit was based on the

investigation of defendant Foley and on information

and investigative assistance provided to him by

others, including defendants Golden and Kluepfel

and unnamed agents of the United States Secret

Service. Foley Affidavit para. 3.

23. The Foley affidavit alleged that

defendant Kluepfel had participated in the

execution of numerous federal and state search

warrants. Id.

24. On information and belief, Defendant Cook

participated in the drafting, review, and

submission of the warrant application and

supporting affidavit to this Court.

25. The warrant application and supporting

affidavit were placed under seal on motion of the

United States.

26. On February 28, 1990, based on the Foley

affidavit, a United States Magistrate for the

Western District of Texas granted defendant Foley's

warrant application and issued awarrant authorizing

the requested search and seizure described in

paragraph 19 above. A copy of the search warrant

is attached as Exhibit B.

27. The warrant was facially invalid for the

following reasons:

(a) It was a general warrant that failed to

describe the place to be searched with

particularity.

(b) It was a general warrant that failed to

describe things to be seized with particularity.

typed, printed, and electronically stored

communications, work product, documents, and

publications protected by the First Amendment.

(d) It swept within its scope SJG proprietary

information and business records relating to

activities protected by the First Amendment.

(e) It swept within its scope a BBS that was a

forum for speech and association protected by the

First Amendment.

(f) It swept within its scope computer hardware

and software that were used by SJG to publish

books, magazines, and games.

(g) It swept within its scope computer hardware

and software used by SJG to operate a BBS.

28. The warrant was also invalid in that it

authorized the seizure of work product and

documentary materials from apublisher "reasonably

believed to have a purpose to disseminate to the

public a newspaper, book, broadcast, or other

similar form of public communication, in or

affecting interstate or foreign commerce," which is

generally prohibited by 42 U.S.C. 2000aa(a) and

(b), without showing the existence of any of the

narrow statutory exceptions in which such a search

and seizure is permitted. Specifically, the Foley

affidavit did not establish the existence of any of

the following circumstances:

(a) The Foley affidavit did not establish

probable cause to believe that SJG, or any employee

in possession of work product materials at SJG, had

committed or was committing a criminal offense to

which such materials related.

(b) The Foley affidavit did not establish

probable cause to believe that SJG or any employee

of SJG in possession of work product materials at

SJG, had committed or was committing a criminal

offense to which such materials related consisting

of other than the receipt possession,

communication, or withholding of such materials or

the information contained therein.

probable cause to believe that SJG, or any employee

of SJG in possession of work product materials at

SJG, had committed or was committing a criminal

offense consisting of the receipt, possession, or

communicationof information relating to the

national defense, classified information, or

restricted data under the provisions of 18 U.S.C.

793, 794, 797, or 798 or 50 U.S.C. 783.

(d) The Foley affidavit did not establish reason

to believe that immediate seizure of work product

materials from SJG was necessary to prevent the

death of, or serious bodily injury to, a human

being.

(e) The Foley affidavit did not establish

probable cause to believe that SJG, or any employee

of SJG in possession of documentary materials at

SJG, had committed or was committing a criminal

offense to which the materials related.

(f) The Foley affidavit did not establish

probable cause to believe that SJG, or any employee

of SJG in possession of documentary materials at

SJG had committed or was committing a criminal

offense to which the materials related consisting

of other than the receipt, possession,

communication, or withholding of such materials or

the information contained therein.

(g) The Foley affidavit did not establish

probable cause to believe that SJG, or any employee

of SJG in possession of documentary materials at

SJG, had committed or was committing an offense

consisting of the receipt, possession, or

communication of information relating to the

national defense, 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 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.

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;

reading of electronically stored communications

that were not accessible to the public, including

private electronic mail, and that did not

constitute evidence, instrumentalities, or fruits

of criminal activity.

31. The warrant is invalid because there is

nothing in the Foley affidavit to show that the

information provided by defendant Kluepfel

regarding the BBS at SJG was not stale.

32. The warrant was invalid because the Foley

affidavit was materially false and misleading, and

because defendants submitted it knowing it was

false and misleading or with reckless disregard for

the truth, as set forth in paragraphs 33-40 below.

33. The Foley affidavit did not inform the

Magistrate that SJG was a publisher of games,

books, and magazines, engaged in the business of

preparing such materials for public dissemination

in or affecting interstate commerce;

(a) This omission was material;

(b) Defendants omitted this material information

from the warrant application knowingly or with

reckless disregard for the truth or falsity of the

application.

34. The Foley affidavit did not inform the

Magistrate that SJG used computers to compose and

prepare publications for public dissemination;

(a) This omission was material;

(b) Defendants omitted this material information

from the warrant application knowingly or with

reckless disregard for the truth or falsity of the

application.

35. The Foley affidavit did not inform the

Magistrate that the computer at SJG used to operate

the BBS contained electronically stored texts, work

product, documentary materials, and communications

stored for the purpose of public dissemination in

or affecting interstate commerce;

(a) This omission was material;

(b) Defendants omitted this material information

from the warrant application knowingly or with

reckless disregard for the truth or falsity of the

application.

36. The Foley affidavit did not inform the

Magistrate that a computer used to operate the BBS

at SJG operated a forum for constitutionally

protected speech and association regarding

adventure games and related literary genres;

(a) This omission was material;

(b) Defendants omitted this material information

from the warrant application knowingly or with

reckless disregard for the truth or falsity of the

application.

37. The Foley affidavit did not inform the

Magistrate that the computer used to operate the

BBS at SJG contained stored private electronic

communications;

(a) This omission was material;

(b) Defendants omitted this material information

from the warrant application knowingly or with

reckless disregard for the truth or falsity of the

application.

38. The Foley affidavit falsely alleged that

the E911 text file was a "program." Foley Affidavit

paras. 8, 14, 17;

(a) This false allegation was material;

(b) Defendants made this material false

allegation knowingly or with reckless disregard for

its truth or falsity;

that the E911 text file is not a program.

39. The affidavit of defendant Foley falsely

alleges that the information in the E911 text file

was "highly proprietary" and "sensitive". Foley

Affidavit paras. 13, 14, 22;

(a) This false allegation was material;

(b) Defendants made this material false

allegation knowingly or with reckless disregard for

its truth or falsity;

the information in the E911 text file had been

disclosed to the public.

40. The affidavit of defendant Foley falsely

alleges that the E911 text file was "worth

approximately $79,000.00," para. 4, and "engineered

at a cost of $79,449.00," para. 14;

(a) This false allegation was material;

(b) Defendants made this material false

allegation knowingly or with reckless disregard for

its truth or falsity;

value of the nondisclosed information in the E911

text file was less than the $5000.00 jurisdictional

minimum for Interstate Transportation of Stolen

Property, 18 U.S.C. 2314.

41. Reasonable persons in defendants'

position would have known that the warrant was

invalid for the reasons given in paragraphs 27-40

and would not have requested or relied on the

warrant.The Search and Seizure:

42. Nevertheless, on March 1, 1990, defendant

Golden, other agents of the United States Secret

Service, and others acting in concert with them,

conducted a general search of the SJG office and

warehouse.

43. The searching officers prevented SJG

employees from entering their workplace or

conducting any business from 8:00 a.m. until after

1:00 p.m. on March 1, 1990.

44. The agents seized computer hardware and

related documentation, including, but not limited

to, the following:

(a) three central processing units;

(b) hard drives;

(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;

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;

(d) SJG contracts;

(e) SJG correspondence;

(f) SJG editorial manual, containing

instructions and procedures for writers and

editors;

(g) SJG address directories, contacts lists, and

employee information, including the home telephone

numbers of SJG employees.

48. The defendants seized all current drafts

-- both electronically stored copies and printed

("hard") copies -- of the book GURPS Cyberpunk,

which was scheduled to go to the printer later that

week.

(a) GURPS Cyberpunk was part of a series of

fantasy roleplaying game books published by SJG

called the Generic Universal Roleplaying System.

(b) The term "Cyberpunk" refers to a science

fiction literary genre which became popular in the

1980s. The Cyberpunk genre is characterized by the

fictional interaction of humans with technology and

the fictional struggle for power between

individuals, corporations, and government. One of

the most popular examples of the Cyberpunk genre is

William Gibson's critically acclaimed science

fiction novel Neuromancer, which was published in

1984.

game book of the Cyberpunk genre.

(d) SJG eventually published the book GURPS

Cyberpunk in 1990.

(e) The book has been distributed both

nationally and internationally.

(f) To date SJG has sold over 16,000 copies of

the book.

(g) The book has been nominated for an Origins

Award for Best Roleplaying Supplement.

(h) The book is used in at least one college

literature course as an example of the Cyberpunk

genre.

49. The search and seizure exceeded the scope

of the warrant, in that the searching officers

seized computer hardware, computer software, data,

documentation, work product, and correspondence

that did not constitute evidence, instrumentalities

or fruits of any crime.

50. The search was conducted in a reckless

and destructive fashion, in that the searching

officers caused damage to SJG property and left the

SJG office and warehouse in disarray.

Post-seizure Retention of Property

51. Plaintiffs Jackson and SJG put defendants

on immediate notice that they had seized the

current drafts of the about-to-be-published book

GURPS Cyberpunk and the computer hardware and

software necessary to operate a BBS and requested

immediate return of these materials.

52. SJG and Jackson made diligent efforts to

obtain the return of the seized equipment and data,

including but not limited to, retention of legal

counsel, numerous telephone calls to defendants

Cook and Foley by Jackson and SJG counsel, a trip

to the Austin Secret Service office, and

correspondence with defendants Cook and Foley and

with other federal officials.

53. On March 2, 1990, Jackson went to the

Austin office of the Secret Service in an

unsuccessful attempt to obtain the return of seized

documents and computer data, including the drafts

of the forthcoming book GURPS Cyberpunk and the

software and files stored on the Illuminati BBS.

54. On March 2, 1990, the Secret Service

refused to provide Jackson with the files

containing current drafts of GURPS Cyberpunk, one

agent calling the book a "handbook for computer

crime."

55. On March 2, 1990, the Secret Service also

refused to return copies of the software used to

run the Illuminati BBS and copies of any of the

data or communications stored on the BBS.

56. In the months following the seizure,

defendant Cook repeatedly gave Jackson and his

counsel false assurances that the property of SJG

would be returned within days.

57. In May of 1990, Jackson wrote to Senators

Philip Gramm and Lloyd Bentsen and Congressman J.

J. Pickle, regarding the search and seizure

conducted at SJG and requesting their assistance in

obtaining the return of SJG property.

58. On June 21, 1990, the Secret Service

returned most, but not all, of the computer

equipment that had been seized from SJG over three

months earlier.

59. The Secret Service did not return some of

SJG's hardware and data.

60. The Secret Service did not return any of

the printed drafts of GURPS Cyberpunk.

61. In July 3, 1990, letters to Senator

Bentsen and Congressman J. J. Pickle, Robert R.

Snow of the United States Secret Service falsely

stated that all of the items seized from SJG had

been returned to Jackson.

62. In his July 16, 1990, letter to Senator

Gramm, Bryce L. Harlow of the United States

Department of 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 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;

plaintiffs were deprived of the use of the

Illuminati BBS for over a month;

(d) Defendants seized and intercepted electronic

mail in which plaintiffs had a reasonable

expectation of privacy;

(e) Users of the BBS were substantially chilled

in their exercise of their constitutionally

protected rights of freedom of speech and

association;

(f) Some of the data previously available to

users of the Illuminati BBS was lost or destroyed.

69. Defendants' conduct caused a prior

restraint of the publication of the book GURPS

Cyberpunk, in that:

(a) On March 1, 1990, the book GURPS Cyberpunk

was nearly completed and scheduled to be sent to

the printer the following week;

(b) On March 1, 1990, defendants caused the

illegal seizure of all of the current drafts of

GURPS Cyberpunk, including both printed drafts and

electronically stored drafts.

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;

75. Defendants have retained copies of data seized

from SJG.

76. As a result of defendants' conduct,

plaintiff Steve Jackson has suffered additional

harm including, but not limited to, lost income,

damage to professional reputation,humiliation,

invasion of privacy, deprivation of constitutional

rights, and emotional distress.

77. As a result of defendants' conduct,

plaintiffs McCoy, Milliken, and O'Sullivan have

suffered additional harm including, but not limited

to, damages resulting from the seizure of their

private electronic mail and the interference with,

and temporary shut down of, the Illuminati forum

for speech and association, deprivation of their

constitutional rights, invasion of their privacy,

and emotional distress.

COUNT I:

PRIVACY PROTECTION ACT OF 1980,

42 U.S.C. 2000aa et seq

Against the United States Secret Service

and the United States of America

78. The allegations in paragraphs 1-77 are

incorporated herein by reference.

79. At all relevant times, SJG and its

employees were persons "reasonably believed to have

a purpose to disseminate to the public a newspaper,

book, broadcast, or other similar form of public

communication, in or affecting interstate or

foreign commerce" within the meaning of 42 U.S.C.

2000aa(a) and (b).

80. At all relevant times, SJG and its

employees possessed work product and documentary

materials in connection with a purpose to

disseminate to the public a newspaper, book,

broadcast, or other similar form of

publiccommunication, in or affecting interstate or

foreign commerce.

81. Defendants caused the submission of an

application for a warrant to search the business

premises of SJG and to seize work product materials

therefrom, in violation of 42 U.S.C. 2000aa, in

that:

(a) The Foley affidavit did not inform the

Magistrate that SJG and its employees were persons

"reasonably believed to have a purpose to

disseminate to the public a newspaper, book,

broadcast, or other similar form of public

communication, in or affecting interstate or

foreign commerce" within the meaning of 42 U.S.C.

2000aa(a) and (b).

(b) The Foley affidavit did not inform the

Magistrate that SJG and its employees possessed

work product materials and documentary materials in

connection with a purpose to disseminate to the

public a newspaper, book, broadcast, or other

similar form of public communication, in or

affecting interstate or foreign commerce.

any of the exceptions to the statutory prohibition

of searches and seizures set out in 42 U.S.C.

2000aa(a) and (b) existed.

82. Defendants caused the March 1, 1990,

search of the business premises of SJG and seizure

of work product anddocumentary materials therefrom

in violation of 42 U.S.C. 2000aa et seq.

83. Defendants Cook, Foley, and Golden were

federal officers and employees acting within the

scope or under color of federal office or

employment.

84. Defendant Kluepfel acted in concert with

federal agents under color of federal office.

85. Plaintiffs SJG, Jackson, McCoy, Milliken,

and O'Sullivan are all persons aggrieved by

defendants' conduct, having suffered damages,

attorney's fees, and costs, as a direct result of

defendants' conduct.

86. The United States of American and the

United States Secret Service are liable to

plaintiffs for damages, attorney's fees and costs

caused by defendants' conduct.

COUNT II:

FIRST AMENDMENT

Against Defendants Cook, Foley, Golden & Kluepfel

87. The allegations in paragraphs 1-86 are

incorporated herein by reference.

88. Defendants violated plaintiffs' rights to

freedom of speech, freedom of the press, and

freedom of association as guaranteed by the First

Amendment, in that:

(a) At all relevant times SJG was a publisher of

books, magazines, and games protected by the First

Amendment;

(b) At all relevant times SJG was the operator

of a BBS that was a forum for speech and

association protected by the First Amendment;

Jackson, McCoy, Milliken, and O'Sullivan used the

Illuminati BBS for speech and association protected

by the First Amendment;

(d) At all relevant times, plaintiff SJG used

computers to publish books, magazines, and games

and to operate the Illuminati BBS;

(e) The search, seizure, and retention of SJG

work product--both printed and electronically

stored--caused a prior restraint on SJG

publications in violation of plaintiffs' First

Amendment rights of freedom of speech and of the

press;

(f) The search and seizure of the Illuminati BBS

constituted a prior restraint on plaintiffs'

exercise of their First Amendment rights of freedom

of speech, of the press, and of association;

(g) The seizure and retention of computer

hardware and software used by SJG to publish books,

magazines, and games violated plaintiffs' rights to

freedom of speech and of the press;

(h) The seizure and retention of computer

hardware and software used by SJG to operate a BBS

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 AMENDMENT

Against Defendants Cook, Foley, Golden, and

Kluepfel

94. The allegations in paragraphs 1-93 are

incorporated herein by reference.

95. The defendants, by their actions,

violated plaintiffs' clearly established right to

be free from unreasonable searches and seizures as

guaranteed by the Fourth Amendment to the United

States Constitution, in that:

(a) Plaintiffs SJG and Jackson had a reasonable

expectation of privacy in the business premises of

SJG and in all SJG work product, SJG records, and

SJG documents kept there, including in all data

stored in the computers at SJG;

(b) All plaintiffs had a reasonable expectation

of privacy in private electronic communications

stored on the Illuminati BBS at SJG;

general search;

(d) The search and seizure at SJG was not

authorized by a valid warrant particularly

describing the place to be searched and the things

to be seized;

(e) The search and seizure at SJG was conducted

without probable cause to believe that evidence of

criminal activity would be found at SJG;

(f) The search and seizure at SJG was based on

information that was not shown to be current;

(g) Defendants' warrant application was

materially false and misleading, and was submitted

by defendants with knowledge of its false and

misleading nature or with reckless disregard for

its truth or falsity.

96. The defendants knew, or reasonably should

have known, that their conduct violated plaintiffs'

clearly established constitutional right to be free

from unreasonable searches and seizures.

97. The defendants acted with intent to

violate, or with reckless indifference to,

plaintiffs' clearly established Fourth Amendment

rights.

98. Defendants Cook, Foley, and Golden acted

as federal agents and under color of federal law.

99. Defendant Kluepfel acted in concert with

the federal defendants and under color of federal

law.

100. As a direct result of the defendants'

actions, plaintiffs suffered damages, attorney's

fees and costs.

COUNT IV:

ELECTRONIC COMMUNICATIONS PRIVACY ACT,

18 U.S.C. 2707

Seizure of Stored Electronic Communications

Against All Defendants

101. The allegations in paragraphs 1-100 are

incorporated herein by reference.

102. At all times relevant times, plaintiff

SJG was the provider of an electronic communication

service within the meaning of 18 U.S.C. 2510(15)

and 2707.

103. At all relevant times, plaintiffs SJG,

Jackson, McCoy, Milliken, and O'Sullivan were

subscribers to or customers of the electronic

communication service provided by SJG within the

meaning of 18 U.S.C. 2510(15) and 2707.

104. At all relevant times, plaintiffs had

electronic communications in electronic storage on

the communicationservice provided by SJG that were

not accessible to the general public.

105. Defendants applied for a warrant to

search and seize the computer operating the

electronic communication service provided by SJG

and all data stored thereon, but failed to inform

the Magistrate that the computer contained stored

electronic communications that were not accessible

to the general public.

106. Defendants, acting without a valid

warrant, required SJG to disclose the contents of

electronic communications that were not accessible

to the general public and that were in electronic

storage for 180 days or less, in violation of 18

U.S.C. 2703(a).

107. Defendants disrupted the normal

operations of the communication service operated by

SJG without compensation to plaintiffs in violation

of 18 U.S.C. 2706(a).

108. Defendants Cook, Foley, and Golden acted

as federal agents and under color of federal law.

109. Defendant Kluepfel acted in concert with

the federal defendants and under color of federal

law.

110. Defendants acted knowingly and

intentionally.

111. Defendants did not act in good faith.

112. Plaintiffs were aggrieved by defendants'

conduct, and suffered damages, attorney's fees and

costs.

COUNT V:

ELECTRONIC COMMUNICATIONS PRIVACY ACT,

18 U.S.C. 2510 et seq.

Interception of Electronic Communications

Against All Defendants

113. The allegations in paragraphs 1-112 are

incorporated herein by reference.

114. Defendants intercepted, disclosed, or

intentionally used plaintiffs' electronic

communications in violation of 18 U.S.C. 2510 et

seq and 2520.

115. Defendants intentionally intercepted,

endeavored to intercept, or procured others to

intercept or endeavor to intercept, plaintiffs'

electronic communications in violation of 18 U.S.C.

2511(1)(a).

116. Defendants did not comply with the

standards and procedures prescribed in 18 U.S.C.

2518.

117. The warrant application was not

authorized by the Attorney General, Deputy Attorney

General, Associate Attorney General, or any

Assistant Attorney general, acting Assistant

Attorney General, or any Deputy Assistant Attorney

General in the Criminal Division specially

designated by the Attorney General, in violation of

18 U.S.C. 2516.

118. Defendants Cook, Foley, and Golden acted

as federal agents and under color of federal law.

119. Defendant Kluepfel acted in concert with

the federal defendants and under color of federal

law.

120. Defendants did not act in good faith.

121. Defendants did not compensate plaintiffs

for reasonable expenses incurred by defendants'

seizure of the Illuminati BBS, in violation of 18

U.S.C. 2518(4).

122. As a direct result of defendants'

conduct, plaintiffs suffered damages, attorney's

fees and costs.

Prayers for Relief

WHEREFORE, plaintiffs SJG, Jackson, McCoy,

Milliken, and O'Sullivan pray that this Court:

1. Assume jurisdiction of this case.

2. Enter judgment against defendants and in

favor of plaintiffs.

3. Enter an order requiring defendants to

return all property and data seized from the

premises of SJG, and all copies of such data, to

SJG.

4. Award plaintiffs damages.

5. Award plaintiffs punitive and liquidated

damages.

6. Award plaintiffs all costs incurred in the

prosecution of this action, including reasonable

attorney's fees.

7. Provide such additional relief as may

appear to the Court to be just.

PLAINTIFFS DEMAND A JURY TRIAL ON ALL CLAIMS

TRIABLE BY JURY

Dated: May 1, 1991

Respectfully submitted

by their attorneys,

_____________________________

Sharon L. Beckman

Harvey A. Silverglate

Andrew Good

SILVERGLATE & GOOD

89 Broad St., 14th floor

Boston, MA 02110

(617) 542-6663

Fax: (617) 451-6971

____________________________

Eric M. Lieberman

Nicholas E. Poser

Rabinowitz, Boudin, Standard,

Krinsky & Lieberman, P.C.

740 Broadway, at Astor Place

New York, NY 10003-9518

(212) 254-1111

Fax: (212) 674-4614

___________________________

R. James George, Jr.

Graves, Dougherty,

Hearon & Moody

2300 NCNB Tower

515 Congress Street

Austin, Texas 78701

(512) 480-5600

Fax: (512) 478-1976

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