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, ) Docket No. A 91 CA 346 ) v. ) ) UNITED STATES SECRET SERVICE, ) UNITED STATES OF AMERICA, ) WILLIAM J. COOK, TIMOTHY M. FOLEY, ) BARBARA GOLDEN, and HENRY M. ) KLUEPFEL, ) ) Defendants. ) ____________________________________) REVISED MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS' OPPOSITION TO THE UNITED STATES' MOTION TO DISMISS OR IN THE ALTERNATIVE FOR SUMMARY JUDGMENT Sharon L. Beckman (BBO #552077) Andrew Good (BBO #201240) Harvey Silverglate (BBO #462640) Silverglate & Good 89 Broad St., 14th Floor Boston, MA 02110 Eric Lieberman Nicholas Poser Rabinowitz, Boudin, Standard, Krinsky & Lieberman, P.C. 740 Broadway, at Astor Place New York, NY 10003-9518 R. James George, Jr. (#07800011) Peter D. Kennedy (#11296650) Graves, Dougherty, Hearon & Moody 2300 NCNB Tower 515 Congress Avenue Austin, TX 78701 DATED: October 2, 1991 TABLE OF CONTENTS INTRODUCTION 1 I. THE GOVERNMENT'S MOTION TO DISMISS MUST BE DENIED 3 II. THE GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT ON THE BASIS OF A GOOD FAITH DEFENSE MUST BE DENIED 4 A. Good Faith is Not a Defense to an Action Against the United States under the Privacy Protection Act 4 B. Plaintiffs Have Raised Genuine Issues of Material Fact in Support of their Allegation that the Government Agents Did Not Reasonably Rely on the Search Warrant 11 1. Plaintiffs have raised genuine issues of material fact concerning whether the government's agents submitted a false and misleading warrant affidavit deliberately or with reckless disregard for the truth 15 (a) The government's agents knew or recklessly failed to discover that SJG was a publisher of books, magazines, and adventure games 16 (b) The government's agents knew or recklessly failed to discover that the Electronic Bulletin Board System Operated by SJG was a forum for constitutionally protected speech and association and not an instrument of criminal activity 20 (c) The government's agents knew or recklessly failed to discover that the BBS operated by SJG contained private electronic mail 22 (d) The government's agents knew or recklessly failed to discover that Loyd Blankenship was not a computer programmer at SJG 24 (e) The government's agents knew or recklessly failed to discover that the information published in Phrack was not a "program" or "source code" 25 (f) The government's agents knew or recklessly failed to discover that the information published in Phrack did not contain any proprietary warning 26 (g) The government's agents knew or recklessly should have known that the information published in Phrack was not "highly proprietary" or "sensitive," but was readily accessible to the public in published material, including material published by BellSouth and Bellcore 28 (h) The government's agents knew or recklessly failed to discover that the information published in Phrack was not worth $79,000 31 (i) The government's agents knew or recklessly failed to discover that Loyd Blankenship was not engaged in any interstate "password hacking" scheme 32 2. Plaintiffs have raised genuine issues of material fact concerning whether the government's agents reasonably relied on a warrant that was so lacking in indicia of probable cause as to render official reliance on it unreasonable 33 (a) The government's agents did not reasonably rely on a warrant devoid of facts indicating that evidence of criminal activity would be found at the offices of SJG 34 (b) The government's agents did not reasonably rely on the warrant, which failed to establish probable cause to believe that Loyd Blankenship was engaged in criminal activity 37 3. Plaintiffs have raised genuine issues of material fact concerning whether the government's agents reasonably relied upon a general warrant that failed to particularize the things to be seized 39 4. Plaintiffs have raised genuine issues of material Fact in Support of Their Allegation that the Search and Seizure at SJG Exceeded the Scope of the Warrant, and Violated the First Amendment 46 III. THE GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT ON COUNT V MUST BE DENIED BECAUSE PLAINTIFFS HAVE RAISED GENUINE ISSUES OF MATERIAL FACT IN SUPPORT OF THEIR ALLEGATION THAT GOVERNMENT AGENTS INTERCEPTED THEIR PRIVATE ELECTRONIC COMMUNICATIONS 49 CONCLUSION 53 INTRODUCTION On March 1, 1990, government agents executed a warrant authorizing the search of Austin publisher Steve Jackson Games Incorporated ("SJG") and the wholesale seizure of computer hardware, software, and data therefrom. They found not a shred of evidence of criminal activity, but their search, seizure, and retention of equipment and data nearly ruined SJG. The government agents seized -- and then refused to return -- the text and research materials relating to an about-to-be released fantasy game book, causing SJG to miss its publication deadline and to spend numerous hours reconstructing the book from prior drafts. They also seized and shut down the Illuminati BBS -- an electronic conferencing system featuring public conferences and private electronic mail, used by SJG employees, writers, artists, and customers to discuss SJG books and games and related literary genres. The search and seizure, and subsequent retention of SJG property deprived the users of the Illuminati BBS of a unique forum for constitutionally protected speech and association, and left SJG so far behind and so much in debt that it was forced to lay off half of its valued employees. In the year and a half that has passed since the raid on SJG, the government has acknowledged that neither SJG nor Jackson were targets of its investigation. Moreover, in two other cases, United States v. Riggs and United States v. Neidorf, the government has moved to dismiss indictments arising from this same investigation on the ground that the activity under investigation did not amount to a federal offense. Plaintiffs have sued the government for violating their rights under the Privacy Protection Act and the Electronic Communications Privacy Act. In moving this court for summary judgment, the government has not denied much of the account set out above, but simply asserts that its agents did not realize that they were badly mistaken: They did not know that SJG was a publisher. They did not know that what they described as a "highly proprietary" and "sensitive" stolen "program" was actually just a text file of bureaucratic information readily available to the general public in public libraries, book stores, and publications issued by Bellcore and BellSouth. While its agents had a copy of the stolen text file they were searching for, the government argues it was "impossible" for them to particularize the things to be seized. Moreover, the government maintains its agents reasonably relied upon a warrant application that stated only that evidence, instrumentalities, and fruits of criminal activity would be found at the home of Loyd Blankenship or at the home of Chris Goggans, or at SJG. In the face of all of these mistakes, the government asks this Court to conclusively determine, without discovery or trial, that this lawsuit must be dismissed because its officers acted in "good faith". This opposition, and supporting declarations and affidavits, demonstrate the existence of genuine issues of material fact regarding the officers' good faith, and for that reason, summary judgment should be denied. I. GOVERNMENT'S MOTION TO DISMISS MUST BE DENIED. Although the government's motion is styled as a motion under Federal Rule 12(b)(6) to dismiss for failure to state a claim under which relief can be granted, its only challenge to the complaint is its claim that "plaintiffs have failed to allege that electronic communications were intercepted within the meaning of the ECPA." Government Memo ("GM") 12. This claim is frivolous. Count V of the Complaint, which is titled in bold type "Interception of Electronic Communications," expressly alleges that "[d]efendants intercepted, disclosed, or intentionally used plaintiffs' electronic communications in violation of 118 U.S.C.  2510 et seq and 2520," and further alleges that the "[d]efendants 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). Complaint at  114-115. Since the government has not demonstrated any infirmity in the complaint, its motion to dismiss should be summarily denied. II. THE GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT ON THE BASIS OF A GOOD FAITH DEFENSE MUST BE DENIED. The Government's motion for summary judgment based on the alleged good faith of its agents fails for two reasons. First, as discussed in Part II.A., below, there is no good faith defense to the Privacy Protection Act. Second, as discussed in Part II.B, below, the government fails to acknowledge the stringent standards imposed on summary judgment motions in civil rights cases and fails to meet those standards. A. Good Faith is Not a Defense to an Action Against the United States under the Privacy Protection Act. Count I of the Complaint alleges that the search and seizure at SJG violated the Privacy Protection Act of 1980 (PPA), 42 U.S.C.  2000aa, which requires law enforcement officers to obtain evidence possessed by innocent third parties "reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication" by means of a subpoena or voluntary compliance rather than by search and seizure. Congress enacted the PPA in 1980 to provide "persons engaged in first amendment activities" with protection from unreasonable search and seizure beyond the protections provided by the Fourth Amendment. The PPA expressly dictates that [t]he United States ... may not assert as a defense to a claim arising under this chapter the immunity of the officer or employee whose violation is complained of or his reasonable good faith belief in the lawfulness of his conduct.  2000aa-6(c). The legislative history of the PPA reveals that Congress intentionally prohibited the United States from asserting a good faith defense to assure compensation to innocent victims of governmental overreaching and to deter searches and seizures from publishers: In the past, the good faith defense has often precluded the recovery for unlawful searches and seizures. Prohibiting the use of this defense when the government unit is the defendant in a suit brought under this statute is not only a fair means of assuring compensation for damages resulting from unlawful governmental searches, it will also enhance the deterrent effect of the statute. S. Rep. 874, at 15, reprinted in 1980 U.S. Code Cong. & Ad. News at 3961. Recognizing that the PPA precludes it from asserting a good faith defense, the government argues that language in the Electronic Communications Privacy Act operates as an implied repeal of the PPA "in the context of searches encompassing electronic communications." GM at 32. Summary judgment should be denied for three reasons. First, while the government's good faith argument is limited to the context of "searches encompassing electronic communications," the affidavits submitted by both parties raise a genuine issue of material of fact in support of plaintiffs' allegation that the search and seizure in this case encompassed far more than electronic communications. The factual record in this case reveals that the federal agents searched the entire SJG office and warehouse and, in addition to seizing private electronic communications, seized other forms of work product and documentary material, including electronically stored texts and drafts of books in progress in electronic and hard copy form. Since the government does not even allege a good faith defense to its search and seizure of these materials, summary judgment on the PPA claim should be denied. Second, the express terms of the PPA dictate that the government may not assert a good faith defense. The government's claim that the PPA's express provisions eliminating the good faith defense have been repealed by implication is without merit. As the government concedes, "repeals by implication are strongly disfavored ... so that a later statute will not be held to have implicitly repealed an earlier one unless there is a clear repugnancy between the two." United States v. Fausto, 484 U.S. 439, 108 S. Ct. 668, 676 (1988); Kremer v. Chemical Construction Corp., 456 U.S. 461, 466 (1982) (reaffirming "cardinal principle of statutory construction that repeals by implication are not favored"); M Corp. Financial Inc. v. Board of Governors Federal Reserve System, 900 F.2d 852, 855-856 (5th Cir. 1990). "[T]his `cardinal rule' means that `[i]n the absence of some affirmative showing of an intention to repeal, the only permissible justification for a repeal by implication is when the earlier and later statutes are irreconcilable.'" Tennessee Valley Authority v. Hill, 437 U.S. 153, 190 (1978), (quoting Morton v. Mancari, 417 U.S. 535, 550 (1974). Implied repeal is prohibited here because the government cannot show either that it was intended by Congress or that the statutory provisions in question are irreconcilable. Neither the language nor the legislative history of the Electronic Communications Privacy Act (ECPA) reveal any intent by Congress to repeal the express statutory text of PPA removing the good faith shield from the government. The ECPA amended the Omnibus Crime Control and Safe Streets Act of 1968 to prohibit the unauthorized interception of electronic communications under 18 U.S.C. section 2520 and to add section 2707, prohibiting unauthorized seizure or disclosure of stored electronic communications. The government's implied repeal argument rests on the premise -- unstated but implied in its memorandum at 31 -- that the statutory language extending the good faith defense under the 1968 Wiretap statute to "any other law" was added in 1986, after the 1980 enactment of the PPA. This premise is false: the phrase "any other law" was actually added in 1970, long before either the PPA or the ECPA were enacted. 18 U.S.C.A.  2520 Historical and Statutory Notes. The language was added as a "conforming amendment" designed to harmonize section 2520(d) with the parallel wiretap provision Congress added to the District of Columbia Code as part of the District of Columbia Court Reform and Criminal Procedure Act of 1970. Pub. L. No. 91-358, 84 Stat. 473. The 1970 Act added a parallel wiretap statute to the District of Columbia Code that also provided a good faith defense "to an action brought under this section or any other law." Codification of Title 23 of the District of Columbia Code,  23-554(c), reprinted in 1970 U.S. Code Cong. & Ad. News 551, 735. Placed in its proper historical context, it is clear that the phrase "or any other law" was meant to ensure that the good faith defense applied to both the federal and District of Columbia wiretap statutes, and not, as the government implies, to any section of the United States Code affecting electronic communications. There being no contrary indication in the legislative history of the ECPA, Congress' incorporation of this language in section 2707 should similarly be construed to encompass parallel statutory provisions of the District of Columbia and the states but not to repeal other sections of the United States Code. The conduct of the government officials in this case -- conducting a search and seizure at a publisher's office without a valid warrant -- violates both the PPA and the ECPA. The fact that the United States may assert a good faith defense under the ECPA but not under the PPA does not result in the type of "positive repugnancy" necessary to support a claim of implied repeal: It is not enough to show that the two statutes produce differing results when applied to the same factual situation, for that no more than states the problem. Rather `when two statutes are capable of co-existence, it is the duty of the courts ... to regard each as effective." Radzanower v. Touche Ross & Co., 426 U.S. 148, 155 (1976) (citing Morton v. Mancari, 417 U.S. at 551); United States v. Batchelder, 442 U.S. 114 (1979) (passage of criminal statute carrying 2-year maximum sentence did not repeal by implication earlier criminal statute carrying 5-year maximum sentence for the same conduct); M Corp. Financial Inc. v. Board of Governors Federal Reserve System, 900 F.2d 852, 855- 856 (5th Cir. 1990). In any event, as set out in Part II.B., below, summary judgment is inappropriate because plaintiffs have raised genuine issues of material fact regarding the good faith of the government agents who planned and executed the search and seizure at SJG. B. Plaintiffs Have Raised Genuine Issues of Material Fact in Support of their Allegation that the Government Agents Did Not Reasonably Rely on the Search Warrant. Under Rule 56(c), a motion for summary judgment may be granted only when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The government, as moving party, bears the burden of demonstrating the absence of a genuine triable issue of fact. Celotex Corp. v. Catrett, 477 U.S. 316, 323 (1986). Moreover, since "credibility determinations, the weighing of evidence and the drawing of legitimate inferences from the facts are jury functions," the evidence presented by the plaintiffs "is to be believed," and all justifiable inferences must be drawn in their favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 255 (1986); Poller v. Columbia Broadcasting System, 368 U.S. 464, 473 (1962). Summary judgment is particularly inappropriate in civil rights cases where, as here, the state of mind of government agents is in issue. The Fifth Circuit has emphasized that in civil rights cases challenging the validity of a warrant, "[t]he issue of the officers' truthfulness and intent at the time they applied for the warrant" is "a classic issue of historical fact central to the substantive issues" determined at trial. Hindman v. City of Paris, 746 F.2d 1063, 1067 (5th Cir. 1984) Similarly, the Fifth Circuit has recognized that in a civil rights action where the facts relied upon to show probable cause to issue a warrant are controverted, they must be resolved by the fact finder after trial before controlling legal principles are applied. Garris v. Rowland, 678 F.2d 1264, 1270 (5th Cir.), cert. denied, 459 U.S. 864 (1982). Plaintiffs have alleged that the government's agents could not reasonably have relied upon the warrant authorizing the search and seizure at SJG because (1) the government's agents submitted a warrant affidavit containing material omissions and false information deliberately or with reckless disregard for the truth; (2) the warrant affidavit utterly failed to establish probable cause to believe evidence of criminal activity would be found at SJG; (3) the facts relied upon in the warrant affidavit were stale; and (4) the warrant was a facially invalid general warrant that failed to particularize the items to be seized and (5) the search and seizure exceeded the scope of the warrant. Complaint at  27-40, 49. The Government's good faith defense is based on the affidavits of some of the individual defendants, who allege that they did not know some of the material information that was omitted from the affidavit, and did not know that material information in the warrant affidavit was false. Plaintiffs have responded with affidavits indicating that defendants either knew that the warrant affidavit contained material falsehoods and material omissions or submitted it to this Court with reckless disregard for the truth. The government's additional allegations concerning the scope of the search and seizure are either not supported by affidavit, or contradicted by affidavits submitted in opposition. Under the standards set out above, this case involves genuine issues of material fact that preclude summary judgment. 1. Plaintiffs have raised genuine issues of material fact concerning whether the government's agents submitted a false and misleading warrant affidavit deliberately or with reckless disregard for the truth. The government is not entitled to cloak itself in immunity based on a warrant that its agents obtained based on information that they knew to be false or misleading, or would have known was false or misleading but for their reckless disregard of the truth. Hindman v. City of Paris, 746 F.2d 1063, 1067 (5th Cir. 1984). Cf. United States v. Leon, 468 U.S. 867, 923 (1984) (citing Franks v. Delaware, 438 U.S. 154 (1978). "The issue of the officers' truthfulness and intent at the time they applied for the warrant is one of fact." Hindman, 746 F.2d at 1067. "If the facts omitted from an affidavit are `clearly critical' to a finding of probable cause, then recklessness may be inferred >from the proof of the omission itself. Hale v. Fish, 899 F.2d 390, 300 (5th Cir. 1990). The plaintiffs have alleged that the individual defendants in this case, all acting as federal officials under color of federal law, intentionally or recklessly submitted a warrant affidavit containing material omissions and false and misleading information. Plaintiffs have raised substantial issues of material fact in support of this allegation, as demonstrated below. (a) The government's agents knew or recklessly failed to discover that SJG was a publisher of books, magazines, and adventure games. SJG, established in 1980 and incorporated in Texas in 1984, is an award-winning publisher of books, magazines, and adventure games. SJG books and games create imaginary worlds whose settings range from prehistoric to futuristic times and whose form encompass various literary genres. The magazines published by SJG contain news, information, and entertainment relating to the adventure game industry and related literary genres. SJG games and books are carried by wholesale distributors throughout the United States and abroad, and are sold by national retail chain stores including B. Dalton, Bookstop, and Waldenbooks. SJG is not, and has never been, in the business of selling computer games, computer programs, or other computer products. Id.  4. Like other publishers of books or magazines, and like newspaper publishers, SJG relied heavily on computers in composing, storing, and preparing for publication the text of its books, magazines, and games. SJG stored notes, source materials, and other work product and documentary materials relating to SJG publications on its computers. Id.  8, 9.[] The government does not deny that these material facts demonstrating that SJG is a publisher are true or that they were omitted from the warrant affidavit. Rather, the government alleges that some of its agents simply "did not know that Steve Jackson Games held itself out as a publisher" and "believed that Steve Jackson Games was involved with the manufacture of computer or video games." However, the record in this case raises several genuine issues of material fact in support of plaintiffs' allegation that the government's failure to inform the magistrate that SJG was a publisher was deliberate or, at the very least, reckless. First, since much of the discussion on the BBS at the time of the search and seizure involved SJG publications, and since the BBS itself contained texts of SJG publications, it is difficult to believe that Kluepfel, who logged onto the BBS and made observations there, did not realize that SJG was a publishing business. Second, since the Secret Service had an Austin-based staff of agents, and since the government enlisted the investigative assistance of local law enforcement officers (including both the University of Texas police and the Austin Police) in this investigation, and since Foley himself was in Austin the week before the search and seizure at SJG, it is difficult to believe that none of the government's agents visited the premises of SJG, which were open to the public. Had they visited the premises, they would have observed the unmistakable characteristics of a publishing house -- shelves lined with SJG books; framed SJG book covers on the walls; a wall chart prominently labeled "STEPS IN EDITING A MANUSCRIPT," indicating the status of SJG books in progress; several desks each bearing a complete set of SJG books, along with style manuals and dictionaries; a typesetting room labeled as such, as so on -- all in plain view. Only by sheer recklessness could the government have failed to learn that SJG was a publisher. Moreover, none of the government agents deny knowing that SJG was a publisher at the time of the search. Indeed, SJG employees report that they specifically told the investigating officers that they were "writer[s]", "print- buyer[s]", "production artist[s]", "managing editor[s]", and that SJG had "major books on deadline." Had the agents been acting in good faith, they would have terminated the search plans upon learning of their mistake. Instead, as set out in Part II.B.4, below, the agents conducted a wide- ranging general search of the SJG offices, seizing not only SJG's work product, but also its "printing press." (b) The government's agents knew or recklessly failed to discover that the Electronic Bulletin Board System ("BBS") Operated by SJG was a forum for constitutionally protected speech and association and not an instrument of criminal activity. Since 1986, SJG has used a computer to operate an electronic bulletin board system ("BBS"), dedicated to communication of information about SJG adventure games, the game industry, related literary genres, and to association among individuals who share these interests. The BBS, named "Illuminati" after the company's award-winning game of the same name, provided its users with (1) a library of text files ranging from articles on adventure games and game- related humor to drafts of forthcoming SJG publications, (2) public and private conferences for discussions of SJG books and games and related literature and humor, and (3) a private electronic mail service. SJG and its employees used the Illuminati BBS in the course of their publishing business to communicate with customers, retailers, writers, and artists; to provide customer service; to obtain feedback on games; to obtain general marketing information; to advertise; and to establish good will within the adventure game community. The BBS was also used by SJG customers, retailers, writers, artists, competitors, writers of science fiction and fantasy, and others with an interest in SJG games, the adventure game industry, or related literary genres. The government neither denies that these material facts about the nature of the Illuminati BBS are true nor provides any explanation for why the true nature of the Illuminati BBS was not conveyed to the magistrate. These omissions from the warrant affidavit are particularly egregious in light of the fact that Kluepfel had actually logged onto the BBS, where he had access to all of the general text files and all of the public conferences on the BBS, evidencing its true nature as a forum for discussion of SJG books, the adventure game industry, and related literary genres. Yet the warrant affidavit informed the magistrate only of Kluepfel's claim that the BBS identified Blankenship as its systems operator -- which was false -- and his unsupported, conclusory allegation that the BBS was frequented by "individuals involved with the unauthorized access of computer systems." Warrant Aff.  35, 6. Given that the Illuminati BBS was accessible to and indeed accessed by the government, the submission of a warrant affidavit drafted so as to mislead the magistrate into thinking that the BBS was a hotbed of criminal activity appears to have been intentional, or at the very least, the result of inexplicable recklessness. (c) The government's agents knew or recklessly failed to discover that the BBS operated by SJG contained private electronic mail. The government apparently concedes that its agents knew that the Illuminati BBS contained private electronic communications which they intended to seize and read. GM at 17; Warrant Aff.  42. Moreover, the government cannot deny that the warrant affidavit failed to inform the magistrate that the Illuminati BBS -- or any BBS -- contained private electronic communications. To the contrary, the warrant affidavit indicated only that the messages left on electronic bulletin boards are "readable by others with access to the bulletin board." Warrant Aff.  7. While the affidavit defined electronic mail, it never informed the magistrate either that electronic mail is private or that it is stored on a BBS. Id. at  9. Because of these omissions, the warrant affidavit failed to place the magistrate on notice that issuance of the warrant would result in the seizure and reading of private communications between individuals with absolutely no connection to the government's investigation. As a result, the magistrate issued a warrant that is the functional equivalent of a warrant authorizing the seizure of all of the mail contained in a post office. Since the warrant affidavit reveals that the government agents knew enough about electronic bulletin board systems to understand that they often stored electronic mail, and since defendant Kluepfel accessed the Illuminati BBS where he would have discovered that the BBS provided an electronic mail service, material facts indicate that the government's failure to inform the magistrate of its intention to seize and read the private electronic communications of innocent parties with no connection to its investigation, was deliberate or, at the very least, reckless. (d) The government's agents knew or recklessly failed to discover that Loyd Blankenship was not a computer programmer at SJG. The warrant affidavit falsely alleges that Loyd Blankenship was employed as a computer programmer at SJG. Warrant Aff.  33. The false information is attributed to University of Texas investigator Larry Coutourie without any statement of his basis of knowledge. Blankenship, who was the Managing Editor at SJG at the time of the search and seizure, has never been employed as a computer programmer there. Jackson Decl.  19, Blankenship Decl.  2, 3. The materiality of this false statement is demonstrated by the government's attempt to use it to link Blankenship with the computers at SJG, and to attribute to him -- without a shred of factual support -- the expertise of a "proficient hacker." GM at 21. Since Blankenship's work product as a writer and editor -- including his work on the then- forthcoming book GURPS Cyberpunk -- was prominently displayed on the Illuminati BBS for Kluepfel to observe, the false statement in the warrant affidavit appears to have been deliberate or, at the very least, reckless. (e) The government's agents knew or recklessly failed to discover that the information published in Phrack was not a "program" or "source code." The government does not deny that the statements in the warrant affidavit describing the BellSouth text file as a "program" and as "source code" were both material and false. Moreover, neither of the drafters of the warrant affidavit deny that these false statements were deliberately made. Examination of the original text file copied from BellSouth and the edited version published in Phrack -- which the government possessed but did not present to the magistrate -- plainly reveals that the text file could not reasonably have been mistaken for a computer program or computer source code. These mistakes could not have been made in good faith by defendants Cook or Foley, who, in a separate warrant affidavit filed in this Court a week before the SJG search and seizure revealed that they had spent the previous three months investigating a theft of "source code," which they defined as follows: Source code is a high level computer language which frequently uses English letters and symbols for constructing computer programs. Programs written in source code can be converted or translated by a `compiler' program into object code for use by the computer. Izenberg Warrant Aff. (Barresi Decl., Exhibit 1) Rather, the repeated misstatements in the warrant affidavit evidence a deliberate attempt to mislead the magistrate into thinking that a bureaucratic memorandum that had been published for over a year "around the United States" without incident was actually a highly "sensitive" computer program, that "constituted a threat" to the emergency 911 system. (f) The government's agents knew or recklessly failed to discover that the information published in Phrack did not contain any proprietary warning. In paragraph 23 of the warrant affidavit, defendant Foley states that he has 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]. This allegation is material because it was used to create an inference that Blankenship should have realized that the Phrack newsletter contained stolen property. Examination of the material actually published in Phrack, however, reveals that it contains no nondisclosure notice and no references whatsoever to BellSouth. At the Neidorf trial, Agent Foley testified that on January 18, 1990 -- just a little over a month before he and Cook drafted and submitted the warrant affidavit in this case -- Craig Neidorf provided him with a copy of the Phrack issue containing the edited text file and specifically told Foley that, before he published the text file in Phrack, he had deleted "all references to Florida, or Bell, or anything in the document which might alert the phone company or BellSouth that a hacker was in their system." This evidence suggests that the misleading description in the warrant affidavit of the information published in Phrack, and allegedly observed on Loyd Blankenship's home BBS by Kluepfel, was submitted intentionally, or with reckless disregard for the truth. (g) The government's agents knew or recklessly should have known that the information published in Phrack was not "highly proprietary" or "sensitive," but was readily accessible to the public in published material, including material published by BellSouth and Bellcore. The warrant affidavit alleged that the information published in Phrack 24 was "highly proprietary" and "sensitive." Warrant Aff.  13, 14, 22. The government's agents do not deny that these allegations are materially false, but allege that, at the time the warrant affidavit was submitted, they "did not know that much of the proprietary information contained in the stolen E911 text file had arguably been disclosed to civic organizations in Ohio by Ohio Bell," and that they "first learned of this possible disclosure ... during the trial of Craig Neidorf." Cook Decl.  4; Foley Decl.  4. The declaration of John Nagle, however, reveals that all of the technical information contained in the 911 text file was readily accessible to the public in a variety of public documents, including documents published by BellSouth and Bellcore that could be ordered from a Bellcore Catalog of Technical Information for $13 and $21, respectively. See Nagle Decl.  9&10; Barresi Decl., Exhibits 6&7. The Nagle declaration further reveals that Mr. Nagle expressly communicated this information to defendant Cook and showed Cook the BellSouth and Bellcore documents containing the information. See Nagle Decl.  14, 15. Moreover, the fact that the information had been widely published was admitted on cross-examination by Billie Williams, the BellSouth employee who testified for the government at the Neidorf trial, Neidorf Tr. 288-302 (Barresi Decl., Exhibit 2). Based on this information, the government moved to dismiss Neidorf's indictment. Neidorf's motion for expungement and sealing of his indictment records was subsequently granted by the District Court. The failure of the government's agents, even now, to admit that the information published in Phrack was not secret evidences the same willful blindness they exhibited in drafting and submitting the warrant affidavit. The government argues that its agents reasonably relied on false information provided by representatives of the alleged victims Bellcore and BellSouth, but that argument is inapplicable where, as here, the representative relied upon - - Kluepfel -- had an interest in the case and was functioning as an agent of the government. See supra n.2. Defendant Foley has acknowledged that "the over-all investigation" in the E911 text file matter was "a joint effort between . . . [the] Bell Companies and the Secret Service and the U.S. Attorney's Office all working together." Neidorf Tr., at 367 (Barresi Decl., Exhibit 2). Foley further indicated that he believed that "some of the Bell people [were] made special agents of the grand jury to help in this investigation." Id. Plaintiffs have raised a substantial issue of material fact in support of the allegation that the government agents were reckless in relying on defendant Kluepfel and other Bellcore or BellSouth employees, since those employees were acting as agents for the government in connection with a "joint" investigation and were not comparable to victims who have no connection with the accused and no motive to lie. See Hale v. Fish, 899 F.2d 390 (5th Cir. 1990); United States v. Jackson, 818 F.2d 345 (5th Cir. 1987). (h) The government's agents knew or recklessly failed to discover that the information published in Phrack was not worth $79,000. The government does not dispute the material falsehood of the claim in the warrant affidavit that the text file was "worth approximately $79,000." Warrant Aff.  4. Indeed, the government sought dismissals of the interstate transportation of stolen property charges against Riggs and Neidorf because the market value of the information in the text file was worth less than the $5000 jurisdictional minimum. Defendants Cook and Foley assert that they relied upon a January 10, 1990, letter from Kimberly M. Megahee to defendant Cook, in concluding that the text file was "worth approximately $79,000." However the January 10, 1990, letter from Megahee to Cook that is attached as Exhibit C to the Government's Motion, does not state that the text file was worth $79,000. Rather the letter refers to an "attached . . . breakdown of the costs associated with the production" of the text file, "per [Cook's] request." The cost breakdown includes, not only the costs of researching, writing, printing, and mailing the text file, but also the purchase price and maintenance costs of an entire mainframe computer hardware and software system. Id. The allegation in the warrant affidavit that the text file was "worth approximately $79,000" is not supported by the Megahee letter, which reveals that the bulk of that sum represents the value, not of a text file, but rather of an entire computer mainframe system. The allegation is so obviously false that no reasonable person could have believed it was true. The allegation is particularly reckless in light of the fact that the market value of the information contained in the text file -- somewhere between $13 and $21 -- could easily have been determined by reference to the materials listed in Bellcore's Catalogue of Technical Information. Nagle Decl.  10, 11; Barresi Decl., Exhibits 6, 7. (i) The government's agents knew or recklessly failed to discover that Loyd Blankenship was not engaged in any interstate "password hacking" scheme. The warrant affidavit falsely alleges that Loyd Blankenship indicated his involvement in criminal activity by answering a question about a transfer protocol on the Phoenix Project BBS. Blankenship's declaration states that he has never posted a message on the Phoenix BBS indicating his involvement in a decryption scheme, that he has never been involved in such a scheme, and that Kluepfel's description of the messages posted by him and Goggans omits material facts and is misleading. Blankenship Decl.  10. The conflict between Blankenship's declaration and the warrant affidavit gives rise to a genuine issue of fact material to the issues of good faith and probable cause. 2. Plaintiffs have raised genuine issues of material fact concerning whether the government's agents reasonably relied on a warrant that was so lacking in indicia of probable cause as to render official reliance on it unreasonable. The law is clearly established that a search warrant is invalid unless the warrant affidavit upon which it was based establishes probable cause to believe that a crime has been committed and that evidence of that crime will be found at the particular place sought to be searched. Illinois v. Gates, 462 U.S. 213, 238 (1983). The Supreme Court has emphasized that law enforcement officers are not shielded >from liability simply because a magistrate has made a finding of probable cause. Malley v. Briggs, 475 U.S. 335, 346 (1986). Rather, government officials who authorize or execute a warrant without probable cause lose the shield of immunity if the "warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable." Malley, 475 U.S. at 344-45 (citing United States v. Leon, 468 U.S. 897, 923 (1984). Plaintiffs have alleged that the government is not entitled to a good faith defense under this standard and have raised substantial issues of material fact in support of that allegation, including the following: (a) The government's agents did not reasonably rely on a warrant devoid of facts indicating that evidence of criminal activity would be found at the offices of SJG. It is settled law that a warrant affidavit must "establish[] a sufficient nexus between (1) criminal activity, and (2) the things to be seized, and (3) the place to be searched. LaFave, 2 Search and Seizure  3.7(d) at 101 (1987). Plaintiffs have raised several factual issues in support of their allegation that the warrant affidavit in this case established no nexus to SJG, and that reliance on the warrant was therefore unreasonable. First, the warrant affidavit never even expressly alleged that there was probable cause to believe evidence of criminal activity would be found at SJG. Rather, the affidavit alleged only that evidence would be found at one of three locations: at Loyd Blankenship's home, or at SJG, or at Chris Goggans' home. Warrant Aff.  38. Second, of the "probable cause" items listed in the government's brief at 21, only two -- numbers (7) and (8) -- refer to SJG. While item (7) alleges that "Blankenship's activities [implying illegal activities] included his use of computers and the BBS at Steve Jackson Games," the warrant affidavit contains absolutely no facts suggesting that Loyd Blankenship engaged in any illegal activity at SJG. The affidavit alleges only that, according to University of Texas investigator Larry Coutourie, 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." Warrant Aff.  33. Moreover, the warrant affidavit fails to establish Mr. Coutourie's basis for alleging that Blankenship was a computer programmer. This failure is material because the information provided by Mr. Coutourie connecting Loyd Blankenship with SJG computers is false: the declaration of Steve Jackson reveals that Loyd Blankenship is employed as Managing Editor, not as a computer programmer, at SJG. The warrant affidavit suggests no reason why Mr. Coutourie, an investigator with the University of Texas, would have reason to know anything about Loyd Blankenship (who has never been affiliated with the University), much less what Blankenship did on bulletin board systems or what he did at SJG. Plaintiffs, who have alleged that the warrant affidavit is deliberately false and misleading, are entitled to discovery to explore the factual basis for the allegations attributed to Mr. Coutourie. Similarly without basis is allegation (8) in the government's memorandum, asserting that "other known computer hackers were listed along with Blankenship as users of the computer bulletin board at Steve Jackson Games." First, it is important to note that the warrant affidavit failed even to allege that an electronic bulletin board system was run >from the premises of SJG. The allegation attributed to Coutourie that Blankenship used a bulletin board system while he was at work does not establish the physical location of the bulletin board system, since users of bulletin board systems gain access via telephone lines from remote locations. See supra n. 26.; Warrant Aff.  7. Second, while the warrant affidavit states that defendant Kluepfel advised that "the user list of [the BBS at 512-447-4499]" includes "the name of Loyd Blankenship and others known to Kluepfel as hackers," the affidavit fails to identify the "others" known to Kluepfel as "hackers" or what factual basis he had for accusing them and Blankenship of being "involved with the unauthorized access of computer systems." Warrant Aff.  6, 35. These omissions are material since, as the declarations of plaintiffs Jackson, Milliken, McCoy, and O'Sullivan demonstrate, the users of the Illuminati BBS were SJG writers, editors, customers, and game hobbyists -- not criminals. Moreover, the warrant affidavit contains no information revealing when defendant Kluepfel allegedly made these observations. Plaintiffs, who have alleged that the warrant affidavit was deliberately false and misleading, as well as stale, are entitled to discovery to explore the factual basis, if any, for the allegations attributed to defendant Kluepfel. (b) The government's agents did not reasonably rely on the warrant, which failed to establish probable cause to believe that Loyd Blankenship was engaged in criminal activity. Plaintiffs have raised issues of material fact concerning the governments' reliance on a warrant issued without any showing of federal criminal activity by its target Loyd Blankenship. First, the warrant affidavit does not state sufficient facts to establish probable cause to believe that Loyd Blankenship knowingly or intentionally transported stolen property valued at more than $5,000. The facts set out in the warrant affidavit suggest that, a year before the search and seizure in this case, a copy of the electronic newsletter Phrack containing an edited version of a text file concerning the BellSouth 911 system was sent to an electronic bulletin board system run from Blankenship's home as well as to other locations throughout the United States. The facts alleged in support of the implication that Blankenship was somehow involved with stolen property -- that the information published in Phrack contained a proprietary warning; that the information was a "program" or "source code"; that the information was "sensitive"; that the information was "worth approximately $79,000" -- are all false, and are issues on which plaintiffs have raised genuine issues of material fact, and on which plaintiffs are entitled to discovery. Second, there are issues of fact concerning whether any reasonable officer would have thought that the warrant affidavit contained facts establishing probable cause to believe that Loyd Blankenship was involved in violations of 18 U.S.C.  1030(a)(6), which prohibits trafficking in passwords of a computer "used by or for the Government of the United States" or affecting interstate commerce. The affidavit does not allege that Blankenship possessed any decryption software or that any password trafficking occurred. Rather, the warrant affidavit indicates only that Blankenship answered a question posed on the Phoenix Project BBS about a routine transfer protocol. Warrant Aff.  27. Moreover, while the warrant affidavit also contains Kluepfel's conclusory allegation that Blankenship thereby "indicat[ed] his involvement in the decryption scheme," the declaration of Loyd Blankenship raises a genuine issue of fact concerning whether that allegation was deliberately or materially false and misleading. See Blankenship Decl.  10. As set out above, plaintiffs have raised genuine issues of material fact in support of their allegation that no reasonable officer could have believed that the warrant affidavit established probable cause to believe that evidence of criminal activity would be found at SJG. Even if one were to credit the government's claim that "E911 source code and text file and the decryption software program [were] to be found in the computers located at" Blankenship's home, "or" Goggans' home, "or" the business premises of SJG, Warrant Aff.  38, it is still the case that no reasonable officer could have relied on the warrant because, as set out below, the warrant was a facially invalid general warrant that failed to particularize the things to be seized. 3. Plaintiffs have raised genuine issues of material fact concerning whether the government's agents reasonably relied upon a general warrant that failed to particularize the things to be seized. The government agrees, as it must, that it is "axiomatic" that general warrants are prohibited by the Fourth Amendment. Maryland v. Garrison, 480 U.S. 79 (1987); Dalia v. United States, 441 U.S. 238, 255 (1979); Andresen v. Maryland, 427 U.S. 463 (1976). By limiting the authorization to search to the specific areas and things for which there is probable cause to search, the requirement ensures that the search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit. Maryland v. Garrison, supra at 84 (emphasis added). The presence or absence of this required "careful tailoring" constitutes a genuine issue of material fact. Defendants' reliance upon the warrant does not clothe them with good faith. [A] warrant may be so facially deficient -- i.e., in failing to particularize the place to be searched or the things to be seized -- that the executing officers cannot reasonably presume it to be valid. United States v. Leon, supra, 468 U.S. at 923; see also United States v. Fucillo, 808 F.2d. 173, 178 (1st Cir. 1987). The government's contention that the warrant's description of things to be seized was constitutional relies virtually exclusively on the notion that greater particularization was "impossible". GM at 22-23. Not surprisingly, no one has signed an affidavit stating that greater particularity was impossible, or even that the affiant believed in good faith that greater particularity was impossible. The reason for the absence of such a sworn statement is clear -- at all material times right up to the present, the defendants knew perfectly well that they could easily have been more specific. The government admits that one of things the agents were searching for was "an illegally possessed copy of an E911 text file stolen from BellSouth". GM at 23. Thus, a specific, and uniquely identifiable item of contraband was to be seized. The government actually possessed a copy of this text file, Warrant Aff.  20, 23, but did not attach it, describe it, or even name it in the description of items sought to be seized. The failure to include the readily available specific description of the stolen E911 file invalidated this warrant. The use of a generic term or a generic description in a warrant, however, is acceptable to the judicial officer issuing the warrant only when a more specific description of the things to be seized is unavailable....Failure to employ the specificity available will invalidate a general description in a warrant. United States v. Cook, 657 F.2d 730, 733 (5th Cir. 1981). In Cook, the "telling factor" was the failure of the agents to employ or refer to a catalogue of "pirated motion pictures" in the warrant's description of things to be seized, even though the catalogue was available to them prior to applying for the warrant. 657 F.2d at 734. In this case, the agents had a copy of the stolen text file, but did not even mention it in the description of items to be seized. Montilla Records v. Morales, 575 F.2d 324 (1st Cir. 1978) and United States v. Klein, 565 F.2d 183 (1st. 1977) (cited with approval in Cook) permit the use of general descriptions only if two tests are satisfied (neither of which were met here): ...first, the degree to which the evidence presented to the magistrate establishes reason to believe that a large collection of similar contraband is present on the premises to be searched, and, second, the extent to which, in view of the possibilities, the warrant distinguishes, or provides the executing agents with criteria for distinguishing, the contraband from the rest of an individual's possessions. United States v. Fucillo, 808 F.2d 173, 176 (1st Cir. 1987); see also, United States v. Leary, 846 F.2d 592, 605 (10th Cir. 1988); United States v. Stubbs, 873 F.2d 210 (9th Cir. 1989); United States v. Spilotro, 800 F.2d 959 (9th Cir. 1986). The principles set forth in the Cook opinion and the cases cited therein govern in this case. In Cook, the Court found the warrant description unconstitutional because it authorized the seizure of "illegally obtained films...not limited to the motion pictures described in the affidavit" without providing an available criterion which the executing officers could use to distinguish the illegally obtained materials from lawfully possessed property. Here, by the government's own account, the items to be seized could have been specifically described by referring to the E911 text file, computer passwords used on Prime and Unix software systems, or programs utilized for their decryption. GM at 5, 23. Yet, the warrant's description of things to be seized sweeps far beyond that category, and includes: [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. Only one category of materials to be seized -- "documentation" -- was limited to those "relating to the attacking of computers and advertising the results of computer attacks (including telephone numbers and location information". The unconstitutionally vague terms "attacking of computers" and "computer attacks" have no source in law and are completely devoid of any meaning as a criterion for the conduct of a search for violations of any federal law. The limiting phrase which supposedly qualified and limited the categories of materials to be seized was completely boundless: materials 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))." Under the terms of this facially invalid warrant, materials which constituted evidence, instrumentalities and fruits of any federal crime could be seized. Even if the warrant were limited to the illustrative, non-inclusive federal crimes mentioned (which it is not), it would have been without any limiting criterion which could be used by the executing agents. 18 U.S.C. 2314 is one of the broadest statutes in the federal criminal code, encompassing an extremely wide range of involvement in every kind of interstate theft scheme. Similarly, the mere citation to 18 U.S.C. 1030(a)(6) was of no assistance to executing agents. Under the principles set forth in Cook, mere citations to federal criminal laws do not place constitutional limits on a search warrant. Voss v. Bergsgaard, 774 F.2d 402, 405 (10th Cir. 1985); United States v. Roche, 614 F.2d 6 (1st Cir. 1980); United States v. Cardwell, 680 F.2d 75 (9th Cir. 1982). The warrant is also overbroad in that it contained no temporal limitation, but rather, swept in everything no matter when it might have been generated or dated. This failing also violated the particularity requirement, which required the warrant to have specified the relevant time period to which the materials sought to be seized related. United States v. Abrams, 615 F.2d 541 (1st Cir. 1980). In short, this warrant authorized the seizure of all computer hardware, software, and related documentation, and all electronically stored data at SJG, no matter how unrelated by subject matter or time period to the investigation being conducted. 4. Plaintiffs have raised genuine issues of material Fact in Support of Their Allegation that the Search and Seizure at SJG Exceeded the Scope of the Warrant, and Violated the First Amendment. Even if the warrant limited the search and seizure to evidence relating to the government's investigation -- which it did not -- the range of materials purportedly seized under this warrant went far beyond the warrant's authorization. The overbroad seizure is important proof of the unguided discretion afforded by this warrant, and is bound up with several genuine issues of material fact, including (1) the defendants' good faith belief in the lawfulness of the warrant; and, (2) the unconstitutional breadth of the executed search and seizure. Creamer v. Porter, 754 F.2d 1311 (5th Cir. 1985). Computer hardware, computer software, stored computer text files, and paper documents were seized even though these items bore absolutely no indicia which condemned them to seizure as contraband or evidence, fruits or instrumentalities of any crime. Jackson Decl.  28-31. The government does not even assert that, at the time of the seizures, the items seized were determined to have a nexus to any federal crime. Rather, the government asserts that it used an unconstitutionally broad criterion not even mentioned in the warrant -- computers and other items under the "control" of Loyd Blankenship. GM at 25-26; Golden Decl.  4-5. Plaintiffs maintain that a far broader search than is reflected in the Golden declaration was conducted, and that items were seized which were not under Blankenship's "control". This is not surprising, because the government does not indicate how its agents could have known which items at SJG were under Blankenship's control. By the government's own admission, the seizure went beyond even the overbroad warrant because, manifestly, not everything under Loyd Blankenship's "control" at SJG was authorized to be seized. Certainly, matters concerning the scope of the items seized and the execution of the search constitute genuine issues of material fact. Defendants incorrectly maintain that this case presents no First Amendment issue, because the search and seizures were supposedly sharply focussed on the character, not the content, of expressive materials. GM at 24-26. In this case, among the items seized were the printing press of a book publisher, book drafts -- including all current drafts of an about-to-be published book -- and an entire electronic conferencing system. Jackson Decl.  32. Congress has expressly prohibited searches of third-party publishers. 42 U.S.C. 2000aa. In addition, the Supreme Court has recognized that failure to adhere strictly to the requirements of probable cause and particularity would lead to serious invasions of First Amendment rights, where a third-party search is directed at a First Amendment institution, such as a newspaper. The Court presumed that adherence to Fourth Amendment requirements would obviate the danger of First Amendment violations. There is no reason to believe, for example, that magistrates cannot guard against searches of the type, scope and intrusiveness that would actually interfere with the timely publication of a newspaper. Nor, if the requirements of specificity and reasonableness are properly applied, policed, and observed, will there be any occasion or opportunity for officers to rummage at large in newspaper files or to intrude into or to deter normal editorial and publication decisions. Zurcher v. Stanford Daily, 436 U.S. 547, 567, 98 S.Ct. 1970, 1982 (1978). The warrant in this case and the executing officials fell far short of the Supreme Court's expectations and assurances. The overbroad warrant and unbridled rummaging by the officers actually interfered with the timely publication of a book, and seriously interfered with the normal editorial process at SJG. III. THE GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT ON COUNT V MUST BE DENIED BECAUSE PLAINTIFFS HAVE RAISED GENUINE ISSUES OF MATERIAL FACT IN SUPPORT OF THEIR ALLEGATION THAT GOVERNMENT AGENTS INTERCEPTED THEIR PRIVATE ELECTRONIC COMMUNICATIONS. Count V of the complaint alleges that the government's agents "intercepted, endeavored to intercept, or procured others to intercept" plaintiffs' electronic mail in violation of 18 U.S.C.  2510 et seq. The government does not deny that its agents seized plaintiffs' private electronic communications, but claims that these private communications were not "intercepted" within the meaning of section 2510. Summary judgment is inappropriate because plaintiffs have raised substantial issues of material fact to refute this claim. The government would have this Court believe that its examination of plaintiffs' private electronic mail was limited to Mr. Boothby's use of Norton Utilities "to electronically sweep through the bulletin board contents for key words." While that admission in and of itself constitutes "interception" within the meaning of section 2510(4), the government's examination of the contents of plaintiffs' private communications was even more intrusive than that. An examination of the electronic mail files from the Illuminati BBS by Wayne Bell, the expert who designed the BBS software, reveals that on March 20, 1990 -- while the BBS was in the possession of the United State Secret Service -- someone systematically read and deleted all of the private electronic mail on the BBS, including electronic mail to which each of the plaintiffs was a party. Declaration of Wayne Bell  9.[] The declarations of the individual plaintiffs, together with the declaration of Mr. Bell, establish that each of the plaintiffs was a party to electronic mail that had not yet been received by the addressee at the time the BBS was seized by the government, and at the time all of the electronic mail on the BBS was systematically read and deleted. The ECPA amendments to the federal Wiretap statute plainly prohibit the "intercept[ion]" of electronic communications, including communications stored on a BBS "incidental to the electronic transmission thereof."  2510(17), 2511. United States v. Turk, 526 F.2d 654 (1976), is not to the contrary. The government agents in Turk did not intercept private communications that were in the process of transmission, but rather, seized from a suspect's car a cassette tape containing a conversation between the suspect and the defendant which the suspect had previously recorded. The court reasoned that, while the initial recording of the phone conversation was an "interception" (albeit not an illegal one because it was done by a party to the conversation), the agents' subsequent replaying of the previously recorded conversation was not. In contrast, in this case, plaintiffs allege that the government intercepted communications while they were in the process of transmission. Because plaintiffs have raised substantial factual support for their allegation of interception, summary judgment must be denied. Summary judgment under section 2518(4) must also be denied. Plaintiffs have demonstrated that the government accomplished its interception of their private electronic communications by seizing the entire electronic communications service run by SJG. The fact that the government chose to convert SJG's property rather than to carry out its investigation in a less intrusive fashion does release the government from liability under section 2518(4). CONCLUSION For the reasons given above, the government's motion for summary judgment should be denied. Respectfully submitted by their attorneys, ________________________ Sharon L. Beckman (BBO #552077) Andrew Good (BBO #201240) Harvey Silverglate (BBO #462640) Silverglate & Good 89 Broad St., 14th Floor Boston, MA 02110 (617) 542-6663 _________________________ Eric Lieberman Nicholas Poser Rabinowitz, Boudin, Standard, Krinsky & Lieberman, P.C. 740 Broadway, at Astor Place New York, NY 10003-9518 (212) 254-1111 _________________________ R. James George, Jr. (#07800011) Peter D. Kennedy (#11296650) Graves, Dougherty, Hearon & Moody 2300 NCNB Tower 515 Congress Avenue Austin, TX 78701 (512) 480-5600 DATED: October 2, 1991