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From <> Wed Jul 13 01:32:24 1994 Date: Wed, 13 Jul 1994 00:03:00 CDT Reply-To: TK0JUT2@MVS.CSO.NIU.EDU Sender: CU-DIGEST list Subject: Cu Digest, #6.63 To: Multiple recipients of list CUDIGEST Computer underground Digest Tue July 12, 1994 Volume 6 : Issue 63 ISSN 1004-042X Editors: Jim Thomas and Gordon Meyer (TK0JUT2@NIU.BITNET) Archivist: Brendan Kehoe Retiring Shadow Archivist: Stanton McCandlish Shadow-Archivists: Dan Carosone / Paul Southworth Ralph Sims / Jyrki Kuoppala Ian Dickinson Copper Ionizer: Ephram Shrustleau CONTENTS, #6.63 (Tue, July 12, 1994) File 1--2600 FOIA Decision File 2--Draft Motion in response to Am. Action BBS Judge File 3--Steve Jackson Games case - comments/update File 4--White House Pays off in potential patent infringement Cu-Digest is a weekly electronic journal/newsletter. Subscriptions are available at no cost electronically. 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Please avoid quoting previous posts unless absolutely necessary. DISCLAIMER: The views represented herein do not necessarily represent the views of the moderators. Digest contributors assume all responsibility for ensuring that articles submitted do not violate copyright protections. ---------------------------------------------------------------------- Date: Mon, 11 Jul 1994 15:12:15 EST From: David Sobel Subject: File 1--2600 FOIA Decision 2600 FOIA Decision A federal judge in Washington, DC has ordered the release of Secret Service documents concerning the November 1992 raid on a meeting of 2600 Magazine readers at a shopping mall in Virginia. The documents were the subject of a Freedom of Information Act lawsuit filed by Computer Professionals for Social Responsibility (CPSR). The case is being litigated by the Electronic Privacy Information Center (EPIC), a joint project of CPSR and the Fund for Constitutional Government. The FOIA case has confirmed the involvement of the Secret Service in the incident, in which numerous individuals were detained, searched and ordered to identify themselves even though no search warrant was presented. The detentions and searches were conducted by Arlington County Police and mall security officers. Meeting participants believe that these actions were undertaken at the behest of the Secret Service, which has never publicly explained its role in the incident. Judge Louis F. Oberdorfer's decision and order are re-printed below. David L. Sobel Legal Counsel Electronic Privacy Information Center ================================================================ UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA COMPUTER PROFESSIONALS FOR ) SOCIAL RESPONSIBILITY, ) ) Plaintiff, ) ) v. ) Civil Action No. 93-0231-LFO ) UNITED STATES SECRET SERVICE, ) ) Defendant. ) _________________________________) MEMORANDUM Plaintiff brought this action under the Freedom of Information Act, 5 U.S.C. Sec. 552 et seq., to obtain any documents in defendant's possession relating to the breakup of a meeting of computer enthusiasts that took place on November 6, 1992 at the Pentagon City mall in Arlington, Virginia. The attendees, apparently affiliated with a computer magazine called 2600 and referred to in media accounts of the incident as computer "hackers," were dispersed shortly after their arrival by Arlington County Police and mall security officers.[1] According to plaintiff, the officers took names of attendees and confiscated some of their personal property before ordering them to leave the mall. Plaintiff also avers that an agent or agents of defendant participated in the incident. Plaintiff submitted its FOIA request to defendant on November 10, 1992. Several months later, defendant released to plaintiff ------------------------ [1] See "Hackers Allege Harassment at Mall," Wash. Post , Nov. 12, 1992, at A9. several newspaper articles about the incident. Defendant informed plaintiff that it was withholding two additional responsive documents pursuant to FOIA exemptions 7 (A), (C), and (D). The parties filed cross-motions for summary judgment. During the pendency of these motions, defendant discovered six additional responsive documents in its Washington, D.C. field office. Defendant submitted a supplementary declaration and memorandum in which it stated that it would withhold the six new documents under the same three FOIA exemptions claimed for the two earlier documents. Defendant subsequently filed an additional declaration _in camera_. Plaintiff has moved to strike defendant's _in camera_ submission. I. Plaintiff objects to defendant's _in camera_ submission on the ground that permitting such submissions in FOIA actions undermines the adversarial structure of Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974), by preventing the plaintiff from expressing its views as to the government's reasons for withholding documents. See Yeager v. DEA, 678 F.2d 315, 324-25 (D.C. Cir. 1982). As plaintiff contends, _in camera_ submissions should only be permitted in those instances where they are "absolutely necessary" to resolve the case. Id. This is such an instance. Defendant has made a thorough effort to explain as much of its case as possible in its public filings. However, the confidential nature of the criminal investigation underlying (2) defendant's withholding of documents makes _in camera_ review the exclusive means of weighing specific aspects of defendant's claims. Accordingly, plaintiff's motion to strike defendant's _in camera_ submission will be denied, and that submission will be considered in ruling on the parties' cross-motions for summary judgment. II. FOIA exemption 7 permits the withholding of several categories of "records or information compiled for law enforcement purposes." 5 U.S.C. Sec. 552(b)(7). Initially, plaintiff argues that defendant has categorically failed to satisfy the threshold requirement for invoking exemption 7 because defendant has failed to demonstrate that the information at issue relates to a criminal investigation. Defendant's public declarations specify the nature of the underlying criminal investigation, and its _in camera_ submission discusses that investigation with even greater specificity. This is a case to which exemption 7 might properly be applied. Defendant has withheld documents based on three provisions of that exemption. A. FOIA exemption 7(C) permits the withholding of information that "could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. Sec. 552 (b)(7)(C). Defendant argues that exemption 7(C) applies in this case because of "the 'strong interest' of individuals, whether they be suspects, witnesses, or investigators, 'in not being associated unwarrantedly (3) with alleged criminal activity.'" Dunkelberger v. Department of Justice, 906 F.2d 779, 781 (D.C. Cir. 1990) (citation omitted). The cases defendant cites in support its exemption 7(C) claim generally involve persons whose connection with a criminal file could embarrass or endanger them -- for example, persons investigated but not charged in criminal matters. See, e.g., Fund for Constitutional Government v. National Archives and Records Service, 656 F.2d 856, 861-66 (D.C. Cir. 1981). Defendant has not suggested that the meeting at issue here is the object of any criminal investigation. The incident occurred in plain view of the patrons of a busy shopping mall. The mere fact that defendant has maintained materials relating to the incident in connection with a criminal investigation does not mark participants in the meeting with the "stigma" of being associated with a criminal investigation, which defendant identifies as the gravamen of its 7(C) claim. Indeed, several participants in the meeting have executed privacy waivers in connection with a later FOIA request from defendant, which suggests that they do not perceive release of the material defendant is withholding as a threat to their privacy interests. Exemption 7(C) is not an appropriate basis for withholding responsive documents in this case. B. Defendant next invokes FOIA exemption 7(D), which permits the withholding of documents that "could reasonably be expected to disclose the identity of a confidential source ... and ... information furnished by a confidential source." 5 U.S.C. Sec. (4) 552(b)(7)(D). To support its claim of this exemption, defendant initially cited the law of this Circuit that "in the absence of evidence to the contrary, promises of confidentiality are 'inherently implicit' when the FBI solicits information." Keys v. Department of Justice, 830 F.2d 337, 345 (D.C. Cir. 1987) (citations omitted). However, during the pendency of this motion, the Supreme Court in Department of Justice v. Landano, 113 S.Ct. 2014 (1993), eliminated the Keys presumption. The Court held that exemption 7(D) only applies where there is an actual promise of confidentiality, or circumstances from which such a promise may be inferred -- for example, a type of crime that makes recriminations against sources likely. Id. at 2023. After Landano, which defendant concedes governs the exemption 7(D) claim in this case, defendant's sole basis for applying exemption 7(D) is a statement in its supplemental memorandum that defendant "recently contacted" the source, which told defendant that the source understood the information to have been provided on a confidential basis. Supplemental Declaration of Melvin E. Laska (June 18, 1993) at para. 49. Such a post hoc rationalization is inadequate. At no time has defendant offered any evidence of an express or implied promise of confidentiality at the time the source provided the information. Thus, defendant's exemption 7(D) claim does not survive Landano. C. Defendant's strongest claim for withholding certain responsive documents is based on FOIA exemption 7(A) That exemption permits (5) an agency to withhold responsive documents that "could reasonably be expected to interfere with law enforcement proceedings." 5 U.S.C. Sec. 552(b)(7)(A). Defendant has represented that it is maintaining the withheld documents as part of a particular, ongoing criminal investigation. It has elaborated on this representation in its _in camera_ submission. Withholding of documents is appropriate under exemption 7(A) if release of the documents would interfere with the ongoing investigation in any of the ways defendant enumerates: by alerting individuals that they are under investigation, thus allowing them to alter their behavior; by exposing or chilling the participation of informants or witnesses; or by providing premature access to the government's strategy or the nature, focus, and limits of its case. See generally NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 239-241 (1978). Defendant, however, has failed to demonstrate that the release of each of the documents it has withheld would interfere with the ongoing investigation in any of these ways. Defendant's public filings state that the investigation involves allegations made by, a private corporation of telephone fraud. See Defendant's Supplemental Memorandum of Points and Authorities in Support of Defendant's Motion for Summary Judgment (June 25, 1993) at 3. Thus, defendant cannot fear the possibility that release of the withheld documents might reveal defendant's involvement in this type of investigation. Similarly, the fact that the documents at issue are responsive to plaintiff's FOIA request indicates that those documents concern the breakup of the November 6, 1992 meeting (6) at Pentagon City. Thus, defendant cannot claim exemption 7(A) to withhold documents based on the possibility that the documents would reveal that investigators were interested in that meeting. The only documents at issue that defendant might properly withhold under exemption 7(A) would fall into one of the following three categories: information identifying the individual(s) under investigation and stating that they are under investigation; information identifying any witness(es) or informant(s) of the activity under criminal investigation and stating that they are witnesses or informants; and information revealing the particular strategy or parameters of the criminal investigation, such as the name of the corporation complaining of telephone fraud, the dates of the suspected criminal activity, or any conclusions defendant's agents have drawn in connection with the investigation. Beyond information in these specific categories, defendant has failed to explain how release of any withheld documents would interfere with any ongoing criminal investigation. Accordingly, the accompanying Order instructs defendant to redact from the withheld documents information that falls into the three specific categories described in this paragraph and to release the redacted documents to plaintiff. Date: July 1, 1994 /sig/ Louis F. Oberdorfer UNITED STATES DISTRICT JUDGE (7) ------------------------------------------------------------------ UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA COMPUTER PROFESSIONALS FOR ) SOCIAL RESPONSIBILITY, ) ) Plaintiff, ) ) v. ) Civil Action No. 93-0231-LFO ) UNITED STATES SECRET SERVICE, ) ) Defendant. ) _________________________________) ORDER For the reasons stated in the accompanying Memorandum, it is this 1st day of July 1994, hereby ORDERED: that plaintiff's motion to strike defendant's _in camera_ submission should be, and is hereby, DENIED; and it is further ORDERED: that defendant's motion for summary judgment should be, and is hereby, GRANTED in part with respect to FOIA exemption 7(A); and it is further ORDERED: that plaintiff's cross-motion for summary judgment should be, and is hereby, GRANTED with respect to FOIA exemptions 7(C) and (D) and is GRANTED in part with respect to FOIA exemption 7(A); and it is further ORDERED: that defendant shall redact from the withheld documents information that falls into the three specific categories described in the accompanying Memorandum and shall release the redacted documents to plaintiff. /sig/ Louis F. Oberdorfer UNITED STATES DISTRICT JUDGE ------------------------------ Date: Sat, 9 Jul 94 22:53:05 PDT From: hkhenson@CUP.PORTAL.COM Subject: File 2--Draft Motion in response to Am. Action BBS Judge DRAFT MOTION (Note this is not a motion, but an early draft by a non-lawyer -- -me- about one aspect of the AA BBS case. I have been very concerned with what I have found about the performance of the courts. It has turned out to be a lot worse than I thought. Keith Henson) On July 8, 1994 Judge Julia Smith-Gibbons, United States District Court for the Western District of Tennessee in Memphis TN, verbally ruled that defendant's motion to dismiss (improper venue based on the North American Free Trade Agreement and others) was denied. Her words were that her order denying the motion was "in the typewriter." Defendants and defendant's attorney expect (on the basis of her previous judicial conduct) to be handed the written order at the time of trial, precluding any interlocutory appellate remedies. Defendants Robert and Carleen Thomas are therefore forced to appeal Judge Gibbon's ruling without an order reduced to writing and signed by the court. However, her verbal ruling is "final" with respect to this issue. If this interlocutory appeal were delayed until after trial the Thomases' would be irreparably harmed, even if acquitted. Not only would they lose the cost of trial, which could not be recovered civilly, but they would have to shutdown their business as it requires part time physical presence. (Trial in this area would not be as onerous in that the business could continue to be operated with a few hours attention each night.) These motions are being filed in both the Sixth and Ninth Cir- cuits because the underlying case involves an *assault* on the authority of the Circuit Courts, and therefore upon the entire court system. When the Courts lose their capacity to function normally it is termed insurrection. The case at hand may be close to this state. As is made clear by attached documents, a *district* court in the Sixth Circuit is attempting to enforce authority over persons and property in the Ninth Circuit on the basis of a manufactured "crime". The gross inequity performed by law enforcement agents in manufacturing the child pornography charge could be proved at trial, but the *law* on which the "crime" is based (Title 18, Section 2252 of the Federal Code) has been ruled "unconstitutio- nal on its face" in the Ninth Circuit (US vs X-citement Video, Inc., 982 Federal Reporter Second Edition, page 1285, Dec. 16, 1992). At the time of the search of the Thomas's home and business, (January 10, 1994) this statute *could not* be used to prosecute *any* person in the Ninth Circuit because it is an unconstitutional law, and unenforceable. (Judge Gibbons was notified on June 22, 1994 of these facts.) On January 26, 1994 a Federal Grand Jury in Memphis Tennessee returned an indictment against Robert Thomas citing section 2252, a section which *could not be applied* by any Ninth Circuit District Court to a citizen in that circuit or any other Circuit. (There were other sections cited including section xxx calling for forfeiture of their home, bank accounts, cars, and tens of thousands of dollars of computer hardware to the Tennessee authorities.) The effect--if a district court in one section of the country is allowed to charge citizens on laws ruled unconstitutional in the Circuit where they live--is to completely undermine the authority of all the Circuit courts in the country. This case is about liberty and property, but taken to the extreme, a person could be removed from his home by a District Court operating in another part of the country and executed. This appeal is about nothing less than the authority of *any* Federal court to protect the life, liberty and property of any citizen of the United States. If this appeal is not granted, it will show that the Circuit courts can ignore another Circuit's laws and do anything they want with a citizen's life, liberty and property. It will show that the Circuit courts do not have the authority to protect life, liberty, or property for the people within their circuit, and ultimately will undermine the courts ability to protect any inhabitant of the United States. (Net.folks--please comment!) ------------------------------ Date: Thu, 8 Jul 1994 22:50:18 PDT From: George, Donaldson & Ford Subject: File 3--Steve Jackson Games case - comments/update Source: LEGAL BYTES, Spring 1994, Volume 2, Number 1 ___________________________________ Copyright (c) 1994 George, Donaldson & Ford, L.L.P. (Permission is granted freely to redistribute this newsletter in its entirety electronically.) ====================================================================== STEVE JACKSON GAMES v. UNITED STATES SECRET SERVICE: GOVERNMENT DROPS ITS APPEAL; PLAINTIFFS PRESS FORWARD ON "INTERCEPTION" ISSUE Earlier issues of LEGAL BYTES reported on the lawsuit brought by the Austin, Texas role-playing game publisher, Steve Jackson Games, against the U.S. Secret Service for violating the company's civil rights and the privacy rights of its electronic bulletin board system's users. Armed with bare suspicion and a search warrant based on largely inaccurate information, the Secret Service on March 1, 1990 raided the company's offices, seizing its BBS and two other computers, hundreds of floppies, drafts of a soon-to-be released game book, and volumes of other computer records and documents. No one was ever arrested or charged, but the Secret Service kept the BBS and other materials for almost four months. Three years later, the Secret Service found itself in federal court, not prosecuting anyone at Steve Jackson Games, but instead trying to defend its raid against a civil lawsuit brought by the company, its owner Steve Jackson, and three outside users of the company's BBS (represented by the lawfirm publishing this newsletter). After a three-day trial, Judge Sam Sparks held that the Secret Service's seizure of the draft game books and the BBS violated the Privacy Protection Act of 1980, and that its seizure, without probable cause, of the BBS e-mail violated a provision of the Electronic Communications Privacy Act of 1986, 18 U.S.C. Section 2703. The Secret Service was ordered to pay $1,000 to each of the users of the BBS, and over $50,000 to Steve Jackson Games to compensate for damaged equipment and lost sales. The government also agreed to reimburse over $250,000 in costs and attorneys' fees incurred by the company in bringing the lawsuit. The Secret Service initially gave notice of its intent to appeal the judgment, but by January, 1994, had changed its mind. The appeal was dismissed, and the government has now paid a total of over $300,000 to the Plaintiffs. This is the first and only known recovery of money from the federal government for violating the civil liberties and privacy of computer users. The Plaintiffs' victory was not complete, however. Judge Sparks rejected their argument that the Secret Service had violated yet *another* law when it seized the BBS -- the Wiretap Act, as amended by the Electronic Communications Privacy Act of 1986 (the "ECPA"). Congress expanded the Wiretap Act in 1986 to include protection for all types of electronic communications, including electronic mail and private bulletin board communications. The Wiretap Act prohibits interception of electronic communications without a court order, a greater burden than obtaining a simple search warrant from a federal or local magistrate or judge. When the Secret Service seized the Steve Jackson Games BBS, it contained undelivered electronic mail -- that is, mail written by a user and addressed to another user, but not yet read by the intended recipient. When the Secret Service seized the BBS, and then later read and deleted all the e-mail on that BBS, this mail lost its privacy, and was prevented from being delivered. The government argued that the seizure of mail in transit was not an "interception" under the Wiretap Act because the e-mail was temporarily stored on the hard drive of the computer. Judge Sparks agreed, although the Plaintiffs argued that walking off with mail in transit and preventing it from being delivered sure *seems* like an interception. Judge Sparks' decision has in effect added an additional requirement to the definition of interception -- that an "interception" must be *contemporaneous* to its transmission, and therefore the seizure of a storage device can never qualify as an interception. The word "contemporaneous" does not appear in the Wiretap Act and the Plaintiffs have argued that the legislative history of the Electronic Communications Privacy Act, as well as the language and logic of the act, indicates that seizures of BBSs that include undelivered e-mail are "interceptions" of such communications requiring court orders. The government has responded by arguing that the ECPA establishes two separate, airtight compartments -- one for "stored" electronic communications resident on hard drives, no matter how temporarily, and communications that are in-transit, that is, where the electrons are moving from computer to computer. Under the government's theory, BBS or Internet e-mail changes legal status, and therefore the level of protection, as it moves from computer to computer on its way to its destination. This issue remains important despite Judge Sparks' other ruling that the Secret Service's seizure of *all* the e-mail violated another provision of the Electronic Communications Privacy Act. At least some law enforcement agencies appear to be interpreting Judge Sparks' decision as a "go ahead and seize, but don't read or delete, and try to return promptly" rule; that is, that the law permits them to seize electronic mail without probable cause, as long as they do not read or delete it. Although this is not an accurate reading of Judge Sparks's ruling, a clear decision that the seizure of in-transit e-mail would unambiguously protect not just the *privacy* of e-mail, but would protect the *delivery* of the mail as well. Other methods, including subpoenas and making on-site duplicates, can preserve the government's need for information when legitimate and supported by probable cause. Further, the ruling exhibits a static application of the statute to technology, not intended by Congress when the ECPA was enacted. The Plaintiffs have pressed forward with their appeal in order to establish better protection for electronic communication privacy. The government and law must come to grips with the proliferation of privately owned and operated communications systems. While single-line dial-up BBSs are now relatively primitive, there are countless thousands of them. The large commercial services such as CompuServe and America Online are growing at fantastic rates; Steve Jackson Games' own BBS has become a commercial Internet machine with a T-1 line and over a dozen dial-up connections, providing ftp, telnet, newsgroup and e-mail services. It is not unreasonable to ask the government to give new means of communications the same respect as it has long granted telephone calls. With the much-vaunted information superhighway coming, the government will face these problems anyway. Private communications increasingly will travel over privately owned, small, decentralized service providers, and the government cannot continue to argue that the difference in technology (or size) warrants lower protection under the law. ------------------------------ Date: Mon, 11 Jul 1994 14:53:56 -0700 From: "Brock N. Meeks"


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