From: fig@eff.org (Cliff Figallo)
Subject: 2nd Day Steve Jackson Games trial
Summary: Shari Steele report on 2nd day of SJG trial
Originator: fig@eff.org
Keywords: EFF Civil liberties
Organization: The Electronic Frontier Foundation
Date: Thu, 28 Jan 1993 17:12:04 GMT


EFF staff counsel Shari Steele reporting from Austin:


Hi everyone.
Well, day two of the Steve Jackson Games trial was a long one -- the judge
heard plaintiffs' case from 8:30 a.m. until 6:30 p.m.  By the end of the
day, the plaintiffs had finished.

The day started off with Steve Jackson back on the stand.  Steve talked
about how all copies of the slated-to-be-released-soon fantasy game GURPS
Cyberpunk had been seized.  He went to the Secret Service office in Austin
the next day with a box of formatted floppies to copy all of the seized
disks, accompanied by a local attorney.  When he arrived, Agent Foley set
the ground rules.  Steve would only be permitted to copy files from the one
computer that had been sitting on Loyd Blankenship's desk (which did not
contain the BBS).  He was not permitted to physically touch the computer. 
He was to state which files he wanted to copy, and Secret Service agents
would read the text of the files first and then determine if he could have
a copy.  Sitting down next to an agent at the computer, Steve asked for a
directory listing to determine which files to request.  The agent did not
know how to call up a directory list.  (For those of you unfamiliar with
DOS, this is VERY BASIC stuff.)  Steve further testified that agents
reading the files made derogatory comments.  (At one point, reading a file
from GURPS Cyberpunk that Steve had requested to copy, Agent Foley asked if
Steve realized he was writing a handbook for computer crime.)  After less
than two hours, and with only nine files out of several hundred copied,
Agent Foley called an end to the copying.  One week later, Steve laid off
eight out of his 18 employees.  As Steve described, this whole incident has
"made me grouchier, angrier and harder to get along with."  The Secret
Service never told him why they were investigating him.  If they had asked,
he would have given them access to the materials they wanted.

Cross examination on Steve revealed that SJG had had two bad years
financially before the Secret Service raid -- in fact, Steve admitted about
looking into chapter 11 bankruptcy at the end of 1989.  In addition, there
was evidence that GURPS Cyberpunk was not going to make deadline days
before the raid took place.  The defense then tried to imply that the
company, which made profits in 1991 and 1992, may have been *helped* by the
publicity of the raid.  The judge did not seem to buy it.

The three other plaintiffs were each called in turn.  They each testified
about personal e-mail that had been deleted from the system and how they
had expected their communications to be as private as telephone calls. 
They described fearing the Secret Service would investigate them
personally, since there was no comforting explanation for why the raid took
place.  One plaintiff told how he never could solicit feedback on a
manuscript he had written for SJG, since feedback was generally given on
the seized BBS.

The next witness called was Wayne Bell, the programmer who developed the
WWIV software that ran the BBS.  Wayne testified that he looked at the
backup disk Steve had made when the files were returned from the Secret
Service.  According to that file, all electronic mail had been deleted from
the system.  Some of it, at least, had been deleted on March 20, 1993
(almost 3 weeks after the Secret Service had seized the computer), since
that was the last day the mail file had been accessed.  The mail file
itself had not been deleted, and some fragments of files could be recovered
using Norton's utilities.  These facts indicated that the mail had been
deleted one message at a time after it had been displayed on a user's
screen, implying that the Secret Service had read all of the mail on the
system.  This testimony was very technical, and I'm not sure the judge
really understood what was going on.

Our old friend Henry Kluepel, Director of Network Security Technology at
Belcore, was next to take the stand.  He advanced a new theory.  The
application for the search warrant contained facts supplied in large part
by Hank.  Yet the facts of the case indicated that the BBS running out of
Loyd Blankenship's home, called the Phoenix Project, was the one that
contained the evil 911 document, not the Illuminati BBS running out of SJG.
 Hank testified that after February 7, he couldn't figure out where the
Phoenix Project resided -- there was no answer at its old number.  Since
Loyd Blankenship also had sysop privileges at the Illuminati BBS, and both
BBSs ran on the same software (WWIV), Hank concluded that it was possible
that Illuminati was actually the Phoenix Project, or that the Phoenix
Project BBS was hidden behind a door on Illuminati.  Hank testified that it
was quite common to hide BBSs within other BBSs. (?)  Anyway, during cross,
Pete Kennedy asked how many users the two BBSs had in common according to
the user lists Hank had printed out from both boards.  Loyd was the only
mutual user!  Hank also went into a lengthy (and boring) description of an
evil password decryption scheme Erik Bloodaxe and Loyd were plotting on the
Phoenix Project.  (BTW, Hank's handle during his investigation was
rot.doc.)

Next up was William Cooke, retired US Attorney out of Chicago.  Cooke's
testimony was the most helpful of the day.  He put together the warrant,
and claimed the evil E-911 document was worth the same $79,000 that was
shot down in Craig Neidorf's trial.  So Cooke got to go through a bit of
the expenditure breakdown, until the judge put an end to it and warned Pete
Kennedy to move on.  Cooke testified that he did not know SJG was a
publisher and had made no efforts to determine what type of a business it
was.  He did not advise the Secret Service of the Privacy Protection Act,
which protects publishers from having their works-in-progress seized.  He
didn't advise the SS that there was e-mail involved.  And he never advised
the SS of the wiretap statute.  He next said two things that I found
extremely interesting.  First, he told of the Computer Emergency Response
Team (C.E.R.T.), an arm of the defense department that is "responsible for
policing the Internet."  Gulp!  (They apparently were the group that
visited Craig in Missouri.)  The other interesting thing to me was, when
Pete Kennedy said, "Isn't it true that no charges have been brought against
Loyd Blankenship?", Cooke replied, "There is still an ongoing
investigation.  No charges have yet been filed."  They don't usually admit
that stuff!  One victorious moment worth mentioning:  Cooke said that if
the Secret Service had been told that SJG was a publishing company, they
should have ceased doing the search.  Yesterday we saw part of a homemade
video courtesy of the SS themselves that clearly had an SJG employee
telling an SS agent that they were a publishing company.  Cooke also
interpretted ECPA (Electronic Communications Privacy Act) as not applying
here, since these were stored communications, not in transit.  The judge
made a big deal of asking him if this conclusion of unread e-mail not being
in transit was his own interpretation of the statute, or if he was getting
it from somewhere.  Cooke admitted it was his own interpretation.

The final person to testify was an accountant who explained why SJG is
seeking over $2 million in damages and Steve Jackson is seeking over
$150,000 in lost royalties.

Tomorrow . . . the government begins its case.
Shari





               <<*>><<*>><<*>><<*>><<*>><<*>><<*>><<*>>
Cliff Figallo                                    fig@eff.org 
Online Communicator                              (617)864-0665 (voice)
Electronic Frontier Foundation, Cambridge        (617)864-0866 (fax)       
                     





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                    <<*>><<*>><<*>><<*>><<*>><<*>>                         
Cliff Figallo                                     fig@eff.org
Electronic Frontier Foundation                    (617)864-0665 (voice)
Online Communications                             (617)864-0866 (fax)
Newsgroups: comp.org.eff.talk