sj-dec~1.txt

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     reading, and "aural acquisition" could be said to occur
     whenever someone physically hears the contents of a
     communication, and thus the use of the tape player by the
     officers to hear the previously recorded conversation might
     fall within the definition set out above. No explicit
     limitation of coverage to contemporaneous "acquisitions"
     appears in the Act.
          We believe that a different interpretation -- one which
     would exclude from the definition of "intercept" the replaying
     of a previously recorded conversation -- has a much firmer
     basis in the language of S 2510(4) and in logic, and
     corresponds more closely to the policies reflected in the
     legislative history. The words "acquisition... through the use
     of any ... device" suggest that the central concern is with
     the activity engaged in a the time of the oral communication
     which causes such communication to be overheard by uninvited
     listeners. If a person secrets a recorder in a room and
     thereby records a conversation between two others, an
     "acquisition" occurs at the time the recording is made. This
     acquisition itself might be said to be "aural" because the
     contents of the conversation are preserved in a form which
     permits the later aural disclosure of the contents.
     Alternatively, a court facing the issue might conclude that an
     "aural acquisition" is accomplished only when two steps are
     completed -- the initial acquisition by the device and the
     hearing of the communication by the person or persons
     responsible for the recording. Either of these definitions
     would require participation by the one charged with an
     "interception" in the contemporaneous acquisition of the
     communication through the use to the device. The argument that
     a new and different "aural acquisition" occurs each time a
     recording of an oral
     communication is replayed is unpersuasive. That would mean
     that innumerable "interceptions," and thus violations of the
     Act, could follow from a single recording.

Id., at 657-658 (footnotes omitted). While the Fifth Circuit
authority relates to the predecessor statute, Congress intended no
change in the existing definition of "intercept" in amending the
statute in 1986. See, S. Rep. No. 541, 99th Cong., 2nd Sess. 13
(1986), reprinted in 1986 U.S.C.C.A.N. 3555, 3567 ("Section
101(a)(3) of the ELECTRONIC COMMUNICATIONS PRIVACY ACT amends the
definition of the term "intercept" in current section 2510(4) of
title 18 to cover electronic communications. The definition of
"intercept" under current law is retained with respect to wire and
oral communications except that the term "or other" is inserted
after "aural." This amendment clarifies that it is illegal to
intercept the non-voice portion of a wire communication."). The
Court finds this argument persuasive when considering the
Congressional enactment of the Stored Wire and Electronic
Communications and Transactional Records Access Act, 18 U.S.C.
2701, et seq.

     The Court declines to find liability for any Plaintiff against
the Defendants pursuant to the Wire and Electronic Communications
Interception and Interception of Oral Communications Act, 18
U.S.C.2510, et seq., and specifically holds that the alleged
"interceptions" under the facts of this case are not
"interceptions"contemplated by the wire and Electronic
Communications Interception and Interception of Oral Communications
Act. It simply has no applicability to the facts of this case.

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                               c.

            STORED WIRE AND ELECTRONIC COMMUNICATIONS
                AND TRANSACTIONAL RECORDS ACCESS
                  18 U.S.C. [sec] 2701 et seq.

     Prior to February 28, 1990, Agent Foley, Assistant United
States Attorney Cox, and the computer consultants working with them
were cognizant of public computer bulletin boards and the use of
electronic communications and E-mail through them. Each of the
persons involved in this investigation, including Agent Foley, had
the knowledge and opportunity to log into the Illuminati bulletin
board, review its menu and user lists, obtain passwords, and
thereafter review all information available to the public. In fact,
Agent Foley erroneously thought Kluepfel had done this when a
printout of Illuminati documents dated February 25, 1990, was
received. When Foley applied for the search warrant on February 28,
1990, he knew the Illuminati bulletin board provided services to
the public whereby its users could store public and private
electronic communications. While Foley admits no knowledge of the
Privacy Protection Act and its provisions protecting publishers of
information to the public, he testified he was knowledgeable
regarding the Wire and Electronic Communications Interception and
Interception of Oral Communications Act. But, Foley never thought
of the law's applicability under the facts of this case. Steve
Jackson Games, Inc., through its Illuminati bulletin board
services, was a "remote computing service" within the definition of
Section 2711, and, therefore, the only procedure available to the
Secret Service to obtain "disclosure" of the contents of electronic


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communications was to comply with this statute. See,  18 U.S.C. 2
7 0 3 . Agent Foley and the Secret Service, however, wanted more
than "disclosure" of the contents of the communication. As the
search warrant application evidences, the Secret Service wanted
seizure of all information and the authority to review and read all
electronic communications, both public and private. A court order
for such disclosure is only to issue if "there is a reason to
believe the contents of a[n] . . . electronic communication . are
relevant to a legitimate law enforcement inquiry." See, 18 U.S.C.
S 2703(d). Agent Foley did not advise the United States Magistrate
Judge, by affidavit or otherwise, that the Illuminati bulletin
board contained private electronic communications between users or
how the disclosure of the content of these communications could
relate to his investigation. Foley's only knowledge was that
Blankenship had published part of the 911 document and decryption
information in his Phoenix bulletin board, was employed at Steve
Jackson Games, Inc. , and could have the ability to store and
delete these alleged unlawful documents in the computers or
Illuminati bulletin board at Steve Jackson Games, Incorporated. At
Agent Foley's specific request, the application and affidavit for
the search warrant were sealed.                            The
evidence establishes the Plaintiffs were not able to ascertain the
reasons for the March 1, 1990 seizure until after the return of
most of the property in June of 1990, and then only by the efforts
of the offices of both United States Senators of the State of
Texas. The procedures followed by the Secret Service in this case
virtually eliminated the safeguards

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contained in the statute. For example, no Plaintiff was on notice
that the search or seizure order was made pursuant to this statute
and that Steve Jackson Games, Incorporated could move to quash or
modify the order or eliminate or reduce any undue burden on it by
reason of the order. See, 18 U.S.C. [sec] 2703(d). The provisions
of the statute regarding the preparation of back-up copies of the
documents or information seized were never utilized or available.
See, 18 U.S.C. [sec] 2704. Agent Foley stated his concern was to
prevent the destruction of the documents' content and for the
Secret Service to take the time necessary to carefully review all
of the information seized. He feared Blankenship could possibly
delete the incriminating documents or could have programmed
destruction in some manner. Notwithstanding that any alteration or
destruction by Blankenship, Steve Jackson, or anyone else would
constitute a criminal offense under this statute, Foley and the
Secret Service seized -- not just obtained disclosure of the
content -- all of the electronic communications stored in the
Illuminati bulletin board involving the Plaintiffs in this case.
This conduct exceeded the Government's authority under the statute.

     The Government Defendants contend there is no liability for
alleged violation of the statute as Foley and the Secret Service
had a "good faith" reliance on the February 28, 1990, court
order/search warrant. The Court declines to find this defense by a
preponderance of the evidence in this case.

     Steve Jackson Games, Incorporated, as the provider and each
individual Plaintiffs as either subscribers or customers were


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"aggrieved" by the conduct of the Secret Service in the violation
of this statute.  While the Court declines to find from a
preponderance of the credible evidence the compensatory damages
sought by each Plaintiff, the Court will assess the statutory
damages of $1,000.00 for each Plaintiff.

                          III. SUMMARY

     This is a complex case. It is still not clear how sensitive
and/or proprietary the 911 document was (and is) or how genuinely
harmful the potential decryption scheme may have been or if either
were discovered by the Secret Service in the information seized on
March 1, 1990. The fact that no criminal charges have ever been
filed and the investigation remains "on going" is, of course, not
conclusive.

     The complexity of this case results from the Secret Service's
insufficient investigation and its lack of knowledge of the
specific laws that could apply to their conduct on February 28,
1990 and thereafter. It appears obvious neither the government
employees nor the Plaintiffs or their lawyers contemplated the
statute upon which this case is brought back in February, March,
April, May or June of 1990. But this does not provide assistance to
the defense of the case. The Secret Service and its personnel are
the entities that citizens, like each of the Plaintiffs, rely upon
and look to protect their rights and properties. The Secret Service
conduct resulted in the seizure of property, products, business
records, business documents, and electronic communications




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of a corporation and f our individual citizens that the statutes
were intended to protect.

     It may well be, as the Government Defendants contend, these
statutes relied upon by the Plaintiff s should not apply to the
facts of this case, as these holdings may result in the government
having great difficulties in obtaining information or computer
documents representing illegal activities. But this Court cannot
amend or rewrite the statutes involved. The Secret Service must go
to the Congress for relief. Until that time, this Court recommends
better education, investigation and strict compliance with the
statutes as written.

     The Plaintiffs are ordered to submit application for
attorney's fees and costs with appropriate supporting affidavits
within ten (10) days of the date of this order. The Defendants will
have ten days thereafter to file their responses.


     SIGNED this the s/12  day of March, 1993.




          Sam Sparks United States District Judge



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