text: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 93-8661 STEVE JACKSON GAMES INC., STEVE JACKSON, ELIZABETH MCCOY, WALTER MILLIKEN, AND STEFFAN O'SULLIVAN, Appellants, UNITED STATES SECRET SERVICE, AND THE UNITED STATES OF AMERICA, Appellees. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION BRIEF FOR APPELLANTS R. James George, Jr. Peter D. Kennedy GEORGE, DONALDSON & FORD, L.L.P. 114 W. 7th Street, Suite 1000 Austin, Texas 78701 (512) 495-1400 FEBRUARY 14, 1994 CERTIFICATE OF INTERESTED PARTIES The undersigned, counsel of record for Appellants, certifies that the following persons have an interest in the outcome of this case. This representation is made in order that the Judges of the Court may evaluate possible disqualification or recusal. 1. Steve Jackson Games Inc. 2. Steve Jackson 3. Elizabeth McCoy 4. Walter Milliken 5. Steffan O'Sullivan 6. The United States of America 7. The United States Secret Service 8. The lawyers and law firms involved in this appeal on behalf of Appellants are: R. James George, Jr. Peter D. Kennedy George, Donaldson & Ford, L.L.P. 9. Lawyers and law firms involved in this action before the District Court on behalf of Plaintiffs were: R. James George, Jr. Peter D. Kennedy George, Donaldson & Ford, L.L.P. (formerly of Graves, Dougherty, Hearon & Moody) Harvey Silverglate Andrew Good 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 Sharon Beckman (formerly of Silverglate & Good) Peter D. Kennedy STATEMENT REGARDING ORAL ARGUMENT Appellants respectfully requests [sic] that oral argument be heard in this case, because oral argument would help the Court in understanding and deciding the unique and important issues presented by this case, including the unique communication technology involved. TABLE OF CONTENTS CERTIFICATE OF INTERESTED PARTIES ................... i STATEMENT REGARDING ORAL ARGUMENT ................... iii TABLE OF CASES, STATUTES AND OTHER AUTHORITY ................. v STATEMENT OF JURISDICTION ................... 1 STATEMENT OF THE ISSUES ................... 2 STATEMENT OF THE CASE ................... 3 SUMMARY OF THE ARGUMENT ................... 11 ARGUMENT ................... 12 CONCLUSION ................... 18 CERTIFICATE OF SERVICE ................... 20 TABLE OF CASES, STATUTES AND OTHER AUTHORITY CASES Manufacturas Intern. v. Mfrs. Hanover Trust Co., 792 F. Supp. 181 (E.D.N.Y. 1992) ................... 15 United States v. Turk, 526 F.2d 654 (5th Cir. 1976) ................... 11, 14, 15 CONSTITUTIONS AND STATUTES 18 U.S.C. Section 2703(a) ................... 11, 18, 19 Section 2501 ................... 3, 14, 15, 18 Section 2510(4) ................... 13 Section 2511 ................... 13, 15, 16 Section 2511(1) ................... 13 Section 2511(1)(a) ................... 11-13 Section 2511(2)(a)(i) ................... 5 Section 2520(c)(2)(A) ................... 17 Section 2703 ................... 12, 16 Section 2703(d) ................... 11 Section 2520 ................... 13, 16 28 U.S.C. Section 2518(1) ................... 16 Section 2701 ................... 2, 3 Sections 1331 and 1346 ................... 1 Section 2501 ................... 1, 2 Section 1291 ................... 1 Sections 2520(d)(1); 2707(d) ................... 16 42 U.S.C. Section 2000aa ................... 3, 10 ED. R. APP. P., Rule 4(a)(1) ................... 1, 4 OTHER AUTHORITIES S. Rep. No. 541, 99th Cong., 1st Sess. 1, reprinted in 1986 U.S.C.C.A.N. 3555 ................... 15 Webster's Ninth New Collegiate Dictionary at 630 (1991) ................... 14 STATEMENT OF JURISDICTION 1. The Plaintiffs sued the Defendants for violating, among other statutes and constitutional rights, their rights under 28 U.S.C. Section 2501, et seq. The district court had federal question subject matter jurisdiction over the Plaintiffs' claims pursuant to 28 U.S.C. Section 1331 and 1346. 2. This is an appeal from a final judgment of the district court disposing of all claims with respect to all parties, and falls within this Court's appellate jurisdiction under 28 U.S.C. Section 1291. The district court entered final judgment on July 26, 1993. Appellants filed a notice of appeal September 17, 1993, which was timely filed under Rule 4(a)(1), Fed. R. App. P., governing appeals of cases where the United States is a party. STATEMENT OF THE ISSUES 1. DID THE DISTRICT COURT ERR IN FAILING TO ENTER JUDGMENT FOR PLAINTIFFS ON THEIR CLAIMS UNDER 28 U.S.C. Section 2501? 2. DID THE DISTRICT COURT CLEARLY ERR IN THE AMOUNT OF DAMAGES IT AWARDED STEVE JACKSON INDIVIDUALLY? 3. DID THE DISTRICT COURT ERR IN FAILING TO ENTER JUDGMENT FOR STEVE JACKSON GAMES INC. FOR ITS VIOLATION OF 28 U.S.C. Section 2701? STATEMENT OF THE CASE A. Course of Proceedings and Disposition below by the District Court. The Plaintiffs filed this lawsuit to redress the violation of their federal statutory and constitutional rights resulting from an illegal search and seizure conducted by the United States Secret Service on March 1, 1990, at the premises of Steve Jackson Games Inc., in Austin, Texas. The lawsuit originally named several individuals as defendants. These individual defendants were voluntarily dismissed before trial, and the case proceeded against the United States Secret Service and the United States on the federal statutory claims alone. The parties tried the case to the bench from January 26-28, 1993, before Judge Sam Sparks of the Western District of Texas. The District Court issued an Opinion dated March 12, 1993, and entered Final Judgment on July 26, 1993. R.E. 2, 3, respectively. Judge Sparks held that the Secret Service's search and seizure of Steve Jackson Games Inc. violated the Privacy Protection Act of 1980, 42 U.S.C. Section 2000aa, et seq., which prohibits the seizure of materials held for the purpose of publication. The Court awarded Steve Jackson Games $51,040 in damages, plus interest, on that claim. Judge Sparks further held that the Secret Service violated 28 U.S.C. Section 2701, et seq., as amended by the Electronic Communications Privacy Act of 1986 (regulating the forced disclosure of electronic communications). The Court awarded $1,000 statutory damages, plus interest, in favor of Plaintiffs Steve Jackson, Elizabeth McCoy, Walter Milliken and Steffan O'Sullivan on that claim. Judge Sparks held that a second provision of the Electronic Communications Privacy Act of 1986, 18 U.S.C. Section 2501, et seq. (prohibiting the interception of electronic communications), did not apply as a matter of law, and held the Plaintiffs were entitled to recover nothing on that claim. Upon agreed motion, the Court awarded Plaintiffs $195,000 in attorneys' fees and $57,405.54 in costs. Plaintiffs timely appealed from the adverse portion of this judgment on September 17, 1993. Fed. R. App. P. 4(a)(1). The Secret Service filed a notice of appeal, but later moved to dismiss their appeal. B. Statement of Facts. 1. Steve Jackson Games and the Illuminati BBS. Steve Jackson Games Inc. ("SJ Games") is an award-winning publisher of imaginative role-playing games. The company publishes games in book form and boxed form, as well as magazines, a book about game theory, and other related products. (Despite some public misconception, the company's games are not played on computers, but with dice, a game book or books, and lots of imagination.) R.E. 2 at 1-2; Tr. 103-119. SJ Games uses computers in its offices for the usual office tasks, as well as drafting and typesetting its publications. For years, it has also run an electronic bulletin board system ("BBS") from a personal computer in the editorial room. The company's BBS is called "Illuminati," after one of its successful games. R.E. 2 at 2. The Illuminati BBS runs on a personal computer dedicated to its use, and (as configured in 1990) was connected to a single dedicated telephone line. The BBS computer runs 24 hours a day, and runs software that allows persons outside the company's building to contact the BBS. In 1990, the Illuminati BBS ran bulletin board software called "WWIV," written by a computer programmer named Wayne Bell. The typical caller uses a personal computer and modem to "call" the BBS computer and make a connection, or "log on." Tr. 119-147. Callers to the BBS can do a variety of things, including (1) read public messages "posted" by previous callers that are available to be read by all callers; (2) "post" public messages for other callers to read; (3) read public messages and articles that the BBS operator, SJ Games, publishes for the callers to read; and (4) "download" in computerized form, files that contain longer articles, role-playing game books, and other textual and non-textual materials. Id. Most relevant to the issue on appeal, "Illuminati" has also always provided its callers with the ability to send private electronic mail ("e-mail"). A caller to the Illuminati BBS can draft a personalized message to any other user of the Illuminati BBS. By way of unique, confidential passwords, that e-mail message can be read only by the person to whom it was addressed.1 R.E. 2 at 2; Tr. 131-32. After an electronic mail message is written by the caller, the caller addresses the message to a particular addressee. The message is located on the Illuminati BBS computer's hard disk drive temporarily -- until the addressee next calls the BBS and reads his or her mail. After reading mail, the recipient then can choose whether to store the mail on the BBS's hard drive, or to delete it. Tr. 131-134. SJ Games used the Illuminati BBS to publish information about its business, its games and publications and the role-playing game hobby in general, as well as other things. The company also used Illuminati to facilitate play-testing of games being developed, a crucial step lTechnically, the systems operator of the Illuminati BBS had the capability of reading private e-mail, similar to a phone company's ability to monitor telephone conversations. Tr. 282. Under the ECPA, the provider of an electronic communications system has this authority when needed "as a necessary incident to the rendition of service." 18 U.S.C. Section 2511(2)(a)(i) . As a matter of practice, SJ Games kept its users electronic mail confidential. in publishing a role-playing game. The company used all the BBS's capabilities, including private e-mail, to communicate with its customers and freelance writers. The BBS had the capacity for an almost unlimited number of user accounts, although the system only allowed one user to dial in at a time. At the time of the Secret Service raid on SJ Games, Illuminati had three hundred sixty-five users. Tr. 121, 274.2 Three of the individual plaintiffs, Elizabeth McCoy, Walter Milliken and Steffan O'Sullivan, were frequent users of the Illuminati BBS in 1990 and before. Milliken and O'Sullivan lived in New England, and McCoy lived in Austin. They called in remotely to send and receive private e-mail, and to participate in the public areas of the BBS. R.E. 2 at 2- 3. As of March 1, 1990, each had electronic mail stored on the llluminati BBS. R.E. 4. The Illuminati BBS had a total of 162 individual items of private electronic mail when it was seized by the Secret Service. Tr. 276. Much of this mail was in transit -- sent but not yet read -- including a message sent by Milliken to another user, and a message sent by O'Sullivan to Steve Jackson concerning a late royalty payment the company owed him. Tr. 256, 258. 2. The Secret Service raid of Steve Jackson Games. 2The number of BBS users is extraordinarily large. Bell testified that over two thousand BBSs were using the software he designed to run electronic bulletin boards, and that these boards averaged 50 to 100 users. Boardwatch magazine estimates there are 60,000 bulletin board systems nationwide. John Schwartz, "Communicating Online: The Dizzying Array of Choices," Washington Post, Nov. 28, 1993, at A26. Recent articles have noted the extraordinary growth of commercial bulletin board systems such as CompuServe, Prodigy, and America Online, estimating that they have 4 million users. John Schwartz, Caution: Children at Play on Information Highway," Washington Post, Nov. 28, 1993 at Al. (This Court even runs its own BBS, although, as far as Appellants' counsel can determine, it does not offer electronic mail services.) In October 1988, a private security officer for Bellcore, Henry Kluepfel, began an investigation into the unauthorized duplication and distribution of a computerized text file from a Bell South computer in Atlanta. R.E. 2 at 3.3 Kluepfel learned that the text file was available on a public-access computer in Illinois. R.E. 2 at 3. This text file contained information about the bureaucratic procedures associated with the telephone company's E911 emergency call system. R.E. 2 at 3. Kleupfel learned in April of 1989 that this text file was still available on the Illinois computer, and that it was being distributed in an edited form in a computer "hacking" newsletter called "Phrack." R.E. 2 at 3. In July of 1989, the Secret Service was finally notified. R.E. 2 at 4. Continuing his investigation, Kluepfel located a copy of the edited version of the Bell South text file on a BBS in Austin, Texas, called "The Phoenix Project." R.E. 2 at 4. One of the two system operators ("sysops") of the Phoenix Project BBS was Loyd Blankenship. R.E. 2 at 4. The Phoenix Project BBS had discussions of issues of interest to computer "hackers." Kluepfel believed that discussions taking place on the Phoenix Project BBS concerned an alleged scheme to "decrypt" passwords, and told the Secret Service so. R.E. 2 at 4-5. Kluepfel told Agent Foley of the Chicago office of the U.S. Secret Service that Blankenship was an employee of SJ Games, and was a user and co-sysop of the Illuminati BBS. R.E. 2 at 5. Kluepfel gave the Secret Service no information of any suspected or actual illegal activity at SJ Games or on the Illuminati BBS. R.E. 5. Kluepfel had no information to suggest any criminal activity by any of the Plaintiffs in this case. Id. Kluepfel could have "logged on" 3The facts surrounding the investigation of the Bell South text file have long been in dispute. This statement of facts is derived from Judge Sparks' opinion and uncontested trial evidence. to the Illuminati BBS at any time, and reviewed all of the information on the board, except for the private e-mail, but did not do so. R.E. 2 at 5. Reed Newlin, an investigator working for Southwestern Bell telephone company, did log onto the Illuminati BBS shortly before the Secret Service raid. He found nothing of interest whatsoever on that BBS. Court Exhibit 2 at 68. Agent Foley, too, could have logged onto the Illuminati BBS, become a user, and reviewed its public contents before the raid; he understood computer BBSs and had the equipment. Nevertheless, he did not even try. R.E. 2 at 5. Agent Foley conducted no investigation about Steve Jackson Games Inc., or the Illuminati BBS, "although a reasonable investigation of only several hours would have revealed Steve Jackson Games Inc. was, in fact, a legitimate publisher of information to the public and Jackson would have cooperated in the investigation." R.E. 2 at 7. Agent Foley "did know and understand the Illuminati bulletin board would have users and probably would have stored private electronic communications between users." R.E. 2 at 8. The Secret Service stipulated that there was never any grounds to suspect Steve Jackson, or Steve Jackson Games of any criminal activity whatsoever. R.E. 4 at 9. "Notwithstanding the failure of any investigation regarding Steve Jackson Games, Agent Foley and U. S. Attorney Cook intended to seize and review all of the information and documents in any computer accessible to Blankenship, regardless of what other incidental information would be seized." R.E. 2 at 8. The search warrant for SJ Games issued February 28, 1990. R.E. 5. The warrant purported to authorize the seizure of: Computer 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 data and for the authorization to read information stored and contained on the above described computer and computer data. R.E. 5. The warrant made no reference to electronic bulletin boards or electronic communications. In the early morning of March 1, 1990, the Secret Service, led by Agent Barbara Golden, searched the business premises of SJ Games. The Secret Service conducted a thorough search of the entire office, including boxes in its warehouse. Tr. 82-85. The Secret Service seized several computers, hundreds of floppy disks, and other materials. R.E. 2 at 9. Most damaging for the company, the Secret Service seized the entire computer containing the Illuminati BBS, back-up files and computers and floppy disks containing the company's soon-to-be released game book, GURPS Cyberpunk. Judge Sparks found that the company lost over $50,000 on account of the raid. R.E. 2 at 12-13. Eight SJ Games employees lost their jobs because of cash-flow shortages caused by the raid. R.E. 2 at 12. On March 2, Steve Jackson personally visited the Secret Service office in Austin in an attempt to retrieve copies of files from the seized computers and disks. He was denied all access to the Illuminati BBS computer. Tr. 166-168. The Secret Service shipped the company's computers and other materials to Chicago, Illinois. The computers were reviewed the week of March 20, 1990, but not returned until mid-June. Tr. 51. While the Secret Service denied reading the e-mail on the BBS they seized, Judge Sparks found otherwise. He found that the Secret Service personnel or its delegates did read all electronic communications seized and did delete those communications. R.E. 2 at 11. Judge Sparks' finding was amply supported at trial by the testimony of Wayne Bell, the author of the WWIV software used by the Illuminati BBS. Bell examined the BBS computer files after they were eventually returned by the Secret Service, and conclusively proved from the state of those files that on March 20, 1990, while the computer was in the Secret Service's hands, each individual piece of electronic mail was systematically read and deleted. Tr. 278- 80. The Secret Service, despite repeated requests by Steve Jackson and his attorneys, refused to return any of the seized equipment until June 1990, after both Texas Senators intervened. R.E. 2 at 10. 3. Judge Spark's Decision. Judge Sparks found that the Secret Service, in seizing drafts of materials to be published by SJ Games, including its soon-to-be- published book GURPS Cyberpunk, and materials available to the public on Illuminati BBS, violated the Privacy Protection Act of 1980, which prohibits the seizure of such materials from persons holding them with the purpose of disseminating them to the public. See 42 U.S.C. Section 2000aa, et seq. Under this provision, Judge Sparks entered the award of actual damages for SJ Games's lost profits and costs. R.E. 2 at 19-20. Judge Sparks also found that the Secret Service violated 18 U.S.C. Section 2703(a) by obtaining the seizure of stored communications without complying with the provisions of the statute to obtain such forced disclosure. That is, the Secret Service's seizure, reading and deletion of the e-mail was unauthorized because the warrant made no mention of the Plaintiffs' electronic communications, let alone established "reason to believe the contents of a wire or electronic communication ... [were] relevant to a legitimate law enforcement inquiry." 18 U.S.C. Section 2703(d). R.E. 2 at 23-26. However, although he found that the Secret Service seized, read and deleted the Illuminati's electronic mail without authority, Judge Sparks held, based upon his reading of the Fifth Circuit opinion in United States v. Turk, 526 F.2d 654 (5th Cir.), cert. denied, 429 U.S. 823 (1976), that the Secret Service did not affect an "interception" of the mail on the BBS. R.E. 2 at 20-22. From this decision, the Plaintiffs appeal. SUMMARY OF THE ARGUMENT The District Court erred in holding that the Secret Service's wholesale seizure, reading, and deletion of the electronic mail on the Illuminati BBS was not an "interception" prohibited by 18 U.S.C. Section 2511(1)(a). The Illuminati BBS had mail that had been written and addressed, but not read by their intended recipients. The Secret Service's seizure and deletion of this mail prevented it from being delivered. Logic, the language of the statute, and the legislative history all indicate that such a physical interference with the delivery of BBS electronic mail is an "interception" under 18 U.S.C. Section 2511(1)(a). Because the Secret Service admittedly did not obtain a court order as required for such an interception, it violated that provision, and therefore the Plaintiffs were each entitled to a judgment of $10,000 statutory damages for that violation. The District Court erred by not finding that Steve Jackson personally suffered lost royalties on lost sales. Because the District Court found that Steve Jackson Games Inc. lost over $100,000 in sales, and because Jackson testified without contradiction that he personally receives royalties from sales, the District Court's failure to award him royalties on lost sales was clear error. Finally, the District Court erred in not awarding the company, Steve Jackson Games Inc., damages for the seizure of its e-mail under 18 U.S.C. Section 2703. Judge Sparks found that the Secret Service violated this provision. The uncontradicted testimony indicated that the company used and had e-mail stored at the time of the seizure. Therefore, the company was entitled to a finding that its rights had been violated, and an award of $1,000 statutory damages. ARGUMENT THE DISTRICT COURT ERRED IN FAILING TO ENTER JUDGMENT FOR THE PLAINTIFFS ON THEIR CLAIMS UNDER 28 U.S.C. Section 2501. Once the facts are understood, the legal question presented by this appeal is quite simple -- does the wholesale seizure of electronic mail that has been written, addressed and "sent" on an electronic bulletin board, but not yet read by the recipient, constitute an "interception" prohibited by 18 U.S.C. Section 2511(1)(a)? The Plaintiffs' claims under this section concern a subset of the electronic mail that was seized by the Secret Service -- those electronic communications that never made it to their intended recipients because the agents walked off with the BBS and later erased the mail it contained. Section 2511(1)(a) of Title 18 provides that anyone who "intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication" violates the law, unless the interception is authorized by court order, or warranted by specific enumerated circumstances not relevant here. 18 U.S.C. Section 2511(1)(a). Persons whose electronic communications are intercepted in violation of Section 2511 may bring a civil action against the interceptor for actual damages, or statutory damages of $10,000 per violation or $100 per day of the violation, whichever is greatest. 18 U.S.C. Section 2520. Judge Sparks found that the Secret Service's seizure, reading and deletion of the stored Illuminati BBS e-mail was unauthorized by the warrant and not made in good faith reliance on the search warrant. R.E. 2 at 23-26. The Secret Service has chosen not to appeal this finding. But what about the Illuminati BBS electronic mail that was in transit? For that mail, the Secret Service not only seized, read and deleted it, the Service prevented it from ever reaching its destination. As any defensive back knows, this is the classic definition of an "interception," and one comfortably within the statute's definition. The Act defines "intercept" to mean the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device. Section 18 U.S.C. Section 2510(4). This is just what the Secret Service's seizure of the Illuminati BBS mail did -- it "acquired" the "contents" of the electronic communications by seizing and using the BBS computer itself. The Secret Service's seizure of the computer was just like walking off with a blue mailbox on the street, or like all the private mailboxes in a post office -- the letters were addressed and waiting to be picked up and read, but the Secret Service raid prevented them from ever being delivered. This reading of Section 2511(1) is consistent with both the statutory history, the definition, and the common understanding of the term. Webster defines "intercept" as meaning to "prevent," "hinder," "stop, seize, or interrupt in progress or course or before arrival," to "interrupt communication or connection with," or "to gain possession of. " Webster's Ninth New Collegiate Dictionary at 630 (1991). Judge Sparks believed he was constrained [by] a 1976 decision by the Fifth Circuit, United States v. Turk, 526 F.2d 654 (5th Cir.), cert. denied, 429 U.S. 823 (1976). In Turk, the government seized from a suspect's car an audio tape of a past conversation between the suspect and the defendant, Turk. The agents later replayed this recorded conversation, and Turk claimed that this "aural acquisition" was an "interception" of his telephone conversation. This Court quite understandably held that such an after-the-fact replaying of the tape recording was not an "interception." The conversation had already occurred and the police's replaying the tape did not interfere with the conversation. In reality, the police simply did the electronic equivalent of reading a letter the defendant had already received and read. In reaching this conclusion, this Court held narrowly that "no new and distinct interception occurs when the contents of a communication are revealed through the replaying of a previous recording." 526 F.2d at 659. Turk says nothing about government action that both acquires the communication prior to its delivery, and prevents that delivery. Turk was decided prior to the amendments wrought in 1986 to Section 2501, et seq., by the Electronic Communications Privacy Act (the "ECPA"). The ECPA was specifically designed to update and clarify Federal privacy protections and standards in light of dramatic changes in new computer and telecommunications technologies. S. Rep. No. 541, 99th Cong., 1st Sess. 1, reprinted in 1986 U.S.C.C.A.N. 3555. The growth of computer communications, including electronic mail carried through BBSs prompted Congress to broaden the protections of Section 2501, et seq., to cover these new ways people communicate. "Today we have large-scale electronic mail operations, computer-to- computer data transmissions, cellular and cordless telephones, paging devices, and video teleconferencing. A phone call can be carried by wire, by microwave or fiber optics. It can be transmitted in the form of digitized voice, data or video." Id. at 3556. Congress specifically intended to include e-mail carried by bulletin board systems in these expanded protections. "The statute as amended now prohibits the interception of "electronic communications" as well as oral and wire communications. It applies to a wide range of new technologies, including electronic mail and bulletin boards, computer-to-computer communications [and] remote computer services ...." Manufacturas Intern. v. Mfrs. Hanover Trust Co., 792 F. Supp. 181 (E.D.N.Y. 1992) (citing to 1986 U.S.C.C.A.N. at 3562-65) (citing 1986 U.S.C.C.A.N. at 3562-65). Judge Sparks took the "contemporaneous" language from Turk, but missed the important fact that Turk predates the ECPA, and that the ECPA specifically contemplated preventing the interception of BBS e-mail. Judge Sparks' reasoning would result in a strange anomaly -- Section 2511 would protect BBS e-mail only during the few short seconds the mail is being sent by the author to the BBS computer and during the moment it is received by the addressee. During the period when the mail is in transit, it would be immune from "interception." This reading of course would do violence to the purpose of the ECPA's inclusion of bulletin board communications within its scope, and the plain meaning of the statute. Judge Sparks has in effect held that this Court in Turk judicially amended Section 2511 to include the added element "contemporaneous interception."4 A "good faith reliance on a court warrant or order" is an affirmative defense for both the unlawful "disclosure" and "interception" of electronic communications. See 28 U . S . C . Section Section 2520(d)(1); 2707(d) . Judge Sparks has already found that the Secret Service failed to prove that its seizure of the Illuminati BBSs' electronic mail was in good faith, R.E. 2 at 25, a finding that was not appealed. Furthermore, the only way to legally intercept an electronic communication is by court order, 28 U.S.C. Section 2518(1), and it is uncontested that this provision was not followed. Even if the search warrant had specified the electronic mail as a target of the search, Agent Foley knew the procedures required to intercept electronic communications, R.E. 2 at 23, Tr. 37-38, and could not claim a "good faith" reliance on the lesser authorization of a warrant. Therefore, the state of the record requires a remand with instructions to enter judgment on behalf of Plaintiffs for damages available under 18 U.S.C. Section 2520. Judge Sparks found that the Plaintiffs suffered no compensable damages from the seizure of the e-mail on the Illuminati 4 The government's acceptance of Judge Sparks's ruling that the Secret Service violated Section 2703 does not make the question of whether there was also an illegal "interception" under 28 U.S.C. Section 2511 moot or academic. The statutory damages are greater for an interception, reflecting the greater intrusion involved in intercepting a communication, rather than seizing a completed message. Further, counsel is aware of indications that some government agents are reading Judge Sparks' opinion (the only published precedent) states a "don't look, don't erase" rule as to BBS e-mail. That is, government agents believe that as long as they do not read and delete the e-mail, as the Secret Service did, they are free to seize electronic bulletin boards without a court order, and without any suspicions regarding whether the private communications are relevant to the investigation. This interpretation leaves the delivery of in transit electronic mail entirely unprotected from disruption by the seizure of BBSs, contrary to the intention of the ECPA. BBS, thus leaving the statutory damages remedy. Title 18, Section 2520(c)(2)(A) provides for statutory damages of $10,000, and therefore this Court should reverse Judge Sparks' holding that Section 2511 was not violated, and remand for entry of judgment for each Plaintiff in the amount of $10,000. II. THE DISTRICT COURT ERRED IN FAILING TO AWARD DAMAGES TO STEVE JACKSON PERSONALLY FOR LOST ROYALTIES. The District Court found that the Secret Service's illegal search and seizure caused Steve Jackson Games to suffer $100,617.00 in lost sales during 1990. R.E. 2 at 13. The government has not appealed the award of damages. Steve Jackson testified at trial, without contradiction, that he personally received 3 % royalties on sales made by Steve Jackson Games on his products. Tr. 184-185. The District Court did not accept the Plaintiffs' theory of business damages, based upon calculations of Jackson's value as the creative mind behind the company's success. However, the Court did find, under its own theory, lost sales of $100,617.00. Based upon Jackson's testimony, and the District Court's own conclusions as to lost sales, Jackson suffered lost royalty income of $3,018.51 on these sales. The District Court offered no reason to explain its inconsistent finding of lost sales for the company, but no lost royalties to Jackson personally. Because the Court's finding is inconsistent with the uncontradicted testimony, its failure to find damages for lost royalties is clear error. The Plaintiffs therefore ask this Court to remand the case for entry of a supplemental judgment for Steve Jackson for $3,018.51 lost royalties for the Defendants' violation of the Privacy Protection Act. III. STEVE JACKSON GAMES INC. IS ENTITLED TO JUDGMENT FOR THE SECRET SERVICE'S VIOLATION OF 18 U.S.C. Section 2703(a). Judge Sparks found that the Secret Service's seizure of the Illuminati BBS violated 18 U.S.C. Section 2703(a) because the government had no reason to suspect the Plaintiffs of any crime, and there was no reason to believe the contents of the Plaintiffs' electronic mail was relevant to the government's investigation. R.E. 2. at 23-24. The government has not appealed this holding. There was uncontradicted evidence, and Judge Sparks found, that the Plaintiff company, Steve Jackson Games Inc., used the Illuminati BBS electronic mail capabilities for its business purposes. R.E. 2 at 2-3; Tr. 131, 156-58. Steve Jackson, as president of SJ Games, sent electronic mail for both private and business correspondence. Despite clear evidence of such use, and such mail being present on the board when it was seized, Judge Sparks failed to enter judgment on behalf of the company for statutory damages for the violation he found of 18 U.S.C. Section 2703(a). The monetary damages awarded the company were expressly restricted to the actual damages recovered under the Privacy Protection Act. This Court should remand to Judge Sparks for the entry of a judgment in favor of SJ Games for $1,000 statutory damages under this provision. IV. CONCLUSION. For the foregoing reasons, this Court should (a) reverse the District Court's judgment that Plaintiffs take nothing on their claims under 18 U.S.C. Section 2501, et seq., and remand for entry of judgment of $10,000 statutory damages against Defendants in favor of each Plaintiff; (b) remand for entry of judgment for Steve Jackson against Defendants for lost royalties of no less than $3,018.85, and (c) remand for entry of judgment on behalf of Steve Jackson Games Inc. for $1,000 on its claim under 18 U.S.C. Section 2703(a). Respectfully submitted, R. James George, Jr. Peter D. Kennedy GEORGE, DONALDSON & FORD 114 West Seventh, Suite 1000 Austin, Texas 78701 (512) 495-1400 (512) 499-0094 (fax) email@example.com (Internet) By R. James George, Jr. Peter D. Kennedy ATTORNEYS FOR APPELLANTS CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing BRIEF FOR APPELLANTS has been mailed, certified mail, return receipt requested to the following: Barbara L. Herwig Scott R. McIntosh Civil Division, Room 3127 Department of Justice 10th & Pennsylvania Avenue, N.W. Washington, D.C. 20530 on this the 14th day of February, 1994. R. James George, Jr. Peter D. Kennedy


text:
In this section students will learn about threats to a network and the countermeasures to reduce the effects of an attack. Threats discussed include:
Generic countermeasures discussed include implementation of:
Specific countermeasures are presented to prevent:
Lecture Focus Questions:
8.1.1 Network Threats 16:09
8.1.2 Social Engineering 8:25
Total 24:34
This section discusses using firewalls to allow or block network traffic. The following details about firewalls are discussed:
· Network-based firewall
· Host-based firewall
· Filtering rules (also called access control lists (ACLs))
· Firewall types
o Packet filtering firewall
o Circuit-level proxy
o Application level gateway
· Zones used with firewalls
· Demilitarized zone (DMZ) configurations
· Characteristics of network ports
· ICANN categories for ports:
o Well known ports
o Registered ports
o Dynamic ports (also called private or high)
· Well known ports that correspond to common Internet services
Lecture Focus Questions:
8.2.1 Firewalls 15:47
8.2.4 Configuring Windows Firewall 3:50
Total 19:37
This section provides details of how a Virtual Private Network (VPN) uses encryption to secure IP traffic over a TCP/IP network. Facts discussed include:
· The role of a tunneling protocol
· The role of tunnel endpoints
· Possible VPN implementations
· Implementation methods
o Host-to-host VPN
o Site-to-site VPN
o Remote access VPN
· A comparison of common tunneling protocols
o Point-to-Point Tunneling Protocol (PPTP)
o Layer Two Tunneling Protocol (L2TP)
o Internet Protocol Security (IPSec)
o Secure Sockets Layer (SSL)
Lecture Focus Questions:
8.3.1 Virtual Private Networks (VPNs) 10:16
8.3.3 Configuring a VPN Connection 12:40
Total 23:03
Lecture Focus Questions:
8.4.1 Switch Security 13:01
8.4.2 Configuring VLANs 4:35
Total 17:36
· The process to access resources on a network:
o Identification
o Authentication
· Ways to prove identity to an authentication server:
o Type 1 Something you know
o Type 2 Something you have
o Type 3 Something you are
· Terms to measure the effectiveness of authentication solutions:
o False negative
o False positive
o Crossover error rate
o Processing rate
· Authentication methods to increase security:
o Two-factor, three-factor, multi-factor
o Strong
o One-factor
o Mutual
· Single Sign-on (SSO):
o Advantages
o Disadvantages
· Authentication protocols:
o Certificates
o Public Key Infrastructure (PKI)
o Certification Authorities (CAs)
o Trusted CAs and certificates
o Digital signatures
· Authentication protocols
o Challenge Handshake Authentication Protocol (CHAP)
o Microsoft Challenge Handshake Authentication Protocol (MS-CHAP)
o Extensible Authentication Protocol (EAP)
o Kerberos
o 802.1x
Lecture Focus Questions:
8.5.1 Authentication 11:19
8.5.3 Authentication Protocols 14:05
8.5.4 Digital Certificates 7:02
Total 32:26
· Secure protocols
o Secure Sockets Layer (SSL)
o Transport Layer Security (TLS)
o Secure Shell (SSH)
· Comparison of unsecure and secure protocols:
Lecture Focus Questions:
8.6.1 Secure Protocols
8.6.2 Adding SSL to a Web Site 5:23
Total 10:13
· Network tools to monitor a network for threats include:
Lecture Focus Questions:
8.7.1 Intrusion Detection and Prevention 6:03
8.7.4 Vulnerability Assessment 4:54
Total 10:57

subset: commoncrawl