One Angry Judge

Steve Jackson Games Trial: 2600 Perspective

by Scott Skinner

foley (fö'lë) n.  A costly legal undertaking by an individual or individuals lacking in common sense, understanding, and foresight, resulting in an absurd or ruinous outcome.  [Middle English folie, from Old French, from fol, foolish,, from Latin follis.  See fool.]

We tried.  Tried our darnedest to see the trial.  Trains, planes, and automobiles; we did 'em all.  Even drove halfway across barren Texas desert, to places where even the radio waves don't go, and "TV" is something you catch in a dish.  Hell, our white rented compact got wind-whipped off the road so much we nicknamed it "Snowflake."  But alas, for us the trial was never to be.  "Postponed a week," they said, as we clutched our palpitating hearts.  "Heh, heh," they chortled, "that's the legal biz for ya."  Yeah, we thought, heh, heh.  So there you have it.  Right place, wrong time.  The trial hadn't even started and already we were in the grip of morality.

And just why did we go through all the trouble?  Trial's a trial, right?  Wrong.  For hackers, the Steve Jackson Games trial was nothing less than a religious event; Rome, Jerusalem, and Mecca all rolled into one.  It was Woodstock for techno-anarchists, and although our own pilgrimage ended a week short of the gavel, it was not without its moments.

We met Steve at a local Texarkana joint, amid the flurry of a hip Austin nightlife.  He was surprisingly pessimistic, despite news that the judge had admonished the Secret Service for trying to stall the case.  Still, Steve was anything but hesitant.  Cynical, yes.  Reluctant, no way.  "We've waited a long time for this," he said.  So we had.  It was almost three years since the March 1, 1990 raid of Steve Jackson Games by the Secret Service.  And three years waiting for justice is a long time by anyone's standards.  As we listened to Steve's gloomy trial prospects, we understood that his terminal pessimism was a reflection of the chilling effect the raids and busts have had on us all.

Computer enthusiasm and prospects for unfettered global electronic communication seemed dead and gone, replaced instead by a hyper-wired hyper-paranoid community of closeted dissidents.  For many of us, the Steve Jackson trial was the only thing to look forward to.  It would hopefully put an end to First Amendment ambiguities that have plagued us ever since the dysfunctional trial against the electronic newsletter, Phrack.  Through a margarita haze we left Steve and wished him luck.  The trial was one week away, and there was nothing left for us to do but slack.  Back at the office, we watched and waited.

The trial itself lasted three days.  News of the event spread across the Internet so quickly it would have put the AP newswire service to shame (that is, if the AP had even bothered to cover it).  The plaintiffs effectively established that:

• 1.)  Neither Jackson nor his company SJG were ever suspected of any wrongdoing.
• 2.)  There as no investigation of SJG by the SS prior to the raid.
• 3.)  The affidavit used by the SS to obtain their search warrant was erroneous.
• 4.)  The search warrant did not even meet the Secret Service's own standards for a search-and-seizure.
• 5.)  The work in progress of a publisher was seized, in violation of the Privacy Protection Act.
• 6.)  The SS were incompetent, because they were not even aware that this law existed.
• 7.)  Electronic mail was seized, printed, and read, in violation of the Electronic Communications Privacy Act.
• 8.)  Electronic mail was deleted - evidence was "destroyed."
• 9.)  The SS purposely and willfully stalled three months before returning seized computers and disks to SJG after the investigation was over.

Incredulous?  Outrageous?  Judge Sparks thought so, which is why he spent fifteen minutes straight reprimanding Tim Foley (the agent responsible for the raid) for the behavior of the Secret Service.  The dialogue that follows is perhaps the highlight of the trial:

Sparks:  "Did it ever occur to you, Mr. Foley, that seizing this material could harm Steve Jackson economically?"

Foley:  "No sir."

Sparks:  "You actually did, you just had no idea anybody would actually go out and hire a lawyer and sue you."

According to the plaintiff's attorneys, Judge Sparks was "visibly angry," and the government was so shaken after being chewed out that they rested their case.

Sue the Secret Service?  They said it couldn't be done.  And yet this is exactly what Steve Jackson accomplished with the help of the Electronic Frontier Foundation.

If the SJG trial has proven anything, it is the importance of a source of electronic civil liberties protection.  Steve was fortunate to have the resources of competent EFF lawyers; many others are not so fortunate.  Electronic civil rights activists are needed more than ever.  Activists who will not just lobby the government, but go the distance in court against big business, bad law enforcement, and their dated conceptions of First Amendment freedoms.  Although the judge has yet to deliver a verdict on this case, we are confident that it will be favorable and precedent-setting.

The SJG trial has sent a powerful message to an overzealous law enforcement community: no one, not even the Secret Service, is above the law.  We can only hope that, in the days that follow, the Secret Service will take heed of this message before pulling another foley.