Technology Law Column

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Published in the Chicago Daily Law Bulletin, July 13, 1995 at page 6.

Computer Seizures Implicate Numerous Laws

Copyright 1995 by David Loundy

I was at a wedding reception recently and had an interesting conversation with another guest-- an off-duty police officer. He expressed an interest in the area of computer crime.

I presented him with a series of hypothetical situations, mostly involving computer bulletin board systems (BBSs), to see how he would react. I also presented him with a hypothetical involving a law office computer containing confidential client information. In each situation his reaction was the same: "I'd seize the computer." If I pointed out problems with this approach in a specific situation, he would change his answer: "I'd seize the computer, and then sort everything out later."

Fortunately, my explanation of the problems with this approach started to sink in by the end of our conversation. In light of questions raised over recent BBS seizures in Cincinnati and investigations into child pornography on America On-Line, I am presenting here an abbreviated list of some of the concerns raised by computer seizures.

In some instances, seizure of an entire computer system, as occurred in the Cincinnati raids, may be justified-- for instance, in the case of a computer system which is used as the means or instrumentality of a crime. See "Constitutional, Legal and Ethical Considerations for Dealing with Electronic Files in the Age of Cyberspace" by Silverglate & Viles, 1991 However, in most cases, such a seizure raises serious statutory and constitutional questions.

Seizing an entire computer may be analogous to seizing all of a business' file cabinets. Imagine this-- a several gigabyte hard disk may be only a few inches in size and easily carted off in a raid. This hard drive could store all of the work product of most medium sized law firms or companies. How much of an inconvenience would it be to these businesses if, at the first hint of trouble, someone decided to just seize the computer and sort things out later?

At issue in Steve Jackson Games, Inc. v. United States Secret Service, 816 F. Supp. 432 (W.D. Tex. 1993), affd, 36 F.3d 457 (5th Cir. 1994), was just such a seizure. This case involved the seizure of the computers of a game publisher-- from the office computer, to the company's customer bulletin board system, even the laser printer.

The answer to how inconvenient a seizure would be to Steve Jackson Games, was: almost enough to put them out of business. Steve Jackson Games was not suspected of any crime; the Secret Service was interested in one of the company's employees, who was suspected of the illegal distributing of certain computer materials.

Not counting the constitutional issues raised by implicating the First Amendment (freedom of speech and assembly) and the Fourth Amendment (having all of a business' records seized and searched), three statutes may apply, as they may with any BBS and some office computers that authorities seize.

Section 2511 of the Electronic Communications Privacy Act ("ECPA") 18 U.S.C. Section 2510 et seq. deals specifically with the interception and disclosure of certain electronic communications.

The ECPA works to guarantee the privacy of E-mail and also to provide an outlet for prosecuting anyone who will not respect that privacy. The statute provides in part that any person who (a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire, oral, or electronic communication shall be fined or imprisoned. Id.

Section 2511(2)(a) of the ECPA provides an exception for system operators and their employees to the extent necessary to properly manage the electronic communication system which is defined as any wire, radio, electromagnetic, photooptical or photoelectronic facilities for the transmission of electronic communications, and any computer facilities or related electronic equipment for the electronic storage of such communications Id. Section 2510 (14).

The ECPA contains additional exceptions for operators of these systems when the originator or addressee of the message gives consent; when the message is being given to another service provider to be forwarded further towards its destination; when the message is inadvertently obtained by the operator, and appears to pertain to a crime; when the divulgence is being made to a law enforcement agency; or where the message is configured so as to be readily accessible to the public. Id. Section 2511(3)(b).

For law enforcement agencies to intercept electronic communications, they must first obtain a search warrant by following the procedure laid out in Section 2518 of the ECPA.

The second issue raised by a computer seizure such as the one in Steve Jackson Games is 18 U.S.C. Section 2701 et seq., another portion of the Electronic Communications Privacy Act which prohibits unlawful access to communications which are being stored on a computer. Like Section 2511, Section 2701 et seq. includes provisions prohibiting the divulgence of stored messages. Id. Section 2702. Importantly, while Section 2701 et seq. allows law enforcement agencies to gain access to stored communications (subject to a valid search warrant) it also specifically allows the government to permit a system operator to make backup copies of stored computer data, so that the electronic communications may be preserved for use outside of any government investigation, Id. Section 2703 (a), thus allowing the business to keep operating during an investigation on a different computer system.

Steve Jackson Games demonstrates the interplay between the ECPA's provisions affecting interception of electronic communication and those concerned with access to stored communication.

U.S. District Judge Sam Sparks of the Western District of Texas held, in essence, that taking a whole computer is not an interception, as contemplated by Section 2510 et seq., in light of the protection of stored communication provided by Section 1701 et seq.

Sparks analogized the situation to the seizure of a tape recording of a telephone conversation and held that the aural acquisition occurs when the tape is made, and not each time the tape is played back by the police. 816 F. Supp. at 441-42. This interpretation was appealed on the grounds that, because the e-mail messages had been sent and not yet received, they were intercepted -- just as if someone had picked up and carried off a postal service mailbox from the side of the street. 36 F.3d at 460.

The 5th U.S. Circuit Court of Appeals affirmed Judge Sparks interpretation of the interplay between sections 2701 et seq. and 2510 et seq. of the Electronic Communications Privacy Act. Id.

A third statute which applies when where a computer used for electronic publishing is concerned was also at issue in Steve Jackson Games.

The Privacy Protection Act, 42 U.S.C. Section 2000aa et seq., immunizes from law enforcement search and seizure any work product materials possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication, in or affecting interstate commerce. Id. This statute was passed to overturn the decision in Zurcher v. Stanford Daily, 436 U.S. 547 (1978), a case which held that a newspaper office could be searched, even when no one working at the paper was suspected of a crime. Id. at 549. The only exceptions to the laws prohibition on searches of publishers are the following: (i) probable cause to believe that the person possessing the materials has committed or is committing the crime to which the materials relate, or (ii) the immediate seizure is necessary to prevent the death or serious injury to a human being. 42 U.S.C. Section 2000aa.

Steve Jackson Games was the first case that attempted to apply this statute to electronic publishers. At the time of the raid, the Secret Service did not know that Steve Jackson Games was a publisher, even though the court argued that they should have known this. 816 F. Supp. at 437. In the raid, the Secret Service seized a number of Steve Jackson Games computers, and a number of papers. Judge Sparks held the continued refusal to return the publishers work product, once the Secret Service had been informed that Steve Jackson Games was a publisher, amounted to a violation of the Privacy Protection Act. Id.

While the judge did find a violation of the Privacy Protection Act, he did not specify which of the seized items led to the violation. Id. at 441. The violation could have been the seizure of the papers, the word processing computers, or the BBS.

Thus, the question still remains unanswered: was seizure of the BBS alone (which was being used to generate work product for the publisher) a violation of the Act? Importantly, other users of the BBS who had posted public comments on the BBS were also plaintiffs in the case, and were not allowed recovery under the Privacy Protection Act. Id. Therefore, either the individual message posters were not considered to be publishers themselves, or their messages were not considered to be work product subject to statutory protection.

Steve Jackson Games presented one of the more egregious examples of overzealous search and seizure. It was an example of seizing the computer and sorting things out later. However, the authorities have yet to cart off America On-line's computers in the back of a truck in order to catch the rumored 3,000 people suspected of transferring child pornography on AOL's service. The recent investigations into child pornography distribution on America On-Line, which have been getting a lot of press lately, show that police work can be quietly conducted without an overly detrimental impact on any businesses that rely on the computer communications systems to operate.

Now, if any readers this column point out to any officers they meet the issues raised here, maybe more officers will sort things out before just seizing the computer.

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