The hacking world was a big place, in the extended sense. There were a lot of curious and tech-minded people, almost entirely guys, who had leveraged their interest into great success. It had been rumored that Apple co-founder Steve Wozniak, while in college, had made and sold little tone-generating boxes that would let you make free long-distance calls — and in fact today you can see a Blue Box built by Apple’s co-founder in a museum.
So it really should have been only so great a surprise when, after Steve Jackson spent months merely trying to gain access to the data seized by the Secret Service, a collection of successful hackers including John Perry Barlow, Mitch Kapor, and, yes, Steve Wozniak, put up the money to create an organization called the Electronic Frontier Foundation.
Today, the EFF is a famous lobbying group, with a long history of helping the digital downtrodden. The day after announcing their formation, the EFF announced their first case: Steve Jackson Games versus the U.S. Secret Service.
They spent $200,000 over nearly four years before finally getting the Secret Service into the courtroom, and those were early-1990s dollars. The stated goal of the trial was to establish for the first time that email was not virtual or somehow theoretical, but that it had the same existence as physical mail, and deserved the same protection. And it’s true that electronic mail has a physical manifestation. It sits on a disk in the form of tiny bits of magnetic material, representing either a one or a zero, written by a tiny magnet no differently than a letter written by pen or pencil.
The U.S. Department of Justice defended the Secret Service, saying that email on a server wasn’t private at all, because if you gave your mail to someone else to store then you’d given up any concern about its contents. They probably just forgot about how safety-deposit boxes work, because otherwise putting your private love-letters in a bank vault should be the equivalent of granting the U.S. Department of Justice permission to read them at will.
This was a serious concern, because after days and weeks and finally months of Steve Jackson being told that yes, tomorrow we’ll let you at your data, when he finally got one of his machines back it was apparent that someone working for the Secret Service had read people’s personal emails, and then deleted them. Steve was able to recover the content of the email by having someone perform some minor digital forensics on the disk itself. Clearly some quite personal messages, having nothing to do with the investigation, had been meddled with — again, without a warrant.
Then there was the worst part, really: in America, we don’t suppress publications until after they’ve been published. When you suppress something before it can be published, it’s called prior restraint. This one of the worst forms of censorship. There are exceptions to everything, of course. In the early 1970s, when fighting publication of The Pentagon Papers, which detailed the previous U.S. president’s unconstitutional and immoral behavior leading to what’s now called the American War in Vietnam, the government appealed their case all the way to the U.S. Supreme Court, and they still failed to prove a need for prior restraint. So taking action against a science-fiction game was probably not going to fly.
You might not like something — I might not like a lot of what gets printed, were I were to pay much attention — but you have to let it be published. By grabbing the cyberpunk game and claiming that this was the connection between the Mentor and the Legion of Doom and their raid on a small game company — which had not been explicitly covered in their warrant to search Mentor’s house because when they raided him, they didn’t know where he worked — they had successfully, illegally suppressed a publication. They had performed the late-Twentieth Century analog of marching in and seizing a printing press and told them to stop from preparing to publish their seditious posters that would only stir everybody up.
Years later, Steve Jackson Games published a card game called Hacker, which was a not at all veiled description of how a lot of computer crime at the time was actually managed, using a game mechanism similar to that of Steve’s masterwork game, Illuminati, which also happened to be the name of the bulletin-board system that had been seized by the U.S. Secret Service. It wasn’t a bad game, and made some money, so that’s funny.
The trial itself was short. Every day after the proceedings, Steve and the Mentor would come back from the courtroom, still dressed in their suits, and tell those of us back at the office how the trial was going. Given that the financial disaster on the other side of the raid caused Steve to lay off half of the company, and years later things were still very shaky, we were all interested.
The prosecution spent about two and a half days attacking the Secret Service before resting their case. Before the defense kicked off their side, the judge had a little chat with the agent, Tim Foley, who had led Operation Sundevil and the mayhem that came before it.
It was a made-for-TV moment. We have all kinds of wonderfully colorful language to describe the words that passed between the judge and the lead agent. My English friends might smile and say that the judge was clearly unimpressed with the gentleman in question. I remember hearing that the judge used the word “idiot” to describe the man to his face, but I wasn’t able to turn up a full transcript, so I won’t claim that here.
Happily, Joe Abernathy published a trial report in the Houston Chronicle. From his many great quotes, here’s my favorite exchange, from the third day of the proceedings.
The judge said, “Did it ever occur to you, Mr. Foley, that seizing this material could harm Steve Jackson economically?”
Tim Foley, the Secret Service agent, replied, “No, sir.”
The judge disagreed. “You actually did,” he said, “you just had no idea anybody would actually go out and hire a lawyer and sue you.”
Ouch. And through the rest of the 1990s, the FBI ended up with a clear jurisdiction over computer crime.
Looking back, though, I’m surprised to find that I have some sympathy for the Secret Service. As wrong-headed as they were — and criminal, and unethical, and immoral — in a certain way, they were right.