Steve Jackson Games v. U.S. Secret Service

Citation: Steve Jackson Games, Inc. v. U.S. Secret Service, 816 F. Supp. 432 (W.D. Tex. 1993)(full-text), aff'd, 36 F.3d 457 (5th Cir. 1994)(full-text).

Factual Background
A communications company notified the U.S. Secret Service that a sensitive, proprietary document had been published on an electronic bulletin board. The Secret Service discovered that the bulletin board was run by an employee of Steve Jackson Games, a publishing company. The Secret Service secured a search warrant for the publishing company, believing that the publishing company's bulletin board was similar in purpose to the employee's bulletin board. The Secret Service seized the publishing company's work product, resulting in delays and cash flow problems for the publishing company.

Trial Court Proceedings
Plaintiffs, a publishing company and users of its electronic bulletin board, filed an action against defendants, Secret Service and United States, alleging that a search and seizure undertaken by the Secret Service violated their rights.

The issues remaining at trial in this lawsuit involves the Plaintiffs Steve Jackson Games, Incorporated, Steve Jackson, Elizabeth McCoy, Walter Milliken, and Steffan O'Sullivan's causes of action against the United States Secret Service and the United States of America pursuant to three statutes, "Private Protection Act", 42 U.S.C. Section 2000aa; Title II of the Electronic Communication Privacy Act (ECPA), 18 U.S.C. Section 2701; and Title I of the ECPA, 18 U.S.C. Section 2510. All other issues and parties have been withdrawn by agreement of these remaining parties.

The trial court held that the publishing company's rights under the Privacy Protection Act were violated because the agent failed to make a reasonable investigation before obtaining the warrant and because he was on notice at the time of the search of probable Privacy Act violations. The Secret Service also exceeded its authority under Title II of the ECPA, 18 U.S.C. Section 2701.

However, the trial court found that the Secret Service did not violate Title I of the ECPA, 18 U.S.C. Section 2510, in intercepting e-mail on the computer because electronic communications were not illegally intercepted since the term “intercept” under 18 U.S.C. Section 2510 required that the acquisition of the communication be cotemporaneous with transmission. The e-mails were already electronically stored on the computer’s hard drive when the Secret Service seized the computer. Critical to the court’s analysis was the finding that the term “electronic storage” was excluded from the definition of “electronic communication” in Title I and the conclusion that Congress intended its exclusion.

The trial court found in favor of the publishing company and the users of its electronic bulletin board and awarded damages for violation of their rights under the Privacy Protection Act and under Title II of the ECPA.

Appellate Court Proceedings
The trial court’s findings of fact were not in dispute. The main question before the appellate court was whether the seizure of a computer, used to operate an electronic bulletin board system, and containing private electronic mail, which has been sent to the bulletin board, but not read by the intended recipients, constitutes an unlawful intercept under Title I of the ECPA, 18 U.S.C. Section 2510.

The appellate court held that the substantive and procedural requirements for authorization to intercept electronic communications are different from those for accessing stored electronic communications, which is what was present in this case. Further, other requirements applicable to the interception of electronic communications, such as those governing minimization, duration, and the types of crimes that may be investigated, are not imposed when the communications at issue are not in the process of being transmitted at the moment of seizure, but instead are in electronic storage.

Furthermore, since there are substantial differences between the statutory procedures and requirements for obtaining authorization to intercept electronic communications and to gain access to the contents of stored electronic communications, the appellate court held that it is unlikely that Congress intended to require law enforcement officers to satisfy the more stringent requirements for an intercept in order to gain access to the contents of stored electronic communications.

Thus, the appellate court affirmed the judgment of the trial court and found that the United States Secret Service had not violated Title I of the ECPA because the e-mails belonging to Steve Jackson Games and their customers were not intercepted pursuant to governing federal statute since their acquisition was not cotemporaneous with their transmission and since Congress did not intend to have a civil remedy under that statute.