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List: best-of-security
Subject: Cinncinnati ECPA complaint 1/3
From: Julian Assange <proff () suburbia ! net>
Date: 1995-08-11 2:35:42
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>From owner-sea-list@panix.com Fri Aug 11 12:29:44 1995
Date: Thu, 10 Aug 1995 21:07:26 -0400
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To: sea-list@panix.com, natbbs@echonyc.com
From: sbarber@panix.com (Steve Barber)
Subject: Cinncinnati ECPA complaint 1/3
Folks --
I got so many requests for a copy of this complaint I'm just going to send
it out over the lists. I stopped counting at 40.
I'm sending it out in three parts.
I got this copy of the complaint from Steve Guest, the first named
plaintiff. I haven't investigated its authenticity, though I did
verify with Pete Kennedy (one of the attorneys in this case) that a
complaint has indeed been filed. (Those who follow these things may
remember that Pete was one of the attorneys on the Steve Jackson Games
case a couple years back.)
-Steve Barber
------------------------------------------------
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
STEVEN GUEST,
[home address removed] CIVIL ACTION NO.
and
DENISE B. KELLEY,
[home address removed]
and
BEN S. KELLEY,
[home address removed]
and
NELDA STURGILL,
[home address removed]
and
DEBORAH CUMMINGS,
[home address removed]
and
RANDY BOWLING,
[home address removed]
and
CLASS ACTION
RICHARD E. KRAMER, COMPLAINT
[home address removed] (JURY DEMAND
ENDORSED
and HEREON)
all others similarly situated,
Plaintiffs,
vs.
SIMON L. LEIS, JR.,
Hamilton County Justice Center
1000 Sycamore Street
Cincinnati, Ohio 45202
and
Hamilton County :
Sheriff's Department, :
Hamilton County Justice Center :
1000 Sycamore Street :
Cincinnati, Ohio 45202 :
:
and :
:
Hamilton County Regional :
Computer Crimes Task Force, :
Hamilton County Justice Center :
1000 Sycamore Street :
Cincinnati, Ohio 45202 :
:
and :
:
Dale Menkaus, :
Hamilton County Justice Center :
1000 Sycamore Street :
Cincinnati, Ohio 45202 :
:
and :
:
ROBERT SWISSHELM, :
Hamilton County Justice Center :
1000 Sycamore Street :
Cincinnati, Ohio 45202 :
:
and :
JANE/JOHN DOES 1 THROUGH 10, :
Addresses Presently Unknown :
:
Defendants. :
I. INTRODUCTION
1. The Plaintiffs bring this lawsuit on behalf of themselves and the
thousands of subscribers to the Cincinnati Computer Connection electronic
bulletin board system, in order to redress the violation of their civil
rights by Hamilton County Sheriff Simon L. Leis, Jr. and the other
Defendants.
2. On June 16, 1995, the Hamilton County Regional Computer Task Force
(the "Task Force") raided at least five electronic bulletin board systems
in the Cincinnati area, in a search for allegedly obscene materials.
3. During these raids, the Task Force seized the entire computer
network comprising the Cincinnati Computer Connection BBS, a computer
bulletin board service with thousands of subscribers in Southern Ohio,
Northern Kentucky, and beyond. Robert Emerson owns and operates the
Cincinnati Computer Connection BBS. The target of the raid was some 45
computer image files allegedly stored on the Cincinnati Computer Connection
BBS. According to the search warrant, the Task Force already had obtained
copies of these image files from the Cincinnati Computer Connection BBS.
4. In pursuit of these 45 image files, the Sheriff and Task Force
raided and seized the entire bulletin board system. In the process,
Sheriff Leis and his Task Force seized the private electronic mail and
communications of thousands of entirely innocent subscribers, they shut
down an active, thriving, electronic community of average citizens, and
they denied thousands of people access to their friends, neighbors, and
business associates.
5. The named Plaintiffs bring this lawsuit on behalf of themselves and
the thousands of subscribers to the Cincinnati Computer Connection and all
those whose electronic communications were seized and intercepted during
the raid, in order to remedy this violation of their civil rights
guaranteed by the First Amendment, the Fourth Amendment, the Fourteenth
Amendment, the Ohio Constitution, the Electronic Communications Privacy Act
of 1986 (18 U.S.C. 2510 et seq. and 2701 et seq.) and Ohio common law.
II. JURISDICTION
6. This action seeks to enforce rights guaranteed by the Constitution
and laws of the United States and is brought pursuant to 42 U.S.C. 1983
and 1985. Jurisdiction is based upon 28 U.S.C. 1331 and 1343(3). The
substantive federal claims are brought pursuant to 42 U.S.C. 1983 and
1985, and 18 U.S.C. 2707 and 2520. Declaratory relief is sought pursuant
to 28 U.S.C. 2201-2202. Authority to hear the pendent state claims is
conferred by the Court's supplemental jurisdiction under 28 U.S.C. 1367.
This action does not raise novel or complex issues of state law, and the
state law claims do not predominate over the federal law claims.
7. Venue is proper in the Southern District of Ohio, Western Division,
under 28 U.S.C. 1391(b), because at least one Defendant resides in this
District and Division and because a substantial part of the events or
omissions giving rise to the claims occurred within this District and
Division.
III. PARTIES
A. PLAINTIFFS
8. PLAINTIFF STEVEN GUEST is a thirty-six year old resident of
Clermont County, Ohio. Mr. Guest is a computer consultant who uses the
Cincinnati Computer Connection BBS to send and receive electronic
communications, to conduct his consulting business, to exchange files with
his business partners, to access shareware, and otherwise to engage in
expressive and associational activity.
9. PLAINTIFF DENISE KELLEY is a sixty-nine year old resident of
Hamilton County, Ohio. She is employed by the Hamilton County Department
of Human Services as an investigation coordinator and serves as the chief
union steward for AFSCME Local 1768. Mrs. Kelley, mother of three and
grandmother of seven, uses the Cincinnati Computer Connection BBS for
political discussion, to download shareware files, to play some games, to
send and receive electronic mail communications across the Internet, to
"chat" with users, to write stories in an on-line conference, and otherwise
to engage in expressive and associational activity.
10. PLAINTIFF BEN S. KELLEY is Mrs. Kelley's husband, a seventy-six
year old retired machinist who resides in Hamilton County, Ohio. Mr.
Kelley, father of three and grandfather of seven, uses the Cincinnati
Computer Connection BBS to send and receive electronic communications, play
games, to read the discussions going on in various conferences, and
otherwise to engage in expressive and associational activity.
11. PLAINTIFF NELDA STURGILL is a registered nurse in a local hospital
who resides in Hamilton County. In her thirties, Ms. Sturgill uses the
Cincinnati Computer Connection BBS to send and receive electronic
communications across the Internet, to access shareware programs, to keep
abreast of information through the use of the Usenet newsgroups, and
otherwise to engage in expressive and associational activity. Ms. Sturgill
particularly participates in the health-related conferences newsgroups, and
has exchanged recipes and ideas with people from Australia, England and the
United States.
12. PLAINTIFF DEBORAH CUMMINGS is a resident of Kenton County,
Kentucky. Ms. Cummings uses the Cincinnati Computer Connection BBS to send
and receive electronic communications, to conduct her business, and to
otherwise engage in expressive and associational activity.
13. PLAINTIFF RANDY BOWLING is a resident of Butler County, Ohio. Mr.
Bowling suffers from a head injury that makes speaking very difficult.
Mr. Bowling uses the Cincinnati Computer Connection BBS to send and receive
electronic communications, to supplement his limited ability to speak, and
to discuss his head injury and therapy, and to engage in the majority of
his expressive and associational activity. Mr. Bowling also uses the
Cincinnati Computer Connection BBS to facilitate his current study of
computer systems.
14. PLAINTIFF RICHARD KRAMER is a retired insurance agent who resides
in Butler County, Ohio. Mr. Kramer, who uses a wheelchair, uses the
Cincinnati Computer Connection BBS to send and receive electronic
communications, to supplement his sometimes restricted access to more
traditional fora for expressive and associational activity, to access
file-management and utility shareware, and to study computer systems.
15. Each named Plaintiff is a citizen of the United States.
16. At all times relevant herein, Plaintiffs were users of the
Cincinnati Computer Connection BBS.
Class Action Allegations
17. The named Plaintiffs are proper representatives of a class within
the meaning of Rule 23(a) and 23(b) (3) of the Federal Rules of Civil
Procedure.
18. The members of the class are so numerous that the joinder of all of
them is impractical. Upon information and belief, the class consists of at
least several thousand persons. The exact size of the class is unknown
because the Defendants have seized and failed to return the computer and/or
documentary records needed to determine the exact number and identity of
the class members.
19. The members of the class should be readily identifiable from
records seized by the Defendants.
20. There are questions of law and fact common to the class; their
class claims predominate over any individual claims. Each class member
shares the same federal and state constitutional protections of their right
to speak, publish and associate. Each class member shares the same federal
and state constitutional right to be free from unreasonable searches and
seizures. Each class member shares the same federal and state rights
protecting the privacy of their electronic communications and subscriber
records.
21. The claims of the named Plaintiffs are typical of the claims of the
class. All class members suffered a similar violation of their common
rights when the Defendants seized and shut down the Cincinnati Computer
Connection BBS, and, upon information and belief, reviewed their private
electronic communications and subscriber records. As alleged in greater
detail above, the Plaintiffs' uses of the Cincinnati Computer Connection
BBS typify the uses of the class members generally.
22. The named Plaintiffs will fairly and adequately protect the
interests of the class. As of June 16, 1995, each named Plaintiff was a
user of the Cincinnati Computer Connection BBS. The named Plaintiffs are
represented by counsel experienced in litigating federal and state civil
rights lawsuits, including class actions, and who are familiar with the
technology involved and experienced in litigating computer communications
cases. The representative Plaintiffs know of no conflict of interest among
class members. Plaintiffs will vigorously prosecute this action.
23. The class consists of all persons who, on June 16, 1995, were
users, subscribers, or customers of the Cincinnati Computer Connection
electronic bulletin board service, and all persons whose private electronic
communications were resident on the Cincinnati Computer Connection BBS when
it was seized by the Defendants, but not including the actual provider of
that electronic bulletin board service.
24. Plaintiffs do not propose class notice at this time, but belief
that class certification and notice can and should be achieved promptly.
B. DEFENDANTS
25. Defendant Simon L. Leis, Jr., is and was at all relevant times the
Sheriff of Hamilton County, Ohio. For the constitutional and common law
claims, Defendant Leis is sued in his official capacity with respect to the
declaratory and injunctive relief sought herein, and in his individual
capacity with respect to the request for damages and attorney's fees in
this action. For the federal statutory claims, Defendant Leis is sued in
his individual and official capacities.
26. Defendant Hamilton County Sheriff's Department is a sheriff's
department organized under the laws of the State of Ohio.
27. Defendant Hamilton County Regional Computer Crimes Task Force is a
division of the Hamilton County Sheriff's Department organized under Ohio
law to develop and use special skills and expertise in investigating
suspected computer crimes.
28. Defendant Dale Menkaus is and was at all relevant times the
Commander of the Regional Computer Crimes Task Force. For the
constitutional and common law claims, Defendant Menkaus is sued in his
official capacity with respect to the declaratory and injunctive relief
sought herein, and in his individual capacity with respect to the request
for damages and attorney's fees in this action. For the federal statutory
claims, Defendant Menkaus is sued in his individual and official
capacities.
29. Defendant Robert Swisshelm is and was at all times referred to
herein a member of the Regional Computer Crimes Task Force. For the
constitutional and common law claims, Defendant Swisshelm is sued in his
official capacity with respect to the declaratory and injunctive relief
sought herein, and in his individual capacity with respect to the request
for damages and attorney's fees in this action. For the federal statutory
claims, Defendant Swisshelm is sued in his individual and official
capacities.
30. Defendants Jane/John Doe 1-10 are private individuals; members,
representatives, or agents of the Regional Computer Crimes Task Force; or
individuals from other law enforcement agencies whose names are currently
unknown, but whom the Plaintiffs believe acted under color of state law or
clothed with official authority, and who violated or conspired to violate
the Plaintiffs' and the class members' civil rights. For the
constitutional and common law claims, Defendant Does are sued in their
official capacities with respect to the declaratory and injunctive relief
sought herein, and in their individual capacities with respect to the
request for damages and attorney's fees in this action. For the federal
statutory claims, Defendant Does are sued in their individual and official
capacities.
31. At all times relevant herein, each named individual Defendant was
acting under color of state law.
32. At all times relevant herein, Defendants, and each of them,
separately and in concert, acted under color of state law. At all times
relevant herein, Defendants, and each of them, separately and in concert,
engaged in the illegal and unconstitutional conduct described herein and
deprived Plaintiffs of the rights, privileges, and immunities secured to
Plaintiffs by the First, Fourth, and Fourteenth Amendments to the United
States Constitution, the laws of the United States, and the Constitution
and laws of the State of Ohio.
IV. FACTS
A. The Cincinnati Computer Connection Community.
33. On June 16, 1995, and for many years before that, the Cincinnati
Computer Connection ("CCC") was a thriving community. The bulletin board
system ("BBS") provided a forum for its users to speak and publish
privately and publicly, to debate, to associate and recreate, and to
exchange ideas and information. On June 16, 1995, the faces of the CCC
subscribers were the faces of Greater Cincinnati -- working men and women,
retirees, mothers, fathers, grandparents and children, Republicans,
Democrats and Independents. The CCC community even included subscribers
from around the United States and overseas.
34. Many of the subscribers to the CCC BBS have made personal
acquaintances through the bulletin board community. Subscribers have held
dinner get-togethers to meet personally, to socialize, and to discuss
matters of interest to the BBS community. These meetings were organized by
using the BBS itself.
35. On June 16, 1995, the CCC community included thousands of users and
subscribers. Because the CCC computers and subscriber records remain in
the hands of the Defendants, the exact number remains unknown.
36. At all relevant times, the CCC BBS affected and operated in the
stream of interstate commerce.
B. The Cincinnati Computer Connection BBS.
37. Each user or subscriber to the CCC BBS selected a private password,
which secured the privacy of his or her account. The subscriber contacted
the CCC BBS by using his or her personal computer, a modem, and a phone
line. The user's computer would call the CCC BBS over a phone line, and
after "logging in" by using the confidential password, the user was given
access to the CCC BBS. Once connected to the BBS, the subscriber could do
a whole range of things, including:
i. Private electronic mail or "e-mail."
38. The CCC BBS provided subscribers the ability to send and receive
private electronic communications, typically known as e-mail. A subscriber
could compose private electronic messages either before "logging on" to the
CCC, or while connected to the bulletin board system. Just like First
Class mail, e-mail messages are addressed to a specific person, and are
confidential.
39. E-mail was sent and received in two manners on the CCC BBS. E-mail
exchanged between persons who had accounts on the CCC BBS was sent within
the many conference areas on the BBS (see below). If the sender designated
a conference message "confidential," the message remained inaccessible to
any user except the designated recipient. The CCC BBS also provided an
"Internet mail gateway." This feature allowed subscribers to send and
receive confidential electronic communications from persons who did not
have an account on the CCC BBS, but who had an Internet address. This
Internet mail gateway allowed the users of the CCC BBS to send confidential
electronic communications to, and receive them from, tens of millions of
persons around the world.
40. This e-mail was not readily accessible to the public. The users of
the CCC BBS, and those who sent electronic mail to the CCC BBS from the
Internet, had a reasonable expectation of privacy in those communications.
41. When Defendant Leis and the other Defendants seized the CCC BBS,
they seized all of the private electronic communications contained on the
system, and cut off the subscribers' ability to send and receive e-mail.
ii. Conference areas.
42. In addition to e-mail, the Cincinnati Computer Connection provided
its subscribers access to thousands of "conferences." These conferences,
like the sections of a library, are the main organizational units of the
BBS. Each conference area had a name and a topic. For example, the CCC
BBS had conference areas dedicated to writers, game players, and computer
professionals. When a subscriber accessed the bulletin board system, he or
she could "enter" an conference area. Once in a conference area, the
subscriber could read all the public messages posted by other visitors to
the conference, post public reply messages or begin new public discussions
on new topics. The user could also send and receive private electronic
communications within the conference. The CCC BBS provided literally
thousands of conferences for its users, including:
a. Local conference areas.
43. These conferences were unique to the CCC BBS, and included
discussions and debates on topics ranging from local and national politics
to sports and computers. These conferences were the heart of the local CCC
community interaction.
b. Private local conference areas.
44. The CCC BBS also provided conference areas that were restricted to
particular users. These restricted conference areas were used by
subscribers for confidential business purposes, including exchanging
confidential information.
c. BBS network conferences.
45. On June 16, 1995, the CCC BBS also provided to its users "feeds"
from networks of similar dial-up bulletin board systems. These networks
provided dozens of additional conference areas, and allowed the users of
the CCC BBS to engage in discussion on topics with users of a whole network
of BBSs beyond the subscribers to the CCC BBS.
d. Usenet newsgroups.
46. The CCC BBS also received, via satellite feed, thousands of
additional conferences from an Internet network known as Usenet. Usenet is
essentially a bulletin board system for the Internet. Usenet is organized
into thousands of separate "newsgroups" where people from all around the
world can engage in discussion and debate on a huge variety of topics,
ranging from computer science, philosophy, and law to pop music. The CCC
subscribers could read and participate in these newsgroups.
47. When Defendant Leis and the other Defendants seized the CCC BBS,
they seized all of the contents of all of these thousands of conference
areas, and denied the subscribers to the CCC any access to the conferences.
end part 1
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