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List:       best-of-security
Subject:    Cinncinnati ECPA complaint pt. 2/3
From:       Julian Assange <proff () suburbia ! net>
Date:       1995-08-11 3:26:29
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>From owner-sea-list@panix.com Fri Aug 11 12:31:02 1995
Date: Thu, 10 Aug 1995 21:07:52 -0400
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From: sbarber@panix.com (Steve Barber)
Subject: Cinncinnati ECPA complaint pt. 2/3

part 2


        iii.    Live "chat."
48.       The Cincinnati Computer Connection BBS also featured live chat
"channels."  Similar to CB radio channels, the "chat" function allowed
subscribers to converse in "real time" with other subscribers who were
logged into the BBS.  One subscriber could invite another person to chat,
and the two subscribers could exchange confidential messages by typing them
in sequence to each other.
49.     When Defendant Leis and the other Defendants seized the CCC BBS,
they shut down any chat taking place on the board and seized any captured
chat file sessions.
        iv.     Games.
50.     The game areas on the CCC were very popular.  Subscribers could
play a variety of on-line games against the computer or against other
subscribers.   Some "games" were more like interactive creative writing,
with different users of the BBS taking on personas and interacting with
each other in a fictional world.
51.     The Defendants' seizure of the bulletin board system of course
included seizure of all the games, and cut off the subscribers' access to
the games.
        v.      File transfer.
52.     The CCC BBS offered its subscribers the ability to "upload"
computer files from their home computer to the bulletin board system, and
to "download" computer files from the bulletin board to their home
computers.  Computer files can consist of anything from computer programs
and other software, to the text of written material (such as this
Complaint), to picture files and sound files.  The CCC BBS had an enormous
library of computer files for its users to access and use.  The Defendants
seized this entire library of thousands of computer files when they seized
the 45 allegedly obscene images they were after.
        vi.     The restricted adult file area.
53.     Among the thousands of conferences on the CCC, there was a single
conference area dedicated to adult-oriented computer image files.  Access
to this area was extremely limited.  In order to gain access to this
conference, a subscriber was required to verify his age and identity in
person to the CCC system operator, Mr. Emerson.  After verifying the
subscriber's age, Emerson would configure that user's account to give that
subscriber access to the adult file area.  Only after a subscriber's age
and identity was verified, and the subscriber's account given access to the
adult file area, would the existence of the adult file area even appear on
the user's screen when logged in to the CCC.  The "menu" of choices
available to a subscriber who had not been verified and given access would
not even show that an adult file area existed.
54.     Even for those with access to the restricted adult file area, the
adult image files could not be viewed "on-line."  In order to view a file,
a subscriber with access would have to log onto the BBS, enter the
restricted adult area, designate a file for downloading, download that file
to the user's home computer, log off the system, and then run a separate
computer  program on the home computer that interprets the image and
displays it on the user's home computer screen.
55.     The restricted adult file area comprised a very small percentage of
the material on the CCC BBS -- no more than 3%, and upon information and
belief far less than that.  The number of users with access to this area
was also very small -- no more than 3% of the subscribers, and upon
information and belief far less than that.  Many, if not most, of the CCC
subscribers had no idea that an adult file area even existed.
56.     Compared to the Cincinnati Computer Connection as a whole, the
adult file area was like a tiny, locked, and largely unknown private room
within a huge, bustling convention center.
C.      Defendants Obtain A Search Warrant And Go Trolling for Computer Porn.
57.     On or about June 15, 1995, the Defendants applied to the Municipal
Court of Clermont Count for a search warrant for the premises containing
the CCC BBS computers.  Municipal Court Judge James A. Shriver signed the
search warrant at 11:30 p.m. that evening.  Upon information and belief,
Judge Shriver had never reviewed an application for the search or for the
seizure of an electronic communication system such as the CCC BBS, and had
never issued a search warrant for such a system.  The search warrant itself
listed 45 particular image files, by name and description, that were the
target of the search.
58.     The Defendants obtained an order sealing from public scrutiny the
search warrant affidavit that allegedly justified their application for the
search warrant.    Plaintiffs have not obtained a copy of the affidavit or
affidavits that allegedly supported the search warrant.  However, upon
information and belief, Plaintiffs allege that the Defendants failed to
inform Judge Shriver of the following material facts:  (1) that the CCC BBS
was a forum for protected speech, publication and association, and that the
Defendants intended to shut down that forum and seize all the publications
contained on that forum; (2) that the CCC BBS contained thousands of
private electronic communications to and from the subscribers of the CCC
BBS, and that the Defendants intended to shut down that communication
system, and seize, intercept and read these private communications; (3)
that the electronic communications Defendants sought were protected by
federal and state law from interception, seizure and disclosure; and (4)
that the Defendants had no probable cause to believe that these private
communications of the thousands of subscribers to the CCC BBS were relevant
to any investigation of any alleged criminal activity.
D.      Defendants Shut Down the Cincinnati Computer Connection BBS and
Indiscriminately Seize Everything On It.
59.     On June 16, 1995, purportedly acting under the authority of the
search warrant signed by Judge Shriver, the Defendants seized the entire
CCC BBS.  The Defendants made no effort to limit their seizure to materials
or information related to the alleged offense under investigation; rather,
they seized the entire system, shutting it down completely.  If not for a
significant personal financial commitment by Mr. Emerson after the raid,
the CCC BBS would have been permanently shut down.
60.     As of the date of this filing, the Defendants have made no effort
to return to the Plaintiffs or any other user of the CCC BBS their private
electronic communications, or to assure that such communications reach
their intended recipients.  Upon information and belief, the Defendants
have already, or have every intention to, read the private electronic
communications of the CCC BBS subscribers.
61.     The Defendants made no effort to limit the scope of their seizure.
Prior to the raid, the Defendants knew the exact file names of the computer
image files they were searching for.  In fact, the Defendants had already
obtained those files prior to the raid.  The Defendants consciously chose
not to use means at their disposal that would have allowed for a limited
search and seizure of evidence relevant to the alleged offense.  The
Defendants consciously refused to use narrower means of obtaining their
investigative objectives that would have protected the privacy of the
subscribers' communications and the integrity of their forum.
62.     The Defendants knew, or should have known, that the CCC BBS was a
forum for protected speech, publication and communication.  The Defendants
knew, or should have known, that the CCC BBS contained materials being
published electronically that were protected by the First Amendment to the
U.S. Constitution and the Ohio Constitution.  The Defendants knew, or
should have known, that the  BBS contained the private electronic
communications of its users, and that such communications were not readily
accessible to the public.  The Defendants knew, or should have known, that
the users of the CCC BBS had a reasonable expectation of privacy in their
electronic communications.
63.     Reasonable law enforcement officers in the position of the
Defendants, with the information available to the Defendants, would have
known that the CCC BBS was a forum for speech, publication and
communication protected by the First Amendment and the Ohio Constitution,
and that the electronic communications on the CCC BBS were protected by the
Fourth Amendment, the Ohio Constitution and federal statutory law from
search and seizure and interception unless the officers had probable cause
to believe that those communications were relevant to the law enforcement
inquiry.

V.      FIRST CLAIM -   FIRST AMENDMENT
(FREEDOM OF SPEECH, PRESS, AND ASSOCIATION)

64.     The allegations in paragraphs 1-63 are incorporated herein by
reference.
65.     At all relevant times, the Cincinnati Computer Connection BBS
published, in electronic form, magazines, periodicals, non-fiction,
fiction, images and other materials protected by the First Amendment.
66.     The Cincinnati Computer Connection BBS was a forum for speech,
publication and association protected by the First and Fourteenth
Amendments.
67.     The Plaintiffs and the class members at all relevant times used the
Cincinnati Computer Connection BBS to exercise their constitutional rights
to speak, publish and associate.
68.     The Defendants' search, seizure, and retention of the Cincinnati
Computer Connection BBS, and the materials contained on the BBS, violated
the Plaintiffs' and class members' clearly established constitutional
rights to speak, publish and associate.
69.     The Defendants' seizure and retention of computer hardware and
software used by Cincinnati Computer Connection BBS constituted a prior
restraint on the Plaintiffs' constitutional rights of freedom of speech, of
the press, and of association.
70.     Defendants knew or reasonably should have known that their conduct
violated the Plaintiffs' and the class members' clearly established First
Amendment rights of freedom of speech, freedom of the press, and freedom of
association.
71.     Defendants acted with intent to violate, or with reckless
indifference to, the Plaintiffs and class members' clearly established
First Amendment rights to freedom of speech, freedom of the press, and
freedom of association.
72.     At all relevant times, Defendants were acting under color of state law.
73.     The Defendants' actions have caused the Plaintiffs and class
members a real and palpable fear that their future electronic
communications will be seized and reviewed by law enforcement agents,
without justification or excuse.  As a result, the Plaintiffs and class
members have suffered a distinct and actual diminution of their willingness
to speak, publish and associate freely and openly without fear of
government intrusion and reprisal.
74.     As a direct result of Defendants' conduct, the Plaintiffs and class
members have suffered a distinct and actual restriction on their freedom of
speech, press and association.
75.     As a direct result of the Defendants' conduct, the Plaintiffs have
suffered actual damages, attorneys' fees, and costs.

VI.     SECOND CLAIM - OHIO CONSTITUTION ARTICLE I, SECTION 11
(FREEDOM TO SPEAK, WRITE, PUBLISH, AND ASSOCIATE)
76.     The allegations in paragraphs 1-75 are incorporated herein by
reference.
77.     In the same manner that the Defendants' actions violated the
Plaintiffs and the class members' rights under the First Amendment, the
Defendants' acts violated the Plaintiffs' and class members' clearly
established right to speak, write, publish, and associate guaranteed by
Article I, Section 11 of the Constitution of the State of Ohio.
78.     The Defendants' actions have caused the Plaintiffs and class
members a real and palpable fear that their future electronic
communications and publications will be seized and reviewed by law
enforcement agents, without justification or excuse.  As a result, the
Plaintiffs and class members have suffered a distinct and actual diminution
of their willingness to speak, publish and associate freely and openly
without fear of government intrusion and reprisal.
79.     As a direct result of Defendants' conduct, the Plaintiffs and class
members have suffered a distinct and actual restriction on their freedom of
speech, press and association.
80.     As a direct result of the Defendants' conduct, the Plaintiffs have
suffered actual damages, attorneys' fees, and costs.

VII.  THIRD CLAIM - FOURTH AMENDMENT
(FREEDOM FROM UNREASONABLE SEARCHES AND SEIZURES)
81.     The allegations in paragraphs 1-80 are incorporated herein by
reference.
82.     The Plaintiffs and class members had a reasonable expectation of
privacy in their private electronic communications and subscriber records
resident on the Cincinnati Computer Connection BBS.
83.     The Defendants' actions violated the Plaintiffs' and class members'
clearly established right to be free from unreasonable searches and
seizures as guaranteed by the Fourth Amendment and Fourteenth Amendments to
the United States Constitution and 42 U.S.C. 1983.
84.     The search and seizure at the location of the Cincinnati Computer
Connection BBS was a illegal and unwarranted general search.
85.     The search and seizure of the Cincinnati Computer Connection BBS
was not authorized by a valid warrant particularly describing the place to
be searched and the things to be seized.
86.     The search warrant did not authorize the seizure of the Cincinnati
Computer Connection BBS or any of its contents, including the Plaintiffs'
and class members' private electronic communications and subscriber
records.
87.     The search warrant failed to establish probable cause to believe
that any of the Plaintiffs' or the class members' private electronic
communications was relevant to a legitimate law enforcement inquiry.
88.     The search warrant failed to establish probable cause to believe
that the Plaintiffs' and class members' private electronic communications
contained evidence of the offense listed in the search warrant, or any
offense, for that matter.
89.     The Defendants knew, or reasonably should have known, that their
conduct violated the Plaintiffs' and class members' clearly established
constitutional right to be free from unreasonable searches and seizures.
90.     The Defendants acted with intent to violate, or with reckless
indifference to, the Plaintiffs' and class members' clearly established
Fourth Amendment rights.
91.     At all times relevant herein, Defendants were acting under color of
state law.
92.     As a direct result of the Defendants' conduct, the Plaintiffs have
suffered actual damages, attorneys' fees, and costs.

VIII.   FOURTH CLAIM - OHIO CONSTITUTION ARTICLE I, SECTION 11
(FREEDOM FROM UNREASONABLE SEARCHES AND SEIZURES)
93.     The allegations in paragraphs 1-92 are incorporated herein by
reference.
94.     In the same manner that the Defendants' actions violated the
Plaintiffs and the class members' rights under the Fourth Amendment, the
Defendants' acts violated the Plaintiffs' and class members' clearly
established right to be free from unreasonable searches and seizures
guaranteed by Article I, Section 11 of the Constitution of the State of
Ohio.
95.     As a direct result of the Defendants' conduct, the Plaintiffs have
suffered actual damages, attorneys' fees, and costs.

IX.     FIFTH CLAIM - ELECTRONIC COMMUNICATIONS PRIVACY ACT
(UNLAWFUL SEIZURE OF STORED COMMUNICATIONS,18 U.S.C. 2703 (a) & (b))
96.     The allegations in paragraphs 1-95 are incorporated herein by
reference.
97.     At all relevant times, Mr. Emerson and the Cincinnati Computer
Connection were the providers of an electronic communication service within
the meaning of 18 U.S.C. 2510(15) and 2707.
98.     At all relevant times, Mr. Emerson and the Cincinnati Computer
Connection were the providers of a remote computing service within the
meaning of 18 U.S.C. 2711(2).
99.     At all relevant times, Plaintiffs and the class members were
subscribers to, users of, or customers of the electronic communication
service and remote computing service provided by Mr. Emerson and the
Cincinnati Computer Connection, within the meaning of 18 U.S.C. 2510
and 2707.
100.    At all relevant times, Plaintiffs and some or all of the class
members had electronic communications in electronic storage on the
Cincinnati Computer Connection that were not accessible to the general
public.
101.    Upon information and belief, when Defendants applied for a warrant
to search and seize the computer operating the Cincinnati Computer
Connection BBS and all data stored thereon, they failed to inform the
issuing Judge that the computer contained stored electronic communications
that were not accessible to the general public and that were protected by
18 U.S.C. 2501, et seq. and 18 U.S.C. 2701, et seq.
102.    The search warrant obtained by Defendants failed to state or be
supported by any probable cause to believe that the Plaintiffs or class
members' private electronic communications constituted evidence of any
offense named in the warrant, or any criminal offense whatsoever.
103.    The search warrant obtained by Defendants failed to state, or be
supported by, reason to believe that the Plaintiffs or class members'
private electronic communications were relevant to a legitimate law
enforcement inquiry, in violation of 18 U.S.C. 2703(d).
104.    Defendants, acting without a valid warrant, and without a court
order, subpoena or consent of the Plaintiffs or class members, and without
providing prior notice of their intentions, required Mr. Emerson and the
Cincinnati Computer Connection to disclose the contents of electronic
communications that were not accessible to the general public, in violation
of 18 U.S.C. 2703(a) & (b).
105.    At all times relevant herein, Defendants were acting under color of
state law.
106.    At all times relevant herein, Defendants acted knowingly and
intentionally.
107.    At all times relevant herein, Defendants did not act in good faith.
108.    As a direct result of the Defendants' conduct, the Plaintiffs have
suffered actual damages, attorneys' fees, and costs.

X.      SIXTH CLAIM - ELECTRONIC COMMUNICATIONS PRIVACY ACT
(UNLAWFUL SEIZURE OF SUBSCRIBER RECORDS, 18 U.S.C. 2703)
109.    The allegations in paragraphs 1-108 are incorporated herein by
reference.
110.    At all relevant times, Mr. Emerson and the Cincinnati Computer
Connection had in electronic and hard-copy storage records and other
information pertaining to the Plaintiffs and the class members, within the
meaning of 18 U.S.C. 2703(c).
111.    The search warrant obtained by Defendants failed to state or be
supported by any probable cause to believe that the Plaintiffs or class
members'  subscriber records constituted evidence of any offense named in
the warrant, or any criminal offense whatsoever.
112.    The search warrant obtained by Defendants failed to state, or be
supported by, reason to believe that the Plaintiffs or class members'
subscription records were relevant to a legitimate law enforcement inquiry,
in violation of 18 U.S.C. 2703(d).
113.    Defendants, acting without a valid warrant, and without a subpoena,
court order or consent of the subscribers or customers, required Mr.
Emerson and the Cincinnati Computer Connection to disclose subscriber
records and information to the government, in violation of 18 U.S.C.
2703(c).
114.    At all times relevant herein, Defendants were acting under color of
state law.
115.    At all times relevant herein, Defendants acted knowingly and
intentionally.
116.    At all times relevant herein, Defendants did not act in good faith.
117.    As a direct result of the Defendants' conduct, the Plaintiffs have
suffered actual damages, attorneys' fees, and costs.



XI.     SEVENTH CLAIM - ELECTRONIC COMMUNICATIONS PRIVACY ACT
(UNLAWFUL INTERCEPTION OF ELECTRONIC COMMUNICATIONS, U.S.C. 2511 et seq.)
118.    The allegations in paragraphs 1-117 are incorporated herein by
reference.
119.    At all relevant times, Plaintiffs and/or some or all of the class
members had electronic communications in transit on the Cincinnati Computer
Connection that were not accessible to the general public.  Such
communications had been written, addressed, and sent, but not yet received
and read by the addressees.
120.    Defendants intercepted, disclosed, or intentionally used such
electronic communications, without the consent of the Plaintiffs or the
class members, in violation of 18 U.S.C. 2510 et seq. and 2520.
121.    Defendants intentionally intercepted, endeavored to intercept, or
procured others to intercept or endeavor to intercept, the Plaintiffs'
and/or class members' electronic communications, without the consent of the
Plaintiffs or the class members, in violation of 18 U.S.C. 2511(1)(a).
122.    The warrant application was not authorized by the appropriate
federal or state law enforcement officials as required by 18 U.S.C. 2516.
123.    The Defendants did not comply with the standards and procedures
prescribed in 18 U.S.C. 2518, or any procedures provided under state law
for the interception of electronic communications.
124.    At all times relevant herein, Defendants were acting under color of
state law.
125.    At all times relevant herein, Defendants acted knowingly and
intentionally.
126.    At all times relevant herein, Defendants did not act in good faith.
127.    As a direct result of the Defendants' conduct, the Plaintiffs have
suffered actual damages, attorneys' fees, and costs.

XII.    EIGHTH CLAIM - COMMON LAW INVASION OF PRIVACY
128.    The allegations in paragraphs 1-127 are incorporated herein by
reference.
129.    The Defendants intercepted and seized, without legal justification
or right, the Plaintiffs' private electronic communications.  Upon
information and belief, the Defendants reviewed and read some or all of
these private communications.  The Defendants have failed and refused to
return any such private communications, and have failed to provide for the
delivery to the intended recipients of the electronic communications they
unlawfully seized.
130.    The Defendants' acts constitute an invasion of the Plaintiffs' and
class members' privacy by intruding upon their seclusion.
131.    At all times relevant herein, Defendants were acting under color of
state law.
132.    At all times relevant herein, Defendants acted knowingly and
intentionally.
133.    At all times relevant herein, Defendants did not act in good faith.
134.    As a direct result of Defendants' conduct, Plaintiffs and the class
members suffered damages, attorneys' fees and costs.


XIII.   DAMAGES
135.    The allegations in paragraphs 1-134 are incorporated herein by
reference.
136.    On account of the Defendants' actions and violations of their
rights as set forth above, the Plaintiffs and class members have suffered
actual damages and incurred attorney's fees and costs.
137.    Plaintiffs are entitled to recover their damages, attorney's fees
and costs, liquidated damages as provided by statute, and punitive damages.

XIV.  PRAYER FOR RELIEF

WHEREFORE Plaintiffs request that this Court:
A.      Assume jurisdiction of this action;
B.      Certify this lawsuit as a class action on behalf of the class as
defined above;
C.      Declare that Defendants' actions violate the Constitution and Laws
of the United States and the Constitution and Laws of the State of Ohio;
D.      Enter judgment against the Defendants and in favor of the
Plaintiffs and class members;
E.      Enter an injunction ordering the Defendants to return all
electronic communications and subscriber records seized from the premises
of the Cincinnati Computer Connection, all copies and print-outs of such
end part 2

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