RPGs in the Courts!

For today’s Invoking IP article, we’re going to actually move away from intellectual property law.  Rather than talking about IP in the gaming industry, I want to talk about two different RPG makers who were themselves in the courts and who helped move of clarify the law.[1]  In Steve Jackson Games, Inc. v. United States Secret Service, the Fifth U.S. Circuit considered what exactly constitutes an electronic interception of information.[2]  In TSR, Inc. & Subsidiary v. Commissioner of Internal Revenue, the U.S. Tax Court considered whether or not research for RPG design qualified as a tax-exempt business expense.[3]  Both cases are fascinating, but the Steve Jackson games case is more fascinating, so we will begin there.  I’ll follow up tomorrow with the skinny on TSR’s taxes.

Who’s Watching?  Big Brother or the Illuminati?

During the 1980s, Steve Jackson Games (SJG) operated the an electronic bulletin board system called “ILLUMINATI.”  SJG’S main purposes were to post business announcements, to facilitate playtesting of forthcoming releases, and to communicate with customers and freelance writers.  But, as a part of that, everyone needed an email account.  During the late 1980s, when this case was decided, email was still a pretty big novelty and nobody knew exactly how to deal with privacy in electronic communications.[4] 

Someone had copied and distributed information about the Bell Company’s emergency call system.  Back then, we’d just broken up the telephone monopoly, so information about the Bell Company’s emergency call system would let people do things like place free calls when they should be paying.  In a time when all Internet connections (or at least the vast majority of them) were dial-ups, this was useful information indeed.

The Secret Service had reason to believe that there was a copy of this stolen file in an email inbox hosted on the ILLUMINATI server.  So, the Secret Service got a warrant to search SJG and the home of its bulletin board system network administrator.  The Secret Service seized a bunch of stuff, including the computer that hosted the ILLUMINATI server.  On that computer were 162 sent but unopened emails.

The district court found that the Secret Service broke the law by seizing the electronic communications, but not for opening and reading them.[5]  The Secret Service could read the messages because it didn’t intercept them.  You can only intercept a communication if you read/hear it contemporaneously with the message being sent.[6]  In the case that originally defined intercepting a communication, the court had found that a seized audio tape was not an interception because law enforcement got their hands on the tape after it had been recorded (they still needed a search warrant though).  Email messages were trickier.  Clearly the message had been drafted and sent, but the messages were unopened.  So, now a nice panel of three judges on the Fifth Circuit who probably knew next to nothing about computers had to decide if the Secret Service “intercepted” something that had been sent but not yet delivered.  SJG believed that because the messages hadn’t been delivered, it made the violation even worse (and would have entitled SJG to even more money).

Credit: Deviant ART/lmd1984.  Used with permission.

Unfortunately for SJG, the § 2510 of the Electronic Communications Privacy Act (18 U.S.C.) didn’t say anything about protecting messages that were “stored.”  So, the message couldn’t be intercepted because it was being stored rather than being in transit.  The court noted:

The E-mail in issue was in “electronic storage”.  Congress’ use of the word “transfer” in the definition of “electronic communication”, and its omission in that definition of the phrase “any electronic storage of such communication” (part of the definition of “wire communication”) reflects that Congress did not intend “intercept” to apply to “electronic communications” when those communications are in “electronic storage.”[7]

So, that was that.  SJG may have had its records and computers and several of its bulletin board system’s emails stolen by the Secret Service, but they weren’t “intercepted.”  You can’t intercept things that have already been delivered.

Where do things stand today?  Well, if the message has been in storage (read or unread) for 180 days or less, the government needs a court order to get at your communications (18 U.S.C. § 2703(a).  They also (usually[8]) have to inform the recipient they are getting copies of her emails.  If it’s been there longer than 180 days, the government can just subpoena it if they inform the recipient.  They need not tell the recipient at all if they have a court order after 180 days.  (18 U.S.C. § 2703(b). 

Bottom line: You’ve got some limited privacy in your email for 180 days and almost none after.  If you really want your email to remain private, download it off of server computers at least every 180 days.[9]

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[1] Alas, not to their benefit.

[2] 36 F.3d 457 (1994).

[3] 96 T.C. No. 44 (1991).

[4] Arguably, we still don’t.  Or, maybe we know, but we just choose not to protect their privacy.  For more information see the Electronic Communications Privacy Act of 1986 and any and all revelations about how the National Security Agency is spying on your email.

[5] If that sounds Kafkaesque, it’s because it is.

[6] U.S. v. Turk, 526 F.2d 654 (5th Cir.), cert. denied 429 U.S. 823 (1976).

[7] 36 F.3d at 462-63.

[8] Patriot Act.  Shocker, I know.

[9] “But wait, Boyd!  A file can’t really ever be completely deleted from a computer.  There’s still a recoverable record there.”  “Yep.  There is.  And it’s also open for the taking.  Want total privacy?  Return to snail mail.”