llegally copied AT&T property, and the alterations
"Terminus" had made to it, had transformed it into a device for
facilitating computer break-ins. Terminus himself would eventually
plead guilty to theft of this piece of software, and the Chicago group
would send Terminus to prison for it. But it was of dubious relevance
in the Neidorf case. Neidorf hadn't written the program. He wasn't
accused of ever having used it. And Neidorf wasn't being charged with
software theft or owning a password trapper.

On the next day, Zenner took the offensive. The civil libertarians now
had their own arcane, untried legal weaponry to launch into action--the
Electronic Communications Privacy Act of 1986, 18 US Code, Section 2701
et seq. Section 2701 makes it a crime to intentionally access without
authorization a facility in which an electronic communication service
is provided--it is, at heart, an anti-bugging and anti-tapping law,
intended to carry the traditional protections of telephones into other
electronic channels of communication. While providing penalties for
amateur snoops, however, Section 2703 of the ECPA also lays some formal
difficulties on the bugging and tapping activities of police.

The Secret Service, in the person of Tim Foley, had served Richard
Andrews with a federal grand jury subpoena, in their pursuit of
Prophet, the E911 Document, and the Terminus software ring. But
according to the Electronic Communications Privacy Act, a "provider of
remote computing service" was legally entitled to "prior notice" from
the government if a subpoena was used. Richard Andrews and his
basement UNIX node, Jolnet, had not received any "prior notice." Tim
Foley had purportedly violated the ECPA and committed an electronic
crime! Zenner now sought the judge's permission to cross-examine Foley
on the topic of Foley's own electronic misdeeds.

Cook argued that Richard Andrews' Jolnet was a privately owned bulletin
board, and not within the purview of ECPA. Judge Bua granted the
motion of the government to prevent cross-examination on that point,
and Zenner's offensive fizzled. This, however, was the first direct
assault on the legality of the actions of the Computer Fraud and Abuse
Task Force itself--the first suggestion that they themselves had broken
the law, and might, perhaps, be called to account.

Zenner, in any case, did not really need the ECPA. Instead, he grilled
Foley on the glaring contradictions in the sup