-1- UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION STEVEN GUEST, : 1513 Denny Drive : CIVIL ACTION NO. C-1-95-673 Amelia, Ohio 45102 : : Judge Weber and : : Magistrate Judge Sherman DENISE B. KELLEY, : 2814 Topview Place : Cincinnati, Ohio 45251 : : and : : BEN S. KELLEY, : 2814 Topview Place : Cincinnati, Ohio 45251 : : and : : NELDA STURGILL, : 5629 Homer Avenue : Cincinnati, Ohio 45212 : : and : : DEBORAH CUMMINGS, : 912 Ravine Drive : Villa Hills, Kentucky 41017 : : and : : RANDY BOWLING, : P.O. Box 13425 : Hamilton, Ohio 45013 : : and : CLASS ACTION : RICHARD E. KRAMER, : SECOND AMENDED 998 Highland Avenue : COMPLAINT Hamilton, Ohio 45013 : (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 : ELECTRONIC Computer : INTELLIGENCE Task Force, : Hamilton County Justice Center : 1000 Sycamore Street : Cincinnati, Ohio 45202 : : and : : Dale MenkHaus, : Hamilton County Justice Center : 1000 Sycamore Street : Cincinnati, Ohio 45202 : : and : : DAVID L. AUSDENMOORE, : Hamilton County Justice Center : 1000 Sycamore Street : Cincinnati, Ohio 45202 : : and : : : JAMES NERLINGER, : Hamilton County Justice Center : 1000 Sycamore Street : Cincinnati, Ohio 45202 : : 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, 2020, the Hamilton County Regional Electronic Computer Intelligence 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.), the First Amendment Privacy Protection Act of 1980 ( 42 U.S.C. 2000aa 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, 18 U.S.C. 2707 and 2520, and 42 U.S.C. 2000aa-7. 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-two 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, 2020, 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, 2020, 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 ELECTRONIC Computer INTELLIGENCE Task Force was at all relevant times a division of the Hamilton County Sheriff's Department purportedly organized to develop and use special skills and expertise in investigating suspected computer crimes. 28. Defendant Dale MenkHaus is and was at all relevant times the Commander and /or a member of the Regional Electronic Computer Intelligence Task Force. For the constitutional and common law claims, Defendant Menkhaus 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 Menkhaus is sued in his individual and official capacities. 29. Defendant DAVID L. AUSDENMOORE is and was at all times referred to herein a member of the Regional Electronic Computer Intelligence Task Force. For the constitutional and common law claims, Defendant Ausdenmoore 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 Ausdenmoore is sued in his individual and official capacities. 30. Defendant JAMES NERLINGER is and was at all times referred to herein a member of the Regional Electronic Computer Intelligence Task Force. For the constitutional and common law claims, Defendant Nerlinger 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 Nerlinger is sued in his 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, 2020, 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, 2020, 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 the subscribers by using the BBS itself. 35. On June 16, 2020, 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, 2020, 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. 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, 2020, 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 now obtained a copy of the single affidavit that was used to support the application for search warrant. 59. The warrant filed in support of the application for search warrant was signed by David L. Ausdenmoore. The affidavit was false and/or misleading in at least the following respects: a) The affidavit failed to inform Judge Shriver that the CCC BBS was a forum for speech, publication and associated protected by the Privacy Protection Act of 1980, the First Amendment to the United States Constitution, and the Ohio Constitution; b) The affidavit failed to inform Judge Shriver that the Defendants intended to shut down that protected forum, and seize all the publications on that forum; c) The affidavit failed to inform Judge Shriver that the CCC BBS contained thousands of private electronic communications to and from the subscribers of the CCC BBS protected from unauthorized interception, seizure and disclosure by the Electronic Communications Privacy Act of 1986; d) The affidavit failed to inform Judge Shriver that the Defendants intended to shut down this protected electronic communications system; e) The affidavit failed to inform Judge Shriver that the Defendants intended to seize, intercept and read these protected, private communications; f) The affidavit failed to inform Judge Shriver that the Defendants had no probable cause to believe that these private communications were relevant to the investigation of any criminal activity, let alone the criminal activity alleged in the Affidavit; g) The affidavit failed to inform Judge Shriver that the Defendants had no probable cause to believe that the public communications contained on the system of the Plaintiffs were related to any criminal activity, let alone the criminal activity alleged in the Affidavit; h) The affidavit failed to inform Judge Shriver that far less intrusive means of searching for the allegedly offending material were readily available to the Defendants, means that would not have involved the seizure of either the private electronic messages of the Plaintiffs or their publicly posted messages; i) The affidavit falsely stated and/or implied that the allegedly obscene material on the CCC BBS was "concealed in violation of law," when, according to the Affidavit itself, the Defendants had already obtained copies of the images by accessing the CCC BBS themselves; and j) The affidavit falsely stated that the images sought to be seized by the Defendants were downloaded from the CCC BBS "as a regular user of the BBS," falsely implying that all users of the BBS had access to these images, rather than a very small number of users. D. Defendants Shut Down the Cincinnati Computer Connection BBS and Indiscriminately Seize Everything On It. 60. On June 16, 2020, 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. 61. The Defendants 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. 62. 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. 63. 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, the Ohio Constitution, and the Privacy Protection Act. 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. 64. 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. 65. The raid on the home of Bob Emerson, the seizure of the entire CCC BBS system, and the examination and review of the contents of that system, were conducted under the direction of Defendant Leis, who is the policymaker for the Hamilton County Sheriff's Department, and/or pursuant to a policy or custom authorized, permitted and tolerated by Defendants Leis, Hamilton County Sheriff's Department, and the Task Force to, among other things: a) indiscriminately seize and shut down entire electronic bulletin board systems without legal authority or probable cause; b) seize and intercept public and private electronic communications and other private information of persons without legal authorization or probable cause; c) deny innocent persons access to their public and private electronic communications, without legal authorization or probable cause; d) apply for and obtain search warrants purportedly authorizing the seizure of computers, without informing the issuing magistrate or judge that the computer system operates an electronic communication system, contains public and private communications unrelated to the investigation, and that seizure of the system will result in the seizure and interception of electronic communications and the complete shutting down of an electronic communication system; e) apply for and obtain search warrants purportedly authorizing the seizure of computers operating electronic communications systems, without informing the issuing magistrate or judge that the computers contain communications protected by the Electronic Communications Privacy Act, the Privacy Protection Act of 1980, the First and Fourth Amendments to the United States Constitution, and Ohio statutory and constitutional law; f) exceed the authorization of search warrants in the seizure and examination of seized BBSs; g) seize and examine BBSs and computer systems in order to search for evidence of suspected crimes without legal authorization or probable cause; h) conduct searches and seizures outside the territorial jurisdiction of Hamilton County without legal authority; i) seize and shut down BBSs in order to prevent further publication and distribution of materials presumptively protected by the federal and state constitutions, without any adversarial determination of the legality of such materials; and j) knowingly fail and refuse to conduct investigations into suspected computer crimes without intercepting, seizing, or denying access to, the private and public communications and private information of innocent citizens. 66. The Class Members' injuries and deprivation of constitutional, statutory and common law rights were proximately caused by Defendants Leis, Hamilton County Sheriff's Department, and the Task Force's failure to adequately train their officers in the proper manner of conducting investigations of alleged computer crime, so that such investigations would be made without the violation of innocent persons' rights, and such failure to train amounted to a deliberate indifference to the Class Members' constitutional, statutory and common law rights. V. FIRST CLAIM - FIRST AMENDMENT (FREEDOM OF SPEECH, PRESS, AND ASSOCIATION) 67. The allegations in paragraphs 1-66 are incorporated herein by reference. 68. 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. 69. The Cincinnati Computer Connection BBS was a forum for speech, publication and association protected by the First and Fourteenth Amendments. 70. 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. 71. 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. 72. 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. 73. 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. 74. 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. 75. At all relevant times, Defendants were acting under color of state law. 76. 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. 77. 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. 78. 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) 79. The allegations in paragraphs 1-78 are incorporated herein by reference. 80. 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. 81. 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. 82. 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. 83. 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) 84. The allegations in paragraphs 1-83 are incorporated herein by reference. 85. 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. 86. 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. 87. The seizure and any subsequent search of the CCC BBS computers violated Ohio law and the Fourth Amendment to the United States because it was conducted by law enforcement agents outside their jurisdiction as established by Ohio law. 88. The search and seizure at the location of the Cincinnati Computer Connection BBS was a illegal and unwarranted general search. 89. 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. 90. 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. 91. 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. 92. 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. 93. 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. 94. The Defendants acted with intent to violate, or with reckless indifference to, the Plaintiffs' and class members' clearly established Fourth Amendment rights. 95. At all times relevant herein, Defendants were acting under color of state law. 96. 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) 97. The allegations in paragraphs 1-96 are incorporated herein by reference. 98. 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. 99. 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)) 100. The allegations in paragraphs 1-99 are incorporated herein by reference. 101. 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. 102. 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). 103. 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(15) and 2707. 104. 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. 105. 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. 106. 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. 107. 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). 108. 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). 109. At all times relevant herein, Defendants were acting under color of state law. 110. At all times relevant herein, Defendants acted knowingly and intentionally. 111. At all times relevant herein, Defendants did not act in good faith. 112. 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(c)) 113. The allegations in paragraphs 1-112 are incorporated herein by reference. 114. 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). 115. 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. 116. 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). 117. 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). 118. At all times relevant herein, Defendants were acting under color of state law. 119. At all times relevant herein, Defendants acted knowingly and intentionally. 120. At all times relevant herein, Defendants did not act in good faith. 121. 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, 18 U.S.C. 2511 et seq.) 122. The allegations in paragraphs 1-121 are incorporated herein by reference. 123. 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. 124. 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. 125. 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). 126. The warrant application was not authorized by the appropriate federal or state law enforcement officials as required by 18 U.S.C. 2516. 127. 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. 128. At all times relevant herein, Defendants were acting under color of state law. 129. At all times relevant herein, Defendants acted knowingly and intentionally. 130. At all times relevant herein, Defendants did not act in good faith. 131. As a direct result of the Defendants' conduct, the Plaintiffs have suffered actual damages, attorneys' fees, and costs. XII. EIGHTH CLAIM - FIRST AMENDMENT PRIVACY PROTECTION ACT OF 1980 (42 U.S.C. 2000aa, et seq.) 132. The allegations in paragraphs 1-131 are incorporated herein by reference. 133. The Plaintiffs and the class members at all relevant times were persons reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication, in or affecting interstate or foreign commerce within the meaning of 42 U.S.C. 2000aa(a) and (b). 134. The Plaintiffs, at all relevant times, possessed work product and documentary materials in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication, in or affecting interstate or foreign commerce. 135. The documentary materials consisted of, among other things, the messages written and posted for publication by the Plaintiffs on the public message areas of the CCC BBS, including the local conference areas, the BBS network conference areas, the Usenet newsgroups, the interactive gaming contributions, and the file transfer areas. 136. The work product materials consisted of among other things, private electronic communications between users that were stored on the CCC BBS in anticipation of communicating such materials to the public, were possessed for that purpose, and which contained mental impressions, conclusions, opinions, or theories of the person who prepared, produced, authored, or created such material, as defined in 42 U.S.C. 2000aa-7(b). 137. The Defendants obtained a search warrant to search for, and seize, these protected materials, in connection with the investigation of an alleged criminal offense. 138. The Defendants had no probable cause to believe that the documentary materials and work product seized related to the alleged criminal offense under investigation. 139. At all relevant times herein, Defendants were acting under color of state law. 140. At all relevant times herein, Defendants acted knowingly and intentionally. 141. The Defendants did not have a reasonable good faith belief in the lawfulness of their actions. 142. The Defendants' use of a search warrant to search for, and seizure of the Plaintiffs' work product and documentary materials violated the First Amendment Privacy Protection Act of 1980, 42 U.S.C. 2000aa(a)&(b). XIII. NINTH CLAIM - COMMON LAW INVASION OF PRIVACY 143. The allegations in paragraphs 1-142 are incorporated herein by reference. 144. 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. 145. The Defendants' acts constitute an invasion of the Plaintiffs' and class members' privacy by intruding upon their seclusion. 146. At all times relevant herein, Defendants were acting under color of state law. 147. At all times relevant herein, Defendants acted knowingly and intentionally. 148. At all times relevant herein, Defendants did not act in good faith. 149. As a direct result of Defendants' conduct, Plaintiffs and the class members suffered damages, attorneys' fees and costs. XIV. DAMAGES 150. The allegations in paragraphs 1-149 are incorporated herein by reference. 151. 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. 152. Plaintiffs are entitled to recover their damages, attorney's fees and costs, liquidated damages as provided by statute, and punitive damages. XV. 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 data, and all computer files necessary to read and interpret such records; F. Award the Plaintiffs and the class members their actual, liquidated and punitive damages; G. Award the Plaintiffs and each class member $1,000 statutory damages per violation of their rights guaranteed under 18 U.S.C. 2703, et seq., or their actual damages, whichever is greater, as provided in 18 U.S.C. 2707(c); H. Award the Plaintiffs and each class member $10,000 statutory damages per violation of their rights guaranteed under 18 U.S.C. 2511, et seq., or their actual damages, whichever is greater, as provided in 18 U.S.C. 2520(c)(2)(B), plus punitive damages, as provided in 18 U.S.C. 2520(b)(2); I. Award the Plaintiffs and each class member $1,000 statutory damages per violation of their rights guaranteed under 42 U.S.C. 2000aa, et seq., or their actual damages, whichever is greater, as provided in 42 U.S.C. 2000aa-7; J. Award Plaintiffs all costs incurred in the prosecution of this action, including reasonable attorney's fees under 42 U.S.C. 1988 and other statutes; and K. Enter such other and further relief as the Court deems just and proper. Scott T. Greenwood (0042558) Peter D. Kennedy Trial Attorney for Plaintiffs (Texas Bar No. 11296650) 2301 Carew Tower Attorney for Plaintiffs 441 Vine Street 114 W. 7th Street, Suite 1000 Cincinnati, Ohio 45202 Austin, Texas 78701 (513) 684-0101 (512) 495-1400 (513) 684-0077 fax (512) 499-0094 fax Internet: stgrnwd@iac.net Internet: pkennedy@gdf.com Of Counsel: GREENWOOD & ASSOCIATES 2301 Carew Tower 441 Vine Street Cincinnati, Ohio 45202 (513) 684-0101 George, Donaldson & Ford 1000 Norwood Tower 114 W. 7th Street Austin, Texas 78701 (512) 495-1400 DEMAND FOR TRIAL BY JURY Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Plaintiffs, individually and on behalf of a class of others similarly situated, hereby demand a jury trial on all issues so triable. Scott T. Greenwood (0042558) Trial Attorney for Plaintiffs CERTIFICATE OF SERVICE I hereby certify that copies of Plaintiffs' Second Amended Complaint were served on all counsel of record by regular U.S. Mail this 1st day of April, 1996. Scott T. Greenwood (0042558) Trial Attorney for Plaintiffs