2280 lines
82 KiB
Plaintext
2280 lines
82 KiB
Plaintext
|
||
|
||
****************************************************************************
|
||
>C O M P U T E R U N D E R G R O U N D<
|
||
>D I G E S T<
|
||
*** Volume 1, Issue #1.04 (April 11, 1990) **
|
||
-- Part 1 of 4 --
|
||
** ALCOR'S SUIT AGAINST E-MAIL CONFISCATION **
|
||
****************************************************************************
|
||
|
||
MODERATORS: Jim Thomas / Gordon Meyer
|
||
REPLY TO: TK0JUT2@NIU.bitnet
|
||
|
||
COMPUTER UNDERGROUND DIGEST is an open forum dedicated to sharing
|
||
information among computerists and to the presentation and debate of
|
||
diverse views.
|
||
--------------------------------------------------------------------
|
||
DISCLAIMER: The views represented herein do not necessarily represent the
|
||
views of the moderators. Contributors assume all responsibility
|
||
for assuring that articles submitted do not violate copyright
|
||
protections.
|
||
--------------------------------------------------------------------
|
||
|
||
|
||
In This Issue:
|
||
|
||
Issue #1.04 is long--over 2,100 lines--so we have broken it down
|
||
into four smaller files.
|
||
Keith Henson sent these public documents to us describing how one
|
||
organization filed suit against agents for allegedly confiscating
|
||
electronic mail illegally. The case raises a number of important issues to
|
||
computerists, including the status of E-mail as private communication, the
|
||
scope of investigatory authority of law enforcement agents in confiscating
|
||
computer "symbols," and other facets of investigation of the use of
|
||
computers when an alleged crime has occured.
|
||
|
||
We encourage article-type responses to the any of the many issues raised
|
||
here.
|
||
|
||
**********************************
|
||
PART 1 of 4
|
||
**********************************
|
||
|
||
From _The Press-Enterprise_ Saturday, Feb 24, 1990
|
||
|
||
(Posted by Alcor member Keith Henson without permission)
|
||
|
||
ALCOR FILES SUIT OVER ELECTRONIC MAIL SEIZURE
|
||
|
||
By David Bloom, The Press-Enterprise
|
||
|
||
Another legal battle has erupted between Alcor Life Extension Foundation
|
||
and the law, this time with a federal lawsuit filed by Alcor over the
|
||
seizure more than two years ago of computerized "electronic mail" during a
|
||
search of the group%s Riverside headquarters.
|
||
|
||
Alcor members pay up to $100,000 for the privilege of have their bodies
|
||
put in cryonic suspension, frozen at temperatures hundreds of degrees below
|
||
zero, after their death. The members hope developing medical technology
|
||
will one day enable the to be revived and cured.
|
||
|
||
The group ran afoul of local law enforcement officials, however, after
|
||
the cryonic suspension of the head of Dora Kent in December 1987.
|
||
|
||
The Riverside County coroner's Office accused Alcor members of hastening
|
||
along Kent's death with a lethal dose of barbiturates in preparation for
|
||
freezing. The group has denied the accusation, saying the provided only
|
||
"care and comfort" to the 83 year-old Kent in her last two days.
|
||
|
||
Law enforcement officers raided the Alcor headquarters on Riverside's
|
||
southwest edge in January 1988, searching for computer equipment, software
|
||
and related material, and for Kent's body parts, and any illegal drugs.
|
||
|
||
They found the equipment, but not Kent, whose head had been secreted
|
||
away, or any illegal drugs.
|
||
|
||
The most recent lawsuit was filed last month in U.S. District court in
|
||
Los Angeles. It accuses a dozen Riverside City and County law enforcement
|
||
officials of violating the Electronic Communication Privacy Act of 1986.
|
||
|
||
The suit says police illegally seized the electronic mail of 14 Alcor
|
||
members when it seized the computer equipment. A copy of the search
|
||
warrant included as an exhibit in the suit does not mention electronic
|
||
mail.
|
||
|
||
The suit asked for at least $10,000 for each of the alcor member who
|
||
filed the suit. Most to the same members filed a claim against the city 11
|
||
months ago, but the city allowed the claim to expire without response after
|
||
45 days, said attorney John Porter, who is representing the city and two
|
||
policemen named in the suit.
|
||
|
||
"This lawsuit was filed in federal court," Porter said. "It should have
|
||
been filed the Twilight Zone."
|
||
|
||
The attorney for Alcor could not be reach for comment late yesterday.
|
||
|
||
Date: Tue, 27-Mar-90 20:17:46 PST
|
||
|
||
From _The Press-Enterprise_ Saturday, Feb 24, 1990
|
||
|
||
(Posted by Alcor member Keith Henson without permission)
|
||
|
||
ALCOR FILES SUIT OVER ELECTRONIC MAIL SEIZURE
|
||
|
||
By David Bloom, The Press-Enterprise
|
||
|
||
Another legal battle has erupted between Alcor Life Extension Foundation
|
||
and the law, this time with a federal lawsuit filed by Alcor over the
|
||
seizure more than two years ago of computerized "electronic mail" during a
|
||
search of the group%s Riverside headquarters.
|
||
|
||
Alcor members pay up to $100,000 for the privilege of have their bodies
|
||
put in cryonic suspension, frozen at temperatures hundreds of degrees below
|
||
zero, after their death. The members hope developing medical technology
|
||
will one day enable the to be revived and cured.
|
||
|
||
The group ran afoul of local law enforcement officials, however, after
|
||
the cryonic suspension of the head of Dora Kent in December 1987.
|
||
|
||
The Riverside County coroner's Office accused Alcor members of hastening
|
||
along Kent's death with a lethal dose of barbiturates in preparation for
|
||
freezing. The group has denied the accusation, saying the provided only
|
||
"care and comfort" to the 83 year-old Kent in her last two days.
|
||
|
||
Law enforcement officers raided the Alcor headquarters on Riverside's
|
||
southwest edge in January 1988, searching for computer equipment, software
|
||
and related material, and for Kent's body parts, and any illegal drugs.
|
||
|
||
They found the equipment, but not Kent, whose head had been secreted
|
||
away, or any illegal drugs.
|
||
|
||
The most recent lawsuit was filed last month in U.S. District court in
|
||
Los Angeles. It accuses a dozen Riverside City and County law enforcement
|
||
officials of violating the Electronic Communication Privacy Act of 1986.
|
||
|
||
The suit says police illegally seized the electronic mail of 14 Alcor
|
||
members when it seized the computer equipment. A copy of the search
|
||
warrant included as an exhibit in the suit does not mention electronic
|
||
mail.
|
||
|
||
The suit asked for at least $10,000 for each of the alcor member who
|
||
filed the suit. Most to the same members filed a claim against the city 11
|
||
months ago, but the city allowed the claim to expire without response after
|
||
45 days, said attorney John Porter, who is representing the city and two
|
||
policemen named in the suit.
|
||
|
||
"This lawsuit was filed in federal court," Porter said. "It should have
|
||
been filed the Twilight Zone."
|
||
|
||
The attorney for Alcor could not be reach for comment late yesterday.
|
||
|
||
Subject: Re: ECPA suit-court filing
|
||
Date: Tue, 27-Mar-90 20:18:18 PST
|
||
|
||
|
||
CHRISTOPHER ASHWORTH, A Member of
|
||
GARFIELD, TEPPER, ASHWORTH & EPSTEIN
|
||
1925 Century Part East, Suite 1250
|
||
Los Angeles, California 90067
|
||
Telephone: (213) 277-1981
|
||
|
||
Attorneys For Plaintiffs
|
||
|
||
UNITED STATES DISTRICT COURT
|
||
FOR THE CENTRAL DISTRICT OF CALIFORNIA
|
||
|
||
Case NO. SA CV90-021 JSL (RwRx)
|
||
|
||
COMPLAINT FOR
|
||
DECLARATORY RELIEF
|
||
AND DAMAGES
|
||
(Electronic
|
||
Communications Privacy
|
||
Act of 1986;
|
||
18 U.S.C. Section 2701,
|
||
et seq.)
|
||
|
||
|
||
H. KEITH HENSON, HUGH L. HIXON,
|
||
JR., THOMAS K. DONALDSON, NAOMI
|
||
REYNOLDS, ROGER GREGORY, MICHAEL G.
|
||
FEDEROWITCZ, STEVEN B. HARRIS,
|
||
BRIAN WOWK, ERIC GEISLINGER,
|
||
CATH WOOF, BILLY H. SEIDEL,
|
||
ALLEN J. LOPP, LEE CORBIN
|
||
RALPH MERKEL, AND KEITH LOFTSTROM
|
||
|
||
Plaintiffs,
|
||
|
||
v.
|
||
|
||
RAYMOND CARRILLO, SCOTT HILL,
|
||
DAN CUPIDO, ALAN KUNZMAN, ROWE
|
||
WORTHINGTON, RICHARD BOGAN,
|
||
REAGAN SCHMALZ, GROVER TRASK, II,
|
||
ROBERT SPITZER, LINFORD L.
|
||
RICHARDSON, GUY PORTILLO,
|
||
individuals, and the COUNTY OF
|
||
RIVERSIDE, a subdivision of the
|
||
State of CAlifornia, And the CITY
|
||
OF RIVERSIDE, a municipal entity,
|
||
and DOES 1 through 100 inclusive,
|
||
Defendants.
|
||
|
||
Plaintiffs complain of defendants as follows:
|
||
JURISDICTIONAL ALLEGATION
|
||
|
||
1. This case arises under an Act of Congress, namely
|
||
the Electronic Communication Privacy Act of 1986; U.S.C. Section
|
||
2701, et Seq., and in particular, the civil enforcement
|
||
Provisions thereof, 18 U.S.C. Section 2707. Venue is proper in this
|
||
Court in that all of the defendants reside in this district.
|
||
|
||
COMMON ALLEGATIONS
|
||
|
||
2. Plaintiffs are all individuals residing in
|
||
various point and places in the United States. [except Brian
|
||
Wowk who resides in Canada.]
|
||
3. Defendants Carrillo, Hill, Cupido, Kuntzman,
|
||
Worthington, Bogan, Schmalz, Trask, Spitzer, Hinman and Mosley
|
||
are all employees of defendant County of Riverside, and at all
|
||
times material, were acting within the course and scope of their
|
||
employment. Defendants Richardson and Portillo are all
|
||
employees of defendant City of Riverside and at all times
|
||
material, were acting within the course and scope of their
|
||
employment. Defendant County of Riverside ["county'] is a
|
||
political subdivision of the State of California. Defendant
|
||
City of Riverside ["city'] is a municipal entity located within
|
||
California.
|
||
Defendants Carrillo, Hill, Cupido, Kuntzman,
|
||
Worthington, Bogan, and Schmalz are employed by defendant County
|
||
in the Office of the Riverside County Coroner. Defendants
|
||
Trask, Spitzer, Hinman and Mosley are employed by the said
|
||
county in the office of the District Attorney, Defendants
|
||
Richardson and Portillo are employed by defendant City in the
|
||
Riverside Police Department.
|
||
|
||
-------------------
|
||
|
||
4. All of the events complained of herein occurred
|
||
within two years of the date of filing of the complaint.
|
||
At all times material, Alcor Life Extension
|
||
Foundation, a non-Profit corporation with its principal place of
|
||
business in Riverside County, maintained facilities at its place
|
||
of business whose purpose was to (in part) facilitate the
|
||
sending and receipt of electronic mail ["E-mail"] via computer-
|
||
driven modems and which electronic mail facility was utilized by
|
||
the plaintiffs, and each of them. The Alcor Facility is remote in
|
||
geographical location from all plaintiffs.
|
||
5. At all times material, each plaintiff had one or
|
||
more E-mail messages abiding on electron or magnetic medial at
|
||
the Alcor facility. Prior to [actually on] January 12, 1988, defendants
|
||
procured from the Riverside Superior Court a search warrant
|
||
which authorized, in general, a search of the facilities of
|
||
Alcor. A true and correct copy of that search warrant is
|
||
attached hereto and marked Exhibit "A". The search warrant does
|
||
not purport to reach, nor was it intended to reach, any of the
|
||
E-mail of plaintiffs.
|
||
6. On January 12, 1988, defendant entered upon the
|
||
Alcor premisses and removed many things therefrom including the
|
||
electronic media containing plaintiffs' E-mail.
|
||
7. Contemporaneously with the seizure of the
|
||
electronic media containing plaintiffs' E-mail, defendants were
|
||
explicitly informed that they were seizing plaintiffs' E-mail
|
||
which was not described either generally or specifically in the
|
||
warrant hereinabove referred to.
|
||
|
||
--------------
|
||
|
||
8. No notice was given to any plaintiff by any
|
||
defendant of the impending seizure of their E-mail.
|
||
9. In the process of procuring the warrant, neither
|
||
the defendants nor anyone else made any showing that there
|
||
was reason to believe that the contents of any of plaintiffs' E-
|
||
mail was relevant to any law enforcement inquiry.
|
||
10. Subsequent to the execution of the warrant on
|
||
January 12, 1988, no notice was given to any plaintiff by any
|
||
government entity, including the defendants, nor any
|
||
defendant herein, at any time, regarding the defendants
|
||
acquisition and retention of plaintiffs' E-mail.
|
||
11. The court issuing the warrant in respect of the
|
||
Alcor facility did not, prior to the issuance of the warrant nor
|
||
at any other time, determine that notice to plaintiffs
|
||
compromised any legitimate investigation within the meaning of 18
|
||
U.S.C. section 2705(a)(2).
|
||
12. Not withstanding that defendant and each of them
|
||
were informed that they had taken, along with materials
|
||
describe in the warrant, E-mall belonging to plaintiffs, said
|
||
defendants knowingly and willfully (a) continued to access the
|
||
electronic and magnetic media containing plaintiffs' E-mail and
|
||
(b) continued to deny access to plaintiffs to such E-mail for
|
||
many months although a demand was made for the return of the
|
||
said E-mail. Defendants' wrongful access to and retention of
|
||
plaintiffs' E-mail was intentional within the meaning of 18
|
||
U.S.C. section 2707.
|
||
|
||
--------------
|
||
|
||
13. Proximately caused by the unprivileged actions of
|
||
the defendants hereinbefore described, each plaintiff has
|
||
suffered damage in an amount to be proved at trial, but in no
|
||
event less than $10,000 each.
|
||
WHEREFORE plaintiffs pray:
|
||
1. For damages according to proof;
|
||
2. For cost of suit;
|
||
3. For Attorneys' fees pursuant to 18 U.S.C.
|
||
section 2707(b)(3); and
|
||
4. For such other and further relief as is required
|
||
in the circumstances.
|
||
|
||
Date: January 11, 1990
|
||
|
||
|
||
GARFIELD, TEPPER, ASHWORTH, AND EPSTEIN
|
||
A Professional Corporation
|
||
|
||
(signed)
|
||
CHRISTOPHER ASHWORTH
|
||
Attorneys for Plaintiffs
|
||
|
||
--------------
|
||
|
||
Exhibit "A"
|
||
|
||
COUNTY OF RIVERSIDE, STATE OF CALIFORNIA
|
||
SEARCH WARRANT
|
||
|
||
To any Sheriff, Police Officer, Marshal or Peace Officer
|
||
in the County of Riverside.
|
||
|
||
Proof, by sworn statement, having been made this day
|
||
to me by Alan Kunzman and it appearing that there is
|
||
probable cause to believe that at the place and on the
|
||
persons and in the vehicle(s) set forth herein there
|
||
is now being concealed property which is:
|
||
|
||
____ stolen or embezzled property
|
||
__x__ property and things used to commit a felony
|
||
__x__ property possessed (or being concealed by another)
|
||
with intent to commit a public offense
|
||
__x__ property tending to show a felony was committed;
|
||
YOU ARE THEREFORE COMMANDED TO SEARCH : the
|
||
premises located at
|
||
|
||
[description of Alcor address at 12327 Doherty St.]
|
||
|
||
including all rooms attics, basements, storage areas, and
|
||
other parts therein, garages, grounds and outbuilding and
|
||
appurtenances to said premises; vehicles(s) described as
|
||
follows:
|
||
(not applicable)
|
||
and the persons of (not applicable)
|
||
for the following property:
|
||
|
||
1. All electronic storage devices, capable of storing,
|
||
electronic data regarding the above records,
|
||
including magnetic tapes, disc, (floppy or hard),
|
||
and the complete hardware necessary to retrieve
|
||
electronic data including CPU (Central Processing
|
||
Unit), CRT (viewing screen, disc or tape drives(s),
|
||
printer, software and service manual for operation
|
||
of the said computer, together with all handwritten
|
||
notes or printed material describing the
|
||
operation of the computers (see exhibit A - search
|
||
warrant no., 1 property to be seized #1)
|
||
|
||
2. Human body parts identifiable or belonging to
|
||
the deceased, Dora Kent.
|
||
|
||
3. Narcotics, controlled substances and other
|
||
drugs subject to regulation by the Drug
|
||
Enforcement Administration.
|
||
|
||
|
||
article of personal property tending to establish the identity
|
||
of person in control of premise, vehicle, storage areas,
|
||
and containers being searched, including utility company
|
||
receipts, rent receipts, address envelopes and keys and to
|
||
SEIZE it if found and bring it forthwith before me or
|
||
this court at the courthouse of this court.
|
||
Good cause being shown this warrant my be served at any
|
||
time of the day or night as approve by my initials_________
|
||
|
||
Time of issuance _______ Time of execution __1600__
|
||
Given under my hand and dated this 12th day of January 1988
|
||
Thomas E. Hollenhorst Judge of the Superior Court
|
||
|
||
-------------
|
||
|
||
|
||
UNITED STATES DISTRICT COURT
|
||
CENTRAL DISTRICT OF CALIFORNIA
|
||
|
||
|
||
H. KEITH HENSON, see attachment "A"
|
||
PLAINTIFF(S)
|
||
|
||
vs.
|
||
|
||
RAYMOND CARRILLO, see attachment "A"
|
||
DEFENDANTS(S)
|
||
|
||
CASE NUMBER
|
||
|
||
SA CV- 90-021 JSL Rw Rx
|
||
|
||
SUMMONS
|
||
|
||
-----------------------------------------------
|
||
|
||
TO THE ABOVE NAMED DEFENDANT(S), your are hereby summoned and required to
|
||
file with this court and serv upon
|
||
Christopher Ashworth, Esq.
|
||
GARFIELD, TEPPER, ASHWORTH & EPSTEIN
|
||
A Professional Corporation
|
||
|
||
Plaintiff's attorney, whose address is:
|
||
|
||
1925 Century Park East, Suite 1250
|
||
Los Angeles, California 90067
|
||
(213) 277-1981
|
||
|
||
an answer to the complaint which is herewith serve upon you
|
||
within __20__ days after service of this summons upon you, exclusive
|
||
of the day of service. If you fail to do so, judgment by default
|
||
will be taken against you for the relief demanded in the complaint.
|
||
|
||
Date Jan. 11, 1990
|
||
|
||
CLERK, U.S. DISTRICT COURT
|
||
|
||
By MARIA CORTEZ
|
||
Deputy Clerk
|
||
(SEAL OF THE COURT)
|
||
%
|
||
Subject: Re: ECPA FBI suit--update--hot stuff
|
||
Date: Tue, 27-Mar-90 20:18:56 PST
|
||
|
||
|
||
|
||
The below is a typed-in copy of the response of William F. Murphy,
|
||
Assistant United States Attorney to my suit filed last December against
|
||
the FBI and the U.S. Attorney's office for their failure to enforce (or even
|
||
investigate) what I considered to be a violation of the ECPA. The full text
|
||
of the suit was posted in misc.legal in January and is still available by
|
||
email on request from hkhenson@cup.portal.com Comments, advice,
|
||
applicable cases, etc. are most welcome. A status conference is
|
||
scheduled for March 24. The motion to dismiss is set for April 14. It
|
||
states: "Pursuant to Rules 7(b)(1) and 12(b)(6), F.R. Civ.P. defendants
|
||
hereby move to dismiss this lawsuit for failure to state a claim for which
|
||
relief can be granted. In support of this motions, defendants respectfully
|
||
refer that attention to the Court and parties to the memorandum of Points
|
||
and Authorities submitted herewith.
|
||
|
||
<<< END OF PART 1 of #1.04 >>>
|
||
|
||
****************************************************************************
|
||
>C O M P U T E R U N D E R G R O U N D<
|
||
>D I G E S T<
|
||
*** Volume 1, Issue #1.04 (April 11, 1990) **
|
||
-- Part 2 of 4 --
|
||
** ALCOR'S SUIT AGAINST E-MAIL CONFISCATION **
|
||
****************************************************************************
|
||
|
||
MODERATORS: Jim Thomas / Gordon Meyer
|
||
REPLY TO: TK0JUT2@NIU.bitnet
|
||
|
||
COMPUTER UNDERGROUND DIGEST is an open forum dedicated to sharing
|
||
information among computerists and to the presentation and debate of
|
||
diverse views.
|
||
--------------------------------------------------------------------
|
||
DISCLAIMER: The views represented herein do not necessarily represent the
|
||
views of the moderators. Contributors assume all responsibility
|
||
for assuring that articles submitted do not violate copyright
|
||
protections.
|
||
--------------------------------------------------------------------
|
||
|
||
|
||
In This Issue:
|
||
|
||
Issue #1.04 is long--over 2,100 lines--so we have broken it down
|
||
into four smaller files.
|
||
Keith Henson sent these public documents to us describing how one
|
||
organization filed suit against agents for allegedly confiscating
|
||
electronic mail illegally. The case raises a number of important issues to
|
||
computerists, including the status of E-mail as private communication, the
|
||
scope of investigatory authority of law enforcement agents in confiscating
|
||
computer "symbols," and other facets of investigation of the use of
|
||
computers when an alleged crime has occured.
|
||
|
||
We encourage article-type responses to the any of the many issues raised
|
||
here.
|
||
|
||
**********************************
|
||
PART 2 of 4
|
||
**********************************
|
||
|
||
-------------------------------------------------------------------
|
||
|
||
|
||
Boilerplate, case # C-88-20788
|
||
|
||
|
||
|
||
H. Keith Henson, et al.,
|
||
|
||
Plaintiffs,
|
||
|
||
v.
|
||
|
||
Federal Bureau of
|
||
|
||
Investigation, et al.,
|
||
|
||
Defendants.
|
||
|
||
|
||
|
||
DEFENDENTS' MEMORANDUM OF POINT AND AUTHORITIES
|
||
|
||
IN SUPPORT OF THEIR MOTION TO DISMISS
|
||
|
||
|
||
|
||
INTRODUCTION
|
||
|
||
|
||
|
||
On December 9, 1988, H. Keith Henson and others filed a suit against the
|
||
FBI, SA Ron Heller, the United States Attorney's Office, Los Angeles, CA,
|
||
and Michael Emick (Chief of Criminal Complaints of the US Attorney's
|
||
Office, Los Angeles) alleging that the FBI and the Department of Justice
|
||
(DOJ) have refused to investigate an alleged violation of federal law or
|
||
have refused to explain why the provisions of the statute alleged to be
|
||
violated do not apply. Plaintiffs request that the court enter judgment
|
||
against defendants ordering the FBI to fully investigate the circumstances
|
||
of the execution of a search warrant at 12327 Doherty Street, Riversde,
|
||
CA. In addition, the plaintiffs request that the court order the US
|
||
Attorney's office to file charges based on the results of the FBI
|
||
investigation, or provide a legal explanation as to the reasons the
|
||
provisions of the Title 18, U.S.C., Section 2701 are not applicable.
|
||
|
||
|
||
|
||
BACKGROUND
|
||
|
||
|
||
|
||
As stated in the Declaration of William F. Murphy, the facts are as
|
||
follows:
|
||
|
||
By letter dated April 5, 1988, H. Keith Henson (hearafter "Henson")
|
||
contacted the FBI office at Riverside, CA. The letter requested that the
|
||
FBI investigate the Riverside County, CA Coroner's office for violations of
|
||
Title 18, U. S. C. Section 2701 "Unlawful Access to Stored
|
||
Communications."
|
||
|
||
Henson alleged that the Riverside County Coroners's office removes a
|
||
computer, hard disk, and a modem used for electronic mail from the Alcor
|
||
Life Extension Foundation, (address) on Jan 12, 1988. Henson alleged that
|
||
this removal was illegal in that it violated Title 18, Section 2701 since
|
||
the warrant did not specify that the email was to be disclosed or
|
||
sequestered.
|
||
|
||
A search warrant was executed at (Alcor address) on Jan. 12, 1988. The
|
||
warrant was issued by a judge of the Riverside County Court and was
|
||
executed by members of the Riverside, CA police and coroner departments.
|
||
the FBI was not involved in that search or investigation.
|
||
|
||
The fact involved in the violation Henson alleged were presented to
|
||
Assistant United State Attorney (AUSA) Alka Sagar, Los Angeles, CA, by
|
||
FBI Special Agent (SA) Ron Heller on April 21, 1988. AUSA Sagar declined
|
||
prosecution in the matter by advision the proper remedy for Henson would
|
||
be to challenge the validity of the warrant in the Riverside County Court.
|
||
Further, AUSA Sagar advised that the was no showing that the officials
|
||
from the Riverside County Coroner's office had not complied with the
|
||
statute.
|
||
|
||
On April 21, 1988, SA Heller advised plaintiff Henson of the United
|
||
States Attorney's prosecutive opinion.
|
||
|
||
|
||
|
||
ARGUMENT
|
||
|
||
I. THE FBI IS NOT AN ENTITY AGAINST WHICH SUIT CAN BE BROUGHT
|
||
|
||
|
||
|
||
The Plaintiffs have named the FBI as a defendant in this lawsuit.
|
||
Congress has not constituted the FBI as a corporate body nor authorized it
|
||
to sue of be sued in its individual name. *Jones v. the FBI, 139 F.Supp. 38,
|
||
41 (d. Md. 1956), citing Blackman v. Guerre, 342 U.S. 512 (1952). Hense, if
|
||
the plaintiffs desire to sue the FBI and not the United States Government,
|
||
the suit should be dismissed against the FBI.
|
||
|
||
|
||
|
||
II SEPARATION OF POWERS PROVIDES FOR NO JUDICIAL REVIEW OF
|
||
PROSECUTORIAL DISCRETION
|
||
|
||
|
||
|
||
Plaintiffs seek to have the U.S. District Court order the FBI and named
|
||
Assistant United States Attorneys to prosecute alleged defendants whom
|
||
plaintiffs want prosecuted. Specifically, the plaintiffs seek a court order
|
||
that the FBI and Assistant Unites States Attorneys institute criminal
|
||
prosecution against individuals who plaintiffs believe have violated Title
|
||
18, U.S.C. 2701.
|
||
|
||
The Constitutions vest the power to initiate a criminal prosecution
|
||
exclusively in the Executive Branch. This power is encompassed within
|
||
the Executive power to "take care that the laws be faithfully executed."
|
||
The Executive has "exclusive authority and absolute discretion to decide
|
||
whether to prosecute a case." *In re Sealed Case*, 838 F.2d 476, 488 (D.C.
|
||
Cir. 1988), citing *United States v. Nixon*, 418 U.S. 683, 94 S.Ct. 3090, 41
|
||
L.Ed. 2d 1039 (1974); *United States v. Cox*, 342 F. 2d 167 (5th Cir.) (en
|
||
banc), *cert. denied*, 381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed. 2d 700 (1965).
|
||
This "power to decide when to investigate, and when to prosecute lies at
|
||
the core of the Executive's duty to seek the faithful execution of the laws."
|
||
*In re Sealed Case supra*, at 488, citing *Community for Creative
|
||
Non-Violence v. Pierce*, 786 F.2d 1199, 1201 (D.C. Cir. 1986).
|
||
|
||
Case law is clear that the Executive Branch has authority to supervise
|
||
the investigative stages of law enforcement conduct without
|
||
interference from the judicial branch. *United States v. Leja*, 563 F.2d
|
||
244 (6th Cir. 1977), *cert. denied*, 434 U.S. 174, (1978); *United States v.
|
||
Wallace*, 578 F.2d 735 (5th Cir.) *cert. denied, sun nom., Mitchell v.
|
||
United States*, 439 U.S. 898 (1978).
|
||
|
||
In *Moss v. Kennedy*, 219 F.Supp. 762 (D.D.C. 1963), *aff'd. sub. nom.
|
||
Moses v. Katzenbach*, 342 F.2d 931 (D.C. Cir. 1965) plaintiffs sought an
|
||
order directing the FBI as well as other defendants to arrest, imprison,
|
||
and instituted criminal prosecution against those person responsible for
|
||
deprivations of plaintiffs' rights. In refusing to grant the relief sought, the
|
||
court held that the actions plaintiffs sought were "clearly discretionary,
|
||
and decisions respecting such actions were committed to the Executive
|
||
Branch of the government, not to the courts." Id. at 764.
|
||
|
||
In explaining the reasons for limitations upon judicial power in this
|
||
area, the District Court noted:
|
||
|
||
Article II, Section 3 of the Constitution provides
|
||
that "(The President" shall take care that the laws (shall)
|
||
be faithfully executed." The prerogative of enforcing the
|
||
criminal law was vested by the Constitution, therefore,
|
||
not in the courts nor in private citizens, but squarely in
|
||
the executive arm of the government. Congress has
|
||
implemented that power of the President by conferring the
|
||
power and the duty to institute prosecution for Federal
|
||
offenses upon the United States Attorney for each district.
|
||
28 U.S.C.A. Section 507. In exercising his power, the
|
||
United States Attorney acts in an administrative capacity
|
||
as the representative of the public.
|
||
It by no means follows, however, that the duty to
|
||
prosecute follows automatically from the presentations of
|
||
complaint. The United States Attorney is not a rubber stamp.
|
||
His problems are not solved by the strict application of an
|
||
inflexible formula. Rather, their solution calls for the
|
||
exercise of judgment.
|
||
There are a number of elements in the equations, and all
|
||
of them must be carefully considered. Paramount among
|
||
them is a determination that a prosecution will promote
|
||
the ends of justice, instill respect for the law, and advance
|
||
the cause of ordered liberty.
|
||
Other considerations are the likelihood of conviction,
|
||
Turning on the choice of a strong case to test the uncertain
|
||
law, the degree of criminality, the weight of the
|
||
evidence, the credibility of witnesses, precedent, policy,
|
||
the climate of public opinion, timing, and the relative
|
||
gravity of the offense. In weighting these factors, the
|
||
prosecution must apply responsible standards, based not
|
||
on loose assumptions but on solid evidence balancing in a
|
||
scale demanding proof beyond a reasonable doubt to
|
||
overcome the presumption of innocence. *Plugh v.
|
||
Klein*. 193 F.Supp. 630, 634-5 (D.D.C 1961)
|
||
|
||
|
||
*Moses v. Kennedy*, 219 F. Supp. at 764-765.
|
||
|
||
The law is clear that the executive branch has broad discretion to decide
|
||
whom to prosecute. *Wayte v. United States*, 470 U.S. 598 (1985);
|
||
*United States v. Lee, 786 F.2d 951 (9th Cir. 1986). As a general
|
||
proposition, Federal courts do not involve themselves in a prosecuting
|
||
attorney's decision to prosecute, and a particular prosecution cannot be
|
||
compelled. *Nathan V. Smith*, 737 F.2d 1069 (D.C. Cir. 1984); *Littleton v.
|
||
Berbling, 468 F.2d 389 (7th Cir. 1972); *Peek v. Mitchell*, 419 F.2d 575
|
||
(6th Cir. 1970); *Fleetwood v. Thompson*, 358 F.Supp. 310 (N.D. Ill. 1972);
|
||
*Massey v. Smith*, 555 F.2d 1355 (8th Cir. 1977).
|
||
|
||
|
||
|
||
CONCLUSION
|
||
|
||
|
||
|
||
This court is without authority to enter a Declaratory Judgement
|
||
compelling the FBI to investigate and ordering Assistant United States
|
||
Attorneys, Central District of California to prosecute. Consequently,
|
||
plaintiffs' Complaint fails to state a claim for which relief can be granted.
|
||
|
||
Dated: March 14, 1989
|
||
|
||
|
||
|
||
Signatures, etc.
|
||
|
||
|
||
|
||
(spelling errors above are most likely mine, case numbers were checked--
|
||
the section below was knocked out without the aid of a spell checker or
|
||
editor, please excuse HKH)
|
||
|
||
|
||
|
||
My reply arguments:
|
||
|
||
|
||
Advice by Alka Sagar that "proper remedy for Henson would be to
|
||
challenge the validity of the warrant in the Riverside County Court" was
|
||
invalid. Henson was not mentioned in the warrant, and in fact, this is the
|
||
root of plaintiffs' objections. Legal advise is that, while they could sue
|
||
Alcor for failing to protect the privacy of their email, plaintiffs have no
|
||
standing under the law to attack the validity of the warrant. (Note, I could
|
||
use help on this point)
|
||
|
||
|
||
Alka Sagar's advising "that there was no showing that the officials from
|
||
the Riverside County Coroner's office had not complied with the statute."
|
||
was, from her viewpoint, true. There was also no showing that the
|
||
officials *had* complied with the statute. In a conversation with Henson,
|
||
she acknowledged that she had no written report from the FBI, knew
|
||
nothing about the statute, and was almost unable to remember that she had
|
||
had a conversation with SA Heller on the Monday following the date of her
|
||
"decision."
|
||
|
||
|
||
Argument 1
|
||
|
||
|
||
If the FBI cannot be sued, who was the target of the class action suit
|
||
that 308 Hispanic FBI officers filed against the FBI? (cited in the
|
||
California Magazine's Oct. 1988 article, "The Gang That Couldn't Smoke,
|
||
Drink, or Shoot Straight" (subtitled--How the Morman Mafia turned the
|
||
FBI's L.A. office into the laughingstock of law enforcement.) Need to get a
|
||
ref number on this case!
|
||
|
||
|
||
|
||
Argument 2
|
||
|
||
|
||
|
||
The characterization of the plaintiffs prayer in paragraph 1 of Argument
|
||
II is exaggerated. Plaintiffs are not seeking a court order "that the FBI and
|
||
Assistant United States Attorneys institute criminal prosecution against
|
||
individually whom plaintiffs believe have violated Title 28, U.S.C., 2701."
|
||
|
||
Plaintiffs argue that the FBI shirked its duty to investigate, that no
|
||
investigation of the plaintiffs complaints was actually done. While the
|
||
extent of an investigation is administratively determined by the Executive
|
||
branch of government, it would seem to be within the mandamus authority
|
||
of the court to find that*no* investigation at all into a citizens detailed
|
||
complaint that the law has been violated, is not an acceptable response
|
||
from a law enforcement agency. This is especially true when another law
|
||
enforcement agency is involved, given the natural tendency of law
|
||
enforcement personnel to stick together and overlook the criminal
|
||
activities of fellow agencies.
|
||
|
||
As evidence to this point, no written investigation report was supplied
|
||
to Alka Sagar prior to her "determination." Discovery may find that a
|
||
phone call or two was made by SA Heller, or it may fail to find even that
|
||
minimal an investigation. SA Heller seems to have determined from the
|
||
documents supplied by plaintiff Henson that no investigation was
|
||
warented because another law enforcement agency was involved.
|
||
|
||
With respect to the U.S. Attorney's Office, if they had the results of an
|
||
actual investigation in hand, they might file charges on their own initiative.
|
||
In the more likely case that they do not, it would seem reasonable (given
|
||
the newness of this law, and their connivance with the FBI) for this Court
|
||
to require (or perhaps strongly "request") a legal argument from them as to
|
||
the reason(s) this case should not be prosecuted. This would provide
|
||
useful feedback to Congress. For example, an interpretation by the U.S.
|
||
Attorney's office in agreement with SA Heller that a warrant to take a
|
||
computer will suffice to examine or sequester any electronic mail found
|
||
within it, would greatly clarify (i.e. eliminate) the scope of the Fourth
|
||
Amendment protection citizens could expect from this section of the law.
|
||
It might be noted that, as a result of the publicity in computer circles this
|
||
case has received, several other cases have come to the attention of the
|
||
plaintiffs. The FBI has investigated *none* of the cases known to the
|
||
plaintiffs which have been presented to its agents. Perhaps the Post
|
||
Office would be a better agency to be charged with enforcing the
|
||
Electronic Communication Privacy Act since the intent of the lawmakers
|
||
(see testimony by Senator Leahy quoted in the complaint) was to provide
|
||
protection for electronic mail similar to that enjoyed by regular First
|
||
Class mail.
|
||
|
||
|
||
|
||
Given the rising importance of electronic mail, which may catch up the
|
||
volume of regular first class mail in the next few years, this case would
|
||
seem a golden opportunity to clarify the underlying Fourth Amendment
|
||
issues.
|
||
%
|
||
Subject: Re: Response to gov motion to dismiss
|
||
Date: Tue, 27-Mar-90 20:20:05 PST
|
||
|
||
|
||
H. KEITH HENSON
|
||
1794 Cardel Way
|
||
San Jose, CA 95124
|
||
(408) 978-7616
|
||
|
||
THOMAS K. DONALDSON
|
||
1410 Norman Dr.
|
||
Sunnyvale, CA 94087
|
||
(408) 732-4234
|
||
|
||
ROGER E. GREGORY
|
||
2040 Columbia St.
|
||
Palo Alto, CA 94306
|
||
(415) 493-7582
|
||
|
||
U. S. DISTRICT COURT
|
||
NORTHERN DISTRICT OF CALIFORNIA
|
||
|
||
H. KEITH HENSON, THOMAS K. )
|
||
DONALDSON, and ROGER E. GREGORY, )
|
||
on behalf of themselves and as )
|
||
representatives of others ) PLAINTIFFS' RESPONSE
|
||
similarly affected, ) TO DEFENDANTS'
|
||
) MOTION TO DISMISS
|
||
Plaintiffs, )
|
||
)
|
||
vs. ) NO. C-88-20788 RPA
|
||
)
|
||
)
|
||
FEDERAL BUREAU OF INVESTIGATION, ) ENFORCEMENT OF
|
||
RON HELLER, U. S. ATTORNEY OFFICE ) PROVISIONS OF THE
|
||
Los Angeles, MICHAEL EMICK, and ) ELECTRONIC
|
||
DOES 1 TO 100, inclusive, ) COMMUNICATION
|
||
) PRIVACY ACT.
|
||
)
|
||
Defendants. ) CLASS ACTION
|
||
---------------------------------------)
|
||
|
||
INTRODUCTION
|
||
|
||
On March 14, 1989 Defendants' counsel William F. Murphy
|
||
responded to suit filed against FBI, SA Ron Heller, the United
|
||
States Attorney's Office, Los Angeles, California, and Michael
|
||
Emick, Chief of Criminal Complaints of that office. The response
|
||
was in the form of a Declaration by William F. Murphy, a Motion
|
||
to Dismiss, and a Memorandum of Points and Authorities
|
||
in Support of their Motion to Dismiss.
|
||
PLAINTIFFS' RESPONSE TO THE DECLARATION
|
||
Plaintiffs find no disagreement with the first numbered
|
||
section of the Declaration.
|
||
Under the second numbered section, plaintiffs would
|
||
accept with the addition to the last sentence " . . . since the
|
||
warrant did not specify that the electronic mail was to
|
||
disclosed or sequestered *or name the individuals whose
|
||
electronic mail was to be disclosed or sequestered as is
|
||
required under this law which cites the Federal Rules of
|
||
Criminal Procedure.*
|
||
Plaintiffs have no disagreements with the third
|
||
numbered section.
|
||
Plaintiffs strongly disagree with the first sentence of
|
||
the fourth numbered section. We do not believe the facts were
|
||
determined by the FBI or fairly presented to AUSA Alka Sagar by
|
||
SA Ronald Heller on April 21. Ms. Sagar was unable to recall
|
||
the case or the basis for rejecting it on Monday April 25, and
|
||
did not indicate that any written investigation report about the
|
||
case was available to her.
|
||
Plaintiffs cite as supporting evidence showing that
|
||
facts were not presented to AUSA Sagar in the second sentence:
|
||
"AUSA Sagar declined prosecution in this matter by advising that
|
||
the proper remedy for Henson would be to challenge the validity
|
||
of the warrant in the Riverside County Court." Henson (and
|
||
other plaintiffs) were not cited in the warrant, were not
|
||
arrested, and were not under investigation. Thus, while
|
||
plaintiffs might have been able to sue for return of stored
|
||
electronic communications in civil Court, they had no standing
|
||
to challenge the validity of the warrant.
|
||
Plaintiffs further note the third sentence as supporting
|
||
evidence suggesting that the facts were not presented to AUSA
|
||
Sagar: " . . . advised that there was no showing that the
|
||
officials from the Riverside County Coroner's office had not
|
||
complied with the statute." Not a single point of Henson's
|
||
April 5, 1988 letter alleging violation of Section 2701 is
|
||
refuted by this statement. If this letter was not made
|
||
available to AUSA Sagar, it provides further evidence that the
|
||
facts were not presented to her.
|
||
Numbered section 5 of the declaration notes that on
|
||
April 21, 1988 SA Heller advised plaintiff Henson of the United
|
||
States Attorney's prosecutive opinion. Plaintiff Henson's
|
||
letter of April 22, 1988 cites the reason SA Heller provided,
|
||
that the warrant used to take the computer permitted disclosing
|
||
or preventing access to all the stored electronic communications
|
||
within it. Setting a precedent of this magnitude belongs to the
|
||
Courts, not minor functionaries of the bureaucracy.
|
||
PLAINTIFFS' RESPONSE TO DEFENDANTS' MEMORANDUM OF POINTS
|
||
AND AUTHORITIES IN SUPPORT OF THEIR MOTION TO DISMISS
|
||
In the introductory section Plaintiffs' position is
|
||
distorted by dropping the word "either" from the summary of
|
||
Plaintiffs' prayer. Based on an actual investigation of the
|
||
facts involved, the U.S. Attorney might file charges. If they
|
||
declined, it is certainly within the power of the Court to ask
|
||
for explanations from officers of the Court, even if they work
|
||
for the executive branch of government.
|
||
The BACKGROUND section is a copy of material already
|
||
discussed. To summarize plaintiffs' objections to the second to
|
||
last paragraph which starts "The facts . . .", plaintiffs
|
||
believe that the facts were not determined by the FBI, or
|
||
presented to AUSA Sagar, and that any decisions made in this
|
||
situation by the U.S. Attorney's office were without foundation.
|
||
PLAINTIFF'S RESPONSE TO ARGUMENT I
|
||
Plaintiffs request permission of the Court to amend the
|
||
suit, replacing "FBI" with "United States Government."
|
||
PLAINTIFF'S RESPONSE TO ARGUMENT II
|
||
Defendants' characterization of the prayers of the
|
||
plaintiffs is distorted. Plaintiffs do not "seek to have the
|
||
U.S. District Court order the FBI and named Assistant United
|
||
States Attorneys to prosecute alleged defendants whom plaintiffs
|
||
want prosecuted." It is not the function of the FBI to
|
||
prosecute anyone, and plaintiffs know this. It *is* the
|
||
function of the FBI to investigate reports of violations of law,
|
||
even if the violators are themselves law enforcement agents.
|
||
It is plaintiffs' contention that no actual
|
||
investigation was carried out after the alleged crime was
|
||
reported. Plaintiffs' contention rests on several items
|
||
attached to the original complaint, and one received since the
|
||
complaint was filed (attached). Communication from the U.S.
|
||
Attorney's Office or the Justice Department has been seriously
|
||
confused as to the near and remote facts surrounding the case.
|
||
Plaintiffs' contention is, however, informed opinion, and not
|
||
fact. Defendants could submit (even in camera) dated records of
|
||
an investigation and dated written reports to Assistant U.S.
|
||
Attorney Sagar and show plaintiffs' contention incorrect.
|
||
While case law may be clear that the Executive Branch
|
||
has authority to supervise the investigation stages of law
|
||
enforcement conduct without interference from the judicial
|
||
branch, this presumes lawful conduct on the part of the
|
||
investigators, and not an informal "you scratch my back, and
|
||
I'll scratch yours" between law enforcement agencies. The FBI
|
||
is also not permitted to usurp the powers of the legislative and
|
||
judicial branches by redefining the laws, so as to eliminate the
|
||
requirement to investigate or enforce them.
|
||
The Electronic Communication Privacy Act has been law
|
||
for three years now. There is no case law on Section 2701, and
|
||
no cases (of which the plaintiffs are aware) are pending, or in
|
||
investigative stages. This is not due to a lack of lawbreaking
|
||
(plaintiffs are aware of a number of cases), but is due to
|
||
systematic refusal to investigate by the FBI. As best
|
||
plaintiffs have been able to determine, there is complete
|
||
disregard for reported violations of the stored electronic
|
||
communications provisions of the law.
|
||
In *Akzona Inc. v. I.E. du Pont de Numours & Comp.*, 662
|
||
F.2d 604 (D.D.C 1987) the Court stated "The Declaratory Judgment
|
||
Act has broad remedial purpose, and should be construed
|
||
liberally."
|
||
In *Manley, Bennett, Mcdonald & Company v. St. Paul Fire
|
||
and Marine Ins. Co.,* 791 F.2d 460 (1986) the Court stated: "In
|
||
deciding whether case is suitable for declaratory judgment,
|
||
Court will look at such factors as whether judgment would settle
|
||
controversy, whether declaratory action would serve useful
|
||
purpose in clarifying legal relations at issue . . . "
|
||
On the contention of SA Heller that stored electronic
|
||
communications within a computer can be seized without a warrant
|
||
for these communications if there is a valid warrant for the
|
||
computer, plaintiffs would prefer a clarifying declaratory
|
||
judgment on this point to no ruling, even if it were against
|
||
them.
|
||
RESPONSE TO DEFENDANTS' CONCLUSION
|
||
Even if it is the conclusion of the Court that it cannot
|
||
enter a Declaratory Judgment compelling the FBI to investigate,
|
||
it lies within the power of the Court to find out if the FBI did
|
||
actually investigate this reported incidence and supplied
|
||
factual information to the U.S. Attorney's office. It would
|
||
seem to lie within its power to require from officers of the
|
||
Court legal argument as to the non-applicability of the law to
|
||
the events alleged.
|
||
In addition, the law in regard to the stored electronic
|
||
communications provisions of the Electronic Communications
|
||
Privacy Act needs clarification. Is SA Heller's contention that
|
||
a warrant for a computer suffices to sequester or examine the
|
||
electronic mail of perhaps tens of thousands of people?
|
||
Plaintiffs therefore respectfully request that the Court
|
||
deny defendants' motion to dismiss.
|
||
H. KEITH HENSON
|
||
Dated April 7, 1989
|
||
RESPONSE TO MOTION TO DISMISS 17
|
||
|
||
|
||
<- END PART 2 of 4 ->
|
||
|
||
|
||
****************************************************************************
|
||
>C O M P U T E R U N D E R G R O U N D<
|
||
>D I G E S T<
|
||
*** Volume 1, Issue #1.04 (April 11, 1990) **
|
||
-- Part 3 of 4 --
|
||
** ALCOR'S SUIT AGAINST E-MAIL CONFISCATION **
|
||
****************************************************************************
|
||
|
||
MODERATORS: Jim Thomas / Gordon Meyer
|
||
REPLY TO: TK0JUT2@NIU.bitnet
|
||
|
||
COMPUTER UNDERGROUND DIGEST is an open forum dedicated to sharing
|
||
information among computerists and to the presentation and debate of
|
||
diverse views.
|
||
--------------------------------------------------------------------
|
||
DISCLAIMER: The views represented herein do not necessarily represent the
|
||
views of the moderators. Contributors assume all responsibility
|
||
for assuring that articles submitted do not violate copyright
|
||
protections.
|
||
--------------------------------------------------------------------
|
||
|
||
|
||
In This Issue:
|
||
|
||
Issue #1.04 is long--over 2,100 lines--so we have broken it down
|
||
into four smaller files.
|
||
Keith Henson sent these public documents to us describing how one
|
||
organization filed suit against agents for allegedly confiscating
|
||
electronic mail illegally. The case raises a number of important issues to
|
||
computerists, including the status of E-mail as private communication, the
|
||
scope of investigatory authority of law enforcement agents in confiscating
|
||
computer "symbols," and other facets of investigation of the use of
|
||
computers when an alleged crime has occured.
|
||
|
||
We encourage article-type responses to the any of the many issues raised
|
||
here.
|
||
|
||
**********************************
|
||
PART 3 of 4
|
||
**********************************
|
||
|
||
--------------------------------------------------------------------
|
||
|
||
|
||
Subject: Re: Text of ECPA suit
|
||
Date: Tue, 27-Mar-90 20:19:33 PST
|
||
|
||
|
||
|
||
H. KEITH HENSON
|
||
1794 Cardel Way
|
||
San Jose, CA 95124
|
||
(408) 978-7616
|
||
|
||
THOMAS K. DONALDSON
|
||
1410 Norman Dr.
|
||
Sunnyvale, CA 94087
|
||
(408) 732-4234
|
||
|
||
ROGER E. GREGORY
|
||
2040 Columbia St.
|
||
Palo Alto, CA 94306
|
||
(415) 493-7582
|
||
|
||
U. S. DISTRICT COURT
|
||
NORTHERN DISTRICT OF CALIFORNIA
|
||
|
||
H. KEITH HENSON, THOMAS K. )
|
||
DONALDSON, and ROGER E. GREGORY, )
|
||
on behalf of themselves and as )
|
||
representatives of others ) COMPLAINT FOR
|
||
similarly affected, ) DECLARATORY
|
||
) JUDGEMENT
|
||
Plaintiffs, )
|
||
)
|
||
vs. ) No.
|
||
)
|
||
)
|
||
FEDERAL BUREAU OF INVESTIGATION, ) ENFORCEMENT OF
|
||
RON HELLER, U. S. ATTORNEY OFFICE ) PROVISIONS OF THE
|
||
Los Angeles, MICHAEL EMICK, and ) ELECTRONIC
|
||
DOES 1 TO 100, inclusive, ) COMMUNICATION
|
||
) PRIVACY ACT.
|
||
)
|
||
Defendants. ) CLASS ACTION
|
||
)
|
||
|
||
INTRODUCTORY STATEMENT
|
||
|
||
1. On or about January 12, 1988 law enforcement officials
|
||
of Riverside County obtained plaintiffs' electronic
|
||
communications (electronic mail, email). From that date to
|
||
present plaintiffs have been prevented authorized access to
|
||
their electronic communications. Plaintiff Henson contacted
|
||
the FBI by phone in March 1988 and requested the FBI to
|
||
investigate this apparent violation of Federal law (Title 18,
|
||
Section 2701 et seq.) in a letter to Supervisor of Riverside
|
||
|
||
COMPLAINT 1
|
||
|
||
|
||
|
||
FBI Office Ron Heller April 5, 1988. (Attachment A). Request
|
||
was referred by the FBI without field investigation to the
|
||
U. S. Attorney's Office in Los Angeles. This office, following
|
||
the disinclination of the FBI to investigate, professed
|
||
disinterest. Plaintiff Henson was informed of "declined to
|
||
prosecute" decision of U. S. Attorney's office via telephone by
|
||
Mr. Heller. With advice from the other plaintiffs, Henson
|
||
responded to Mr. Heller (Attachment B) and also wrote Michael
|
||
Emick, Chief of Criminal Complaints, U. S. Attorney's Office,
|
||
Los Angeles, California on April 25. (Attachment C).
|
||
In a subsequent telephone call, Mr. Emick's assistant Mr.
|
||
Medrano promised a letter would be sent to Plaintiff Henson
|
||
supporting claim by U.S. Attorney's office that provisions of
|
||
the Electronic Communication Privacy Act were not violated, or
|
||
providing other reason(s) for declining prosecution. In spite
|
||
of attempts through Representative Norman M. Mineta and Senator
|
||
Pete Wilson (Attachments D, E, & F), and follow-up phone calls,
|
||
no substantive response to plaintiff's complaint re the
|
||
Electronic Communications Privacy Act of 1986 has been received
|
||
to the date of filing, from an FBI or Justice Department
|
||
representative (Attachments G, H, & I).
|
||
|
||
JURISDICTION
|
||
|
||
2. This Court has jurisdiction over this action pursuant
|
||
to U.S.C. 28, Sections 2201, 1331, and 1346.
|
||
PARTIES
|
||
3. Plaintiffs H. KEITH HENSON, THOMAS K. DONALDSON and
|
||
|
||
ROGER E. GREGORY are citizens of the United States, residents
|
||
|
||
of Santa Clara County, and were current users of electronic
|
||
|
||
|
||
COMPLAINT 2
|
||
|
||
|
||
mail service provided by Alcor Life Extension Foundation on
|
||
January 12, 1988.
|
||
|
||
4. Named defendants are agencies and employees of the
|
||
Government of the United States.
|
||
|
||
CLASS ACTIONS ALLEGATIONS
|
||
|
||
5. Plaintiffs bring this action as a class action
|
||
pursuant to Rule 23 (b)(2) of the Federal Rules of Civil
|
||
Procedure on behalf of themselves and the other users of
|
||
electronic mail who had their correspondence stored in this
|
||
computer. There are between 50 and 100 people in this class.
|
||
Some of them are not California residents, and at least one of
|
||
them is a citizen of another country. All are entitled to
|
||
protection under the provisions of the Electronic Communication
|
||
Privacy Act. A comprehensive list of the members of this class
|
||
cannot be obtained until the computer in which the list resides
|
||
has been returned.
|
||
|
||
An additional class is all users of electronic mail
|
||
in the United States who are entitled to privacy and Fourth
|
||
Amendment protection via the enforcement of the provisions of
|
||
this Act. This last class is so numerous as to make the
|
||
joinder of all members of the class completely impracticable.
|
||
However, due to the unique nature of the class, notification
|
||
of, and email replies from, a substantial fraction of this
|
||
class could be accomplished economically by posting notice
|
||
|
||
on the computer networks. Eleven thousand people are reported
|
||
|
||
to read the Usenet news group "misc.legal." Plaintiffs will
|
||
|
||
offer the widespread members of this class an opportunity to
|
||
join the action if instructed to do so by the Court.
|
||
|
||
|
||
COMPLAINT 3
|
||
|
||
|
||
|
||
FACTS
|
||
|
||
6. On or about January 12, 1988 certain law enforcement
|
||
agents (coroner's deputies) obtained and executed a warrant to
|
||
remove computers and related equipment from Alcor Life
|
||
Extension Foundation at 12327 Doherty St., Riverside, CA 92503.
|
||
|
||
(Attachment J)
|
||
|
||
7. One of these computers and a small number of
|
||
removable disks contained plaintiffs' electronic communications
|
||
as they are defined in the Electronic Communication Privacy
|
||
Act.
|
||
|
||
8. Law enforcement agencies in Riverside have prevented
|
||
authorized access to plaintiffs' electronic mail. An unknown
|
||
number of law enforcement personnel from the Coroner's Office,
|
||
the District Attorney's Office, and the Riverside City Police
|
||
have obtained plaintiffs' electronic communications in
|
||
electronic storage, and have prevented authorized access to
|
||
these communications, without Court orders or warrants which
|
||
would exempt them from the punitive provisions of Title 18,
|
||
Section 2701(b).
|
||
|
||
9. The warrant used to remove the computer and prevent
|
||
authorized access to Plaintiff's electronic mail did not meet
|
||
the provisions of Title 18, Section 2703. In particular, no
|
||
warrants were issued which provide for the disclosure or
|
||
sequestering of plaintiffs' (or any other) electronic mail.
|
||
|
||
10. The Federal Bureau of Investigation and the Justice
|
||
Department have refused to either investigate or provide an
|
||
explanation for why the provisions of the Electronic
|
||
Communications Privacy Act do not apply. Oral communications
|
||
|
||
|
||
COMPLAINT 4
|
||
|
||
|
||
|
||
with these agencies have produced the verbal argument that a
|
||
search warrant issued against a computer used for electronic
|
||
mail is equivalent to a search warrant issued against a post
|
||
office, where all mail within the walls of a post office could
|
||
be opened and read. Plaintiffs' counter arguments that such a
|
||
warrant would be similar to a "writ of assistance," and that
|
||
the Fourth Amendment requires "particularly describing" were
|
||
dismissed as frivolous.
|
||
|
||
11. Repeated efforts to resolve these issues through
|
||
administrative channels have failed. This matter has been
|
||
brought to the attention of this Court only after numerous
|
||
attempts have been made to obtain a substantive reply as to why
|
||
clear provisions of the law were deemed not applicable by the
|
||
FBI and Justice Department.
|
||
|
||
DISCUSSION
|
||
|
||
12. A substantial part of the reason Congress enacted
|
||
the Electronic Communications Privacy Act of 1986 was to
|
||
balance Fourth Amendment protection for users of electronic
|
||
mail with the needs of law enforcement agents to access this
|
||
rapidly growing new form of communications. The Justice
|
||
|
||
Department testified at length to avoid the cumbersome
|
||
provisions of Court orders needed for telephone taps. Congress
|
||
went along with the Justice Department and made the seizing of
|
||
electronic mail by law enforcement agents similar in procedure
|
||
to that required for seizing first class mail, that is,
|
||
dependent on a Rule 41 search warrant, or similar State
|
||
warrant. (See quotes of James Knapp, then Deputy Assistant
|
||
Attorney General, in Attachment C.)
|
||
|
||
COMPLAINT 5
|
||
|
||
|
||
Testimony before the House Subcommittee on Courts, Civil
|
||
|
||
Liberties, and the Administration of Justice makes it clear
|
||
|
||
that Congress was concerned about law enforcement agencies
|
||
abusing the Fourth Amendment rights of people who use
|
||
electronic mail. This is evidenced by testimony about the
|
||
Electronic Communications Privacy Act by Senator Leahy before
|
||
the House Subcommittee on September 26, 1985:
|
||
|
||
"There is no adequate legal protection against the
|
||
unauthorized access of electronic communications system
|
||
computers to obtain or alter the communications contained in
|
||
those computers.
|
||
|
||
. . . .
|
||
"Our bill . . . will help protect private communications
|
||
from interception by an eavesdropper, whether the eavesdropper
|
||
is a corporate spy, a police officer without probable cause, or
|
||
just a plain snoop."
|
||
|
||
The House and Senate Subcommittees wrote into the law only
|
||
|
||
a few exceptions from punishing someone who:
|
||
|
||
". . . intentionally accesses without authorization a
|
||
|
||
facility through which electronic communication service is
|
||
|
||
provided; or intentionally exceeds an authorization to access
|
||
|
||
that facility; and thereby obtains, alters, or prevents
|
||
|
||
authorized access to a wire or electronic communication while
|
||
|
||
it is in electronic storage . . . ."
|
||
|
||
In the case at hand, plaintiffs argue that the coroner's
|
||
|
||
deputies either had no authorization, or exceeded what they
|
||
|
||
had. It is certain that they obtained the email of a number of
|
||
|
||
people, including plaintiffs, uncertain as to their altering
|
||
|
||
COMPLAINT 6
|
||
|
||
|
||
|
||
|
||
|
||
|
||
|
||
|
||
it, and certain that authorized access to plaintiffs' email has
|
||
|
||
been prevented for the past 11 months.
|
||
|
||
Exceptions are provided by the Act in Section 2703 for law
|
||
|
||
enforcement agencies to access electronic communications in
|
||
|
||
situations where they obtain a warrant. To quote the relevant
|
||
|
||
section:
|
||
|
||
"Requirements for governmental access
|
||
|
||
(a) Contents of electronic communications in electronic
|
||
|
||
storage--A governmental entity may require the disclosure by a
|
||
|
||
provider of electronic communications services of the contents
|
||
|
||
of an electronic communication that is in electronic storage
|
||
|
||
for one hundred eighty days or less, only pursuant to a
|
||
|
||
warrant issued under the Federal Rules of Criminal Procedure or
|
||
|
||
equivalent State warrant" (emphasis added).
|
||
|
||
The requirements for such a warrant were spelled out by
|
||
James Knapp in his testimony: "The affidavit and judicial
|
||
authorization should sufficiently specify the people
|
||
involved, . . ." (emphasis added).
|
||
|
||
The requirement to name "the people involved" places no
|
||
burden on the law enforcement agency seeking a warrant. In
|
||
situations (such as this one) where the names of the people
|
||
with stored electronic communications are not known to the law
|
||
enforcement agency prior to executing the search warrant and
|
||
examining the computer files, John Does 1-1000 could be named
|
||
and an amended warrant filed after the names were extracted
|
||
from the computer.
|
||
|
||
The plaintiffs are not aware of any warrants, even John
|
||
|
||
Doe warrants, which have been issued against their electronic
|
||
|
||
|
||
COMPLAINT 7
|
||
|
||
|
||
|
||
communications; it seems clear that our private electronic
|
||
communications were seized and the provider of electronic
|
||
communication services (Alcor) was forced to disclose the
|
||
contents of private email without a warrant.
|
||
|
||
Law enforcement agencies, in particular the FBI, have
|
||
orally supported two lines of reasoning for legally seizing and
|
||
denying access to our electronic communications without a
|
||
warrant.
|
||
|
||
1) The law enforcement agents who seized the computer on
|
||
which our electronic communications were stored did not know
|
||
that there was contained email--despite the fact that the
|
||
agents had to unhook the computer from the phone lines.
|
||
|
||
2) A warrant against the provider of the electronic
|
||
communication service to seize the computer on which our email
|
||
was stored is sufficient to seize and examine any electronic
|
||
communications stored within that computer.
|
||
|
||
If this were the case, Congress would have provided an
|
||
exemption for seizing the computers on which electronic mail is
|
||
stored. Since they did not, such an exemption will have to be
|
||
provided by the Courts, or found to be an error in the FBI's
|
||
interpretation of the law.
|
||
|
||
It is easy to understand the reluctance of one law
|
||
enforcement agency to investigate another, especially in the
|
||
small-town, close working conditions of Riverside. But if the
|
||
FBI will not protect the Fourth Amendment rights of citizens
|
||
from over-zealous local officials who violate the privacy of
|
||
electronic communications, who will?
|
||
|
||
|
||
|
||
COMPLAINT 8
|
||
|
||
|
||
PRAYER
|
||
|
||
WHEREFORE, Plaintiffs and the classes they seek to
|
||
represent in this action respectfully pray that this Court
|
||
enter judgment against defendants:
|
||
|
||
a) That the FBI be ordered by this Court to investigate
|
||
fully the circumstances herein described involving electronic
|
||
mail sequestered by law enforcement agents in Riverside County;
|
||
|
||
b) That the U. S. Attorney's office be ordered to either
|
||
file charges based on the results of the FBI determination of
|
||
the facts involved, or forthwith provide legal argument
|
||
acceptable to this Court as to the non-applicability of Title
|
||
|
||
18, Section 2701 et seq. to this case;
|
||
|
||
c) Plaintiffs' expenses;
|
||
|
||
d) Other relief such as the Court may deem appropriate.
|
||
|
||
Dated: December 9, 1988 H. KEITH HENSON
|
||
|
||
|
||
|
||
|
||
THOMAS K. DONALDSON
|
||
|
||
|
||
|
||
ROGER E. GREGORY
|
||
|
||
|
||
|
||
COMPLAINT 9
|
||
|
||
(Attachments to Henson, Donaldson, and Gregory lawsuit)
|
||
|
||
H. Keith Henson
|
||
1794 Cardel Way
|
||
San Jose, CA 95124
|
||
408-978-7616
|
||
|
||
April 5, 1988
|
||
|
||
Ron Heller, Supervisor
|
||
|
||
Federal Bureau of Investigation
|
||
|
||
P.O. Box 2317
|
||
|
||
Riverside, CA 92516
|
||
|
||
|
||
|
||
Dear Mr. Heller:
|
||
|
||
|
||
|
||
Please excuse the delay in getting this material to you per our telephone
|
||
conversation of last month. My background is in engineering, and, though I
|
||
have had experience in space law and international human rights, it took
|
||
some time for me to acquire sufficient understanding of the law in this
|
||
area to make a clear statement.
|
||
|
||
I believe a serious Federal crime has been committed against me and
|
||
|
||
several others by certain members of the Riverside County Coroner's
|
||
Office. The statute involved is Title 18, Section 2701, otherwise
|
||
referenced as Chapter 121, "Stored Wire and Electronic Communications
|
||
and Transactional Records Access." (1986) The criminal act was the
|
||
removing of a computer (specifically a Toshiba T300 with a green screen
|
||
monitor, a Xebec 10 Mbyte hard disk and a modem) used for electronic mail
|
||
from the Alcor Life Extension Foundation at 12327 Doherty St., in
|
||
Riverside on January 12 of this year, subsequently preventing authorized
|
||
access, and (probably) accessing stored electronic mail files on that
|
||
computer, all without a warrant. I have apprised various members of the
|
||
coroner's office of the use and content of this particular computer and of
|
||
the Federal law involved. They seem to have no concern about the legality
|
||
of their activities.
|
||
|
||
|
||
Subsection (a) of 2701, except as provided in subsection (c), details the
|
||
offence: intentionally accessing an electronic mail facility without
|
||
authorization, or intentionally exceeding an authorization to access that
|
||
facility and thereby obtaining or preventing authorized access to a wire or
|
||
electronic communication.
|
||
|
||
|
||
Subsection (c) provides three exceptions for authorized access. Points 1
|
||
and 2 under that sub-subsection do not apply, as the coroner's office
|
||
neither provides electronic communication service, nor are they the
|
||
intended recipient of the electronic mail in question. Point 3 list three
|
||
statutes under which law enforcement officials can obtain authorization
|
||
to access stored electronic mail. Of these, section 2518 is the standard
|
||
|
||
|
||
|
||
Ron Heller Page 2
|
||
April 5, 1988
|
||
|
||
wire tap regulations. As far as I know, the coroner's office has not
|
||
obtained a court order which would allow wire tapping or access to my
|
||
electronic mail.
|
||
|
||
|
||
|
||
Section 2704 provides for forcing service providers to make backups of
|
||
electronic mail, (with a warrant) and does not seem applicable either.
|
||
|
||
|
||
|
||
Section 2703 provides for only one way for law enforcement agencies to
|
||
access electronic mail stored less than 180 days: a warrant issued under
|
||
the Federal Rules of Criminal Procedure or an equivalent State warrant. I
|
||
do not believe that warrants of any kind have been issued which would
|
||
permit the coroner or his deputies access to my electronic mail on the
|
||
Alcor computer system. If warrants to this effect have been issued, I have
|
||
not been informed of them.
|
||
|
||
While the coroner's office has been engaged in an investigation, this is no
|
||
excuse for a law enforcement agency to break laws by failing to obtain a
|
||
valid warrant. My reading of the law, and the legislative history behind it,
|
||
leads me to believe that this particular episode of Fourth Amendment
|
||
abuse is exactly what Congress had in mind to prevent when it passed
|
||
Chapter 121.
|
||
|
||
|
||
The loss of this computer and our other computers has cause Alcor a great
|
||
deal of difficulty. (This may have been the primary reason they were
|
||
taken.) Alcor and its members need the computer in question to be
|
||
returned to us and put back in service if this is possible. I would like the
|
||
computer and related equipment returned to Alcor rather than the FBI
|
||
holding it as evidence. Alcor could make printed copies of the directories
|
||
and "userlist" to be preserved as evidence.
|
||
|
||
|
||
Please let me know if I have made errors in either my reasoning or the
|
||
events I have described. I will be happy to provide your office with
|
||
background on any aspects of this matter about which I have knowledge.
|
||
|
||
|
||
|
||
Sincerely,
|
||
|
||
|
||
|
||
H. Keith Henson
|
||
|
||
|
||
|
||
cc C. Ashworth
|
||
|
||
|
||
|
||
PS I hear the investigation has been turned over to the Riverside Police
|
||
Department. You might warn them so *they* don't run afoul of Federal
|
||
Law.
|
||
|
||
|
||
|
||
Enc. Title 18 USC Sections 2701-2710
|
||
|
||
|
||
|
||
<- END PART 3 of 4 ->
|
||
|
||
|
||
****************************************************************************
|
||
>C O M P U T E R U N D E R G R O U N D<
|
||
>D I G E S T<
|
||
*** Volume 1, Issue #1.04 (April 11, 1990) **
|
||
-- Part 4 of 4 --
|
||
** ALCOR'S SUIT AGAINST E-MAIL CONFISCATION **
|
||
****************************************************************************
|
||
|
||
MODERATORS: Jim Thomas / Gordon Meyer
|
||
REPLY TO: TK0JUT2@NIU.bitnet
|
||
|
||
COMPUTER UNDERGROUND DIGEST is an open forum dedicated to sharing
|
||
information among computerists and to the presentation and debate of
|
||
diverse views.
|
||
--------------------------------------------------------------------
|
||
DISCLAIMER: The views represented herein do not necessarily represent the
|
||
views of the moderators. Contributors assume all responsibility
|
||
for assuring that articles submitted do not violate copyright
|
||
protections.
|
||
--------------------------------------------------------------------
|
||
|
||
In This Issue:
|
||
|
||
Issue #1.04 is long--over 2,100 lines--so we have broken it down
|
||
into four smaller files.
|
||
Keith Henson sent these public documents to us describing how one
|
||
organization filed suit against agents for allegedly confiscating
|
||
electronic mail illegally. The case raises a number of important issues to
|
||
computerists, including the status of E-mail as private communication, the
|
||
scope of investigatory authority of law enforcement agents in confiscating
|
||
computer "symbols," and other facets of investigation of the use of
|
||
computers when an alleged crime has occured.
|
||
|
||
We encourage article-type responses to the any of the many issues raised
|
||
here.
|
||
|
||
**********************************
|
||
PART 4 of 4
|
||
**********************************
|
||
|
||
--------------------------------------------------------------------
|
||
|
||
ATTACHMENT A
|
||
|
||
--------------------------------------
|
||
|
||
H. Keith Henson
|
||
|
||
1794 Cardel Way
|
||
|
||
San Jose, CA 95124
|
||
|
||
408-978-7616
|
||
|
||
April 22, 1988
|
||
|
||
|
||
Ron Heller
|
||
|
||
Federal Bureau of Investigation
|
||
|
||
P.O. Box 2317
|
||
|
||
Riverside, CA 92516
|
||
|
||
|
||
Dear Mr. Heller:
|
||
|
||
|
||
I was astounded at the refusal of the FBI to even make minimal
|
||
|
||
inquiry into a citizen%s complaint of a clear violation of a
|
||
|
||
Federal law. Your advice that I take my complaints to Riverside
|
||
|
||
County is hard to fathom; to the best of my knowledge, the county
|
||
|
||
has no laws regarding intercepting electronic mail.
|
||
|
||
|
||
Your argument that having an unrelated warrant to take a computer
|
||
permits interception of the electronic mail of all people who
|
||
were using that computer would (I think) generate great concern
|
||
among the staff and members of the House Committee on the Judi-
|
||
ciary which held extensive hearing on this law only two years
|
||
ago.
|
||
|
||
|
||
Your reluctance to investigate another law enforcement agency is
|
||
understandable, but if the federal government won%t protect citi-
|
||
zens from local officials who break Federal laws and violate our
|
||
Fourth Amendment rights, who will?
|
||
|
||
Sincerely,
|
||
|
||
H. Keith Henson
|
||
|
||
HKH:al
|
||
|
||
|
||
cc: John R. Bolton, Asst. Attorney General
|
||
|
||
Rep. George Brown
|
||
Michael Emick, U. S. Attorney
|
||
Rep. Hamilton Fish, Jr.
|
||
Rep. Robert W. Kastenmeier
|
||
James Knapp, Asst. Attorney General
|
||
Rep. N. Mineta
|
||
Rep. Carlos J. Moorhead
|
||
Sen. Pete Wilson
|
||
ATTACHMENT B
|
||
|
||
----------------------------------
|
||
|
||
|
||
(KH Letterhead)
|
||
|
||
April 25, 1988
|
||
|
||
Michael Emick
|
||
Chief of Criminal Complaints
|
||
U.S. Attorney's Office
|
||
312 N. Spring St.
|
||
Los Angeles, CA 90012
|
||
|
||
|
||
Dear Mr. Emick:
|
||
|
||
|
||
This letter is to complain about the refusal of the FBI office in
|
||
Riverside to investigate a clear violation of Federal law.
|
||
|
||
Mr. Heller did not pass on the enclosed letter to Alka Sagar of
|
||
your office, and she had no recollection Monday of his verbal
|
||
arguments for the FBI's inaction.
|
||
|
||
|
||
I looked into the legislative history of the particular House
|
||
Bill which eventually became law and found that James Knapp (who
|
||
was then Deputy Assistant Attorney General, Criminal Division,
|
||
and has since moved to a higher position in the Justice Depart-
|
||
ment) had a number of things to say about the impending legisla-
|
||
tion. He was particularly interested in forestalling the need for
|
||
court orders to obtain access to stored electronic communica-
|
||
tions. I quote from his written testimony of March 5, 1986
|
||
before the Subcommittee on Courts, Civil Liberties, and the
|
||
|
||
Administration of Justice:
|
||
|
||
"The authorization to intercept the communications should be
|
||
accomplished by a statute mandating a judicial authorization
|
||
based on probable cause akin to that which can now be secured
|
||
with a Fourth Amendment search warrant pursuant to Rule 41 of the
|
||
Federal Rules of Criminal Procedure. This procedure is based on
|
||
the premise that the interception of electronic mail generally
|
||
should be accorded no more protection than that accorded to
|
||
regular mail. At the present time regular mail can be seized
|
||
with a Rule 41 search warrant. . . .
|
||
|
||
"The search warrant . . . should be based on a sworn affidavit
|
||
establishing probable cause to believe that a crime has been, is
|
||
being or is about to be committed. The affidavit and judicial
|
||
authorization should sufficiently specify the people involved,
|
||
the facility in question, the specific offenses involved, and the
|
||
type of information sought to be intercepted. . . ."
|
||
|
||
Congress went along with the Justice Department in requiring
|
||
|
||
search warrants rather than the more cumbersome court orders,
|
||
|
||
with the understanding that they would watch for abuse.
|
||
|
||
|
||
Michael Emick -2- April 25, 1988
|
||
|
||
|
||
Now in the case at hand, there was a search warrant, but it was
|
||
clearly inadequate to seize electronic mail since it was directed
|
||
to the computer rather than its contents and the people who put
|
||
|
||
the contents into it.
|
||
|
||
The correct analogy according to Mr. Knapp's testimony would be a
|
||
search warrant obtained against a private postal service in which
|
||
all mail in private boxes was confiscated, opened, and read.
|
||
|
||
The search warrant under which the computer was taken was based
|
||
on incredible half-truth distortions, and simply irrelevant
|
||
information. For example, the prime item presented under oath to
|
||
the judge who issued the warrant was verbal testimony about a
|
||
copy of a receipt for equipment sold to UCLA, shipped to a
|
||
Florida address, and authorized by an Alcor officer who works at
|
||
UCLA. In the first place, the coroner's office has no business
|
||
investigating theft. If they found something suspicious in the
|
||
course of other investigation, they should have turned it over to
|
||
the police. In the second place, *taped to the front of that
|
||
invoice was a canceled check on the officer's account for the
|
||
full amount on the invoice.* If this isn't perjury, it skates
|
||
within a hair of it.
|
||
|
||
This may seem to be an unpopular cause to the FBI, but this is
|
||
the first time (to my knowledge) that a law enforcement agency
|
||
has violated the provisions of this law. As a result, there is a
|
||
great deal of interest by a number of people in the electronic
|
||
mail industry. If local law enforcement officials demonstrate
|
||
that they can get away with ignoring this law, there may be
|
||
considerable pressure on Congress to require more stringent
|
||
provisions for law enforcement agencies to obtain access to
|
||
electronic communications.
|
||
|
||
If you have any questions, please give me a call.
|
||
|
||
|
||
Sincerely,
|
||
|
||
|
||
H. Keith Henson
|
||
|
||
|
||
HKH:al
|
||
|
||
|
||
|
||
cc: Christopher Ashworth, Esq.
|
||
|
||
|
||
ATTACHMENT C
|
||
|
||
|
||
|
||
|
||
|
||
(KH Lettterhead)
|
||
|
||
|
||
|
||
April 25, 1988
|
||
|
||
|
||
|
||
Representative Norman Mineta
|
||
|
||
13th District
|
||
|
||
1245 S. Winchester Blvd., Suite 310
|
||
|
||
San Jose, Ca 95128
|
||
|
||
|
||
Attention: Dorene Giacopini
|
||
|
||
|
||
|
||
Dear Representative Mineta:
|
||
|
||
|
||
I am writing to ask you to intercede with the FBI on behalf of
|
||
|
||
myself and two other San Jose constituents, Thomas K. Donaldson
|
||
|
||
and Roger Gregory. We believe a Federal Law, Section 2701, et
|
||
|
||
seq. of Title 18, was broken by local law enforcement officials in
|
||
|
||
Southern California. We would like you to make a request of the
|
||
|
||
FBI that they determine if this is true, and if it is, ask the
|
||
|
||
U.S. Attorney to file charges.
|
||
|
||
|
||
All of us used (and paid for through membership fees) an elec-
|
||
|
||
tronic mail facility owned by the Alcor Life Extension Founda-
|
||
|
||
tion. On January 12 of this year, the computer containing our
|
||
|
||
confidential personal communications was seized by the coroner%s
|
||
|
||
office in Riverside under a warrant issued against Alcor and
|
||
|
||
obtained on the basis of gross distortions. Regardless of the
|
||
|
||
validity of this warrant, <2703 requires a warrant naming the
|
||
|
||
individual whose mail is to be seized, and stating probable cause
|
||
|
||
as to the need to invade the individual%s privacy. No warrants
|
||
|
||
have been issued which would permit these officials to access or
|
||
|
||
deny us access to our electronic mail.
|
||
|
||
|
||
The FBI is understandably reluctant to investigate a fellow law
|
||
|
||
enforcement agency. In my first telephone conversation with Ron
|
||
|
||
Heller he strongly discouraged me from complaining. While it may
|
||
|
||
have been inadvertent, his office lost my first letter (sent by
|
||
|
||
Express Mail), did not pass on the enclosed letter to the U.S.
|
||
|
||
Attorney%s office, and suggested (when he called after 5PM last
|
||
|
||
Friday) that my only recourse is to the same local officials who
|
||
|
||
have violated the law.
|
||
|
||
|
||
The cited section of law, the Electronic Communications Privacy
|
||
|
||
Act of 1986, and the cases which develop from it are of great
|
||
interest in Silicon Valley, where the local volume of electronic
|
||
mail may be approaching that of First Class mail. There is a
|
||
considerable interest expressed by several computer publications
|
||
in the case. I can direct the reporters who are calling me to
|
||
your office if you wish.
|
||
|
||
|
||
Sincerely,
|
||
|
||
|
||
|
||
|
||
H. Keith Henson
|
||
|
||
|
||
|
||
HKH:al
|
||
|
||
ATTACHMENT D
|
||
|
||
|
||
---------------------------------
|
||
|
||
|
||
|
||
(KH letterhead)
|
||
|
||
|
||
April 25, 1988
|
||
|
||
|
||
Senator Pet Wilson
|
||
2040 Ferry Building
|
||
San Francisco, CA 94111
|
||
|
||
Attention: Lisa Nauman
|
||
|
||
|
||
|
||
Dear Senator Wilson:
|
||
|
||
|
||
|
||
(body same as Attachment D)
|
||
|
||
|
||
|
||
ATTACHMENT E
|
||
|
||
|
||
|
||
---------------------------------
|
||
|
||
|
||
|
||
(KH Letterhead)
|
||
|
||
|
||
|
||
July 31, 1988
|
||
|
||
|
||
|
||
Representative Norman Mineta
|
||
|
||
13th District
|
||
|
||
1245 S. Winchester Blvd., Suite 310
|
||
|
||
San Jose, Ca 95128
|
||
|
||
|
||
|
||
Dear Representative Mineta:
|
||
|
||
Thank you for pursuing an inquiry for me into the FBI's disinter-
|
||
est in an apparent violation of the Electronic Communication Pri-
|
||
vacy Act, and for forwarding a copy of Mr. Floyd Clark's letter.
|
||
|
||
In that letter of June 3, the FBI excused their unwillingness to
|
||
investigate because the US Attorney declined prosecution. Alka
|
||
Sagar, the US Attorney in Los Angeles who Mr. Heller told me had
|
||
made the decision to decline prosecution, based her decision
|
||
entirely on a short telephone conversation with FBI represen-
|
||
tative Mr. Heller. When I contacted her on the Monday after Mr.
|
||
Heller told me that no investigation was going to be made, she
|
||
told me that my letter to the FBI had not been forwarded. She
|
||
could not remember either the subject or the reason for declining
|
||
prosecution. If I could speculate on the conversation, Mr. Heller
|
||
may have told her he had a case he did not want to work on, and
|
||
her response may have been something like "Well, if you don't
|
||
want to work on it, the U.S. Attorney isn't interested." This is
|
||
hardly an independent evaluation of the merits of my complaint.
|
||
I then wrote to Michael Emick, Ms. Sagar's boss. He is Chief of
|
||
Criminal Complaints for the U.S. Attorney's Office in Los
|
||
Angeles. One of Mr. Emick's assistants called a week or two
|
||
later and told me that virtually no cases except those involving
|
||
large amounts of cocaine are being accepted for prosecution,
|
||
regardless of the merits. I have received no written response to
|
||
my letter of April 25 to date (copy enclosed).
|
||
|
||
|
||
There may be a need for remedial legislation on electronic pri-
|
||
vacy. Mr. Heller, a San Jose FBI agent, and two representatives
|
||
of the District Attorney's office in Riverside all believe that
|
||
the requirements for obtaining warrants against individuals found
|
||
in 1986 law can be safely ignored if a warrant can be obtained
|
||
against the computer on which the electronic mail is stored.
|
||
They use the analogy that if they obtained a warrant against a
|
||
Post Office, they could open and read any mail they found within
|
||
the walls of the Post Office. I doubt this was the intent of
|
||
|
||
|
||
Representative Norman Mineta -2- July 31, 1988
|
||
|
||
|
||
Congress, but if it was, the fact would be of great interest in
|
||
this area.
|
||
|
||
In his closing sentence, Mr. Clark recommends that I contact an
|
||
attorney to see what civil remedies are available to me. I have
|
||
already contacted several. I find that while there are pro-
|
||
visions (Section 2707) for civil actions at law, they are use-
|
||
less. If a jury found that my privacy rights had indeed been
|
||
violated, I could be awarded $1,000. The attorneys I have
|
||
contacted tell me that the case could be made, and likely won,
|
||
but the cost to do so would start at $100,000 and range upwards
|
||
of $500,000.
|
||
|
||
If this were an isolated incident, I would feel better about
|
||
ignoring the decay of civil rights in this area. But recently
|
||
Riverside county officials used a search warrant to confiscate
|
||
television news tapes in violation of federal and state laws pro-
|
||
tecting freedom of the press. Limits on law enforcement activi-
|
||
ties are as important as limits on criminals. Although it is a
|
||
lot of trouble for a citizen to oppose high handed law enforce-
|
||
ment agents, it has to be done to prevent the loss of our rights.
|
||
|
||
I would appreciate your inquiring of the Justice Department what
|
||
reasoning they used to decline enforcing the law Congress made
|
||
regarding electronic communications. Perhaps they would respond
|
||
to a letter from you in less than three months. I know you are
|
||
sensitive to shortcuts in due process, and I could use your ad-
|
||
vice on what, if anything, I should do.
|
||
|
||
|
||
Sincerely,
|
||
|
||
|
||
|
||
H. Keith Henson
|
||
|
||
|
||
|
||
HKH:al
|
||
|
||
|
||
|
||
ATTACHMENT F
|
||
|
||
|
||
-----------------------------------
|
||
|
||
U.S. Department of Justice
|
||
Federal Bureau of Investigation
|
||
Washington, DC 20535
|
||
|
||
June 27, 1988
|
||
|
||
|
||
Honorable Pete Wilson
|
||
United States Senator
|
||
2040 Ferry Building
|
||
San Francisco, California 94111
|
||
|
||
|
||
Dear Senator Wilson:
|
||
|
||
|
||
|
||
Your May 18th inquiry of the Department of Justice on behalf
|
||
of Mr. H. Keith Henson has been referred to FBI Headquarters.
|
||
|
||
Mr. Henson's concerns have been reviewed both here and by
|
||
our Los Angeles Office. The facts have been presented to the
|
||
United States Attorney's Office and prosecution was declined.
|
||
Mr. Henson has been advised of the declination and that our
|
||
investigation is closed.
|
||
|
||
It has been suggested to Mr. Henson that he contact an
|
||
attorney of his choice to pursue possible civil remedies
|
||
available to him.
|
||
|
||
Sincerely yours,
|
||
|
||
|
||
|
||
(signed)
|
||
|
||
|
||
|
||
Floyd I. Clarke
|
||
|
||
Assistant Director
|
||
|
||
Criminal Investigative Division
|
||
|
||
|
||
|
||
ATTACHMENT G
|
||
|
||
|
||
|
||
--------------------------------
|
||
|
||
|
||
U.S. Department of Justice
|
||
Office of Legislative Affairs
|
||
Office of the Assistant Attorney General
|
||
Washington, DC 20530
|
||
|
||
04 NOV 1988 (stamped date)
|
||
|
||
Honorable Norman Y. Mineta
|
||
U.S. House of Representatives
|
||
1245 South Winchester Blvd., Suite 310
|
||
San Jose, California 95128
|
||
|
||
|
||
ATTN: Dorene M. Giacopini
|
||
|
||
Field Representative
|
||
|
||
|
||
|
||
Dear Congressman Mineta:
|
||
|
||
|
||
|
||
This is in response to your letter dated September 22, 1988,
|
||
|
||
on behalf of your constituent H. Keith Henson.
|
||
|
||
The Unites States Attorney's office for the Central District
|
||
of California considered twice whether prosecution was warranted,
|
||
taking into account the information provided by Mr. Henson.
|
||
However, there is no competent evidence upon which to base a
|
||
federal prosecution.
|
||
|
||
Since Mr. Henson's letter addresses a matter currently
|
||
being prosecuted by the State of California, this office
|
||
recommends that you refer Mr. Henson's inquiry to the District
|
||
Attorney's office, Los Angeles, California.
|
||
|
||
|
||
Sincerely,
|
||
|
||
|
||
|
||
(signed)
|
||
|
||
|
||
|
||
Thomas M. Boyd
|
||
|
||
(for) Assistant Attorney General
|
||
|
||
|
||
|
||
ATTACHMENT H
|
||
|
||
|
||
|
||
------------------------------
|
||
|
||
|
||
|
||
(KH Letterhead)
|
||
|
||
|
||
|
||
November 9, 1988
|
||
|
||
|
||
|
||
Thomas M. Boyd
|
||
|
||
Assistant Attorney General
|
||
|
||
Office of the Assistant Attorney General
|
||
|
||
Washington, DC 20530
|
||
|
||
|
||
|
||
Dear Mr. Boyd:
|
||
|
||
|
||
|
||
Representative Norman Mineta passed on your undated letter to me
|
||
|
||
responding to his letter of September 22, 1988.
|
||
|
||
|
||
|
||
It is a violation of federal law (Title 18, Section 2701 et seq.)
|
||
|
||
to seize a person's electronic mail without a warrant against the
|
||
|
||
person's mail. My electronic mail was seized without a warrant
|
||
|
||
being sought against it. Could you tell me how these simple-to-
|
||
|
||
determine facts fail to provide "competent evidence on which to
|
||
|
||
base a federal prosecution." Could you tell me what constitutes
|
||
|
||
"competent evidence" or provide a reference?
|
||
|
||
|
||
|
||
Could you clarify the last paragraph of your letter. To the best
|
||
|
||
of my knowledge there is nothing related to any letter I have
|
||
|
||
written which is "currently being prosecuted by the State of
|
||
|
||
California" by the District Attorney's office in Los Angeles. If
|
||
|
||
there is, this would be of intense concern.
|
||
|
||
|
||
|
||
Sincerely
|
||
|
||
|
||
|
||
H. Keith Henson
|
||
|
||
|
||
|
||
HKH:al
|
||
|
||
|
||
|
||
cc Representative Norman Y. Mineta
|
||
|
||
|
||
|
||
ATTACHMENT I
|
||
|
||
|
||
|
||
-----------------------------
|
||
|
||
|
||
|
||
COUNTY OF RIVERSIDE, STATE OF CALIFORNIA
|
||
|
||
|
||
|
||
SEARCH WARRANT
|
||
|
||
|
||
|
||
(boilerplate, description of place to be searched)
|
||
|
||
|
||
|
||
. . . for the following property:
|
||
|
||
1. All electronic storage devices, capable of storing,
|
||
electronic data regarding the above records, including magnetic
|
||
tapes, disc (floppy or hard), and the complete hardware necessary
|
||
to retrieve electronic data including CPU (Central Processing
|
||
Unit), CRT (viewing screen, disc or tape drive(s), printer,
|
||
software and service manuals for operation of the said computer,
|
||
together with all handwritten notes or printed material
|
||
describing the operation of the computers. (See Exhibit A -
|
||
Search Warrant No. 1, property to be seized #1)
|
||
|
||
|
||
2 Human body parts identifiable as belonging to the deceased,
|
||
Dora Kent.
|
||
|
||
|
||
3 Narcotics, controlled substances and other drugs subject to
|
||
regulation by the Drug Enforcement Administration.
|
||
|
||
|
||
|
||
(more boilerplate, signature of Judge)
|
||
|
||
|
||
|
||
|
||
|
||
ATTACHMENT J
|
||
|
||
|
||
<- END PART 4 of 4 ->
|
||
|