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Computer underground Digest Sun June 19, 1994 Volume 6 : Issue 55
ISSN 1004-042X
Editors: Jim Thomas and Gordon Meyer (TK0JUT2@NIU.BITNET)
Archivist: Brendan Kehoe
Retiring Shadow Archivist: Stanton McCandlish
Shadow-Archivists: Dan Carosone / Paul Southworth
Ralph Sims / Jyrki Kuoppala
Ian Dickinson
Copy Dittoer: Etaoian Shrdlu
CONTENTS, #6.55 (Sun, June 19, 1994)
File 1--Motion to Dismiss Amateur Action BBS case on NAFTA
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----------------------------------------------------------------------
Date: Wed, 25 May 94 13:10:30 PDT
From: hkhenson@CUP.PORTAL.COM
Subject: File 1--Motion to Dismiss Amateur Action BBS case on NAFTA
((MODERATORS' NOTE: The Following is the defense motion for a Change
of Venue in the Amateur Action BBS case. AABBS Sysop, Robert Thomas,
faces felony charges in Memphis because federal prosecutors there
claim that files, which are legal in Thomas' own state of California,
violate Tennessee statutes. The thrust of the 11 count indictment
alleges obscene matter in interstate commerce. See CuD 6.09, 6.33,
6.35, and 6.43. The following motion explains some of the issues in
the case, and why observers have reason to suspect that the
prosecution may reflect right-wing fundamentalist threats to free
speech rather than actual illegal activity.
Dan Newsom, the USDA prosecuting the case, had no comment when CuD
contacted him, and referred us to the court clerks at (901) 544-3315.
The judge is Julia Gibbons)).
================================================================
Richard D. Williams, APC
Attorney at Law
79 Devine Street, Suite 101
San Jose, California 95112
(408) 295-6336
Attorney for Defendants
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
UNITED STATES OF AMERICA ) Case No. 94-20019-G
)
vs. )
)
ROBERT A. THOMAS )
and )
CARLEEN THOMAS )
)
MOTION TO DISMISS
[Federal Rule of Criminal Procedure, Rule 12(b)(1)]
Defendants Robert and Carleen Thomas are the operators of a
business entitled Amateur Action B.B.S., which is a computer bulletin
board containing Electronic Mail (E-mail), and has computer generated
images (or GIFs) which are accessible from and sold all over the
world, including Mexico and Canada. Amateur Action B.B.S. also sells
erotic video tapes and magazines to its members. Defendants are
being prosecuted in the Western District of Tennessee. Defendants
contend that this court lacks both subject matter jurisdiction and
venue in this matter. Defendants further submit that the use of
local Tennessee standards to an international business located in the
northern district of California violates both equal protection of law
and the arbitrary and capricious standard and is unconstitutional.
Defendants are, therefore, moving that this case be dismissed
pursuant to Federal Rule of Criminal Procedure, Rule 12(b)(1).
Statement of the Case
Defendants contend that under the constitution, in
particular the Commerce Clause and the Supremacy Clause, allowing
local jurisdictions to establish a community standard to determine
the existence of a crime as well as the guilt or innocence of the
alleged perpetrator clearly violates the equal protection clause as
well as the arbitrary and capricious standard.
The lack of equal protection is seen from the fact that
Defendants~ conduct would not be a crime in California, as well as
the fact that Defendants were not on notice that their conduct would
be illegal in Tennessee.
It is also apparent that a Canadian or Mexican national
running the same type of business would not be subject to prosecution
(in Tennessee or elsewhere) by the U.S. Government for the same
conduct. Further, Defendants contend that the U.S. Supreme Court, in
its Miller vs. California (412 U.S. 15 1973) decision that the U.S.
Supreme Court was arbitrary and capricious in relegating the decision
to local standards instead of setting a national standards. This
leads to equally arbitrary and equally capricious prosecution based
upon vague local standards such as the present case.
Defendants contend that Miller vs. California and its
progeny have been over-ruled by statute by the ratification of the
North American Free Trade Agreement (NAFTA). Further, the Miller
case is inconsistent with 28 USC 1581.
In November, 1993, Congress passed the North American Free
Trade Agreement, which became effective on January 1, 1994. This
case re-defined venue and transferred regulatory power to an
international tribunal for matters of international commerce.
Further, NAFTA specifically does away with the arbitrary and
capricious local standards by preempting the regulatory local rules
which restrain trade to those which are objectively reasonable and
necessary to the public health preservation.
It is further submitted that, as the government is presumed
to know of its own lows that the U.S. Attorney~s office acted in
reckless disregard of the NAFTA legislation, 18 USC 2510 et seq.,
and 42 U.S.C. 2000aa as the search warrant was obtained after
January 1, 1994 as well as the fact that they ignored the 42 USC
2000aa and 18 USC 2510 et seq. by their use of search warrants to
accomplish their goals. Further, the sending of child pornography
without a request therefor is unconscionable.
Statement of Facts
This matter arose from a search of Defendant~s residence
located at 450 Tramway Drive, Milpitas, California on January 10,
1994 by Postal Agent David H. Dirmeyer in conjunction with San Jose
Police Officers. Defendants operated an adult computer bulletin board
from their Milpitas residence, which bulletin board carried
electronic mail of approximately 3,500 subscribers. Defendants Robert
and Carleen Thomas qualified as "publishers" within the meaning of 42
US code 2OOOaa.
Postal Inspector David H. Dirmeyer made numerous
presentations of fact in the course of his affidavit including, but
no limited to, allegations that he received information from a
private citizen who allegedly described himself as an avid computer
"hacker" who had encountered a computer bulletin board system
offering photos, videos and nude children. Agent Dirmeyer knew this
to be false as he had in fact joined the bulletin board personally
(although under the name of Lance White) in February 1993. Agent
Dirmeyer used the bulletin board as any other member would during
that period. Agent Dirmeyer alleged that on or about August 20, 1993,
using a computer equipped modem, inquired about procedure for
subscribing to the Amateur Action Bulletin Board Service (AABBS).
Agent Dirmeyer claims to have joined the system under the fictitious
name of Lance White on August 20, 1993. According to Defendant's
records, "Lance White" renewed his membership on or about August
20,1993. In paragraph 13 on page 6 of Agent Dirmeyer~s affidavit in
support of his application for search warrant, he acknowledged that
on or about August 27, 1393 he spoke by bulletin board to Robert
Thomas and Agent Dirmeyer indicated that he had some unique
materials, but he did not reveal the subject matter of these
materials.
Thereafter, Agent David Dirmeyer mailed three magazines of
hard core kiddie porn to Defendants without their knowledge or consent.
Having been a member of the Bulletin Board Service for approximately
six months and having examined all the material on the bulletin board,
Agent Dirmeyer should have been well aware that Defendants Robert and
Carleen Thomas had no kiddie porn on their system nor did they offer
any such items for sale and distribution to the general public. In
paragraph 27 on page 12 of David Dirmeyer's affidavit in support of his
application for a search warrant he commits blatant perjury claiming to
have left Robert Thomas an E-Mail message informing him that he (Agent
Dirmeyer aka Lance White) had child pornography to lend him. He further
alleges that Robert Thomas responded back by E-Mail requesting these
materials. David Dirmeyer did not reference these magazines as items
to be seized in his application for the search warrant or in the search
warrant itself. Agent Dirmeyer included copies of the computer produced
pictures (as GIFs) as part of his affidavit supporting his application
for the search warrant and he did point out to Magistrate Brazil that
the system which he wished to seize contained E-Mail. Magistrate
Brazil either did not read the affidavit carefully or ignored the
requirements of the Electronic Privacy Act contained in 42 USC 2OOOaa
as well as the Electronic Communications Privacy Act contained in 18
USC 2510 et. seq. On or about January 10, 1994 Agent David Dirmeyer,
acting in conjunction with agents of the San Jose Police Department "Hi
Tech" unit raided Defendant's Milpitas residence and seized
Defendant's entire 26 computer system as well as his ledger, UPS
records, and several video tapes. This seizure included a seizure of
all of defendant~s electronic mail files and took his bulletin board
system out of operation. At that time, Agent Dirmeyer had Defendant
sign a consent to seize the three kiddie porn magazines in which
consent for seizure Agent Dirmeyer acknowledged that these items were
sent without Robert Thomas~ knowledge. Agent Dirmeyer also
acknowledged that he was in fact ~Lance White~. Further, Amateur
Action B.B.S. is an adult only board where members most prove their age
to join.
Amateur Action BBS has approximately 150 members in Canada, at
least one member in Mexico, and approximately 150 members distributed
throughout the rest of the world. One must join the board to have
access to it.
Amateur Action BBS sells tapes and magazines to its members as
well as adult novelties. They also sell computer hardware and
software. Amateur Action also offers E-mails service and access to its
computer banks of GIFs and utility files.
As such, Amateur Action BBS is a ~publisher~ within the
meaning of 18 USC 2510 et seq.
SUMMARY OF ARGUMENTS
PROPOSITION ONE
DEFENDANTS ARE BEING DENIED EQUAL PROTECTION OF LAW
Defendants Robert and Carleen Thomas are being prosecuted
based upon the theory that some of their merchandise is obscene based
upon the community standards of the Western District of Tennessee.
Thus, the Western District of Tennessee is determining the existence
of a crime based upon a community standard which is not readily
apparent to those who have never been to Tennessee, have no way of
knowing ~community standards~ in Tennessee, and who are engaged in a
business which is legal in their own community. As these standards
are not defined even in the Western District of Tennessee, their
application on an ad hoc basis is arbitrary and capricious by
necessity. Further, the Commerce Clause of the United States
Constitution prohibits localities from setting up capricious local
standards which restrain trade.
Article One, Section 8, Clause Three of the U.S.
Constitution is commonly referred to as the ~Commerce Clause~ and
gives Congress the complete power to regulate interstate and
international commerce. By passing 19 USC 1305, Congress
manifested its intent to have customs determine whether materials are
obscene and should be denied admission to the United States. As the
case of Miller vs. California, 413 U.S. 15 stands for the proposition
that local standards should apply and Miller doesn~t discuss or
overrule 19 USC 1305, I would conclude that Miller does not rest on
sound reasoning.
Miller vs. California seems to state that ~obscenity~ was to
be judged by a local standard and declined to define obscenity on a
national basis (which would have taken the arbitrariness out of
obscenity cases) and in so doing impermissibly delegated that
authority to each locality in the United States. While the Supreme
Court strained beyond all reason to find that allowing localities to
set their own standards wax not unconstitutionally vague, the
argument was not made that this delegation of authority would lead to
arbitrary and capricious prosecutions such as Robert A. Thomas and
Carleen Thomas have been denied equal protection under the laws of
the United States.
PROPOSITION 2
The Western District of Tennessee is not the proper venue to
determine the controversy. Further, the United States District Court
lacks subject matter jurisdiction.
Defendants argue that most of their merchandise is imported
and passed customs inspection before reaching their hands. All such
imported items are covered by 19 USC 1305(a) entitled Immoral
Articles; Importation prohibited, and it states:
1305. Immoral Articles: Importation prohibited
(1) Prohibition of importation. All persons are prohibited
from
1305 Immoral articles; importation prohibited
(a) Prohibition of importation, all persons are prohibit
from importing into the United States from any foreign
country any book pamphlet, paper, writing,
advertisement, circular, print, picture, or drawing
containing any matter advocating or urging treason or
insurrection against the United States, or forcible
resistance to any law of the United States, or
containing any threat to take the life of or inflict
bodily harm upon any person in the United States, or any
obscene book, pamphlet, paper, writing, advertisement,
circular, print, picture, drawing, or other
representation, figure, or game on or of paper or other
material, or any cast, instrument, or other article
which is obscene or immoral, or any drug or medicine or
any article whatever for causing unlawful abortion, or
any lottery ticket, or any printed paper that may be
used as a lottery ticket, or any advertisement of any
lottery. No such articles, whether imported separately
or contained in packages with other goods entitled to
entry, shall be admitted to entry; and all such articles
and, unless it appears to the satisfaction of the
appropriate customs officer that the obscene or other
prohibited articles contained in the package were
inclosed therein without the knowledge or consent of the
importer, owner, agent, or consignee, the entire
contents of the package in which such articles are
contained shall be subject to seizure and forfeiture as
hereinafter provided: Provided, That the drugs
hereinbefore mentioned, when imported in bulk and not
put up for any of the purposes hereinbefore specified,
are excepted from the operation of this subdivision:
Provided, further, That the Secretary of the Treasury
may, in his discretion, admit the so-called classics or
books of recognized and established literary or
scientific merit, but may, in his discretion, admit such
classics or books only when imported for noncommercial
purposes; Provided further, That effective January 1,
1993, this section shall not apply to any lottery
ticket, printed paper that may be used as a lottery
ticket, or advertisement of any lottery, that is printed
in Canada for use in connection with a lottery conducted
in the United States.
(b) Enforcement procedures. Upon the appearance of any
such book or matter at any customs office, the same
shall be seized and held by the appropriate customs
officer to await the judgment of the district court as
hereinafter provided; and no protest shall be taken to
the United States Court of International Trade from the
decision of such customs officer. Upon the seizure of
such book or matter, such customs officer shall transmit
information thereof to the United States attorney of the
district in which is situated either ~
(1) the office at which such seizure took place; or
(2) the place to which such book or matter is addressed;
and the United States attorney shall institute
proceedings in the district court for the forfeiture,
confiscation, and destruction of the book or matter
seized.
Upon the adjudication that such book or matter thus
seized is of the character the entry of which is by this
section prohibited, it shall be ordered destroyed and
shall be destroyed. Upon adjudication that such book or
matter thus seized is not of the character the entry of
which is by this section prohibited, it shall not be
excluded from entry under the provisions of this
section.
In any such proceeding, any party in interest may upon
demand have the facts at issue determined by a jury and
any party may have an appeal or the right of review as
in the case of ordinary actions or suits.
(c) Forfeiture of obscene material. Notwithstanding the
provisions of subsections (a) and (b), whenever a
customs officer discovers any obscene material after
such material has been imported or brought into the
United States, or attempted to be imported or brought
into the United States, he may refer the matter to the
United States attorney for the institution of forfeiture
proceedings under this section. Such proceedings shall
begin no more than 30 days after the time the material
is seized; except that no seizure or forfeiture shall be
invalidated for delay if the claimant is responsible for
extending the action beyond the allowable time limits of
if proceedings are postponed pending the consideration
of constitutional issues.
(d) Stay, Upon motion of the United States, a court
shall stay such civil forfeiture proceedings commenced
under this section pending the completion of any related
criminal matter.
[(3)](b) Coordination of forfeiture proceedings with
criminal proceedings. (1) Notwithstanding subsection
(a), whenever the Customs Service is of the opinion that
criminal prosecution would be appropriate or that
further criminal investigation is warranted in
connection with allegedly obscene material seized at the
time of entry, the appropriate customs officer shall
immediately transmit information concerning such seizure
to the United States Attorney of the district of the
addressee's residence. No notice to the addressee or
consignee concerning the seizure is required at the time
of such transmittal.
Thus, customs has the jurisdiction to determine, as to
imported items, what is and what is not obscene. This statute was not
argued or considered by the U.S. Supreme Court in its Miller vs. U.S.
(413 U.S. 15, (1973)), decision.
(1) The office at which the seizure took place; or (2) the
place to which the items is addressed.
Pursuant to 19 USC 1305, if the U.S. attorney and U.S.
Customs Act under this section, no complaint can be made to the U.S.
Court of International Trade. However, if this section is not complied
with, such as here, the International Court of Trade should be
involved.
Once Customs passes an item into the country with approval
stamps, it has been held to be entrapment to later pursue the
recipients as possessors of contraband. In Jacobsen vs. U.S., 112 S.
Ct., 1535 at page 1540, the Supreme Court stated~:
[2, 3] In their zeal to enforce the law, however,
Government agents may not originate a criminal design,
implant in an innocent persons' mind the disposition to
commit a criminal act, and then induce commission of the
crime so that the Government may prosecute. Sorrells,
supra, 287 U.S. at 442, 53 S.Ct. at 212; Sherman, supra,
356 U.S. at 372, 78 S.Ct. at 820. Where the Government
has induced an individual to break the law and the
defense of entrapment is at issue, as it was in this
case, the prosecution must prove beyond reasonable doubt
that the defendant was disposed to commit the criminal
act prior to first being approached by Government agents.
United States v. Whoie, 288 U.S.App.D.C. 261, 263-264,
925 F.2d 1481, 1483-1484 (1991).
~placing the burden of determining whether an item is obscene
on Customs, as Congress intended, alleviates the impositions of vague
and inconsistent local standards and the unconscionable inconsistency
caused by Miller vs. California (supra) and its progeny as well as
forcing the government to make a decision as to matters which are
obscene or not upon importation and to seize items in dispute pending
judicial determination. Further, there is no provision under 19 USC
1305 for the use of grand juries in this process (such as the grand
jury who indicted defendants here in the Western District of
Tennessee).
There is a difference between these cases and a classic
entrapment case where the criminal intent is induced in an otherwise
innocent person and where, as here, the crime itself was manufactured,
the criminal intent was manufactured (by inducing things to be mailed
into the Western District of Tennessee), and now prosecuting those
offenses.
Defendants also contend that proper venue of this case is
either in the International Court of Trade or the Multinational
Tribunal Sanctional by the North American Free Trade Agreement (NAFTA).
28 U.S.C. Section 1581 states:
1581. Civil sections against the United States and
agencies and officers thereof
(a) The Court of International Trade shall have
exclusive jurisdiction of any civil action commenced to
contest the denial of a protest, in whole or in part,
under section 515 of the Tariff Act of 1930 [19 USCS
1515].
(b) The Court of International Trade shall have
exclusive jurisdiction of any civil action commenced
under section 516 of the Tariff Act of 1930 [19 USCS
1516].
(c) The Court of International Trade shall have
exclusive jurisdiction of any civil action commenced
under section 516A of the Tariff Act of 1930 [19 USCS
1516a].
It is unclear whether NAFTA entirely preempts 28 U.S.C.
1581, but NAFTA seeks to have disputes settled by a multinational
tribunal.
PROPOSITION 2
THIS ACTION SHOULD BE PREEMPTED BY NAFTA
The objectives of NAFTA are contained in Article 102 and
are:
1. The objectives of this Agreement, as elaborated more
specifically through its principles and rules, including
national treatment, most-favored-nation treatment and
transparency, are to:
(a) eliminate barriers to trade in, and facilitate the
cross-border movement of, goods and services
between the territories of the Parties;
(b) promote conditions of fair competition in the free
trade area;
(c) increase substantially investment opportunities in
the territories of the Parties;
(d) provide adequate and effective protection and
enforcement of intellectual property rights in each
Party's territory.
(e) create effective procedures for the implementation
and application of this Agreement, for its joint
administration and for the resolution of disputes;
and
(f) establish a framework for further trilateral,
regional and multilateral cooperation to expand and
enhance the benefits of this Agreement.
Provisions (a), (b), and (e) of Article 102, specifically
the elimination of trade barriers, the promotion of conditions of
fair competition in the free trade areas, and the joint resolution of
disputes would be threatened if we allow localities to regulate
commerce by way of criminal prosecutions. Further, Equal Protection
of Law would not allow a differential burden between American
Nationals and foreign businesses which do business here under NAFTA.
Since NAFTA is the more recent legislation, NAFTA should receive
great deference. Article 105 states that "the parties shall ensure
that all necessary measures are taken in order to give effect to the
provisions of this agreement, including their observance, except as
otherwise provided in this agreement, by state and provincial
governments.
Article 300 indicates that "this chapter applies to trade in
goods of a party~". As Defendants sells computerware, software, sell
videotapes, as well as provide access to their computer banks and
E-mail services, they are clearly sellers of goods. They have over a
hundred members in Canada and do business in Mexico as well. They
must also compete with adult bulletin board services in Canada and
Mexico. Article 301 states in pertinent part:
1. Each Party shall accord national treatment to the
goods of another Party in accordance with Article
III of the General Agreement on Tariffs and Trade
(GATT), including its interpretative notes, and to
this end Article III of the GATT and its
interpretative notes, or any equivalent provision
of a successor agreement to which all Parties are a
party, are incorporated into and made part of this
Agreement.
2. The provisions of paragraph 1 regarding national
treatment shall mean, with respect to a state or
province, treatment no less favorable than the most
favorable treatment accorded by such state or
province to any like, directly competitive or
substitutable goods, as the case may be, of the
Party of which it forms a part.
The standards for regulatory standards which restrain trade
are also included within NAFTA. Article 904, entitled "Basic Rights
and Obligations", states:
Right to Take Standards-Related Measures
1. Each Party may, in accordance with this Agreement,
adopt, maintain or apply any standards-related
measure, including any such measure relating to
safety, the protection of human, animal or plant
life or health, the environment or consumers, and
any measure to ensure its enforcement or
implementation. Such measures include those to
prohibit the importation of a good of another Party
or the provision of a service by a service provider
of another Party that fails to comply with the
applicable requirements of those measures or to
complete the Party's approval procedures.
Right to Establish Level of Protection
2. Notwithstanding any other provision of this
Chapter, each Party may, in pursuing its legitimate
objectives of safety or the protection of human,
animal, or plant life or health, the environment or
consumers, establish the levels of protection that
it considers appropriate in accordance with Article
907(2).
Non-Discriminatory Treatment
3. Each Party shall, in respect of its
standards-related measures, accord to goods and
service providers of another Party:
(a) national treatment in accordance with Article
301 (Market Access) or Article 1202
(Cross-Border Trade in Services); and
(b) treatment no less favorable than that it
accords to like goods, or in like
circumstances to service providers, of any
other country.
Unnecessary obstacles
4. No Party may prepare, adopt, maintain, or apply any
standards-related measure with a view to or with
the effect of creating an unnecessary obstacle to
trade between the Parties. An unnecessary obstacle
to trade shall not be deemed to be created where:
(a) the demonstrable purpose of the measure is to
achieve a legitimate objective; and
(b) the measure does not operate to exclude goods
of another Party that meet that legitimate
objective.
Plus these "obscenity" statutes, which are intended for the
protection of public morals would not fall within permissible
legislation effecting safety, or the protection of human, plant, or
animal health, environment or consumers contained in Article 904. As
the intent of NAFTA is to eliminate artificial barriers to trade, the
parties (the United States, Canada, and Mexico) agreed to define
"legitimate objectives" for purposes of these regulations. Article
907 states:
Article 907: Assessment of Risk
1. A Party may, in pursuing its legitimate objectives,
conduct an assessment of risk. In conducting an
assessment, a Party may take into account, among
other factors relating to a good or service:
(a) available scientific evidence or technical
information;
(b) intended end uses;
(c) processes or production, operating,
inspection, sampling or testing methods; or
(d) environmental conditions.
2. Where pursuant to Article 904(2) a Party
establishes a level of protection that it considers
appropriate and conducts an assessment of risk, it
should avoid arbitrary or unjustifiable
distinctions between similar goods or services in
the level of protection it considers appropriate,
where the distinctions:
(a) result in arbitrary or unjustifiable
discrimination against goods or service
providers of another Party;
(b) constitute a disguised restriction on trade
between the Parties; or
(c) discriminate between similar goods or
services for the same use under the same
conditions that pose the same level of risk
and provide similar benefits.
Further, it would be impossible to put foreign nationals on
notice of the varying community standards for all 50 states which
would violate the "Notice" provision contained in Article 909(1)(9).
Furthermore, it is equally unreasonable to impose differential
burdens upon vendors of similar goods and services residing in the
several states of the federal Union.
A careful reading of Miller vs. California, (supra), shows
that the U.S. Supreme Court was concerned with two primary issues:
(a) the preservation of states' powers to determine and proscribe
"obscenity" and the elimination of the burden on the Supreme Court to
view and rule on every book, movie, or magazine that someone deemed
obscene. In light of this, Miller must be seen as questionable, if
not inappropriate means of re-apportionment of state and federal
subject matter jurisdiction. It was, in fact, a political response
to the then ensuing controversy over obscenity and public morals
which were the subject of presidential campaigns. The U.S. Supreme
Court did not wish to create a national standard for obscenity and
impose it upon the states. Further, the "Commerce" in Miller was
sending a sexually oriented brochure by a Los Angeles business to a
Los Angeles resident who did not request it and was offended by it.
The "commerce" offended was, therefore, entirely intra-state. Miller
was not in any way intended to allow the federal government to create
a national obscenity law without a national obscenity standard. This
is the only constitutional interpretation of the Miller case.
NAFTA also provides in Annex 1901.2 that disputes between
parties are to be settled by bi-national panels. This, too, would be
impossible if the United States Government could thwart this
provision by filing a criminal indictment as opposed to a civil
complaint. NAFTA, in Annex 1904.15, cites numerous statutes which
shall be amended so as not to conflict with NAFTA and its dispute
resolution provisions including, but not limited to the Tariff Act of
1930 and the United States-Canada Free Trade Agreement Implementation
Act.
NAFTA also sets up in Article 2001 a free trade commission
to interpret the agreement and consider any matters which may affect
the operation of this agreement. This evidences a clear intent by
the parties that the entire field be covered and that all disputes be
resolved before the Free Trade Commission. Thus, it would appear
that this court has no jurisdiction.
PROPOSITION III
BECAUSE PRIVATE ELECTRONIC MAIL AND PUBLISHING INFORMATION
WERE CONTAINED WITHIN THE COMPUTERS SEIZED, A REGULAR SEARCH WARRANT
WOULD NOT HAVE BEEN SUFFICIENT TO ALLOW SEARCH AND SEIZURE OF THE
PROPERTY IN QUESTION.
Electronic information inside the computers seized contained
constitutionally protected private communications and protected
publishing information. Information in either category cannot be
searched or seized without meeting heightened requirements formulated
to protect the constitutional rights of the possessor. Inspector
Dirmeyer made reference to the laws involved in points 43-46 of the
affidavit and in Attachment W, leaving no question that he was aware of
these issues. Though he was aware, he made no request of the court for
the special finding required to seize computers thus invalidating the
warrant. The Court either ignored the showing required to obtain a
search warrant for seizing E-mail files contained in 18 USC 2510 et
seq. or he did not read the application carefully.
A. The Search and Seizure was Conducted Contrary to the
Electronic Communication Privacy Act Specialized Warrant Requirements
and Thus Violated the Fourth Amendment Protection Against Unreasonable
Search and Seizure. The Electronic Communications Privacy Act, 18
US 2510 et seq. ,was originally passed by Congress to regulate wire
tapping only. The law was expanded in the late '70s and again in 1986
to include electronic communications such as private electronic mail.
Approximately 2,200 pieces of the electronic mail from the 3500 users
of the system were housed within the computer equipment seized. A
substantial number of these electronic messages were private mail,
viewable only by the recipient. Electronic messages or E-mail is an
integral part of all bulletin board systems. On this system, typing an
M from the log-on screen would display the message system. Sending
E-mail required typing an E, the name of the recipient, the message,
and typing an S to save the message. When the intended recipient next
called into the system, a message would be displayed showing he had
E-mail available to read. These electronic messages or E-mail are
protected by the Electronic Communications Privacy Act. Inspector
Dirmeyer was aware of this feature since he had been a member of AABBS
for almost a year, and is known to have used the E-mail feature.
Inspector Dirmeyer, at the time of the search and in the affidavit,
indicated that he knew the system contained EM. 2518 of the Act
spells out the procedure to allow a seizure of items containing
electronic communications. After application for a warrant is made to
a judge, specific findings must be made by the judge to approve the
warrant. Subsection 3 of 2518 spells out some of the requirements to
be included in the affidavit for this type of warrant.
(3)(a) There is probable cause for belief that an individual
is committing, has committed, or is about to commit a particular
offense enumerated in 2516 of this Act.
(3)(b) There is probable cause for belief that particular
communications concerning that events will be obtained through such
interception.
(3)(c) Normal investigative procedures have been tried and
have failed or reasonably appear to be unlikely to succeed if tried or
if to be too dangerous.
A bulletin board system, by its very nature, is a place for
the sending and receiving of messages. Additionally, Inspector
Dirmeyer was put on notice during the seizure by both RT and HKH that
private electronic mail was present within the materials seized
(Exhibit "D"). Inspector Dirmeyer is expected to advance the argument
that he and the others did not read the electronic mail, or did not
keep the recipients from accessing their electronic mail for more than
a week. This argument is irrelevant since the ECPA makes it a violation
to merely "intercept" such communication. 2510(4) of the Act
defines intercept "the aural or other acquisition of the content of
any wire, electronic, or oral communication through the use of any
electronic, mechanical, or other device." Inspector Dirmeyer
"intercepted" the electronic mail in the in the most fundamental sense
by picking it up and taking it. If Inspector Dirmeyer or anyone else
had seized an entire mailbox of letters, and kept the box and its
contents for a week, the letters would have been considered
"intercepted" whether someone read the letters or not. The seizure
prevented bulletin board users from authorized access to their
communications stored within the system. If this were not sufficient
argument, most E-mail within the system was in the form of "stored
communications" less than 180 days old. 2703 speaks to this issue:
2701. Unlawful access to stored communications
(a) OFFENSE-- Except as provided in subsection (c) of
this section whoever--
(1) intentionally accesses without
authorization a facility through which an
electronic communication service is
provided; or
(2) 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 such
system shall be punished as provided in
subsection (b) of this section.
There can be no doubt that "authorized access" to E-mail was
prevented for a week. If this court agrees with Inspector Dirmeyer
that "short term" violations of the law are permitted, it may do a
considerable business in appeals of parking ticket ("I was only
parked in the red zone for an hour!") and speeding tickets ("I was
only doing 85 for a few miles!").
[subsection b deleted]
Turning to subsection c:
(c) EXCEPTIONS-- Subsection (a) of this section does
not apply with respect to conduct authorized--
(1) by the person or entity providing a wire
or electronic communications service;
(2) by a user of that service with respect to a
communication of or intended for that user;
or
(3) in 2703, 2704 or 2518 of this title.
Neither (1) or (2) apply, considering (3):
2703. Requirements for governmental access
(a) CONTENTS OF ELECTRONIC COMMUNICATIONS IN
ELECTRONIC STORAGE.-- A governmental entity may
require the disclosure by a provider of electronic
communication service of the contents of an
electronic communication, that is in electronic
storage in an electronic communications system
for one hundred and eighty days or less, only
pursuant to a Warrant issued under the Federal
Rules of Criminal Procedure or equivalent State
warrant. A governmental entity may require the
disclosure by a provider of electronic
communications service of the contents of an
electronic communication that has been in
electronic storage in an electronic communications
system for more than one hundred and eighty days by
the means available under subsection (b) of this
section.
The search warrant does not request the court's permission
to seize stored E-mail, so this section provides no justification
for seizing the E-mail contained within the computers.
2704 Is about backup procedures and does not apply.
25l8. Is the "Procedure for interception of wire, oral,
or electronic communications" and was not requested by Inspector
Dirmeyer.
The actions taken under this warrant not only invalidate the
warrant, but are crimes with fines as high as $250,000 and
imprisonment of up to two years. (The applicant and his attorney are
not so naive as to believe these crimes will be prosecuted, or even
investigated.)
B. The Search and Seizure Was Conducted Contrary to the
Privacy Protection Act Requirement that the Materials Be Obtained By
Subpoena and, thus, Violated Robert and Carleen Thomas' First
Amendment Rights.
Defendants, Robert and Carleen Thomas, DBA AABBS, publish
photographic images through their computer system to a paying group
of approximately 3500 people. While some may object to the content
(mostly nudes), the process of taking pictures, processing them,
scanning them into digital format, editing the results, and writing
descriptions is clearly a publishing activity.
In 1980, Congress enacted the Privacy Protection Act (PPA), 42
U.S.C. 2000aa, in order to require law enforcement officials to obtain
evidence by subpoena or voluntary compliance, rather than by search and
seizure, from innocent third persons engaged in First Amendment
activities. Congress feared (in the wake of the Standord Daily case of
the '1970s) that "use of the warrant process in such cases will allow
the government to invade the personal privacy of non-suspects in
instances where a less intrusive means of obtaining the material --
either voluntary compliance or a subpoena will achieve the same goal."
Senate Report No. 874 at 4, 1980 U.S. Code Cong. and Admin. News at
3950- 51. The Act reads:
Notwithstanding any other law, it shall be unlawful for
a government officer or employee, in connection with the
investigation or prosecution of a criminal offense to
search for or seize any work product materials possessed
by a person 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...(42 U.S.C.
2000aa(a)).
The computer equipment seized was plainly used "to disseminate
to the public a newspaper, book, broadcast or other similar form of
public communication." Subsection (b) of 2000aa indicates that there
are four requirements necessary in order for the government to search
and seize such publishing materials.
(b)(l) There is probable cause to believe that the person
possessing such material has committed or is committing the criminal
offense to which the materials relate.
(b)(2) There is reason to believe that the immediate seizure
of such materials necessary to prevent the death of, or serious bodily
injury to, a human being;
(b)(3) There is reason to believe that the giving of notice
pursuant to a subpoena duces tecum would result in the destruction,
alteration, or concealment of such materials; or
(b)(4) Such materials have not been produced in response to
a court order directing compliance with a subpoena duces tecum and
(a) all appellant remedies have been exhausted; or
(b) there is reason to believe that the delay in an
investigation or trial occasioned by further
proceedings related to the subpoena would threaten
the interest of justice.
(c) in the event a search warrant is sought pursuant to
paragraph 4b of Section b, the person possessing the
material shall be afforded adequate opportunity to
submit an affidavit setting forth the basis for any
connection of the materials sought are not subject
to seizure.
At the time of the search, Robert Thomas told inspector
Dirmeyer and the other officers that he would gladly make them copies
of any file they wanted. The files sought were, after all, available
from any remote location in the world by any paying member of AABBS
(including Inspector Dirmeyer) with a phone and a computer. Several
places in the affidavit Inspector Dirmeyer describes in the affidavit
downloading the very files sought under the warrant!
In other words, the material sought under the warrant could
have been obtained in at least two ways without seizing the computers.
In fact, Inspector Dirmeyer could have made copies of the files he
downloaded on floppy disk, sent them to AABBS, and obtained a
stipulated statement fro AABBS that the files were bit-for-bit exact
copies of those on the AABBS disc drives.
In reference to the material on the computers being erotic,
(perhaps "silly" is a better description of some of them) that is the
business of AABBS. But Defendant Robert Thomas makes serious efforts
(and is well know for his efforts) that the material on his BBS was
legal pornography. He does not permit, for example, the uploading of
images by members, both to avoid copyright violations, and to avoid the
possibility of illegal material being placed within the AABBS
computers. He also goes to considerable effort to keep out children.
As discussed in the affidavit, AABBS was investigated by the Santa
Clara County District Attorney two years ago. The system was returned
without a even a request to remove a single image, so at least in some
parts of the county the material it contained is protected by the First
Amendment.
Inspector Dirmeyer's search and seizure was so deficient that
a number of First Amendment protected items were seized in violation of
the United States constitution. Therefore, the unconstitutional seizure
of the computer equipment requires this Court to return the property
listed above and additionally suppress the illegally obtained evidence.
PROPOSITION IV
THE SEARCH WARRANT WAS OVER BROAD AND VESTED EXECUTION OFFICER
WITH TOO MUCH DISCRETION AND, THUS, VIOLATED THE FOURTH AMENDMENT TO
THE U.S. CONSTITUTION.
Affiant David Dirmeyer alleged in his affidavit that he made
the court aware of the electronic mail on the system, but promised not
to look at it. In Katz vs. U.S. 389 US page 357 the court discussed
the issue of "voluntary restraint by police officers in making a search
violated the Fourth Amendment, the Court stated: "The Constitution
requires that the deliberate, impartial judgment of a judicial
officer~~be interposed between the citizen and police." (citing Wong
Sun vs. United States 371 U.S. 471 pages 481-482). Further many of the
items seized were not evidence of alleged crimes (i.e., the
computer monitors and keyboards etc.) nor were they necessary to a
search of the files. As these seizures were authorized by the warrant,
(which warrant really gave Agent Dirmeyer carte blanche to do what he
wished), the warrant was over broad and thus defective.
The Fourth Amendment of the United States Constitution tells
us that warrants must particularly describe the place to be searched
and the person or things to be seized. The United States Supreme Court
has consistently articulated the position that a search warrant
prevents the seizure of one thing under a warrant describing another.
"As to what is to be taken, nothing is left to the discretion of the
officer." Marron vs. U.S., 48 S.Ct. 74 (1927). To allow searching and
seizing items beyond which is described in the warrant would allow
warrants to become impermissible general and thus violate the Fourth
Amendment. See Warden vs. Hayden, 87 S. Ct. l42 (1967), and Anderson
vs. Maryland, 96 S. Ct. 2737 (1976). Further, Agent Dirmeyer coerced
consent to search the Thomas' business office which was not described
in the warrant and several of the tapes were seized from there.
PROPOSITION V
THE AFFIANT MADE KNOWING AND MATERIAL MISREPRESENTATIONS AND,
THEREFOR, THE WARRANT WAS NOT ISSUED IN GOOD FAITH.
In the present case, Agent Dirmeyer misrepresented his
connection with the Defendant's bulletin board in order to conceal that
he was an actual member long before he acknowledged joining and
probably fabricated this "anonymous hacker" referred to in his
affidavit as well. Defendants therefor submit that the warrant was
procured in bad faith (by defrauding the Magistrate), and thus U. S.
vs. Leon 468 U.S. 897 does not apply.
CONCLUSION
In conclusion, Affiant Dirmeyer was not candid with the court
in his affidavit and he sought permission to seize many items which
were not necessary to a search of defendant's files and thus the
warrant was defective. Further, as Agent Dirmeyer's conduct could not
be classified as a "good faith" oversight, the good faith exception to
the exclusion rule does not apply (based upon Leon supra). Last, but
not least, no warrant should have been issued to seize Defendant's
entire computer system as such a warrant would violate two Federal
Statutes for the protection of electronics and E-mail privacy.
WHEREFORE, The Defendants, Robert and Carleen Thomas,
respectfully request that the Court sustain the Defendant's Motion to
return the computer equipment, backup tapes, and, video tapes seized by
Inspector Dirmeyer in his January 10, 1994, search of Defendant's place
of business (their residence), and their office.
Dated: Respectfully submitted,
RICHARD D. WILLIAMS
Attorney for Defendants
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End of Computer Underground Digest #6.55
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