****************************************************************************
>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 ->