Hackers Underworld 2: Forbidden Knowledge/Hackers Underworld 2: Forbidden Knowledge.iso/LEGAL/ALCOR7.TXT

Text File | 1994-07-17 | 15KB | 361 lines

The below is a typed-in copy of the response of Willaim 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 [e-mail]  Comments, advice,
applicable cases, etc. are most welcome.  A status conference is
schedualed 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
fefer tha attention to the Court and parties to the memorandum of Points
and Authorities submitted herewith.



Boilerplate, case # C-88-20788



H. Keith Henson, et al.,

      Plantiffs,

          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 judment
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 explaination as to the reasons the
provisions fo 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 wasl illegal in that it violated Title 18, Section 2701 since
the warrand 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 warrent 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 plantiff Henson of the United
Statates Attorney's prosecutive opinion.



ARGUMENT

I.  THE FBI IS NOT AN ENTITY AGAINST WHICH SUIT CAN BE BROUGHT



   The Plantiffs 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 plantiffs 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
plantiffs want prosecuted.  Specifically, the plantiffs seek a court order
that the FBI and Assistant Unites States Attorneys institute criminal
prosecution against individuals who plantiffs 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
interfearence 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) plantiffs sought an
order directing the FBI as well as other defendants to arrest, imprison,
and institued criminal prosecution against those person responsible for
deprivations of plantiffs' 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 goverment.  Congress has

   implemented tha 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 representive of the public.

      It by no means follows, however, that the duty to

   prosecute follows automatically from the presentattions 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 l