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