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With all that has been going on lately, I have decided to put together a collection of articles about what to do when the FBI comes knocking on your front door wanting to ask a few questions. Take this advice. Whatever you do, don't give them ANY information, as they WILL take it and use it against you, no matter how harmless it seems. Don't invite them into your home, make the talk as short as possible, and if you, at any time, are worried that you may be screwing yourself or anyone else, call a lawyer. - Anonymous PS: All these articles have been drawn from CuD, the Computer Underground Digest. You can get this through USENET by subscribing to alt.society.cu-digest, or through your local BBS. It is a very good publication. *************************************************************** *** CuD #1.22, File 4 of 6: The Czar's Guide to Law *** *************************************************************** THE CZAR'S GUIDE TO THE YOUNG CRIMINAL ACCUSED OF USING COMPUTERS With the hyperactivity of law enforcement officials and the current attitudes of the public in general, it is probably time to consider what to do in case of a bust. I would guess that just about everybody receiving the Computer Underground Digest has violated some sort of law somewhere in someone's mind involving computers. This is not to say that all the readers of this publication are really criminals -- just that the laws are so broadly interpreted so as so make anyone with a modem a criminal. For example, if you have ever downloaded shareware and not used it, but didn't delete it, and had it for over 15 days, you could be violating copyright laws if the author put some sort of announcement to the effect that such were the terms of agreement. This means that you could very well be raided someday. Nothing is more gratuitous than free legal advice given to a defendant who has already engaged counsel, especially if the giver of such advice is not an attorney. However, as someone close to me was so arrested (and the charges later dropped), I thought you might be able to benefit from our experience. It does not matter what the computer crime is, how extensive, how serious the charges, etc. What matters is how you deal with the system when it comes knocking on your door. There may be warning signs. You could get a call or a preliminary visit from a member of the Secret Service, a call from security from a local phone company, a visit from a local policeman, news that someone you know has been busted, anything like that. At that point, you are legally free to say whatever you want, but it is best if you give the impression that you are willing to cooperate. Of course, any specific details you give will be noted. They can not be used in evidence against you, but that will not stop them from making the attempt in the future. I would indicate that I was very willing to help but that, right now, I had a number of pressing things to do and that I would like to talk tomorrow when I had much more time and could go into more detail. Right now, I'd say, my mother was calling. Everyone, to paraphrase Thoreau, should have such a mother. I would hardly advise anybody to destroy evidence since that is a crime itself, but it would seem to me that at this point a lot of material you have had around the house has been bringing you bad luck. A lot of paper and printouts are a definite fire hazard and should not be left lying around. Also, old data never does you any good -- it would be wise to format most of your ala disks several times. Better yet, treat yourself to some new ones and maybe your luck will change. All those old, dusty disks simply clutter things up. It's time to reorganize. The search warrant usually takes a while to get, but most judges take the path of least resistance and will issue one on fairly flimsy grounds. Now you must realize that most police officers are not used to dealing with computer people and that they do not like the ones they do have to deal with at work. The are used more to searches in the case of narcotics, illegal weapons, etc. You can not expect them, then, to be overly polite when they do knock on your door. Do not let this frighten you into telling them all sorts of things. During the search, however, it helps to have someone there crying. Also, act limply, as if you have lost the will to live. This will usually placate the more professional ones who should realize thereby that you are not going to shoot at them. This behavior is simply designed to keep you from being beaten or otherwise abused. It does not help your case legally although, if they do beat or otherwise try to intimidate you, and you can document it, a prosecutor will feel less exuberant about taking the case to court. They will probably place you under arrest at this point, reading you your rights. Once they do, you are under no obligation to say anything, but I would advise you to say "I want an attorney." An alternative is "I want a lawyer." You can respond to their "good guy" questions about the weather and such, but then when the questions come back to the topic of computers you had best repeat the above sentence(s). In fact, the more times you say it the better if it ever gets to court, but do not say it gratuitously so as to arouse the macho defensiveness that some officers may have. Realize that the arresting officer is not a legal scholar and that he is no more culpable in this arrest than is the postman for bringing you a bill. The real fighting lies ahead. One final point: it is wise to become acquainted with an attorney before any of this happens. One thing is quite certain: nothing you say to the arresting officers is likely to help your case. While they are carrying out your computer, your floppies, your printouts, your telephones, your answering machine, your radio, your tapes, watch them. Remember the irrelevant material they seize. This fact may be helpful in court as well and it may well help dissuade the prosecutor from doing anything much with the case. In one case, they took copies of the Federal Register, a tape of Mozart's 23rd piano concerto (Horowitz), and Gordon Meyer's thesis. The constant repetition of "I want my Mozart back" irritated the prosecutor no end and lessened enthusiasm for the case. (They also picked up pieces of grass the cat had brought in). None of this is legally relevant, but then a lot they do is not legally relevant either ** such as taking the materials in the first place. From here on, the case should be in the hands of a competent attorney. It is not necessary that he be an expert in computers since the prosecutor isn't either and the police even less so. The odds are that you will be able to supply more than enough computer expertise. What is important is his willingness to fight the case. Most will take that path of least resistance, perhaps working toward a plea bargain. The trouble with that is you are not in the best position at this point for a plea bargain. One of you main strategies should be to make the case so much of a pain in the ass for the prosecutor that he tires of it. If the charge is a misdemeanor, be advised that prosecutors do not like to prosecute such cases in the first place. The charge was made a misdemeanor in the hopes that you would simply plead guilty and that would be an end of it. It would also be the last you ever saw of your equipment. One last point: a defense attorney in one of these cases, after I had complained to him that as a taxpayer I resented the enormous expenditure of funds on these cases while there were abundant examples of clear and present dangers ripe for prosecution, said "Oh, they have absolutely no sense of resource management." Hardly encouraging words. A pain in the ass: judges do not like to be overturned on appeal, usually. The Fifth and Sixth Amendments are clearly relevant on your behavior before the trial. I would hope that the First and Ninth would be applied somewhere in the defense. Everyone knows that the first has to do with freedom of expression, but the ninth says, the way I read it, unless we specifically give up certain rights to the government, we retain them. I do not know, really, how these issues would ultimately be resolved, but when constitutional issues are raised during a trial and ruled not relevant, the path is set for appeal all the way, as the saying goes, to the Supreme Court. No matter that it doesn't help in this case specifically -- it may well help in other aspects of the case. The point is that once you are in the legal system and have an attorney, you are in a fight. They have to prove that you are guilty and you have the right to make them prove it legally. This does not mean that you examine all aspects of the case and come to a rational judgment. The interesting thing is that they try to produce any sort of evidence no matter how irrelevant and you try to prevent them from presenting any evidence no matter how germane. There is no longer any objective truth --simply a fight using words. Finally, there is an old maxim to the effect that you should not lie to your attorney. It is also true that it helps to have an attorney who believes in your case and is willing to fight it at every point, even points that seem to you quit irrelevant. When and how much to tell him is a tricky issue. Remember, he is good friends with the judge and the prosecutor, but he is also quite interested in winning cases for his clients. It is also wise to arrange some sort of set fee for the entire case so that you feel more comfortable communicating with him. One thing you should communicate is the outcome you wish to see from the trial and he should also make clear to you what your options are. For example, it is more difficult for a prosecutor to convince a jury that you are guilty. He doesn't even know that much about computers -- imagine him trying to educate others. On the other hand, if he succeeds. and the jury recommends jail time, the judge is more likely to impose it. On the other hand, a judge might be easier to convince, but he would feel much more free to suspend sentence and order "restitution." You have to decide what risks you are willing to incur in search of the desired outcome. I hope this hasn't sounded too frightening and I hope some of it might be helpful to someone out there. All I can say right now is that it is a good time for people with computers to make friends with people with law degrees. The current climate makes it necessary for the one and profitable for the other. Date: September 30, 1990 From: Assorted Subject: Some views on what to do if questioned by LE agents ******************************************************************** *** CuD #2.05: File 6 of 7: Responses to "When the Law Comes..."*** ******************************************************************** {A recent discussion on a newsnet (efftalk@netsys.com) covered the problem of how to respond if questioned by law enforcement. The following synopsis was distilled to cover only a few of the main points. The consensus there, and from other sources, seems to be "don't volunteer anything" and to be cautious when implied promises are made in turn for pre-Miranda cooperation. +++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ My general impression was "call your lawyer first, talk later." You aren't incriminating yourself by refusing to say anything without a lawyer present. +++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ Actually, some good simple rules that apply to any adversary or investigator (press or police) are: a) Don't talk if you have any reason to believe that they *think* or suspect you of any wrongdoing. (Wrongdoing by their definitions, not yours.) b) If you must talk, *ask* questions, do not answer. And take care to make sure your own questions do not contain answers. If you remember to always ask a question, you put them on the defensive and confuse them, because they think they are there to ask the questions. They may not be fazed, but sometimes this is more fun than "no comment." c) Be "fully" cooperative, but insist that everything take place in writing. Say, "If you would be prepared to give a *complete* list of your questions in writing, I will give them due consideration." This makes them stop and think. (With the press, it also can add a delay which makes them go away. If they insist on speed, tell them to fax the questions. You are under no obligation to fax the answers back, even if you do answer.) In this situation, you can't be accused of refusing to comment. You are just being careful and getting documentation -- an admirable trait. Get a complete list of questions -- make them understand they don't get to ask any more -- that way you can sometimes figure their intent. d) If you can slow it down, slow it down. Using writing is just one example of this. Slowing it down is almost always in your advantage, and not in theirs. e) Scare 'em. It may not work, but tell them you are turning on your camcorder or tape recorder while they do what they do -- for your records. It may have no weight in evidence, and they may tell you to shut it down (legally or not) but it will scare 'em. And it looks bad if they refuse you your right to document events. These guys live by documentation and paperwork. But they don't like it if they are stepping over the line. And of course, if you think you are in serious shit, call your lawyer. Ask if you are under arrest, and under what charge. If you are under arrest, you have a right to call a lawyer (eventually). If you are not, you are free to call a lawyer. +++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ Best advice. *NEVER* volunteer *ANYTHING*. When they show up, you'll probably be under stress -- and your mistakes will count against you. Get A Lawyer. |> b) If you must talk, *ask* questions, do not answer. And take care to make |> sure your own questions do not contain answers. If you remember to always |> ask a question, you put them on the defensive and confuse them, because they |> think they are there to ask the questions. They may not be fazed, but |> sometimes this is more fun than "no comment." This won't last long; they think they are there to ask the questions and will usually enforce this concept. This might work if you are not a suspect. |> c) Be "fully" cooperative, but insist that everything take place in writing. |> Say, "If you would be prepared to give a *complete* list of your questions |> in writing, I will give them due consideration." This makes them stop and This will only work if you are not a suspect. +++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ The first thing to do when talking with the police/SS/etc, is DON'T LET THEM INTO THE HOUSE! Do your talking on the porch, sidewalk, their office, etc. The SC has held that once the police are in your home, they are free to walk through the house. Bring a lawyer if the questions are questionable (so to speak). +++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ > camcorder or tape recorder while they do what they do -- for your records. If you're really desperate, you can get one of those home security systems that (among other things) continuously films various rooms from hidden cameras. Then you'll have a videotape of them telling you to turn off your tape recorder. :-) +++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ A funny thing happened to me one day when I came home from school! There's this car in my driveway a Crown Victoria with a siren in the front seat. Well I speak from my own experience. Say Nothing unless you are confident of your abilities to handle yourself. 90% of police work is done because people rat on each other, and 10% is done cause the police (pick one) harass, coerce, trick, etc people into admitting what they did. In my case I talked the whole time rather threateningly too. The cop said "We know you did it so why don't you admit it it will make it easier on you, your parents, a nd us and if you make it easier on us the Judge will go easy on you. Well I stood up and said you dont know Sh*t. And all of this was infront of my parents and the cop wanted a lie detector and everything when he said this my dad went crazy. "A Lie Detector?!!!" Well anyway to make a long story short I didn't take a lie detector I didn't go to jail (I was 18) and I got an apology out of it...So If you didn't do anything don't say anything or else say something unpolite! It will make you feel beter! From: The Conflict Subject: More guidelines on what to do if busted Date: Tue, 13 Nov 90 12:26 CST ******************************************************************** *** CuD #2.12: File 8 of 9: More tips on Reacting to a Raid *** ******************************************************************** %%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%% %% %% %% Simple Guidelines To Follow If You Encounter %% %% Law Enforcement Agents In An Unfriendly Situation %% %% %% %%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%% The current state of the Computer Underground is an extreme turmoil. The recent threat of another series of witchhunt raids has put many people into a state of paranoia, and rightfully so. Noone needs to deal with all the bullshit associated with a bust. I am offering a few guidelines to follow if you are placed in a precarious situation instigated by a law enforcement agent; of course, it is up to you to decide what you want to do. Of the people who I have spoken with, these will be some of the best steps to follow if you receive an unexpected visit. Probably the first thing you would want to do if you receive an unfriendly visit from Joe Fed is to READ the fucking warrant. Find out why you have been chosen, and what they are looking for. Also, remember that if they have only a search and seizure warrant, they are warranted only to confiscate items on your premises; however, if they are serving a subpoena, they may take what they need, on or off your premises. So, in essence, the clean-house preventive measure may or may not be useful to you. An important thing to do when Agent Foley (or one of his lesser evil counterparts) comes knocking on your door is to cooperate fully. Drop a lot of "Yes sir"/"No sir" answers; respond politely. You're in no position to be a smart ass, and being friendly surely can not hurt you. Another important thing to remember, although it is almost opposite of the aforementioned, has to do with what to say. In essence, do not say a fucking thing if you are questioned! Remember, anything you say or do can and WILL be used AGAINST you in a court of law. Simply reply, "I can not answer any questions without counsel", or "I first must contact my attorney." You need not answer a damn thing they ask of you without an attorney present, and it would most probably be very detrimental to do so. This hint parallels the previous one. No matter what you do, do not reply to any question with "I don't know anything", or any simple derivation of that phrase. If you do, and you are indicted, you will be reamed in court. The presence of that statement could greatly damage your defense, unless you are conditionally mental or something. In essence, those are all you should need. What I have outlined is very simple, but logical. You need to keep a level head at least while they are on site with you; get pissed off/psycho later, after they leave. If you are currently an active member of the Computer Underground, you may wish to lose anything that is important to you, at least temporarily. Why? Well, the analogy I was given follows that: if you were suspected of racketeering, the feds could execute a search and seizure on your property. If they can prove by 51% that ANY of the confiscated material COULD have been used in your suspected racketeering, it is forfeited (i.e. you lost it, for good). The forfeiture stands whether or not you are indicted or convicted! So, you would be entirely screwed. All of the aforementioned steps are important. Those are all I really have to offer. I suggest that you get clean before the sweep occurs, and that you stay clean until after the sweep clears. Exercise extreme caution. Keep your head high, and keep your back to the wall (otherwise, it would be quite possible to find a knife lodged in it). Stay safe, and good luck! The Conflict (11-13-1990) From: Reprint Subject: Don't Talk to Cops Date: November 27, 1990 ******************************************************************** *** CuD #2.14: File 7 of 8: Don't Talk to Cops *** ******************************************************************** [reposted from misc.legal K. Henson] ~ There have been a lot of recent discussions of police searches ~ in the electronic-publishing cases (invasions of businesses), ~ and in the Grateful Dead newsgroups (cars with friendly bumper ~ stickers being prime harassment targets.) ~ I just saw this leaflet that looked relevant, ~ so I'm asciifying it for your enjoyment. ~ Bill DON'T TALK TO COPS ------------------ By Robert W. Zeuner, Member of the New York State Bar "GOOD MORNING! My name is investigator Holmes. Do you mind answering a few simple questions?" If you open your door one day and are greeted with those words, STOP AND THINK! Whether it is the local police or the FBI at your door, you have certain legal rights of which you ought to be aware before you proceed any further. In the first place, when the law enforcement authorities come to see you, there are no "simple questions". Unless they are investigating a traffic accident, you can be sure they want information about somebody. And that somebody may be you! Rule Number One to remember when confronted by the authorities is that there is no law requiring you to talk with the police, the FBI, or the representative of any other investigative agency. Even the simplest questions may be loaded, and the seemingly harmless bits of information which you volunteer may later become vital links in a chain of circumstantial evidence against you or a friend. DO NOT INVITE THE INVESTIGATOR INTO YOUR HOME! Such an invitation not only gives him the opportunity to look around for clues to your lifestyle, frieds, reading material, etc., but also tends to prolong the conversation. And the longer the conversation, the more chance there is for a skilled investigator to find out what he wants to know. Many times a police officer will ask you to accompany him to the police station to answer a few questions. In that case, simply thank him for the invitation and indicate that you are not disposed to accept it at that time. Often the authorities simply want to photograph a person for identification purposes, a procedure which is easily accomplished by placing him in a private room with a two-way mirror at the station, asking him a few innocent questions, and then releasing him. If the investigator becomes angry at your failure to cooperate and threatens you with arrest, stand firm. He cannot legally place you under arrest or enter your home without a warrant signed by a judge. If he indicates that he has such a warrant, ask to see it. A person under arrest, or located on premises to be searched, generally must be shown a warrant if he requests it and must be given a chance to read it. Without a warrant, an officer depends solely on your helpfulness to obtain the information he wants. So, unless you are quite sure of yourself, don't be helpful. Probably the wisest approach to take to a persistent investigator is simply to say: "I'm quite busy now. If you have any questions that you feel I can answer, I'd be happy to listen to them in my lawyer's office. Goodbye!" Talk is cheap. But when that talk involves the law enforcement authorities, it may cost you, or someone close to you, dearly. ++++++ This leaflet has been printed as a public service by individuals concerned with the growing role of authoritarianism and police power in our society. Please feel free to copy or republish. Any typos are mine, as is the damage from squashing italics into UPPER-CASE. Thanks; Bill # Bill Stewart 908-949-0705 erebus.att.com!wcs AT&T Bell Labs 4M-312 Holmdel NJ Government is like an elephant on drugs: It's very confused, makes lots of noise, can't do anything well, stomps on anyone in its way, and it sure eats a lot.