Computer Underground Digest Volume 1, Issue #1.04 (April 11, 1990) -- Part 1 of 4 -- AL

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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 >>>

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