Computer Underground Digest Volume 1, Issue #1.04 (April 11, 1990) -- Part 2 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 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 ->

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