Computer Underground Digest Volume 1, Issue #1.04 (April 11, 1990) -- Part 2 of 4 -- AL
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*** 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
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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
PART 2 of 4
Boilerplate, case # C-88-20788
H. Keith Henson, et al.,
Federal Bureau of
Investigation, et al.,
DEFENDENTS' MEMORANDUM OF POINT AND AUTHORITIES
IN SUPPORT OF THEIR MOTION TO DISMISS
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.
As stated in the Declaration of William F. Murphy, the facts are as
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
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
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
On April 21, 1988, SA Heller advised plaintiff Henson of the United
States Attorney's prosecutive opinion.
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
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).
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
(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
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!
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
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
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
THOMAS K. DONALDSON
1410 Norman Dr.
Sunnyvale, CA 94087
ROGER E. GREGORY
2040 Columbia St.
Palo Alto, CA 94306
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
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
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
Plaintiffs have no disagreements with the third
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
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
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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