Computer Underground Digest Volume 1, Issue #1.04 (April 11, 1990) -- Part 3 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 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 ->

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