Computer Underground Digest Volume 1, Issue #1.04 (April 11, 1990) -- Part 4 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 4 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 4 of 4 ********************************** -------------------------------------------------------------------- ATTACHMENT A -------------------------------------- H. Keith Henson 1794 Cardel Way San Jose, CA 95124 408-978-7616 April 22, 1988 Ron Heller Federal Bureau of Investigation P.O. Box 2317 Riverside, CA 92516 Dear Mr. Heller: I was astounded at the refusal of the FBI to even make minimal inquiry into a citizen`s complaint of a clear violation of a Federal law. Your advice that I take my complaints to Riverside County is hard to fathom; to the best of my knowledge, the county has no laws regarding intercepting electronic mail. Your argument that having an unrelated warrant to take a computer permits interception of the electronic mail of all people who were using that computer would (I think) generate great concern among the staff and members of the House Committee on the Judi- ciary which held extensive hearing on this law only two years ago. Your reluctance to investigate another law enforcement agency is understandable, but if the federal government won`t protect citi- zens from local officials who break Federal laws and violate our Fourth Amendment rights, who will? Sincerely, H. Keith Henson HKH:al cc: John R. Bolton, Asst. Attorney General Rep. George Brown Michael Emick, U. S. Attorney Rep. Hamilton Fish, Jr. Rep. Robert W. Kastenmeier James Knapp, Asst. Attorney General Rep. N. Mineta Rep. Carlos J. Moorhead Sen. Pete Wilson ATTACHMENT B ---------------------------------- (KH Letterhead) April 25, 1988 Michael Emick Chief of Criminal Complaints U.S. Attorney's Office 312 N. Spring St. Los Angeles, CA 90012 Dear Mr. Emick: This letter is to complain about the refusal of the FBI office in Riverside to investigate a clear violation of Federal law. Mr. Heller did not pass on the enclosed letter to Alka Sagar of your office, and she had no recollection Monday of his verbal arguments for the FBI's inaction. I looked into the legislative history of the particular House Bill which eventually became law and found that James Knapp (who was then Deputy Assistant Attorney General, Criminal Division, and has since moved to a higher position in the Justice Depart- ment) had a number of things to say about the impending legisla- tion. He was particularly interested in forestalling the need for court orders to obtain access to stored electronic communica- tions. I quote from his written testimony of March 5, 1986 before the Subcommittee on Courts, Civil Liberties, and the Administration of Justice: "The authorization to intercept the communications should be accomplished by a statute mandating a judicial authorization based on probable cause akin to that which can now be secured with a Fourth Amendment search warrant pursuant to Rule 41 of the Federal Rules of Criminal Procedure. This procedure is based on the premise that the interception of electronic mail generally should be accorded no more protection than that accorded to regular mail. At the present time regular mail can be seized with a Rule 41 search warrant. . . . "The search warrant . . . should be based on a sworn affidavit establishing probable cause to believe that a crime has been, is being or is about to be committed. The affidavit and judicial authorization should sufficiently specify the people involved, the facility in question, the specific offenses involved, and the type of information sought to be intercepted. . . ." Congress went along with the Justice Department in requiring search warrants rather than the more cumbersome court orders, with the understanding that they would watch for abuse. Michael Emick -2- April 25, 1988 Now in the case at hand, there was a search warrant, but it was clearly inadequate to seize electronic mail since it was directed to the computer rather than its contents and the people who put the contents into it. The correct analogy according to Mr. Knapp's testimony would be a search warrant obtained against a private postal service in which all mail in private boxes was confiscated, opened, and read. The search warrant under which the computer was taken was based on incredible half-truth distortions, and simply irrelevant information. For example, the prime item presented under oath to the judge who issued the warrant was verbal testimony about a copy of a receipt for equipment sold to UCLA, shipped to a Florida address, and authorized by an Alcor officer who works at UCLA. In the first place, the coroner's office has no business investigating theft. If they found something suspicious in the course of other investigation, they should have turned it over to the police. In the second place, *taped to the front of that invoice was a canceled check on the officer's account for the full amount on the invoice.* If this isn't perjury, it skates within a hair of it. This may seem to be an unpopular cause to the FBI, but this is the first time (to my knowledge) that a law enforcement agency has violated the provisions of this law. As a result, there is a great deal of interest by a number of people in the electronic mail industry. If local law enforcement officials demonstrate that they can get away with ignoring this law, there may be considerable pressure on Congress to require more stringent provisions for law enforcement agencies to obtain access to electronic communications. If you have any questions, please give me a call. Sincerely, H. Keith Henson HKH:al cc: Christopher Ashworth, Esq. ATTACHMENT C (KH Lettterhead) April 25, 1988 Representative Norman Mineta 13th District 1245 S. Winchester Blvd., Suite 310 San Jose, Ca 95128 Attention: Dorene Giacopini Dear Representative Mineta: I am writing to ask you to intercede with the FBI on behalf of myself and two other San Jose constituents, Thomas K. Donaldson and Roger Gregory. We believe a Federal Law, Section 2701, et seq. of Title 18, was broken by local law enforcement officials in Southern California. We would like you to make a request of the FBI that they determine if this is true, and if it is, ask the U.S. Attorney to file charges. All of us used (and paid for through membership fees) an elec- tronic mail facility owned by the Alcor Life Extension Founda- tion. On January 12 of this year, the computer containing our confidential personal communications was seized by the coroner`s office in Riverside under a warrant issued against Alcor and obtained on the basis of gross distortions. Regardless of the validity of this warrant, <2703 requires a warrant naming the individual whose mail is to be seized, and stating probable cause as to the need to invade the individual`s privacy. No warrants have been issued which would permit these officials to access or deny us access to our electronic mail. The FBI is understandably reluctant to investigate a fellow law enforcement agency. In my first telephone conversation with Ron Heller he strongly discouraged me from complaining. While it may have been inadvertent, his office lost my first letter (sent by Express Mail), did not pass on the enclosed letter to the U.S. Attorney`s office, and suggested (when he called after 5PM last Friday) that my only recourse is to the same local officials who have violated the law. The cited section of law, the Electronic Communications Privacy Act of 1986, and the cases which develop from it are of great interest in Silicon Valley, where the local volume of electronic mail may be approaching that of First Class mail. There is a considerable interest expressed by several computer publications in the case. I can direct the reporters who are calling me to your office if you wish. Sincerely, H. Keith Henson HKH:al ATTACHMENT D --------------------------------- (KH letterhead) April 25, 1988 Senator Pet Wilson 2040 Ferry Building San Francisco, CA 94111 Attention: Lisa Nauman Dear Senator Wilson: (body same as Attachment D) ATTACHMENT E --------------------------------- (KH Letterhead) July 31, 1988 Representative Norman Mineta 13th District 1245 S. Winchester Blvd., Suite 310 San Jose, Ca 95128 Dear Representative Mineta: Thank you for pursuing an inquiry for me into the FBI's disinter- est in an apparent violation of the Electronic Communication Pri- vacy Act, and for forwarding a copy of Mr. Floyd Clark's letter. In that letter of June 3, the FBI excused their unwillingness to investigate because the US Attorney declined prosecution. Alka Sagar, the US Attorney in Los Angeles who Mr. Heller told me had made the decision to decline prosecution, based her decision entirely on a short telephone conversation with FBI represen- tative Mr. Heller. When I contacted her on the Monday after Mr. Heller told me that no investigation was going to be made, she told me that my letter to the FBI had not been forwarded. She could not remember either the subject or the reason for declining prosecution. If I could speculate on the conversation, Mr. Heller may have told her he had a case he did not want to work on, and her response may have been something like "Well, if you don't want to work on it, the U.S. Attorney isn't interested." This is hardly an independent evaluation of the merits of my complaint. I then wrote to Michael Emick, Ms. Sagar's boss. He is Chief of Criminal Complaints for the U.S. Attorney's Office in Los Angeles. One of Mr. Emick's assistants called a week or two later and told me that virtually no cases except those involving large amounts of cocaine are being accepted for prosecution, regardless of the merits. I have received no written response to my letter of April 25 to date (copy enclosed). There may be a need for remedial legislation on electronic pri- vacy. Mr. Heller, a San Jose FBI agent, and two representatives of the District Attorney's office in Riverside all believe that the requirements for obtaining warrants against individuals found in 1986 law can be safely ignored if a warrant can be obtained against the computer on which the electronic mail is stored. They use the analogy that if they obtained a warrant against a Post Office, they could open and read any mail they found within the walls of the Post Office. I doubt this was the intent of Representative Norman Mineta -2- July 31, 1988 Congress, but if it was, the fact would be of great interest in this area. In his closing sentence, Mr. Clark recommends that I contact an attorney to see what civil remedies are available to me. I have already contacted several. I find that while there are pro- visions (Section 2707) for civil actions at law, they are use- less. If a jury found that my privacy rights had indeed been violated, I could be awarded $1,000. The attorneys I have contacted tell me that the case could be made, and likely won, but the cost to do so would start at $100,000 and range upwards of $500,000. If this were an isolated incident, I would feel better about ignoring the decay of civil rights in this area. But recently Riverside county officials used a search warrant to confiscate television news tapes in violation of federal and state laws pro- tecting freedom of the press. Limits on law enforcement activi- ties are as important as limits on criminals. Although it is a lot of trouble for a citizen to oppose high handed law enforce- ment agents, it has to be done to prevent the loss of our rights. I would appreciate your inquiring of the Justice Department what reasoning they used to decline enforcing the law Congress made regarding electronic communications. Perhaps they would respond to a letter from you in less than three months. I know you are sensitive to shortcuts in due process, and I could use your ad- vice on what, if anything, I should do. Sincerely, H. Keith Henson HKH:al ATTACHMENT F ----------------------------------- U.S. Department of Justice Federal Bureau of Investigation Washington, DC 20535 June 27, 1988 Honorable Pete Wilson United States Senator 2040 Ferry Building San Francisco, California 94111 Dear Senator Wilson: Your May 18th inquiry of the Department of Justice on behalf of Mr. H. Keith Henson has been referred to FBI Headquarters. Mr. Henson's concerns have been reviewed both here and by our Los Angeles Office. The facts have been presented to the United States Attorney's Office and prosecution was declined. Mr. Henson has been advised of the declination and that our investigation is closed. It has been suggested to Mr. Henson that he contact an attorney of his choice to pursue possible civil remedies available to him. Sincerely yours, (signed) Floyd I. Clarke Assistant Director Criminal Investigative Division ATTACHMENT G -------------------------------- U.S. Department of Justice Office of Legislative Affairs Office of the Assistant Attorney General Washington, DC 20530 04 NOV 1988 (stamped date) Honorable Norman Y. Mineta U.S. House of Representatives 1245 South Winchester Blvd., Suite 310 San Jose, California 95128 ATTN: Dorene M. Giacopini Field Representative Dear Congressman Mineta: This is in response to your letter dated September 22, 1988, on behalf of your constituent H. Keith Henson. The Unites States Attorney's office for the Central District of California considered twice whether prosecution was warranted, taking into account the information provided by Mr. Henson. However, there is no competent evidence upon which to base a federal prosecution. Since Mr. Henson's letter addresses a matter currently being prosecuted by the State of California, this office recommends that you refer Mr. Henson's inquiry to the District Attorney's office, Los Angeles, California. Sincerely, (signed) Thomas M. Boyd (for) Assistant Attorney General ATTACHMENT H ------------------------------ (KH Letterhead) November 9, 1988 Thomas M. Boyd Assistant Attorney General Office of the Assistant Attorney General Washington, DC 20530 Dear Mr. Boyd: Representative Norman Mineta passed on your undated letter to me responding to his letter of September 22, 1988. It is a violation of federal law (Title 18, Section 2701 et seq.) to seize a person's electronic mail without a warrant against the person's mail. My electronic mail was seized without a warrant being sought against it. Could you tell me how these simple-to- determine facts fail to provide "competent evidence on which to base a federal prosecution." Could you tell me what constitutes "competent evidence" or provide a reference? Could you clarify the last paragraph of your letter. To the best of my knowledge there is nothing related to any letter I have written which is "currently being prosecuted by the State of California" by the District Attorney's office in Los Angeles. If there is, this would be of intense concern. Sincerely H. Keith Henson HKH:al cc Representative Norman Y. Mineta ATTACHMENT I ----------------------------- COUNTY OF RIVERSIDE, STATE OF CALIFORNIA SEARCH WARRANT (boilerplate, description of place to be searched) . . . 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 drive(s), printer, software and service manuals 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 as belonging to the deceased, Dora Kent. 3 Narcotics, controlled substances and other drugs subject to regulation by the Drug Enforcement Administration. (more boilerplate, signature of Judge) ATTACHMENT J <- END PART 4 of 4 ->

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