Computer underground Digest Sun June 19, 1994 Volume 6 : Issue 55 ISSN 1004-042X Editors:

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Computer underground Digest Sun June 19, 1994 Volume 6 : Issue 55 ISSN 1004-042X Editors: Jim Thomas and Gordon Meyer (TK0JUT2@NIU.BITNET) Archivist: Brendan Kehoe Retiring Shadow Archivist: Stanton McCandlish Shadow-Archivists: Dan Carosone / Paul Southworth Ralph Sims / Jyrki Kuoppala Ian Dickinson Copy Dittoer: Etaoian Shrdlu CONTENTS, #6.55 (Sun, June 19, 1994) File 1--Motion to Dismiss Amateur Action BBS case on NAFTA Cu-Digest is a weekly electronic journal/newsletter. Subscriptions are available at no cost electronically. CuD is available as a Usenet newsgroup: Or, to subscribe, send a one-line message: SUB CUDIGEST your name Send it to LISTSERV@UIUCVMD.BITNET or LISTSERV@VMD.CSO.UIUC.EDU The editors may be contacted by voice (815-753-0303), fax (815-753-6302) or U.S. mail at: Jim Thomas, Department of Sociology, NIU, DeKalb, IL 60115, USA. 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Please avoid quoting previous posts unless absolutely necessary. DISCLAIMER: The views represented herein do not necessarily represent the views of the moderators. Digest contributors assume all responsibility for ensuring that articles submitted do not violate copyright protections. ---------------------------------------------------------------------- Date: Wed, 25 May 94 13:10:30 PDT From: hkhenson@CUP.PORTAL.COM Subject: File 1--Motion to Dismiss Amateur Action BBS case on NAFTA ((MODERATORS' NOTE: The Following is the defense motion for a Change of Venue in the Amateur Action BBS case. AABBS Sysop, Robert Thomas, faces felony charges in Memphis because federal prosecutors there claim that files, which are legal in Thomas' own state of California, violate Tennessee statutes. The thrust of the 11 count indictment alleges obscene matter in interstate commerce. See CuD 6.09, 6.33, 6.35, and 6.43. The following motion explains some of the issues in the case, and why observers have reason to suspect that the prosecution may reflect right-wing fundamentalist threats to free speech rather than actual illegal activity. Dan Newsom, the USDA prosecuting the case, had no comment when CuD contacted him, and referred us to the court clerks at (901) 544-3315. The judge is Julia Gibbons)). ================================================================ Richard D. Williams, APC Attorney at Law 79 Devine Street, Suite 101 San Jose, California 95112 (408) 295-6336 Attorney for Defendants UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TENNESSEE UNITED STATES OF AMERICA ) Case No. 94-20019-G ) vs. ) ) ROBERT A. THOMAS ) and ) CARLEEN THOMAS ) ) MOTION TO DISMISS [Federal Rule of Criminal Procedure, Rule 12(b)(1)] Defendants Robert and Carleen Thomas are the operators of a business entitled Amateur Action B.B.S., which is a computer bulletin board containing Electronic Mail (E-mail), and has computer generated images (or GIFs) which are accessible from and sold all over the world, including Mexico and Canada. Amateur Action B.B.S. also sells erotic video tapes and magazines to its members. Defendants are being prosecuted in the Western District of Tennessee. Defendants contend that this court lacks both subject matter jurisdiction and venue in this matter. Defendants further submit that the use of local Tennessee standards to an international business located in the northern district of California violates both equal protection of law and the arbitrary and capricious standard and is unconstitutional. Defendants are, therefore, moving that this case be dismissed pursuant to Federal Rule of Criminal Procedure, Rule 12(b)(1). Statement of the Case Defendants contend that under the constitution, in particular the Commerce Clause and the Supremacy Clause, allowing local jurisdictions to establish a community standard to determine the existence of a crime as well as the guilt or innocence of the alleged perpetrator clearly violates the equal protection clause as well as the arbitrary and capricious standard. The lack of equal protection is seen from the fact that Defendants~ conduct would not be a crime in California, as well as the fact that Defendants were not on notice that their conduct would be illegal in Tennessee. It is also apparent that a Canadian or Mexican national running the same type of business would not be subject to prosecution (in Tennessee or elsewhere) by the U.S. Government for the same conduct. Further, Defendants contend that the U.S. Supreme Court, in its Miller vs. California (412 U.S. 15 1973) decision that the U.S. Supreme Court was arbitrary and capricious in relegating the decision to local standards instead of setting a national standards. This leads to equally arbitrary and equally capricious prosecution based upon vague local standards such as the present case. Defendants contend that Miller vs. California and its progeny have been over-ruled by statute by the ratification of the North American Free Trade Agreement (NAFTA). Further, the Miller case is inconsistent with 28 USC 1581. In November, 1993, Congress passed the North American Free Trade Agreement, which became effective on January 1, 1994. This case re-defined venue and transferred regulatory power to an international tribunal for matters of international commerce. Further, NAFTA specifically does away with the arbitrary and capricious local standards by preempting the regulatory local rules which restrain trade to those which are objectively reasonable and necessary to the public health preservation. It is further submitted that, as the government is presumed to know of its own lows that the U.S. Attorney~s office acted in reckless disregard of the NAFTA legislation, 18 USC 2510 et seq., and 42 U.S.C. 2000aa as the search warrant was obtained after January 1, 1994 as well as the fact that they ignored the 42 USC 2000aa and 18 USC 2510 et seq. by their use of search warrants to accomplish their goals. Further, the sending of child pornography without a request therefor is unconscionable. Statement of Facts This matter arose from a search of Defendant~s residence located at 450 Tramway Drive, Milpitas, California on January 10, 1994 by Postal Agent David H. Dirmeyer in conjunction with San Jose Police Officers. Defendants operated an adult computer bulletin board from their Milpitas residence, which bulletin board carried electronic mail of approximately 3,500 subscribers. Defendants Robert and Carleen Thomas qualified as "publishers" within the meaning of 42 US code 2OOOaa. Postal Inspector David H. Dirmeyer made numerous presentations of fact in the course of his affidavit including, but no limited to, allegations that he received information from a private citizen who allegedly described himself as an avid computer "hacker" who had encountered a computer bulletin board system offering photos, videos and nude children. Agent Dirmeyer knew this to be false as he had in fact joined the bulletin board personally (although under the name of Lance White) in February 1993. Agent Dirmeyer used the bulletin board as any other member would during that period. Agent Dirmeyer alleged that on or about August 20, 1993, using a computer equipped modem, inquired about procedure for subscribing to the Amateur Action Bulletin Board Service (AABBS). Agent Dirmeyer claims to have joined the system under the fictitious name of Lance White on August 20, 1993. According to Defendant's records, "Lance White" renewed his membership on or about August 20,1993. In paragraph 13 on page 6 of Agent Dirmeyer~s affidavit in support of his application for search warrant, he acknowledged that on or about August 27, 1393 he spoke by bulletin board to Robert Thomas and Agent Dirmeyer indicated that he had some unique materials, but he did not reveal the subject matter of these materials. Thereafter, Agent David Dirmeyer mailed three magazines of hard core kiddie porn to Defendants without their knowledge or consent. Having been a member of the Bulletin Board Service for approximately six months and having examined all the material on the bulletin board, Agent Dirmeyer should have been well aware that Defendants Robert and Carleen Thomas had no kiddie porn on their system nor did they offer any such items for sale and distribution to the general public. In paragraph 27 on page 12 of David Dirmeyer's affidavit in support of his application for a search warrant he commits blatant perjury claiming to have left Robert Thomas an E-Mail message informing him that he (Agent Dirmeyer aka Lance White) had child pornography to lend him. He further alleges that Robert Thomas responded back by E-Mail requesting these materials. David Dirmeyer did not reference these magazines as items to be seized in his application for the search warrant or in the search warrant itself. Agent Dirmeyer included copies of the computer produced pictures (as GIFs) as part of his affidavit supporting his application for the search warrant and he did point out to Magistrate Brazil that the system which he wished to seize contained E-Mail. Magistrate Brazil either did not read the affidavit carefully or ignored the requirements of the Electronic Privacy Act contained in 42 USC 2OOOaa as well as the Electronic Communications Privacy Act contained in 18 USC 2510 et. seq. On or about January 10, 1994 Agent David Dirmeyer, acting in conjunction with agents of the San Jose Police Department "Hi Tech" unit raided Defendant's Milpitas residence and seized Defendant's entire 26 computer system as well as his ledger, UPS records, and several video tapes. This seizure included a seizure of all of defendant~s electronic mail files and took his bulletin board system out of operation. At that time, Agent Dirmeyer had Defendant sign a consent to seize the three kiddie porn magazines in which consent for seizure Agent Dirmeyer acknowledged that these items were sent without Robert Thomas~ knowledge. Agent Dirmeyer also acknowledged that he was in fact ~Lance White~. Further, Amateur Action B.B.S. is an adult only board where members most prove their age to join. Amateur Action BBS has approximately 150 members in Canada, at least one member in Mexico, and approximately 150 members distributed throughout the rest of the world. One must join the board to have access to it. Amateur Action BBS sells tapes and magazines to its members as well as adult novelties. They also sell computer hardware and software. Amateur Action also offers E-mails service and access to its computer banks of GIFs and utility files. As such, Amateur Action BBS is a ~publisher~ within the meaning of 18 USC 2510 et seq. SUMMARY OF ARGUMENTS PROPOSITION ONE DEFENDANTS ARE BEING DENIED EQUAL PROTECTION OF LAW Defendants Robert and Carleen Thomas are being prosecuted based upon the theory that some of their merchandise is obscene based upon the community standards of the Western District of Tennessee. Thus, the Western District of Tennessee is determining the existence of a crime based upon a community standard which is not readily apparent to those who have never been to Tennessee, have no way of knowing ~community standards~ in Tennessee, and who are engaged in a business which is legal in their own community. As these standards are not defined even in the Western District of Tennessee, their application on an ad hoc basis is arbitrary and capricious by necessity. Further, the Commerce Clause of the United States Constitution prohibits localities from setting up capricious local standards which restrain trade. Article One, Section 8, Clause Three of the U.S. Constitution is commonly referred to as the ~Commerce Clause~ and gives Congress the complete power to regulate interstate and international commerce. By passing 19 USC 1305, Congress manifested its intent to have customs determine whether materials are obscene and should be denied admission to the United States. As the case of Miller vs. California, 413 U.S. 15 stands for the proposition that local standards should apply and Miller doesn~t discuss or overrule 19 USC 1305, I would conclude that Miller does not rest on sound reasoning. Miller vs. California seems to state that ~obscenity~ was to be judged by a local standard and declined to define obscenity on a national basis (which would have taken the arbitrariness out of obscenity cases) and in so doing impermissibly delegated that authority to each locality in the United States. While the Supreme Court strained beyond all reason to find that allowing localities to set their own standards wax not unconstitutionally vague, the argument was not made that this delegation of authority would lead to arbitrary and capricious prosecutions such as Robert A. Thomas and Carleen Thomas have been denied equal protection under the laws of the United States. PROPOSITION 2 The Western District of Tennessee is not the proper venue to determine the controversy. Further, the United States District Court lacks subject matter jurisdiction. Defendants argue that most of their merchandise is imported and passed customs inspection before reaching their hands. All such imported items are covered by 19 USC 1305(a) entitled Immoral Articles; Importation prohibited, and it states: 1305. Immoral Articles: Importation prohibited (1) Prohibition of importation. All persons are prohibited from 1305 Immoral articles; importation prohibited (a) Prohibition of importation, all persons are prohibit from importing into the United States from any foreign country any book pamphlet, paper, writing, advertisement, circular, print, picture, or drawing containing any matter advocating or urging treason or insurrection against the United States, or forcible resistance to any law of the United States, or containing any threat to take the life of or inflict bodily harm upon any person in the United States, or any obscene book, pamphlet, paper, writing, advertisement, circular, print, picture, drawing, or other representation, figure, or game on or of paper or other material, or any cast, instrument, or other article which is obscene or immoral, or any drug or medicine or any article whatever for causing unlawful abortion, or any lottery ticket, or any printed paper that may be used as a lottery ticket, or any advertisement of any lottery. No such articles, whether imported separately or contained in packages with other goods entitled to entry, shall be admitted to entry; and all such articles and, unless it appears to the satisfaction of the appropriate customs officer that the obscene or other prohibited articles contained in the package were inclosed therein without the knowledge or consent of the importer, owner, agent, or consignee, the entire contents of the package in which such articles are contained shall be subject to seizure and forfeiture as hereinafter provided: Provided, That the drugs hereinbefore mentioned, when imported in bulk and not put up for any of the purposes hereinbefore specified, are excepted from the operation of this subdivision: Provided, further, That the Secretary of the Treasury may, in his discretion, admit the so-called classics or books of recognized and established literary or scientific merit, but may, in his discretion, admit such classics or books only when imported for noncommercial purposes; Provided further, That effective January 1, 1993, this section shall not apply to any lottery ticket, printed paper that may be used as a lottery ticket, or advertisement of any lottery, that is printed in Canada for use in connection with a lottery conducted in the United States. (b) Enforcement procedures. Upon the appearance of any such book or matter at any customs office, the same shall be seized and held by the appropriate customs officer to await the judgment of the district court as hereinafter provided; and no protest shall be taken to the United States Court of International Trade from the decision of such customs officer. Upon the seizure of such book or matter, such customs officer shall transmit information thereof to the United States attorney of the district in which is situated either ~ (1) the office at which such seizure took place; or (2) the place to which such book or matter is addressed; and the United States attorney shall institute proceedings in the district court for the forfeiture, confiscation, and destruction of the book or matter seized. Upon the adjudication that such book or matter thus seized is of the character the entry of which is by this section prohibited, it shall be ordered destroyed and shall be destroyed. Upon adjudication that such book or matter thus seized is not of the character the entry of which is by this section prohibited, it shall not be excluded from entry under the provisions of this section. In any such proceeding, any party in interest may upon demand have the facts at issue determined by a jury and any party may have an appeal or the right of review as in the case of ordinary actions or suits. (c) Forfeiture of obscene material. Notwithstanding the provisions of subsections (a) and (b), whenever a customs officer discovers any obscene material after such material has been imported or brought into the United States, or attempted to be imported or brought into the United States, he may refer the matter to the United States attorney for the institution of forfeiture proceedings under this section. Such proceedings shall begin no more than 30 days after the time the material is seized; except that no seizure or forfeiture shall be invalidated for delay if the claimant is responsible for extending the action beyond the allowable time limits of if proceedings are postponed pending the consideration of constitutional issues. (d) Stay, Upon motion of the United States, a court shall stay such civil forfeiture proceedings commenced under this section pending the completion of any related criminal matter. [(3)](b) Coordination of forfeiture proceedings with criminal proceedings. (1) Notwithstanding subsection (a), whenever the Customs Service is of the opinion that criminal prosecution would be appropriate or that further criminal investigation is warranted in connection with allegedly obscene material seized at the time of entry, the appropriate customs officer shall immediately transmit information concerning such seizure to the United States Attorney of the district of the addressee's residence. No notice to the addressee or consignee concerning the seizure is required at the time of such transmittal. Thus, customs has the jurisdiction to determine, as to imported items, what is and what is not obscene. This statute was not argued or considered by the U.S. Supreme Court in its Miller vs. U.S. (413 U.S. 15, (1973)), decision. (1) The office at which the seizure took place; or (2) the place to which the items is addressed. Pursuant to 19 USC 1305, if the U.S. attorney and U.S. Customs Act under this section, no complaint can be made to the U.S. Court of International Trade. However, if this section is not complied with, such as here, the International Court of Trade should be involved. Once Customs passes an item into the country with approval stamps, it has been held to be entrapment to later pursue the recipients as possessors of contraband. In Jacobsen vs. U.S., 112 S. Ct., 1535 at page 1540, the Supreme Court stated~: [2, 3] In their zeal to enforce the law, however, Government agents may not originate a criminal design, implant in an innocent persons' mind the disposition to commit a criminal act, and then induce commission of the crime so that the Government may prosecute. Sorrells, supra, 287 U.S. at 442, 53 S.Ct. at 212; Sherman, supra, 356 U.S. at 372, 78 S.Ct. at 820. Where the Government has induced an individual to break the law and the defense of entrapment is at issue, as it was in this case, the prosecution must prove beyond reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by Government agents. United States v. Whoie, 288 U.S.App.D.C. 261, 263-264, 925 F.2d 1481, 1483-1484 (1991). ~placing the burden of determining whether an item is obscene on Customs, as Congress intended, alleviates the impositions of vague and inconsistent local standards and the unconscionable inconsistency caused by Miller vs. California (supra) and its progeny as well as forcing the government to make a decision as to matters which are obscene or not upon importation and to seize items in dispute pending judicial determination. Further, there is no provision under 19 USC 1305 for the use of grand juries in this process (such as the grand jury who indicted defendants here in the Western District of Tennessee). There is a difference between these cases and a classic entrapment case where the criminal intent is induced in an otherwise innocent person and where, as here, the crime itself was manufactured, the criminal intent was manufactured (by inducing things to be mailed into the Western District of Tennessee), and now prosecuting those offenses. Defendants also contend that proper venue of this case is either in the International Court of Trade or the Multinational Tribunal Sanctional by the North American Free Trade Agreement (NAFTA). 28 U.S.C. Section 1581 states: 1581. Civil sections against the United States and agencies and officers thereof (a) The Court of International Trade shall have exclusive jurisdiction of any civil action commenced to contest the denial of a protest, in whole or in part, under section 515 of the Tariff Act of 1930 [19 USCS 1515]. (b) The Court of International Trade shall have exclusive jurisdiction of any civil action commenced under section 516 of the Tariff Act of 1930 [19 USCS 1516]. (c) The Court of International Trade shall have exclusive jurisdiction of any civil action commenced under section 516A of the Tariff Act of 1930 [19 USCS 1516a]. It is unclear whether NAFTA entirely preempts 28 U.S.C. 1581, but NAFTA seeks to have disputes settled by a multinational tribunal. PROPOSITION 2 THIS ACTION SHOULD BE PREEMPTED BY NAFTA The objectives of NAFTA are contained in Article 102 and are: 1. The objectives of this Agreement, as elaborated more specifically through its principles and rules, including national treatment, most-favored-nation treatment and transparency, are to: (a) eliminate barriers to trade in, and facilitate the cross-border movement of, goods and services between the territories of the Parties; (b) promote conditions of fair competition in the free trade area; (c) increase substantially investment opportunities in the territories of the Parties; (d) provide adequate and effective protection and enforcement of intellectual property rights in each Party's territory. (e) create effective procedures for the implementation and application of this Agreement, for its joint administration and for the resolution of disputes; and (f) establish a framework for further trilateral, regional and multilateral cooperation to expand and enhance the benefits of this Agreement. Provisions (a), (b), and (e) of Article 102, specifically the elimination of trade barriers, the promotion of conditions of fair competition in the free trade areas, and the joint resolution of disputes would be threatened if we allow localities to regulate commerce by way of criminal prosecutions. Further, Equal Protection of Law would not allow a differential burden between American Nationals and foreign businesses which do business here under NAFTA. Since NAFTA is the more recent legislation, NAFTA should receive great deference. Article 105 states that "the parties shall ensure that all necessary measures are taken in order to give effect to the provisions of this agreement, including their observance, except as otherwise provided in this agreement, by state and provincial governments. Article 300 indicates that "this chapter applies to trade in goods of a party~". As Defendants sells computerware, software, sell videotapes, as well as provide access to their computer banks and E-mail services, they are clearly sellers of goods. They have over a hundred members in Canada and do business in Mexico as well. They must also compete with adult bulletin board services in Canada and Mexico. Article 301 states in pertinent part: 1. Each Party shall accord national treatment to the goods of another Party in accordance with Article III of the General Agreement on Tariffs and Trade (GATT), including its interpretative notes, and to this end Article III of the GATT and its interpretative notes, or any equivalent provision of a successor agreement to which all Parties are a party, are incorporated into and made part of this Agreement. 2. The provisions of paragraph 1 regarding national treatment shall mean, with respect to a state or province, treatment no less favorable than the most favorable treatment accorded by such state or province to any like, directly competitive or substitutable goods, as the case may be, of the Party of which it forms a part. The standards for regulatory standards which restrain trade are also included within NAFTA. Article 904, entitled "Basic Rights and Obligations", states: Right to Take Standards-Related Measures 1. Each Party may, in accordance with this Agreement, adopt, maintain or apply any standards-related measure, including any such measure relating to safety, the protection of human, animal or plant life or health, the environment or consumers, and any measure to ensure its enforcement or implementation. Such measures include those to prohibit the importation of a good of another Party or the provision of a service by a service provider of another Party that fails to comply with the applicable requirements of those measures or to complete the Party's approval procedures. Right to Establish Level of Protection 2. Notwithstanding any other provision of this Chapter, each Party may, in pursuing its legitimate objectives of safety or the protection of human, animal, or plant life or health, the environment or consumers, establish the levels of protection that it considers appropriate in accordance with Article 907(2). Non-Discriminatory Treatment 3. Each Party shall, in respect of its standards-related measures, accord to goods and service providers of another Party: (a) national treatment in accordance with Article 301 (Market Access) or Article 1202 (Cross-Border Trade in Services); and (b) treatment no less favorable than that it accords to like goods, or in like circumstances to service providers, of any other country. Unnecessary obstacles 4. No Party may prepare, adopt, maintain, or apply any standards-related measure with a view to or with the effect of creating an unnecessary obstacle to trade between the Parties. An unnecessary obstacle to trade shall not be deemed to be created where: (a) the demonstrable purpose of the measure is to achieve a legitimate objective; and (b) the measure does not operate to exclude goods of another Party that meet that legitimate objective. Plus these "obscenity" statutes, which are intended for the protection of public morals would not fall within permissible legislation effecting safety, or the protection of human, plant, or animal health, environment or consumers contained in Article 904. As the intent of NAFTA is to eliminate artificial barriers to trade, the parties (the United States, Canada, and Mexico) agreed to define "legitimate objectives" for purposes of these regulations. Article 907 states: Article 907: Assessment of Risk 1. A Party may, in pursuing its legitimate objectives, conduct an assessment of risk. In conducting an assessment, a Party may take into account, among other factors relating to a good or service: (a) available scientific evidence or technical information; (b) intended end uses; (c) processes or production, operating, inspection, sampling or testing methods; or (d) environmental conditions. 2. Where pursuant to Article 904(2) a Party establishes a level of protection that it considers appropriate and conducts an assessment of risk, it should avoid arbitrary or unjustifiable distinctions between similar goods or services in the level of protection it considers appropriate, where the distinctions: (a) result in arbitrary or unjustifiable discrimination against goods or service providers of another Party; (b) constitute a disguised restriction on trade between the Parties; or (c) discriminate between similar goods or services for the same use under the same conditions that pose the same level of risk and provide similar benefits. Further, it would be impossible to put foreign nationals on notice of the varying community standards for all 50 states which would violate the "Notice" provision contained in Article 909(1)(9). Furthermore, it is equally unreasonable to impose differential burdens upon vendors of similar goods and services residing in the several states of the federal Union. A careful reading of Miller vs. California, (supra), shows that the U.S. Supreme Court was concerned with two primary issues: (a) the preservation of states' powers to determine and proscribe "obscenity" and the elimination of the burden on the Supreme Court to view and rule on every book, movie, or magazine that someone deemed obscene. In light of this, Miller must be seen as questionable, if not inappropriate means of re-apportionment of state and federal subject matter jurisdiction. It was, in fact, a political response to the then ensuing controversy over obscenity and public morals which were the subject of presidential campaigns. The U.S. Supreme Court did not wish to create a national standard for obscenity and impose it upon the states. Further, the "Commerce" in Miller was sending a sexually oriented brochure by a Los Angeles business to a Los Angeles resident who did not request it and was offended by it. The "commerce" offended was, therefore, entirely intra-state. Miller was not in any way intended to allow the federal government to create a national obscenity law without a national obscenity standard. This is the only constitutional interpretation of the Miller case. NAFTA also provides in Annex 1901.2 that disputes between parties are to be settled by bi-national panels. This, too, would be impossible if the United States Government could thwart this provision by filing a criminal indictment as opposed to a civil complaint. NAFTA, in Annex 1904.15, cites numerous statutes which shall be amended so as not to conflict with NAFTA and its dispute resolution provisions including, but not limited to the Tariff Act of 1930 and the United States-Canada Free Trade Agreement Implementation Act. NAFTA also sets up in Article 2001 a free trade commission to interpret the agreement and consider any matters which may affect the operation of this agreement. This evidences a clear intent by the parties that the entire field be covered and that all disputes be resolved before the Free Trade Commission. Thus, it would appear that this court has no jurisdiction. PROPOSITION III BECAUSE PRIVATE ELECTRONIC MAIL AND PUBLISHING INFORMATION WERE CONTAINED WITHIN THE COMPUTERS SEIZED, A REGULAR SEARCH WARRANT WOULD NOT HAVE BEEN SUFFICIENT TO ALLOW SEARCH AND SEIZURE OF THE PROPERTY IN QUESTION. Electronic information inside the computers seized contained constitutionally protected private communications and protected publishing information. Information in either category cannot be searched or seized without meeting heightened requirements formulated to protect the constitutional rights of the possessor. Inspector Dirmeyer made reference to the laws involved in points 43-46 of the affidavit and in Attachment W, leaving no question that he was aware of these issues. Though he was aware, he made no request of the court for the special finding required to seize computers thus invalidating the warrant. The Court either ignored the showing required to obtain a search warrant for seizing E-mail files contained in 18 USC 2510 et seq. or he did not read the application carefully. A. The Search and Seizure was Conducted Contrary to the Electronic Communication Privacy Act Specialized Warrant Requirements and Thus Violated the Fourth Amendment Protection Against Unreasonable Search and Seizure. The Electronic Communications Privacy Act, 18 US 2510 et seq. ,was originally passed by Congress to regulate wire tapping only. The law was expanded in the late '70s and again in 1986 to include electronic communications such as private electronic mail. Approximately 2,200 pieces of the electronic mail from the 3500 users of the system were housed within the computer equipment seized. A substantial number of these electronic messages were private mail, viewable only by the recipient. Electronic messages or E-mail is an integral part of all bulletin board systems. On this system, typing an M from the log-on screen would display the message system. Sending E-mail required typing an E, the name of the recipient, the message, and typing an S to save the message. When the intended recipient next called into the system, a message would be displayed showing he had E-mail available to read. These electronic messages or E-mail are protected by the Electronic Communications Privacy Act. Inspector Dirmeyer was aware of this feature since he had been a member of AABBS for almost a year, and is known to have used the E-mail feature. Inspector Dirmeyer, at the time of the search and in the affidavit, indicated that he knew the system contained EM. 2518 of the Act spells out the procedure to allow a seizure of items containing electronic communications. After application for a warrant is made to a judge, specific findings must be made by the judge to approve the warrant. Subsection 3 of 2518 spells out some of the requirements to be included in the affidavit for this type of warrant. (3)(a) There is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in 2516 of this Act. (3)(b) There is probable cause for belief that particular communications concerning that events will be obtained through such interception. (3)(c) Normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or if to be too dangerous. A bulletin board system, by its very nature, is a place for the sending and receiving of messages. Additionally, Inspector Dirmeyer was put on notice during the seizure by both RT and HKH that private electronic mail was present within the materials seized (Exhibit "D"). Inspector Dirmeyer is expected to advance the argument that he and the others did not read the electronic mail, or did not keep the recipients from accessing their electronic mail for more than a week. This argument is irrelevant since the ECPA makes it a violation to merely "intercept" such communication. 2510(4) of the Act defines intercept "the aural or other acquisition of the content of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device." Inspector Dirmeyer "intercepted" the electronic mail in the in the most fundamental sense by picking it up and taking it. If Inspector Dirmeyer or anyone else had seized an entire mailbox of letters, and kept the box and its contents for a week, the letters would have been considered "intercepted" whether someone read the letters or not. The seizure prevented bulletin board users from authorized access to their communications stored within the system. If this were not sufficient argument, most E-mail within the system was in the form of "stored communications" less than 180 days old. 2703 speaks to this issue: 2701. Unlawful access to stored communications (a) OFFENSE-- Except as provided in subsection (c) of this section whoever-- (1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or (2) 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 such system shall be punished as provided in subsection (b) of this section. There can be no doubt that "authorized access" to E-mail was prevented for a week. If this court agrees with Inspector Dirmeyer that "short term" violations of the law are permitted, it may do a considerable business in appeals of parking ticket ("I was only parked in the red zone for an hour!") and speeding tickets ("I was only doing 85 for a few miles!"). [subsection b deleted] Turning to subsection c: (c) EXCEPTIONS-- Subsection (a) of this section does not apply with respect to conduct authorized-- (1) by the person or entity providing a wire or electronic communications service; (2) by a user of that service with respect to a communication of or intended for that user; or (3) in 2703, 2704 or 2518 of this title. Neither (1) or (2) apply, considering (3): 2703. Requirements for governmental access (a) CONTENTS OF ELECTRONIC COMMUNICATIONS IN ELECTRONIC STORAGE.-- A governmental entity may require the disclosure by a provider of electronic communication service of the contents of an electronic communication, that is in electronic storage in an electronic communications system for one hundred and eighty days or less, only pursuant to a Warrant issued under the Federal Rules of Criminal Procedure or equivalent State warrant. A governmental entity may require the disclosure by a provider of electronic communications service of the contents of an electronic communication that has been in electronic storage in an electronic communications system for more than one hundred and eighty days by the means available under subsection (b) of this section. The search warrant does not request the court's permission to seize stored E-mail, so this section provides no justification for seizing the E-mail contained within the computers. 2704 Is about backup procedures and does not apply. 25l8. Is the "Procedure for interception of wire, oral, or electronic communications" and was not requested by Inspector Dirmeyer. The actions taken under this warrant not only invalidate the warrant, but are crimes with fines as high as $250,000 and imprisonment of up to two years. (The applicant and his attorney are not so naive as to believe these crimes will be prosecuted, or even investigated.) B. The Search and Seizure Was Conducted Contrary to the Privacy Protection Act Requirement that the Materials Be Obtained By Subpoena and, thus, Violated Robert and Carleen Thomas' First Amendment Rights. Defendants, Robert and Carleen Thomas, DBA AABBS, publish photographic images through their computer system to a paying group of approximately 3500 people. While some may object to the content (mostly nudes), the process of taking pictures, processing them, scanning them into digital format, editing the results, and writing descriptions is clearly a publishing activity. In 1980, Congress enacted the Privacy Protection Act (PPA), 42 U.S.C. 2000aa, in order to require law enforcement officials to obtain evidence by subpoena or voluntary compliance, rather than by search and seizure, from innocent third persons engaged in First Amendment activities. Congress feared (in the wake of the Standord Daily case of the '1970s) that "use of the warrant process in such cases will allow the government to invade the personal privacy of non-suspects in instances where a less intrusive means of obtaining the material -- either voluntary compliance or a subpoena will achieve the same goal." Senate Report No. 874 at 4, 1980 U.S. Code Cong. and Admin. News at 3950- 51. The Act reads: Notwithstanding any other law, it shall be unlawful for a government officer or employee, in connection with the investigation or prosecution of a criminal offense to search for or seize any work product materials possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication, in or affecting interstate or foreign commerce...(42 U.S.C. 2000aa(a)). The computer equipment seized was plainly used "to disseminate to the public a newspaper, book, broadcast or other similar form of public communication." Subsection (b) of 2000aa indicates that there are four requirements necessary in order for the government to search and seize such publishing materials. (b)(l) There is probable cause to believe that the person possessing such material has committed or is committing the criminal offense to which the materials relate. (b)(2) There is reason to believe that the immediate seizure of such materials necessary to prevent the death of, or serious bodily injury to, a human being; (b)(3) There is reason to believe that the giving of notice pursuant to a subpoena duces tecum would result in the destruction, alteration, or concealment of such materials; or (b)(4) Such materials have not been produced in response to a court order directing compliance with a subpoena duces tecum and (a) all appellant remedies have been exhausted; or (b) there is reason to believe that the delay in an investigation or trial occasioned by further proceedings related to the subpoena would threaten the interest of justice. (c) in the event a search warrant is sought pursuant to paragraph 4b of Section b, the person possessing the material shall be afforded adequate opportunity to submit an affidavit setting forth the basis for any connection of the materials sought are not subject to seizure. At the time of the search, Robert Thomas told inspector Dirmeyer and the other officers that he would gladly make them copies of any file they wanted. The files sought were, after all, available from any remote location in the world by any paying member of AABBS (including Inspector Dirmeyer) with a phone and a computer. Several places in the affidavit Inspector Dirmeyer describes in the affidavit downloading the very files sought under the warrant! In other words, the material sought under the warrant could have been obtained in at least two ways without seizing the computers. In fact, Inspector Dirmeyer could have made copies of the files he downloaded on floppy disk, sent them to AABBS, and obtained a stipulated statement fro AABBS that the files were bit-for-bit exact copies of those on the AABBS disc drives. In reference to the material on the computers being erotic, (perhaps "silly" is a better description of some of them) that is the business of AABBS. But Defendant Robert Thomas makes serious efforts (and is well know for his efforts) that the material on his BBS was legal pornography. He does not permit, for example, the uploading of images by members, both to avoid copyright violations, and to avoid the possibility of illegal material being placed within the AABBS computers. He also goes to considerable effort to keep out children. As discussed in the affidavit, AABBS was investigated by the Santa Clara County District Attorney two years ago. The system was returned without a even a request to remove a single image, so at least in some parts of the county the material it contained is protected by the First Amendment. Inspector Dirmeyer's search and seizure was so deficient that a number of First Amendment protected items were seized in violation of the United States constitution. Therefore, the unconstitutional seizure of the computer equipment requires this Court to return the property listed above and additionally suppress the illegally obtained evidence. PROPOSITION IV THE SEARCH WARRANT WAS OVER BROAD AND VESTED EXECUTION OFFICER WITH TOO MUCH DISCRETION AND, THUS, VIOLATED THE FOURTH AMENDMENT TO THE U.S. CONSTITUTION. Affiant David Dirmeyer alleged in his affidavit that he made the court aware of the electronic mail on the system, but promised not to look at it. In Katz vs. U.S. 389 US page 357 the court discussed the issue of "voluntary restraint by police officers in making a search violated the Fourth Amendment, the Court stated: "The Constitution requires that the deliberate, impartial judgment of a judicial officer~~be interposed between the citizen and police." (citing Wong Sun vs. United States 371 U.S. 471 pages 481-482). Further many of the items seized were not evidence of alleged crimes (i.e., the computer monitors and keyboards etc.) nor were they necessary to a search of the files. As these seizures were authorized by the warrant, (which warrant really gave Agent Dirmeyer carte blanche to do what he wished), the warrant was over broad and thus defective. The Fourth Amendment of the United States Constitution tells us that warrants must particularly describe the place to be searched and the person or things to be seized. The United States Supreme Court has consistently articulated the position that a search warrant prevents the seizure of one thing under a warrant describing another. "As to what is to be taken, nothing is left to the discretion of the officer." Marron vs. U.S., 48 S.Ct. 74 (1927). To allow searching and seizing items beyond which is described in the warrant would allow warrants to become impermissible general and thus violate the Fourth Amendment. See Warden vs. Hayden, 87 S. Ct. l42 (1967), and Anderson vs. Maryland, 96 S. Ct. 2737 (1976). Further, Agent Dirmeyer coerced consent to search the Thomas' business office which was not described in the warrant and several of the tapes were seized from there. PROPOSITION V THE AFFIANT MADE KNOWING AND MATERIAL MISREPRESENTATIONS AND, THEREFOR, THE WARRANT WAS NOT ISSUED IN GOOD FAITH. In the present case, Agent Dirmeyer misrepresented his connection with the Defendant's bulletin board in order to conceal that he was an actual member long before he acknowledged joining and probably fabricated this "anonymous hacker" referred to in his affidavit as well. Defendants therefor submit that the warrant was procured in bad faith (by defrauding the Magistrate), and thus U. S. vs. Leon 468 U.S. 897 does not apply. CONCLUSION In conclusion, Affiant Dirmeyer was not candid with the court in his affidavit and he sought permission to seize many items which were not necessary to a search of defendant's files and thus the warrant was defective. Further, as Agent Dirmeyer's conduct could not be classified as a "good faith" oversight, the good faith exception to the exclusion rule does not apply (based upon Leon supra). Last, but not least, no warrant should have been issued to seize Defendant's entire computer system as such a warrant would violate two Federal Statutes for the protection of electronics and E-mail privacy. WHEREFORE, The Defendants, Robert and Carleen Thomas, respectfully request that the Court sustain the Defendant's Motion to return the computer equipment, backup tapes, and, video tapes seized by Inspector Dirmeyer in his January 10, 1994, search of Defendant's place of business (their residence), and their office. Dated: Respectfully submitted, RICHARD D. WILLIAMS Attorney for Defendants ------------------------------ End of Computer Underground Digest #6.55 ************************************


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