Date: Thu, 19 Dec 1991 13:04:39 -0500
From: Craig Neidorf <
[email protected]>
Subject: File 2--How The Government Broke The Law And Went Unpunished
JUSTICE DENIED
How The Government Broke The Law And Went Unpunished
by Craig Neidorf
[email protected]
BACKGROUND:
On January 18, 1990, Craig Neidorf, a 20-year-old college junior and
editor of an electronic newsletter, was visited by Agents Tim Foley
and Barbara Golden of the United States Secret Service (acting on
behalf of William Cook, an assistant U.S. Attorney in the Northern
District of Illinois, Eastern Division), and Reed Newlin, an agent of
Southwestern Bell security of Missouri, acting under color of law in
conjunction with the U.S. Secret Service. Neidorf was questioned as a
criminal suspect and eventually charged in a multi-count indictment
with violations of the Computer Fraud & Abuse Act, the Interstate
Transportation of Stolen Property Act, and the Wire Fraud Act, all
because of his involvement as editor of a newsletter that disseminated
to the general public from his bedroom at the Zeta Beta Tau fraternity
house in Columbia, Missouri. All such charges were subsequently
dismissed by the U.S. Attorney's Office after a week of trial.
On January 19, 1990, the above named agents returned to Craig
Neidorf's fraternity house accompanied by a uniformed officer of the
University of Missouri Police Department. They produced and executed
a search warrant that empowered them to seize all materials relating
to Neidorf's newsletter, specifically computer hardware, work product
of the newsletter, and documentary materials of the newsletter.
These actions by the various law enforcement authorities constitute an
actionable offense in violation of the Privacy Protection Act of 1980.
__________
TO THE READER:
During the summer of 1990, I wrote the following review of how the
Privacy Protection Act of 1980 could have been applied to the above
described incident. After several months of trying to find a way to
file a claim, I have finally come to realize that the goal I seek is
unreachable because I do not possess the financial resources to hire
legal counsel and no law firm or organization capable of handling the
case will agree to take it on a contingency basis. Furthermore, as I
read the law, the statute of limitations on this type of action is two
years and January 19, 1992 is rapidly approaching. Because of reality
superceding idealism, I have decided instead to present my case to
you, the public, in the hopes that perhaps something good results from
people learning the truth, despite that those truly guilty will not be
punished.
I will attempt to lay out and describe the details, ramifications, and
importance of these events as they relate to the Privacy Protection
Act of 1980 and as a convenience, I will be referring to myself in the
third person and narrating from an advocate's point of view.
I will be citing without quotation directly from the Legislative
History of the Act and the Act itself as found in P.L. 96-440, pages
3950-3976 and Title 42, Chapter 21A, Sections 2000aa-2000aa-7.
__________
*** What Does The Privacy Protection Act of 1980 Do?
Part A of S. 1790 provides broad protections against searches for
documentary materials which are in the possession of those engaged in
First Amendment activities. When the materials sought consist of work
product, a general no search rule applies. When the materials sought
constitute documentary materials other than work product, a
subpoena-first rule is generally applicable. The title applies to
state, local, and federal law enforcement officers. Because
disseminating information regularly affects interstate commerce,
congressional authority to regulate state and local enforcement in
this statute is based on the commerce clause <as found in> United
States Constitution, Article I, Section 8.
*** What Are The Unlawful Acts?
Unlawful acts under section 101 involve searches and seizures
performed only by governmental officials, not private citizens, and
conducted "in connection with the investigation or prosecution of a
criminal offense."
It could be argued that Southwestern Bell is also guilty of violating
the Act because of Reed Newlin, a security person from Southwestern
Bell, who acted under color of law alongside the law enforcement
agents in performing the physical search of Neidorf's room. Newlin
himself did enter Neidorf's room and physically handle his computer
equipment (ex. going through Neidorf's dresser drawers and pulling out
an Apple 1200 baud modem).
*** What Does the Privacy Protection Act Protect?
The phrase "in connection with a purpose to disseminate to the public
.. a form of public communication" reaches not only to materials
which are to be disseminated to the public or which contain
information that is to be incorporated in a form of public
communication, but also materials which are gathered in the course of
preparing such a publication. For example, a reporter may prepare an
article which his editor decides should not be published; nonetheless,
the reporter's interview notes and draft of the article would remain
protected by the statute. Similarly, all of an author's research
notes would be protected, although only part of the research was
ultimately included in the publishing product.
In order to qualify for the statute's protections, the materials must
be possessed in connection with a purpose of disseminating some form
of public communication. The term "form of public communication" is
designed to have a broad meaning. The fact that a local newspaper,
for example, has a small circulation does not preclude application of
the statute to searches of the files on the newspaper.
*** What Is Work Product?
In section 107(b), Work Product is defined as to encompass the
materials whose very creation arises out of a purpose to convey
information to the public. They may be created by the person in
possession of the materials, or by another person in anticipation of
public communication.
An example of what this means would show that financial records of a
business which are held by a member of the press are not work product
inasmuch as they are not created in connection with plans to "to
communicate to the public." But, a report prepared by a member of the
press based on those financial records would constitute work product,
as would such a report prepared by a whistle-blower who intended that
the contents of the report be made public.
*** How Can A Law Enforcement Agent Determine What Is Work Product?
In the interests of allowing for some objective measure for judgment
by the Office, the Committee (Congress) has provided that the
work-product must be possessed by someone "reasonably believed" to
have a purpose to communicate to the public.
*** Exceptions That Allow Law Enforcement Officers To Use A Search
Warrant To Seize Work Product Instead Of A Subpoena
There are two exceptions, but neither exception applies in this
situation.
(1). The Suspect Exception allows a search warrant to be used on a
person who is not an innocent third party, but rather an actual
suspect. Neidorf was indeed a suspect of a criminal investigation,
but there is an exception to this exception.
The suspect exception may not be invoked if the only offense of which
the possessor is suspected is the receipt, possession, communication,
or withholding of the materials or the information contained therein.
The purpose of this provision is to prevent possible abuse by law
enforcement authorities. For example, without this provision, if a
reporter had knowingly received a stolen corporate report, the suspect
exception could be invoked because the reporter might be said to be
guilty of a crime of receipt of stolen property. To permit a search
under such circumstances might unduly broaden the suspect exception.
In other words, law enforcement agents could simply charge the
journalist with possession or receipt of stolen goods, general very
broad offenses, and proceed to seize the desired materials because he
was a suspect in that basically contrived crime. The Department of
Justice has felt that this is not good law enforcement policy.
Please Note: The above description very closely resembles the
scenario that occurred in the Neidorf case if you insert "911
document" in place of "stolen corporate report."
The suspect exception is retained in cases where the receipt,
possession, or communications of materials constitutes an offense
under the existing language of espionage laws or related statutes
concerning restricted data.
Because the suspect exception may not be invoked if the only offense
of which the possessor is suspected is the receipt, possession,
communication, or withholding of the materials or the information
contained therein, this exception is not applicable.
(2) The second exception allows a lawful search warrant if there is
reason to believe that the immediate seizure of the materials are
necessary to prevent death of serious bodily injury. This is clearly
not applicable to this case.
*** What Are Documentary Materials?
Section 107(a) defines documentary materials as to encompass the
variety of materials upon which information is recorded. Included
within the definition are not only written and printed materials such
as reports, records, and interviews, but also films, photographs, tape
recordings, and videotapes.
Not included in this definition are contraband or the direct fruits of
a crime, or the things or property designed or intended for use in the
offense, or have been used as a means of committing the offense.
Examples listed include; money, guns, weapons, and narcotics.
*** Exceptions That Allow Law Enforcement Officers To Use A Search
Warrant To Seize Work Product Instead Of A Subpoena
There are four exceptions. The first two are the same as those seen
above in reference to seizure of work product. Since they have
already been addressed, I will now focus on the two remaining
exceptions.
(3) An otherwise lawful search <is permitted> for non-work product
documentary materials if there is reason to believe that the notice
provided by a subpoena duces tecum would result in the destruction,
alteration, or concealment of the materials.
Agent Tim Foley's own testimony at the July 1990 criminal trial of
Craig Neidorf describes the interview and the actions taken by Neidorf
prior to obtaining the warrant. This same testimony will clearly show
that there would be no reason to believe that any evidence would have
been tampered with or destroyed. Indeed, Neidorf cooperated fully
from the beginning of the investigation, turning over several
documents and providing information to the agents prior to the search.
This exception is therefore not applicable.
(4) If after a proceeding resulting in a court order directing
compliance with a subpoena duces tecum, the possessor of the materials
still refuses to produce the materials sought, a search warrant may be
obtained. This exception is clearly not applicable because a subpoena
was never sought in the first place.
__________
I believe that a careful inspection of the affidavit used to obtain
the search warrant, the items specified for seizure in the actual
warrant, and the testimony of Agent Tim Foley of the U.S. Secret
Service in the criminal trial "United States v. Craig Neidorf" will
clearly demonstrate that the Secret Service, the U.S. Attorney's
Office, and potentially others (i.e. University of Missouri Police
Department and Southwestern Bell) are guilty of violating the Privacy
Protection Act of 1980 as described above.
__________
*** What Are The Remedies?
Section 106(a) provides a civil cause of action for damages for
violations of the Act. Such an action may be brought by any person
aggrieved by a violation of the statute.
When a government until is liable under this Act for a violation of
this statute committed by one of its officers of employees, it may not
assert as a defense to the action brought against it the immunity of
the officer committing the offense or the good faith belief of the
officer in the lawfulness of his conduct. The traditional doctrine of
judicial immunity is preserved and available to the government entity.
In the past, the good faith defense has often precluded the recovery
for unlawful searches and seizures. Prohibiting the use of this
defense when the government unit is the defendant in a suit brought
under this statute is not only a fair means of assuring compensation
for damages resulting from unlawful governmental searches, it will
also enhance the deterrent effect of the statute.
The good faith defense can be applied only in situations where the
offender had reason to believe that the immediate seizure of materials
was necessary to prevent the death of, or serious bodily injury to, a
human being. This is not applicable.
*** What Types Of Damages Could Be Collected In A Lawsuit?
Section 106(e) describes that a plaintiff bringing an action under
this section on the statute may recover actual damages resulting from
a violation of the provision of the Act, but that in any event he is
entitled to recover liquidated damages of not less than $1,000. The
provision for a minimum amount of liquidated damages is essential
because it often will be difficult for a plaintiff to show more than
nominal or actual damages.
Punitive damages may also be awarded if warranted, as well as
attorney's fees and litigation costs. It is appropriate that the
governmental unit be liable for punitive damages.
OTHER REMARKS TO THE READER:
In this type of case, the main goal is probably punitive damages. A
message needs to be sent that violations of privacy and the law must
be prevented and no one is above the law (least of all those charged
with the duty of enforcing it).
My reseach indicates that although there are probably many cases,
there are only two cases on the books where the Privacy Protection Act
of 1980 has been used in a civil lawsuit. Neither case is on point.
The current litigation by the Electronic Frontier Foundation in the
Steve Jackson Games case also addresses the Act, but its facts are
different in that the SJG case refers to hardcopy publishing using
computers whereas a Neidorf case would have addressed electronic
publications specifically.
The Neidorf case is supported by strong evidence and the legislative
history of the Act shows this case to be exactly the type of which the
Act was designed to combat. A message needs to be sent that the law
is meant to be obeyed, not just law about computers, but law in
general.
Clearly, establishing rights for an electronic publication is another
step closer to a guaranteed right of free electronic speech. In this
day and age, WE DARE NOT GIVE UP THAT RIGHT!
Downloaded From P-80 International Information Systems 304-744-2253
