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>C O M P U T E R U N D E R G R O U N D<
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*** Volume 1, Issue #1.04 (April 11, 1990) **
-- Part 4 of 4 --
** ALCOR'S SUIT AGAINST E-MAIL CONFISCATION **
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In This Issue:
Issue #1.04 is long--over 2,100 lines--so we have broken it down
into four smaller files.
Keith Henson sent these public documents to us describing how one
organization filed suit against agents for allegedly confiscating
electronic mail illegally. The case raises a number of important issues to
computerists, including the status of E-mail as private communication, the
scope of investigatory authority of law enforcement agents in confiscating
computer "symbols," and other facets of investigation of the use of
computers when an alleged crime has occured.
We encourage article-type responses to the any of the many issues raised
here.
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PART 4 of 4
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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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