Hackers Underworld 2: Forbidden Knowledge/Hackers Underworld 2: Forbidden Knowledge.iso/LEGAL/ALCOR9.TXT

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From:    SMTP%"[e-mail]" 24-DEC-1991 11:09:17.44
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Subj:    Re: Response to gov motion to dismiss

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Subject: Re: Response to gov motion to dismiss
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Date: Mon, 23 Dec 91 17:40:06 PST
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H. KEITH HENSON
1794 Cardel Way
San Jose, CA  95124
[phone]

THOMAS K. DONALDSON
1410 Norman Dr.
Sunnyvale, CA  94087
[phone]

ROGER E. GREGORY
2040 Columbia St.
Palo Alto, CA  94306
[phone]

                      U. S. DISTRICT COURT
                 NORTHERN DISTRICT OF CALIFORNIA

H. KEITH HENSON, THOMAS K.           )
DONALDSON, and ROGER E. GREGORY,     )
on behalf of themselves and as       )
representatives of others            )     PLAINTIFFS' RESPONSE
similarly affected,                  )     TO DEFENDANTS'
                                     )     MOTION TO DISMISS
Plaintiffs,                          )
                                     )
vs.                                  )     NO. C-88-20788 RPA
                                     )
                                     )
FEDERAL BUREAU OF INVESTIGATION,     )     ENFORCEMENT OF
RON HELLER, U. S. ATTORNEY OFFICE    )     PROVISIONS OF THE
Los Angeles, MICHAEL EMICK, and      )     ELECTRONIC
DOES 1 TO 100, inclusive,            )     COMMUNICATION
                                     )     PRIVACY ACT.
                                     )
Defendants.                          )     CLASS ACTION
---------------------------------------)

                          INTRODUCTION

         On March 14, 1989 Defendants' counsel William F. Murphy

responded to suit filed against FBI, SA Ron Heller, the United

States Attorney's Office, Los Angeles, California, and Michael

Emick, Chief of Criminal Complaints of that office. The response

was in the form of a Declaration by William F. Murphy, a Motion

to Dismiss, and a Memorandum of Points and Authorities

in Support of their Motion to Dismiss.


             PLAINTIFFS' RESPONSE TO THE DECLARATION

         Plaintiffs find no disagreement with the first numbered

section of the Declaration.

         Under the second numbered section, plaintiffs would

accept with the addition to the last sentence " . . . since the

warrant did not specify that the electronic mail was to

disclosed or sequestered *or name the individuals whose

electronic mail was to be disclosed or sequestered as is

required under this law which cites the Federal Rules of

Criminal Procedure.*

         Plaintiffs have no disagreements with the third

numbered section.

        Plaintiffs strongly disagree with the first sentence of

the fourth numbered section.  We do not believe the facts were

determined by the FBI or fairly presented to AUSA Alka Sagar by

SA Ronald Heller on April 21.  Ms. Sagar was unable to recall

the case or the basis for rejecting it on Monday April 25, and

did not indicate that any written investigation report about the

case was available to her.

        Plaintiffs cite as supporting evidence showing that

facts were not presented to AUSA Sagar in the second sentence:

"AUSA Sagar declined prosecution in this matter by advising that

the proper remedy for Henson would be to challenge the validity

of the warrant in the Riverside County Court."  Henson (and

other plaintiffs) were not cited in the warrant, were not

arrested, and were not under investigation.  Thus, while

plaintiffs might have been able to sue for return of stored

electronic communications in civil Court, they had no standing

to challenge the validity of the warrant.

        Plaintiffs further note the third sentence as supporting

evidence suggesting that the facts were not presented to AUSA

Sagar: " . . . advised that there was no showing that the

officials from the Riverside County Coroner's office had not

complied with the statute."  Not a single point of Henson's

April 5, 1988 letter alleging violation of Section 2701 is

refuted by this statement.  If this letter was not made

available to AUSA Sagar, it provides further evidence that the

facts were not presented to her.

        Numbered section 5 of the declaration notes that on

April 21, 1988 SA Heller advised plaintiff Henson of the United

States Attorney's prosecutive opinion.  Plaintiff Henson's

letter of April 22, 1988 cites the reason SA Heller provided,

that the warrant used to take the computer permitted disclosing

or preventing access to all the stored electronic communications

within it.  Setting a precedent of this magnitude belongs to the

Courts, not minor functionaries of the bureaucracy.

     PLAINTIFFS' RESPONSE TO DEFENDANTS' MEMORANDUM OF POINTS
     AND AUTHORITIES IN SUPPORT OF THEIR MOTION TO DISMISS

        In the introductory section Plaintiffs' position is

distorted by dropping the word "either" from the summary of

Plaintiffs' prayer.  Based on an actual investigation of the

facts involved, the U.S. Attorney might file charges.  If they

declined, it is certainly within the power of the Court to ask

for explanations from officers of the Court, even if they work

for the executive branch of government.

        The BACKGROUND section is a copy of material already

discussed.  To summarize plaintiffs' objections to the second to

last paragraph which starts "The facts  . . .",  plaintiffs

believe that the facts were not determined by the FBI, or

presented to AUSA Sagar, and that any decisions made in this

situation by the U.S. Attorney's office were without foundation.

               PLAINTIFF'S RESPONSE TO ARGUMENT I

        Plaintiffs request permission of the Court to amend the

suit, replacing "FBI" with "United States Government."

               PLAINTIFF'S RESPONSE TO ARGUMENT II

        Defendants' characterization of the prayers of the

plaintiffs is distorted.  Plaintiffs do not "seek to have the

U.S. District Court order the FBI and named Assistant United

States Attorneys to prosecute alleged defendants whom plaintiffs

want prosecuted."  It is not the function of the FBI to

prosecute anyone, and plaintiffs know this.  It *is* the

function of the FBI to investigate reports of violations of law,

even if the violators are themselves law enforcement agents.

        It is plaintiffs' contention that no actual

investigation was carried out after the alleged crime was

reported.  Plaintiffs' contention rests on several items

attached to the original complaint, and one received since the

complaint was filed (attached).  Communication from the U.S.

Attorney's Office or the Justice Department has been seriously

confused as to the near and remote facts surrounding the case.

Plaintiffs' contention is, however, informed opinion, and not

fact.  Defendants could submit (even in camera) dated records of

an investigation and dated written reports to Assistant U.S.

Attorney Sagar and show plaintiffs' contention incorrect.

        While case law may be clear that the Executive Branch

has authority to supervise the investigation stages of law

enforcement conduct without interference from the judicial

branch, this presumes lawful conduct on the part of the

investigators, and not an informal "you scratch my back, and

I'll scratch yours" between law enforcement agencies.  The FBI

is also not permitted to usurp the powers of the legislative and

judicial branches by redefining the laws, so as to eliminate the

requirement to investigate or enforce them.

        The Electronic Communication Privacy Act has been law

for three years now.  There is no case law on Section 2701, and

no cases (of which the plaintiffs are aware) are pending, or in

investigative stages.  This is not due to a l