The Hacker Chronicles - A…the Computer Underground/The Hacker Chronicles - A Tour of the Computer Underground (P-80 Systems).iso/cud1/cud104c.txt

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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 3 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 3 of 4
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Subject: Re: Text of ECPA suit
Date: Tue, 27-Mar-90 20:19:33 PST



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            )     COMPLAINT FOR
similarly affected,                  )     DECLARATORY
                                     )     JUDGEMENT
Plaintiffs,                          )
                                     )
vs.                                  )     No.
                                     )
                                     )
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
                                     )

                    INTRODUCTORY STATEMENT

     1.  On or about January 12, 1988 law enforcement officials
of Riverside County obtained plaintiffs' electronic
communications (electronic mail, email).  From that date to
present plaintiffs have been prevented authorized access to
their electronic communications.  Plaintiff Henson contacted
the FBI by phone in March 1988 and requested the FBI to
investigate this apparent violation of Federal law (Title 18,
Section 2701 et seq.) in a letter to Supervisor of Riverside

COMPLAINT                      1



FBI Office Ron Heller April 5, 1988.  (Attachment A).  Request
was referred by the FBI without field investigation to the
U. S. Attorney's Office in Los Angeles.  This office, following
the disinclination of the FBI to investigate, professed
disinterest.  Plaintiff Henson was informed of "declined to
prosecute" decision of U. S. Attorney's office via telephone by
Mr. Heller.  With advice from the other plaintiffs, Henson
responded to Mr. Heller (Attachment B) and also wrote Michael
Emick, Chief of Criminal Complaints, U. S. Attorney's Office,
Los Angeles, California on April 25. (Attachment C).
      In a subsequent telephone call, Mr. Emick's assistant Mr.
Medrano promised a letter would be sent to Plaintiff Henson
supporting claim by U.S. Attorney's office that provisions of
the Electronic Communication Privacy Act were not violated, or
providing other reason(s) for declining prosecution.  In spite
of attempts through Representative Norman M. Mineta and Senator
Pete Wilson (Attachments D, E, & F), and follow-up phone calls,
no substantive response to plaintiff's complaint re the
Electronic Communications Privacy Act of 1986 has been received
to the date of filing, from an FBI or Justice Department
representative (Attachments G, H, & I).

                         JURISDICTION

      2.  This Court has jurisdiction over this action pursuant
to U.S.C. 28, Sections 2201, 1331, and 1346.
                            PARTIES
      3.  Plaintiffs H. KEITH HENSON, THOMAS K. DONALDSON and

ROGER E. GREGORY are citizens of the United States, residents

of Santa Clara County, and were current users of electronic


COMPLAINT                      2


mail service provided by Alcor Life Extension Foundation on
January 12, 1988.

      4.  Named defendants are agencies and employees of the
Government of the United States.

                  CLASS ACTIONS ALLEGATIONS

      5.  Plaintiffs bring this action as a class action
pursuant to Rule 23 (b)(2) of the Federal Rules of Civil
Procedure on behalf of themselves and the other users of
electronic mail who had their correspondence stored in this
computer.  There are between 50 and 100 people in this class.
Some of them are not California residents, and at least one of
them is a citizen of another country.  All are entitled to
protection under the provisions of the Electronic Communication
Privacy Act.  A comprehensive list of the members of this class
cannot be obtained until the computer in which the list resides
has been returned.

      An additional class is all users of electronic mail
in the United States who are entitled to privacy and Fourth
Amendment protection via the enforcement of the provisions of
this Act.  This last class is so numerous as to make the
joinder of all members of the class completely impracticable.
However, due to the unique nature of the class, notification
of, and email replies from, a substantial fraction of this
class could be accomplished economically by posting notice

on the computer networks.  Eleven thousand people are reported

to read the Usenet news group "misc.legal."  Plaintiffs will

offer the widespread members of this class an opportunity to
join the action if instructed to do so by the Court.


COMPLAINT                      3



                             FACTS

      6.  On or about January 12, 1988 certain law enforcement
agents (coroner's deputies) obtained and executed a warrant to
remove computers and related equipment from Alcor Life
Extension Foundation at 12327 Doherty St., Riverside, CA 92503.

(Attachment J)

      7.  One of these computers and a small number of
removable disks contained plaintiffs' electronic communications
as they are defined in the Electronic Communication Privacy
Act.

      8.  Law enforcement agencies in Riverside have prevented
authorized access to plaintiffs' electronic mail.  An unknown
number of law enforcement personnel from the Coroner's Office,
the District Attorney's Office, and the Riverside City Police
have obtained plaintiffs' electronic communications in
electronic storage, and have prevented authorized access to
these communications, without Court orders or warrants which
would exempt them from the punitive provisions of Title 18,
Section 2701(b).

      9.  The warrant used to remove the computer and prevent
authorized access to Plaintiff's electronic mail did not meet
the provisions of Title 18, Section 2703.  In particular, no
warrants were issued which provide for the disclosure or
sequestering of plaintiffs' (or any other) electronic mail.

      10.  The Federal Bureau of Investigation and the Justice
Department have refused to either investigate or provide an
explanation for why the provisions of the Electronic
Communications Privacy Act do not apply.  Oral communications


COMPLAINT                      4



with these agencies have produced the verbal argument that a
search warrant issued against a computer used for electronic
mail is equivalent to a search warrant issued against a post
office, where all mail within the walls of a post office could
be opened and read.  Plaintiffs' counter arguments that such a
warrant would be similar to a "writ of assistance," and that
the Fourth Amendment requires "particularly describing" were
dismissed as frivolous.

      11.  Repeated efforts to resolve these issues through
administrative channels have failed.  This matter has been
brought to the attention of this Court only after numerous
attempts have been made to obtain a substantive reply as to why
clear provisions of the law were deemed not applicable by the
FBI and Justice Department.

                          DISCUSSION

      12.  A substantial part of the reason Congress enacted
the Electronic Communications Privacy Act of 1986 was to
balance Fourth Amendment protection for users of electronic
mail with the needs of law enforcement agents to access this
rapidly growing new form of communications.  The Justice

Department testified at length to avoid the cumbersome
provisions of Court orders needed for telephone taps.  Congress
went along with the Justice Department and made the seizing of
electronic mail by law enforcement agents similar in procedure
to that required for seizing first class mail, that is,
dependent on a Rule 41 search warrant, or similar State
warrant.  (See quotes of James Knapp, then Deputy Assistant
Attorney General, in Attachment C.)

COMPLAINT                      5


     Testimony before the House Subcommittee on Courts, Civil

Liberties, and the Administration of Justice makes it clear

that Congress was concerned about law enforcement agencies
abusing the Fourth Amendment rights of people who use
electronic mail.  This is evidenced by testimony about the
Electronic Communications Privacy Act by Senator Leahy before
the House Subcommittee on September 26, 1985:

    "There is no adequate legal protection against the
unauthorized access of electronic communications system
computers to obtain or alter the communications contained in
those computers.

   . . . .
     "Our bill . . . will help protect private communications
from interception by an eavesdropper, whether the eavesdropper
is a corporate spy, a police officer without probable cause, or
just a plain snoop."

     The House and Senate Subcommittees wrote into the law only

a few exceptions from punishing someone who:

    ". . . intentionally accesses without authorization a

facility through which electronic communication service is

provided; or 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 the case at hand, plaintiffs argue that the coroner's

deputies either had no authorization, or exceeded what they

had.  It is certain that they obtained the email of a number of

people, including plaintiffs, uncertain as to their altering

COMPLAINT                      6








it, and certain that authorized access to plaintiffs' email has

been prevented for the past 11 months.

     Exceptions are provided by the Act in Section 2703 for law

enforcement agencies to access electronic communications in

situations where they obtain a warrant.  To quote the relevant

section:

     "Requirements for governmental access

      (a) Contents of electronic communications in electronic

storage--A governmental entity may require the disclosure by a

provider of electronic communications services of the contents

of an electronic communication that is in electronic storage

for one hundred eighty days or less, only pursuant to a

warrant issued under the Federal Rules of Criminal Procedure or

equivalent State warrant" (emphasis added).

     The requirements for such a warrant were spelled out by
James Knapp in his testimony:  "The affidavit and judicial
authorization should sufficiently specify the people
involved, . . ." (emphasis added).

     The requirement to name "the people involved" places no
burden on the law enforcement agency seeking a warrant.  In
situations (such as this one) where the names of the people
with stored electronic communications are not known to the law
enforcement agency prior to executing the search warrant and
examining the computer files, John Does 1-1000 could be named
and an amended warrant filed after the names were extracted
from the computer.

     The plaintiffs are not aware of any warrants, even John

Doe warrants, which have been issued against their electronic


COMPLAINT                      7



communications; it seems clear that our private electronic
communications were seized and the provider of electronic
communication services (Alcor) was forced to disclose the
contents of private email without a warrant.

     Law enforcement agencies, in particular the FBI, have
orally supported two lines of reasoning for legally seizing and
denying access to our electronic communications without a
warrant.

     1)  The law enforcement agents who seized the computer on
which our electronic communications were stored did not know
that there was contained email--despite the fact that the
agents had to unhook the computer from the phone lines.

     2)  A warrant against the provider of the electronic
communication service to seize the computer on which our email
was stored is sufficient to seize and examine any electronic
communications stored within that computer.

       If this were the case, Congress would have provided an
exemption for seizing the computers on which electronic mail is
stored.  Since they did not, such an exemption will have to be
provided by the Courts, or found to be an error in the FBI's
interpretation of the law.

      It is easy to understand the reluctance of one law
enforcement agency to investigate another, especially in the
small-town, close working conditions of Riverside.  But if the
FBI will not protect the Fourth Amendment rights of citizens
from over-zealous local officials who violate the privacy of
electronic communications, who will?



COMPLAINT                      8


                            PRAYER

      WHEREFORE, Plaintiffs and the classes they seek to
represent in this action respectfully pray that this Court
enter judgment against defendants:

       a) That the FBI be ordered by this Court to investigate
fully the circumstances herein described involving electronic
mail sequestered by law enforcement agents in Riverside County;

      b) That the U. S. Attorney's office be ordered to either
file charges based on the results of the FBI determination of
the facts involved, or forthwith provide legal argument
acceptable to this Court as to the non-applicability of Title

18, Section 2701 et seq. to this case;

     c) Plaintiffs' expenses;

     d) Other relief such as the Court may deem appropriate.

Dated:  December 9, 1988                H. KEITH HENSON




                                        THOMAS K. DONALDSON



                                         ROGER E. GREGORY



COMPLAINT                      9

(Attachments to Henson, Donaldson, and Gregory lawsuit)

                                    H. Keith Henson
                                  1794 Cardel Way
                                  San Jose, CA  95124
                                  408-978-7616

April 5, 1988

Ron Heller, Supervisor

Federal Bureau of Investigation

P.O. Box 2317

Riverside, CA  92516



Dear Mr. Heller:



Please excuse the delay in getting this material to you per our telephone
conversation of last month.  My background is in engineering, and, though I
have had experience in space law and international human rights, it took
some time for me to acquire sufficient understanding of the law in this
area to make a clear statement.

I believe a serious Federal crime has been committed against me and

several others by certain members of the Riverside County Coroner's
Office.  The statute involved is Title 18, Section 2701, otherwise
referenced as Chapter 121, "Stored Wire and Electronic Communications
and Transactional Records Access." (1986)  The criminal act was the
removing of a computer (specifically a Toshiba T300 with a green screen
monitor, a Xebec 10 Mbyte hard disk and a modem) used for electronic mail
from the Alcor Life Extension Foundation at 12327 Doherty St., in
Riverside on January 12 of this year, subsequently preventing authorized
access, and (probably) accessing stored electronic mail files on that
computer, all without a warrant.  I have apprised various members of the
coroner's office of the use and content of this particular computer and of
the Federal law involved.  They seem to have no concern about the legality
of their activities.


Subsection (a) of 2701, except as provided in subsection (c), details the
offence: intentionally accessing an electronic mail facility without
authorization, or intentionally exceeding an authorization to access that
facility and thereby obtaining or preventing authorized access to a wire or
electronic communication.


Subsection (c) provides three exceptions for authorized access.  Points 1
and 2 under that sub-subsection do not apply, as the coroner's office
neither provides electronic communication service, nor are they the
intended recipient of the electronic mail in question.  Point 3 list three
statutes under which law enforcement officials can obtain authorization
to access stored electronic mail.  Of these, section 2518 is the standard



Ron Heller                                      Page 2
April 5, 1988

wire tap regulations.  As far as I know, the coroner's office has not
obtained a court order which would allow wire tapping or access to my
electronic mail.



Section 2704 provides for forcing service providers to make backups of
electronic mail, (with a warrant) and does not seem applicable either.



Section 2703 provides for only one way for law enforcement agencies to
access electronic mail stored less than 180 days: a warrant issued under
the Federal Rules of Criminal Procedure or an equivalent State warrant.  I
do not believe that warrants of any kind have been issued which would
permit the coroner or his deputies access to my electronic mail on the
Alcor computer system.  If warrants to this effect have been issued, I have
not been informed of them.

While the coroner's office has been engaged in an investigation, this is no
excuse for a law enforcement agency to break laws by failing to obtain a
valid warrant.  My reading of the law, and the legislative history behind it,
leads me to believe that this particular episode of Fourth Amendment
abuse is exactly what Congress had in mind to prevent when it passed
Chapter 121.


The loss of this computer and our other computers has cause Alcor a great
deal of difficulty.  (This may have been the primary reason they were
taken.)  Alcor and its members need the computer in question to be
returned to us and put back in service if this is possible.  I would like the
computer and related equipment returned to Alcor rather than the FBI
holding it as evidence.  Alcor could make printed copies of the directories
and "userlist" to be preserved as evidence.


Please let me know if I have made errors in either my reasoning or the
events I have described.  I will be happy to provide your office with
background on any aspects of this matter about which I have knowledge.



Sincerely,



H. Keith Henson



cc C. Ashworth



PS  I hear the investigation has been turned over to the Riverside Police
Department.  You might warn them so *they* don't run afoul of Federal
Law.



Enc.  Title 18 USC Sections 2701-2710



                           <- END PART 3 of 4 ->

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