X-Message-Number: 51
From: (John Gilmore)
Newsgroups: misc.legal
Subject: Suit filed to force FBI to enforce privacy provisions of ECPA
Message-ID: <>
Date: 23 Dec 88 02:34:13 GMT
Organization: Grasshopper Group in San Francisco
[ The legal fallout from the Riverside County coroner's raid on ALCOR last
January is far from over. The latest event is a filing by Keith Henson, et
al.
charging the FBI and the U.S. Attorney's Office for failure to investigate
the Riverside County coroner's office for violation of the 1986 (Federal)
Electronic Communications Privacy Act. I have appended below two recent
messages from the USENET misc.legal newsgroup concerning this. I also have an
electronic copy of the entire (40 kbyte) lawsuit, which I would be happy to
forward to anyone if they have problems reaching Keith Henson via email.
- Kevin Q. Brown
...{att|clyde|cuae2}!ho4cad!kqb
]
In January 1988, Riverside, CA coroner's deputies obtained a warrant
to seize all the computers at the Alcor Life Extension Foundation.
This was done in connection with the widely reported cryonic
suspension of 83-year-old Dora Kent. The coroner accused the Alcor
staff of murder, arguing that the cryonics procedure, where life
support and anesthesia/cooling is applied after legal death, is
murder, because resuscitation technology is applied without the intent
to revive the patient.
The deputies took six or seven computers ranging from an Apple II to
an Amiga, and have held them for the last 11 months.
Only one of these had a hard disk, so there wasn't much they
could get out of the computers anyway. However, they did succeed
in making it much more difficult for Alcor to conduct business.
The computer with the hard disk was being used as a bulletin board.
Some 50 to 100 people had correspondence on the machine. No warrants,
not even any "John Doe" warrants, were issued which would permit the
coroners, DAs, or the Riverside Police Department to access these
electronic communications in storage under the Electronic
Communications Privacy Act. The ECPA requires that the particular
people whose communication is to be seized be named in the warrant,
similar to the warrants required to seize a person's postal mail.
This search warrant specified that "all electronic storage devices...
and the complete hardware necessary to retrieve electronic data" be
confiscated, not even naming Alcor, but simply giving the address of
their office.
Keith Henson (best known for founding the L5 Society, which encourages
the exploration of outer space) was one of the people whose email was
confiscated. He complained to the FBI about his email being taken
without a warrant last April. The FBI Riverside office inquired of
the US Attorney's office as to their interest in email, and, on
getting a "not interested," declined to investigate. Henson tried
through his congressional representatives to get enforcement action
out of the Federal government against the various local law
enforcement agencies who had taken his email.
Finally, becoming convinced that this route was ineffective, Henson
and two other bbs users filed suit against the US Attorney's office
and the FBI. One of the bbs users, Roger Gregory, is well known for
guiding project Xanadu, the proposed hypertext library system; the
other, Thomas Donaldson, has contributed two science fact articles to
Analog magazine in the last year. The suit, "Complaint for
Declaratory Judgement" number C 88 20788, was filed in the U.S.
District Court for the Northern District of California on December 9,
1988.
The crux of the matter is whether the ECPA prevents electronic mail
from being read if the entire computer containing the mail is seized
under a warrant. If this is held true, the ECPA provides little or no
actual protection. Consider the non-electronic or real-time
analogies; can a warrant that names no names be used to seize and read
all the mail in a building providing private post office boxes? Can a
warrant claiming that someone is doing something illegal in a
telephone company office be used to tap all the subscribers' lines
going through that office?
A complete online copy of the suit (40 kbytes) is available as email
from He can also send out hardcopies for the disabled,
or for people whose email has been seized. The plaintiffs are:
H. Keith Henson +1 408 978 7616
Thomas K. Donaldson +1 408 732 4234 cis 73647,1215; source beb610
Roger E. Gregory +1 415 493 7582
--
John Gilmore {sun,pacbell,uunet,pyramid,amdahl}!hoptoad!gnu
Love your country but never trust its government.
-- from a hand-painted road sign in central Pennsylvania
-----
From: (H Keith Henson)
Newsgroups: misc.legal
Subject: Re: Suit filed to force FBI to enforce privacy provisions of EC
Message-ID: <>
Date: 28 Dec 88 05:29:20 GMT
References: <>
Distribution: usa
Organization: The Portal System (TM)
Lines: 105
From The Reporter, a legal newspaper for the San Francisco bay area.
Tue. Dec. 13, 1988
Consultants File Suit Over Electronic Mail
by Howard Mintz
A trio of Santa Clara County software consultants has filed a class
action suit in federal court to prevent law enforcement officials from
seizing electronic mail systems in the course of criminal investigations.
The suit, filed Friday in U.S. District Court in San Jose stems from an
investigation earlier this year in Riverside County that targeted the
controversial activities of the Alcor Life Extension Foundation, a group
involved in preserving bodies in a frozen state purportedly for
resuscitation in the distant future.
The Riverside County coroner's office in the course of a highly publicized
probe into whether one of the bodies had been alive prior to the freezing
process, seized a variety of computer equipment during a search in January
[88]. The equipment included electronic mail and other computer data.
In Henson v. Federal Bureau of Investigation, C-88-20788 RPA, Santa
Clara county software consultants and Alcor members Keith Henson,
Thomas Donaldson and Roger Gregory, acting pro per, contend that the
seizure of electronic mail amounts to a violation of Fourth Amendment
rights and is a violation of the Electronic Communications Privacy Act of
1986.
Specifically, the suit states that Title 18, Section 2701, should prohibit
law enforcement officials from seizing electronic mail, regardless of
whether the search warrant authorizes the seizure of the computer on
which the data is stored. The search warrant, attached to the suit, listed
a variety of technology, including "all electronic storage devices."
The suit names the FBI and the U.S. attorney's office in Los Angeles
because of their alleged failure to investigate what the plaintiffs contend
is the equivalent of an illegal wiretap. The suit includes several letters
sent to the two agencies asking for an investigation, as well as letters to
U.S. Sen. Pete Wilson, R-San Diego, and U.S. Rep. Norman Mineta, D-San Jose.
The suit states, "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 overzealous local officals who
violate the privacy of electronic communications, who will?" None of the
three named plantiffs could be reached for comment Monday.
Assistant U.S. Attorney Michael Emick, a named defendant and head of the
criminal complaints division in Los Angeles, said he did not recall
Henson's charges and was unaware of the suit.
Emick said his office would have jurisdiction to intervene on Alcor's
behalf if computer data were seized illegally. But according to letters
attached to the suit, both the FBI and federal prosecutors determined that
intervention was not warranted in the Riverside case.
Alcor's attorney, Christopher Ashworth of Los Angeles' Garfield, Tepper &
Ashworth, said Alcor was not involved in the legal challenge to seizure of
the electronic mail but that the actions by the coroner's office appear to
be "like a slow tap."
"The underlying theory is sort of intriguing," said Ashworth, who
focuses on cases involving federal constitutional law, "Taking computer
data that had been recorded adjunct to wire communications is no
different than tapping the telephone."
Santa Clara County deputy district attorney Kenneth Rosenblatt, head of
the high technology unit, said the issue appears interesting but that it has
thus far posed no problem in the prosecution of any cases in Silicon
Valley, where the use of electronic mail has proliferated.
"I can't think of an instance when we've seized electronic mail,"
Rosenblatt said. "I guess the only thing I would ask is even if [the plantiffs]
are right, where's the damage?"
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