From: SMTP%"hkhenson@cup.portal.com" 24-DEC-1991 11:09:17.44 To: NEELY_MP@DARWIN.NTU.EDU.AU CC: Subj: Re: Response to gov motion to dismiss To: NEELY_MP@DARWIN.NTU.EDU.AU From: hkhenson@cup.portal.com Subject: Re: Response to gov motion to dismiss Lines: 332 Date: Mon, 23 Dec 91 17:40:06 PST Message-Id: <9112231740.1.29903@cup.portal.com> X-Origin: The Portal System (TM) H. KEITH HENSON 1794 Cardel Way San Jose, CA 95124 (408) 978-7616 THOMAS K. DONALDSON 1410 Norman Dr. Sunnyvale, CA 94087 (408) 732-4234 ROGER E. GREGORY 2040 Columbia St. Palo Alto, CA 94306 (415) 493-7582 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 lack of lawbreaking (plaintiffs are aware of a number of cases), but is due to systematic refusal to investigate by the FBI. As best plainfiffs have been able to determine, there is complete disregard for reported violations of the stored electronic communications provisions of the law. In *Akzona Inc. v. I.E. du Pont de Numours & Comp.*, 662 F.2d 604 (D.D.C 1987) the Court stated "The Declaratory Judgment Act has broad remedial purpose, and should be construed liberally." In *Manley, Bennett, Mcdonald & Company v. St. Paul Fire and Marine Ins. Co.,* 791 F.2d 460 (1986) the Court stated: "In deciding whether case is suitable for declaratory judgment, Court will look at such factors as whether judgment would settle controversy, whether declaratory action would serve useful purpose in clarifying legal relations at issue . . . " On the contention of SA Heller that stored electronic communications within a computer can be seized without a warrant for these communications if there is a valid warrant for the computer, plaintiffs would prefer a clarifying declaratory judgment on this point to no ruling, even if it were against them. RESPONSE TO DEFENDANTS' CONCLUSION Even if it is the conclusion of the Court that it cannot enter a Declaratory Judgment compelling the FBI to investigate, it lies within the power of the Court to find out if the FBI did actually investigate this reported incidence and supplied factual information to the U.S. Attorney's office. It would seem to lie within its power to require from officers of the Court legal argument as to the non-applicability of the law to the events alleged. In addition, the law in regard to the stored electronic communications provisions of the Electronic Communications Privacy Act needs clarification. Is SA Heller's contention that a warrant for a computer suffices to sequester or examine the electronic mail of perhaps tens of thousands of people? Plaintiffs therefore respectfully request that the Court deny defendants' motion to dismiss. H. KEITH HENSON Dated April 7, 1989 RESPONSE TO MOTION TO DISMISS 17