From:	SMTP%"hkhenson@cup.portal.com" 24-DEC-1991 11:09:17.44
To:	NEELY_MP@DARWIN.NTU.EDU.AU
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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
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Date: Mon, 23 Dec 91 17:40:06 PST
Message-Id: <9112231740.1.29903@cup.portal.com>
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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
 
 
 

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