;Date 11 Nov 92 12:30:35 From: Uucp@1:125/555 To: Tomj@1:125/111 Subject: Re: ECPA suit settled (for $) Options: kill-sent private ;Status: (read 4 times) ;INTL 1:125/111 1:125/555 From kumr!cup.portal.com!hkhenson From: hkhenson@cup.portal.com To: tomj@fidosw.fidonet.org Date: Wed, 11 Nov 92 12:09:02 PST Subject: Email privacy case settled The long running Alcor/email case against the County and City of Riverside, CA was settled out of court in April of this year. The announcement was delayed until all parties had signed off, and the check (for $30k) had cleared the bank :-). The Alcor Life Extension Foundation (a non-profit cryonics organization --alcor@cup.portal.com) ran a BBS for members and prospective members from early 1987 through January 12, 1988. On that day, the BBS computer was removed under a warrant to take the computer (but no mention of any contained email) in connection with the investigation into the death of 83-year-old Dora Kent. (Mrs. Kent was placed into cryonic suspension by Alcor in December of 1987. During and following the investigation, Alcor staff members were publicly accused by county officials of murder, theft, and building code violations. No charges were ever filed and the investigation was officially closed three years later.) In December of 1988 Keith Henson filed a civil suit to force an investigation of the apparent violations of the Electronic Communication Privacy Act by the FBI, but the case was dismissed by the now convicted Judge Aguilar. In early 1990, just before the statute of limitations ran out, Henson and 14 others (of the roughly 50 people who had email on the system) filed a civil action against a number of officials and the County and City of Riverside, CA under Section 2707 of the Electronic Communication Privacy Act. Some time after the case was filed, the Electronic Frontier Foundation came into existence in response to law enforcement abuses involving a wide spectrum of the online community. EFF considered this case an important one, and helped the plaintiffs in the case by locating pro bono legal help. While the case was being transferred, the County and City offered a settlement which was close to the maximum damages which could have been obtained at trial. Although no precedent was set because the case did not go to trial, considerable legal research has been done, and one judgment issued in response to the Defendants' Motion to Dismiss. The legal filings and the responses they generated from the law firm representing the County/City and officials are available by email from mnemonic@eff.org or (with delay) from hkhenson@cup.portal.com. (They are also posted on Portal.) The Plaintiffs were represented by Christopher Ashworth of Garfield, Tepper, Ashworth and Epstein in Los Angeles (408-277-1981). A summary of the settlement agreement is attached. SETTLEMENT AGREEMENT This agreement is made and entered into in Riverside, California, this _____ day of ______ by and between [long list of defendants and plaintiffs] I. FACTUAL RECITALS 1. This Agreement is executed with reference to the following facts for purpose of this Agreement only. 2. On January 12, 1998, some of the Defendants, pursuant to a search warrant, entered into the premises of Alcor Life Extension Foundation in Riverside, California. 3. Upon entry into the property, some of the Defendants seized various items, including electronic media containing E-mail owned by the plaintiffs. 4. On or about January 11, 1990, plaintiffs commenced civil action No. SAC 90-021js in the United States District Court, Santa Ana ("the Action"), against the defendants for injuries and damages allegedly suffered as a result of the defendants' seizure of plaintiff's E-mail. 5 It is now the desire and intention of plaintiffs, on the one part, and defendants on the other part, to settle, compromise, and resolve all the differences, disagreements, and disputes, which exist and may exist, including those which are the subject matter of, referred to, related to, or mentioned in the Action. Pursuant to this desire, and in consideration of the mutual promises contained herein, the parties agree as follows. II CONSIDERATION 6. Upon the execution of this Agreement, defendants County of Riverside shall pay to plaintiffs, by check, the total sum of Thirty Thousand Dollars ($30,000), inclusive of attorney fees and cost. 7. [The rest of this is boilerplate, except that they wanted confidentiality of the agreement, to which we would not agree.] ;Date 11 Nov 92 12:30:21 From: Uucp@1:125/555 To: Tomj@1:125/111 Subject: Re: ECPA suit filed against city/county Options: kill-sent private ;Status: (read 4 times) ;INTL 1:125/111 1:125/555 From kumr!cup.portal.com!hkhenson From: hkhenson@cup.portal.com To: tomj@fidosw.fidonet.org Date: Wed, 11 Nov 92 12:06:36 PST From _The Press-Enterprise_ Saturday, Feb 24, 1990 (Posted by Alcor member Keith Henson without permission) ALCOR FILES SUIT OVER ELECTRONIC MAIL SEIZURE By David Bloom, The Press-Enterprise Another legal battle has erupted between Alcor Life Extension Foundation and the law, this time with a federal lawsuit filed by Alcor over the seizure more than two years ago of computerized "electronic mail" during a search of the group`s Riverside headquarters. Alcor members pay up to $100,000 for the privilege of have their bodies put in cryonic suspension, frozen at temperatures hundreds of degrees below zero, after their death. The members hope developing medical technology will one day enable the to be revived and cured. The group ran afoul of local law enforcement officials, however, after the cryonic suspension of the head of Dora Kent in December 1987. The Riverside County coroner's Office accused Alcor members of hastening along Kent's death with a lethal dose of barbiturates in preparation for freezing. The group has denied the accusation, saying the provided only "care and comfort" to the 83 year-old Kent in her last two days. Law enforcement officers raided the Alcor headquarters on Riverside's southwest edge in January 1988, searching for computer equipment, software and related material, and for Kent's body parts, and any illegal drugs. They found the equipment, but not Kent, whose head had been secreted away, or any illegal drugs. The most recent lawsuit was filed last month in U.S. District court in Los Angeles. It accuses a dozen Riverside City and County law enforcement officials of violating the Electronic Communication Privacy Act of 1986. The suit says police illegally seized the electronic mail of 14 Alcor members when it seized the computer equipment. A copy of the search warrant included as an exhibit in the suit does not mention electronic mail. The suit asked for at least $10,000 for each of the alcor member who filed the suit. Most to the same members filed a claim against the city 11 months ago, but the city allowed the claim to expire without response after 45 days, said attorney John Porter, who is representing the city and two policemen named in the suit. "This lawsuit was filed in federal court," Porter said. "It should have been filed the Twilight Zone." The attorney for Alcor could not be reach for comment late yesterday. ;Date 11 Nov 92 12:30:23 From: Uucp@1:125/555 To: Tomj@1:125/111 Subject: Re: ECPA suit-court filing Options: kill-sent private ;Status: (read 5 times) ;INTL 1:125/111 1:125/555 From kumr!cup.portal.com!hkhenson From: hkhenson@cup.portal.com To: tomj@fidosw.fidonet.org Date: Wed, 11 Nov 92 12:07:06 PST CHRISTOPHER ASHWORTH, A Member of GARFIELD, TEPPER, ASHWORTH & EPSTEIN 1925 Century Part East, Suite 1250 Los Angeles, California 90067 Telephone: (213) 277-1981 Attorneys For Plaintiffs UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA Case NO. SA CV90-021 JSL (RwRx) COMPLAINT FOR DECLARATORY RELIEF AND DAMAGES (Electronic Communications Privacy Act of 1986; 18 U.S.C. Section 2701, et seq.) H. KEITH HENSON, HUGH L. HIXON, JR., THOMAS K. DONALDSON, NAOMI REYNOLDS, ROGER GREGORY, MICHAEL G. FEDEROWITCZ, STEVEN B. HARRIS, BRIAN WOWK, ERIC GEISLINGER, CATH WOOF, BILLY H. SEIDEL, ALLEN J. LOPP, LEE CORBIN RALPH MERKEL, AND KEITH LOFTSTROM Plaintiffs, v. RAYMOND CARRILLO, SCOTT HILL, DAN CUPIDO, ALAN KUNZMAN, ROWE WORTHINGTON, RICHARD BOGAN, REAGAN SCHMALZ, GROVER TRASK, II, ROBERT SPITZER, LINFORD L. RICHARDSON, GUY PORTILLO, individuals, and the COUNTY OF RIVERSIDE, a subdivision of the State of CAlifornia, And the CITY OF RIVERSIDE, a municipal entity, and DOES 1 through 100 inclusive, Defendants. Plaintiffs complain of defendants as follows: JURISDICTIONAL ALLEGATION 1. This case arises under an Act of Congress, namely the Electronic Communication Privacy Act of 1986; U.S.C. Section 2701, et Seq., and in particular, the civil enforcement Provisions thereof, 18 U.S.C. Section 2707. Venue is proper in this Court in that all of the defendants reside in this district. COMMON ALLEGATIONS 2. Plaintiffs are all individuals residing in various point and places in the United States. [except Brian Wowk who resides in Canada.] 3. Defendants Carillo, Hill, Cupido, Kuntzman, Worthington, Bogan, Schmalz, Trask, Spitzer, Hinman and Mosley are all employees of defendant County of Riverside, and at all times material, were acting within the course and scope of their employment. Defendants Richardson and Portillo are all employees of defendant City of Riverside and at all times material, were acting within the course and scope of their employment. Defendant County of Riverside ["county'] is a political subdivision of the State of California. Defendant City of Riverside ["city'] is a municipal entity located within California. Defendants Carillo, Hill, Cupido, Kuntzman, Worthington, Bogan, and Schmalz are employed by defendant County in the Office of the Riverside County Coroner. Defendants Trask, Spitzer, Hinman and Mosley are employed by the said county in the office of the District Attorney, Defendants Richardson and Portillo are employed by defendant City in the Riverside Police Department. ------------------- 4. All of the events complained of herein occurred within two years of the date of filing of the complaint. At all times material, Alcor Life Extension Foundation, a non-Profit corporation with its principal place of business in Riverside County, maintained facilities at its place of business whose purpose was to (in part) facilitate the sending and receipt of electronic mail ["E-mail"] via computer- driven modems and which electronic mail facility was utilized by the plaintiffs, and each of them. The Alcor Facility is remote in geographical location from all plaintiffs. 5. At all times material, each plaintiff had one or more E-mail messages abiding on electron or magnetic medial at the Alcor facility. Prior to [actually on] January 12, 1988, defendants procured from the Riverside Superior Court a search warrant which authorized, in general, a search of the facilities of Alcor. A true and correct copy of that search warrant is attached hereto and marked Exhibit "A". The search warrant does not purport to reach, nor was it intended to reach, any of the E-mail of plaintiffs. 6. On January 12, 1988, defendant entered upon the Alcor premisses and removed many things therefrom including the electronic media containing plaintiffs' E-mail. 7. Contemporaneously with the seizure of the electronic media containing plaintiffs' E-mail, defendants were explicitly informed that they were seizing plaintiffs' E-mail which was not described either generally or specifically in the warrant hereinabove referred to. -------------- 8. No notice was given to any plaintiff by any defendant of the impending seizure of their E-mail. 9. In the process of procuring the warrant, neither the defendants nor anyone else made any showing that there was reason to believe that the contents of any of plaintiffs' E- mail was relevant to any law enforcement inquiry. 10. Subsequent to the execution of the warrant on January 12, 1988, no notice was given to any plaintiff by any government entity, including the defendants, nor any defendant herein, at any time, regarding the defendants acquisition and retention of plaintiffs' E-mail. 11. The court issuing the warrant in respect of the Alcor facility did not, prior to the issuance of the warrant nor at any other time, determine that notice to plaintiffs compromised any legitimate investigation within the meaning of 18 U.S.C. section 2705(a)(2). 12. Not withstanding that defendant and each of them were informed that they had taken, along with materials describe in the warrant, E-mall belonging to plaintiffs, said defendants knowingly and willfully (a) continued to access the electronic and magnetic media containing plaintiffs' E-mail and (b) continued to deny access to plaintiffs to such E-mail for many months although a demand was made for the return of the said E-mail. Defendants' wrongful access to and retention of plaintiffs' E-mail was intentional within the meaning of 18 U.S.C. section 2707. -------------- 13. Proximately caused by the unprivileged actions of the defendants hereinbefore described, each plaintiff has suffered damage in an amount to be proved at trial, but in no event less than $10,000 each. WHEREFORE plaintiffs pray: 1. For damages according to proof; 2. For cost of suit; 3. For Attorneys' fees pursuant to 18 U.S.C. section 2707(b)(3); and 4. For such other and further relief as is required in the circumstances. Date: January 11, 1990 GARFIELD, TEPPER, ASHWORTH, AND EPSTEIN A Professional Corporation (signed) CHRISTOPHER ASHWORTH Attorneys for Plaintiffs -------------- Exhibit "A" COUNTY OF RIVERSIDE, STATE OF CALIFORNIA SEARCH WARRANT To any Sheriff, Police Officer, Marshal or Peace Officer in the County of Riverside. Proof, by sworn statement, having been made this day to me by Alan Kunzman and it appearing that there is probable cause to believe that at the place and on the persons and in the vehicle(s) set forth herein there is now being concealed property which is: ____ stolen or embezzled property __x__ property and things used to commit a felony __x__ property possessed (or being concealed by another) with intent to commit a public offense __x__ property tending to show a felony was committed; YOU ARE THEREFORE COMMANDED TO SEARCH : the premises located at [description of Alcor address at 12327 Doherty St.] including all rooms attics, basements, storage areas, and other parts therein, garages, grounds and outbuilding and appurtenances to said premises; vehicles(s) described as follows: (not applicable) and the persons of (not applicable) for the following property: 1. All electronic storage devices, capable of storing, electronic data regarding the above records, including magnetic tapes, disc, (floppy or hard), and the complete hardware necessary to retrieve electronic data including CPU (Central Processing Unit), CRT (viewing screen, disc or tape drives(s), printer, software and service manual for operation of the said computer, together with all handwritten notes or printed material describing the operation of the computers (see exhibit A - search warrant no., 1 property to be seized #1) 2. Human body parts identifiable or belonging to the deceased, Dora Kent. 3. Narcotics, controlled substances and other drugs subject to regulation by the Drug Enforcement Administration. article of personal property tending to establish the identity of person in control of premise, vehicle, storage areas, and containers being searched, including utility company receipts, rent receipts, address envelopes and keys and to SEIZE it if found and bring it forthwith before me or this court at the courthouse of this court. Good cause being shown this warrant my be served at any time of the day or night as approve by my initials_________ Time of issuance _______ Time of execution __1600__ Given under my hand and dated this 12th day of January 1988 Thomas E. Hollenhorst Judge of the Superior Court ------------- UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA H. KEITH HENSON, see attachment "A" PLAINTIFF(S) vs. RAYMOND CARRILLO, see attachment "A" DEFENDANTS(S) CASE NUMBER SA CV- 90-021 JSL Rw Rx SUMMONS ----------------------------------------------- TO THE ABOVE NAMED DEFENDANT(S), your are hereby summoned and required to file with this court and serv upon Christopher Ashworth, Esq. GARFIELD, TEPPER, ASHWORTH & EPSTEIN A Professional Corporation Plaintiff's attorney, whose address is: 1925 Century Park East, Suite 1250 Los Angeles, California 90067 (213) 277-1981 an answer to the complaint which is herewith serve upon you within __20__ days after service of this summons upon you, exclusive of the day of service. If you fail to do so, judgment by default will be taken against you for the relief demanded in the complaint. Date Jan. 11, 1990 CLERK, U.S. DISTRICT COURT By MARIA CORTEZ Deputy Clerk (SEAL OF THE COURT) ;Date 11 Nov 92 12:30:25 From: Uucp@1:125/555 To: Tomj@1:125/111 Subject: Re: ECPA suit, motion to dismiss Options: kill-sent private ;Status: (read 5 times) ;INTL 1:125/111 1:125/555 From kumr!cup.portal.com!hkhenson From: hkhenson@cup.portal.com To: tomj@fidosw.fidonet.org Date: Wed, 11 Nov 92 12:07:37 PST Ok folks, as I promised, here are the legal papers filed in the email case since the original filing. Typos are most likely mine. Comments are in [brackets], skipping the first few pages is recommened. Sorry it took so long, I recieved copies of this stuff only yesterday. ---Keith Henson KINKEL, RODIGER & SPRIGGS BRUCE DISENHOUSE 3393 Fourteenth Street Riverside, CAlifornia 92501 (714) 683-2410 GREINES, MARTIN, STEIN & RICHLAND MARTIN STEIN 9601 Wilshire Boulevard, Suite 544 Beverly Hills, California 90210-5215 (213) 859-7811 Attorney for Defendants County of Riverside, Grover C. Trask, II, Curtis R. Hinman, Raymond Carrillo, Robert Spitzer and John V. Mosley y UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA H. KEITH HENSON, et al., Plaintiffs, vs. Raymond Carrillo, et al., Defendants. Case No. SA CV 90-021 JSL (RwRx) NOTICE OF MOTION AND MOTION TO DISMISS COMPLAINT FOR DECLARATORY RELIEF AND DAMAGES (Electronic Communication Privacy Act of 1986; 18 U.S.C. Section 2701, et seq.) PURSUANT TO RULE 12 (b), F.R.C.P.; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Date: April 30, 1990 Time: 1:00 p.m. Courtroom: No. 2 Trial Date: None set TABLE OF CONTENTS MOTION TO DISMISS COMPLAINT FOR DECLARATORY RELIEF AND DAMAGES (ELECTRONIC COMMUNICATIONS PRIVACY ACT OF 1986; U.S.C. Section 2701, et seq.) Page 3 MEMORANDUM OF POINTS AND AUTHORITIES page 5 INTRODUCTION AND STATEMENT OF RELEVANT FACTS page 5 LEGAL DISCUSSION page 7 I. THE COMPLAINT SHOULD BE DISMISSED AS TO ALL NAMED DEFENDANTS BECAUSE PLAINTIFFS HAVE FAILED TO STATE A CLAIM FOR RELIEF UNDER THE ELECTRONIC COMMUNICATION PRIVACY ACT. page 7 II. EVEN IF THIS COURT WERE TO CONCLUDE THAT THE SEARCH WARRANT WAS TECHNICALLY DEFICIENT, STILL DEFENDANTS ARE PROTECTED FROM SUIT BY THE DOCTRINE OF GOD-FAITH RELIANCE. THUS THE COMPLAINT SHOULD BE ORDERED DISMISS ON THIS ADDITIONAL GROUND. page 11 CONCLUSION page 13 TABLE OF AUTHORITIES Cases Burrows v. Superior Court page 10 13 Cal.3d 238 (1974) Harlow v. Fitzgerald, page 12 457 U.S. 800 (1982) People v. Dumas, page 10 Cal.3d 871 (1973) Robison v. Via, page 12 821 f.2d 913 (2d Cir. 1987) Tomer v. Gates page 12 811 f.2d 1240 (9th Cir. 1987) U.S. v. McLaughlin, 851 f.2d 283 (9th Cir. 1986) U.S. v. Michaelian, 803 f.2d 1042 (9th Cir. 1986) U.S. v. Spilotro 800 f.2d 959 (9th Cir. 1986) Statues 18 U.S.C. Section 2701 18 U.S.C. Section 2707 Constitutions Unites state Constitution, Fourth Amendment Rules Federal Rules of Civil Procedure, Rule 12(b) United States District Court for the Central District of California, Local Rule 7.6 Local Rule 7.9 Misc. 1986 U.S Cond Cong Adm Nes, Ann. TO PLAINTIFFS H. KEITH HENSON, ET AL., AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on April 30, 1990 at 1:00 p.m. or as soon thereafter as the matter may be heard in Courtroom 2 of the Honorable J. Spencer Letts, Judge of the United states district Court for the Central District of California, 751 Santa Ana Boulevard, Santa Ana, California 92701-4599, defendants County of Riverside, Grover C Trask, II, Curtis R. Hinman, Raymond Carrillo, Robert Spitzer, and John V. Mosley will bring on for hearing the accompanying Motion to Dismiss complaint for Declaratory Relief, and Damages (Electronic Communication Privacy Act of 1986; 18 U.S.C. Section 2701, et seq.). Defendants' motion will be brought pursuant to Rule 12(b) of the Federal Rules of Civil Procedure and will be based on this Notice of Motion and Motion, the attached memorandum of ports and authorities, and on such other and further documentation evidence and argument as may be presented in support of this motion. PLEASE TAKE FURTHER NOTICE that under Local Rule 7.6 of the United States District Court for the Central District of California, a party opposing a motion shall, not later than 14 days before the date set for hearing of the motion, serve upon all parties and file with the clerk of the court either (a) a brief, but complete memorandum containing a statement of all reasons in opposition to said motion, and the point and authorities upon which the opposition party will rely, or (b) a written statement that he will not oppose the motion. Under Local Rule 7.9, failure to file any required papers may be deemed by the court consent to the granting of the motion. Dated: March 27, 1990. Respectfully submitted, [boilerplate] [signed] Martin Stein [page 3] MOTION TO DISMISS COMPLAINT FOR DECLARATORY RELIEF AND DAMAGES (ELECTRONIC COMMUNICATIONS PRIVACY ACT OF 1986; 18 U.S.C. Section 2701, et seq.) Pursuant to the provisions of rule 12(b) of the Federal Rules of Civil Procedure, defendants [list], hereby move to dismiss the Complaint for declaratory relief and damages on file herein on the following separate grounds: 1. Plaintiffs have failed to allege sufficient facts to state a a claim for relief against the named defendants herein in that the allegations of the Complaint and attached documentation establish as a matter of law that defendant did not violate the provision of the ECPA in execution a facially valid search warrant. 2. Even assuming that a technical violation of the ECPA has properly been alleged by the plaintiffs in the instant case, the named defendants herein are entitled to dismissal on the basis of their good-faith reliance on the terms of a facially valid search warrant, pursuant to the provisions of 18 U.S.C. section 2707(d)(1). WHEREFORE, defendants [list] and each of the pray as follows: 1. That each of their motions to dismiss the Complaint be granted without leave to amend; 2. The the Complaint and each claim for relief alleged therein be ordered dismissed as against each of these defendants; 3. That plaintiffs be ordered to take nothing from defendants; 4. That de