From: Cu Digest, #6.35 ------------------------------ Date: Fri, 11 Mar 94 23:48:58 PST From: (H Keith Henson) Subject: File 3--Re: AA BBS Bust (reply to gov motion) ((MODERATORS' NOTE: Below is the motion filed by AA BBS's defense attorney in response to the incident)) RICHARD D. WILLIAMS, APC State Bar #92376 79 Divine St., Suite 101 San Jose, CA 95110 (408) 295-6336 Attorney for Defendants/Claimants IN THE UNITES STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA IN THE MATTER OF THE ) NO.: CR 3-94-30005 WDB SEARCH OF THE PREMISES ) KNOWN AS: ) RESPONSIVE SUPPLEMENTAL ) MEMORANDUM OF POINTS AND 475 TRAMWAY DRIVE ) AUTHORITIES IN SUPPORT OF MILPITAS, CA 95035 ) MOTION TO RETURN PROPERTY ) ______________________________)______________________________ Comes now Richard D. Williams, attorney for the claimants who responds to the United States' opposition to claimants' motions as follows: A. Jurisdiction 1. The US Attorney seems to argue that DiBella vs. United States discourages the use of 41(e) motions in the district of seizure. Dibella dealt mainly with the appealability of a ruling on a 41(e) motion and stated in dictum that such motions were "discouraged." The motion to return property is by rule, and I have seen no authority to suggest that it is improper to bring such a motion in the district where the property was seized pursuant to Rule 41(e). I note also that DiBella vs. U.S. is a 1962 case which was before Congress' revamping the rule in 1989. 2. Further, there exist no rule stating that a motion under 41(e) cannot be brought post indictment (although it does say that if brought post indictment in the trial court it shall be treated as a motion under Rule 12). 3. In the present case, the Thomas's are entitled to the return of their backup tapes, their UPS records (which are in danger of being tampered with by agent Dirmeyer as the could contain evidence of perjury by Agent Dirmeyer in his affidavit before Magistrate Brazil), and any copies of the AABBS system information made by Agent Dirmeyer and the San Jose "High Tech" unit. These were *not* requested on the search warrant and contain member's names, and passwords. They also contain all the electronic mail on the AABBS system at the time of the seizure. Members of AABBS have been complaining constantly since the seizure of unauthorized use of their accounts on the system. It is apparent that a massive release of member logon names and passwords has occurred, because someone (and Agent Dirmeyer is the only one other than claimants with member names and passwords) has been changing member's passwords. 4. The United States Attorney also argues that this motion is not timely since it was filed over thirty days after the seizure. I attempted to obtain access to the file within 48 hours of the seizure and was told that was no file because the U.S. Attorney had it. I was told this while standing next to a sign on the wall which states that it is a felony to remove files from the clerk's office. I made another 50 mile trip in an attempt to find out what was in the file about a week later, and at that point was told again, by the clerks that they did not know where the file was, though they thought the U.S. Attorney still had it. This time Judge Brazil's secretary told me that the affidavit was sealed, though in fact, U.S. Attorney's order sealed only the material alleged to be obscene. (This incident is detailed below.) 5. The affidavit was unsealed by Magistrate Brazil's order on January 27, one day after the indictment issued in Tennessee. Thus my client and I were improperly denied access to the affidavit which was essential to making a 41(e) motion. It was eventually pried out of the clerks office by a series of phone calls to Magistrate Brazil's office and a third 50 mile trip to the clerk's office about February 7th to pick it up. 6. To put a time line on these events, of the seven weeks from the search to the time this motion was filed, the US Attorney or those acting under his direction caused four weeks of the delay he is complaining about. This is not an isolated incident. I am filing a motion herewith to relate this case to several others before Judge Patel involving fraud and deception upon the court where, as here, the government has falsified evidence, hidden court files, manipulated judge's calendars in an effort to "Judge Shop." It is my feeling that no one should be allowed to profit from their wrong doing, and the U.S. Attorney's office should be subject to that maxim of jurisprudence as well. B. PRIVACY AND E-MAIL ISSUES 7. On page 9 of UNITED STATES' OPPOSITION MEMORANDUM at line 2, Assistant United States Attorney Andrew M. Scoble states: "The defendants here, in a warning to law enforcement officers posted on their computer bulletin board, claim that their board contained "work product material" and cite Section 2024aa. The government contends, however, that the material on the board is their pornographic inventory, which should be considered merely a type of documentary material as defined by the stature rather than an type of work product protected by the Act, since work product, as stated in the legislative history involves a creative, mental process which is not evident here." 8. I simply disagree with Mr. Scoble. To support this position, let us describe one of the processes whereby AABBS has electronically published over 20,000 GIFs. Robert Thomas employs models and takes photos of them, many of the not dissimilar to those found in Playboy or Penthouse. He scans in the film, edits the resultant image (much as Playboy airbrushes photographs) and adds the copyright information identifying AABBS. He then writes a description of the GIF, and then loads both the GIF and the related description into the data base available for his paying members. If this is not "a creative, mental process," we don't know how the U.S. Attorney would describe one. This information was available to Inspector Dirmeyer or if he had any doubts about the matter, he could have asked. Many of these GIFs are of humorous intent, which, like obscenity is in the eye of the beholder. 9. Arguing from Mr. Scobles' point of view, we could conceded that the dozen GIFs and tapes sought under the warrant might be considered obscene in Tennessee or other backwater parts of the United States, and therefore these particular items might not be under the protection of 2024aa in that location no matter how much artistry was involved in making them. The GIFs in question are considered silly or mildly amusing by most AABBS members. It should be noted (though this is not a defense) that very similar or even identical GIFs are common items in thousands or tens of thousands of computer systems, including virtually all universities and a number of adult BBSs in Tennessee. If Mr. Scoble considers the tapes obscene by San Francisco standards, I am certain he could be shown open sources of these tapes within a mile of the Federal building. 10. However, by numeric count there are less then one in a thousand were deemed obscene by inspector Dirmeyer. Does this negate the protection of everything (email included) within the computer or all (most of it legal even by his standards) creative work in process? 11. As the Affidavit itself states, the same BBS, content, and video tapes were examined image by image, and tape by tape for five weeks two years ago by the San Jose Police Department. The affidavit clearly states that the SJPD found no evidenced of a crime at that time. It is to be presumed that the police were judging what they looked at by local community standards, and thus the material involved (which has not changed one bit in character since that time) is protected under 2024aa in the Northern District of California if not elsewhere. 12. This does present an interesting problem for the courts! Material could be considered obscene and not protected in one District, and protected under 2024aa in another because of differing community standards. Had the BBS been located in Tennessee, a objection to the legality of the warrant because it violated 2024aa might not be valid, but the 2024aa violation occurred in the Northern District of California, and not in the Western District of Tennessee, and thus local community standards here must be used. It is apparent from the warrant itself (which reported on the search two years ago) that there was strong reason to believe that the BBS material was not obscene under local standards 13. The doctrine of "community standards" brings up another problem-- which community? Before electronic communications became so pervasive, community was describes as physically proximate neighbors. Nowadays, people properly speak of the global village. People well connected to the net are more likely to have a strong feeling of community with those they associate with electronically than they are of their next door neighbors. 14. If "community" is considered to be made up of the 3500 people who pay for memberships on AABSS, they certainly would not consider the material obscene and thus subject to censorship. The same could be said of those who read and download GIFs (which are at least as raunchy as any on AABBS) from the largest groups on the Internet,[.bondage, .homosexual, .bestiality, etc.] The net community, it should be noted, "interprets censorship as damage and routes around it." 15. It is hard to determine the reasons the Western District of Tennessee has reached out in an attempt to impose their standards on the Northern District of California. Perhaps it is the simple desire to obtain tens of thousands of dollars worth of computer equipment. Had they applied for a warrant to search an adult book store in San Francisco, they would have been laughed out of court. Is an electronic version of an adult book store *that* different? 16. If they really have a concern that their citizens need protection from the evils of either coast, they could have applied for an injunction to prevent AABBS from doing business with any citizen of Tennessee. In fact, a simple letter asking the AABBS sysop not to do business with residents of Tennessee, or asking that he limit what was available to them would have sufficed, since it would have cost him under ten customers out of 3,500. 17. Quoting Mr. Scoble on page 10 line 11 through page 10 line 1: "The defendants claim that the search and subsequent seizure of their computer bulletin board system violates the Electronic Communication Privacy Act (ECPA) Tile [sic] 18, United States Code Section 2701 at seq. No such violation occurred." 18. In the very next sentence he quotes the relevant part of what actions are required to violate the law, "or prevent the authorized access to electronic communications." It does not require a degree in computer science to see that authorized access to electronic communications on the BBS were prevented during the five days it was in the hands of agent Dirmeyer and the San Jose Police. 19. Mr. Scoble then describes the requirements to avoid being subject to section 2701, namely the requirement for warrants for mail which has been in the system for less than 180 days. No warrant for *any* email was sought, because, I suspect, no justification was available to intercept or interfere with any member's electronic mail. He goes on to describe how careful the agents were not to read the electronic mail while ignoring the undisputed fact that they prevented authorized access to electronic communications for all 3500 AABBS members for five days. It would be interesting to ask Inspector Dirmeyer's superiors how the Postal Service would react to someone taking a mailbox full of letters and keeping it for 5 days. It is an easy prediction that the Postal Service would consider taking a mailbox to be a violation of law, weather the person taking the mailbox steamed open the letters or not. 20. While interception in the fundamental sense of taking a mailbox full of letters may have occurred, U.S. Attorney Scoble may have such case as law as exists on his side in his claim on page 12 that an "Intercept" under the restricted meaning of Section 2510 may not have occurred. (Steve Jackson Games, Inc. vs. United States Secret Service, 816 F.Supp. 432 W.D.Tex, 1993). This case is also on point for 2024aa because it was found that the government agents should have used less intrusive methods (i.e., subpoenas). 21. A subpoena certainly would have sufficed in this case. Robert Thomas was willing, and stated so at the time of the search, to provide copies of any file the agents wanted. (Why not? Any member including Agent Dirmeyer could access the same GIFs from any place in the world, including any courtroom.) Even though this method was mentioned in the Affidavit as a desirable and less invasive alternative to the search, the agents made no mention of it at the time nor did not take Mr. Thomas up on his offer. It is my belief that they wanted illegal access to electronic mail as well as access to the membership base and the member's personal passwords for the purpose of entrapment. I consider this an example of bad faith on the part of Inspector Dirmeyer, along with the his threats against Robert Thomas not to reveal who "Lance White" was and his botched attempt to frame Robert Thomas on a child pornography charge. The last charge in the indictment is clearly bogus--because Agent Dirmeyer himself describes the package of child pornography as "sent without his knowledge" [referring to Thomas.] This level of lawlessness among those charged with upholding the law should be entirely unacceptable to the courts. 22. The warrant affidavit itself reports on the failed previous attempt to find child pornography on AABBS. Robert Thomas would never put child pornography on his BBS, and would not permit others to do so either. He has a widely known reputation for running a "tight ship" at AABBS. 23. In consideration of the forgoing, claimants pray that all fruits of this illegal search be returned to them, and the evidence suppressed. Respectfully submitted by Richard D. Williams Attorney for defendants/claimants