Forwarded (from: COMP.ORG.EFF.TALK) by Jan Maaskant using timEd. Originally from H Keith H

Forwarded (from: COMP.ORG.EFF.TALK) by Jan Maaskant using timEd.
Originally from H Keith Henson (1:133/411.0) to All.
Original dated: Feb 06 '94, 22:26

From: hkhenson@cup.portal.com (H Keith Henson)
Newsgroups: misc.legal, alt.censorship, comp.org.eff.talk, alt.bbs
Organization: The Portal System (TM)
Date: Sun,  6 Feb 94 22:26:32 PST

[I am reposting this because of the number of requests--about 25 or
so.  I filled about 10 of them.  KH]

[Started Monday 1/10/94]

About two years ago I helped a guy from Milpitas (just north of San
Jose) deal with a BBS bust at what he described as a "adult" BBS.
The San Jose police (who had gone out of district) and the DA realized
shortly that they had really goofed by not considering the ECPA and
related laws in their search & seizure.  The result was that they gave
his system back after five weeks, and stated in a written release that
this guy's activities were within the scope of the law.  The BBS is
called Amateur Action, and the sysop's name is Robert Thomas
(408-263-1079).  Robert's lawyer, Richard Williams's phone number is
408-295-6336.

Monday night about 8 pm, Robert called (at that time I had not met him
in person).  A search warrant was being served at that very moment by
the US Postal Inspectors, who (with the help of San Jose cops) were
packing up his equipment and carting it out--again.  Robert managed to
get the postal inspector on the phone with m This inspector seemed
to be rather knowledgeable of such things as the ECPA, 2000aa, and the
Steve Jackson case.  He stated he was completely unconcerned about
their lack of warrants for email!  piously stated that, because it
was their intent to bring the system back within a "few days" and, as
a result of the short interruption of user access, and their good
intent "not to look at private email," they were completely safe from
the provisions of the ECPA.  This postal inspector gave his name as
David Dirmeyer, from Tennessee (does this sound like Bible Belt
prosecution for pron?) and gave me the name of the US Attorney he was
working under, one Dan Newsom with a phone of 901-544-4231 in TN
(though he stated that the phone # would be of no use because Dan was
at a conference for a week).

For what it is worth, the postal inspector said they were using the
San Jose cops on the bust because they did not have the expertise
themselves to move the system and make copies.  According to the
investigator, they did not know that they could get a court order to
have a backup of the system made on the spot.  It may be that Robert
is the target.  (In spite of not meeting him, I suspect Richard may be
the kind of smart alec who attracts the attention of cops.)

Robert said there was a mystery package which came today in the mail
(his son and wife picked up and she opened a few minutes before the
cops showed up).  The package turned out to be real honest-to-gosh
kiddy porn.

Robert claims not to have ordered it, and considering that his wife
picked the (unexpected) package up and opened it, I think this is the
actual case.  Robert was sick and busy with system problems that
afternoon and had not decided what to do with the stuff, though he did
try to call his lawyer for advice.  The guy who sent it is known as
"Lance White," who Robert thinks is one of his BBS members. (As is
postal inspector Dirmeyer.)  They had Robert pull all postal
correspondence with this guy (video tape orders) from his files and
took it with them.

Robert thinks the postal folks may be after this guy, and his BBS just
got caughthe middle.  An interesting side point is that while they
asked for the package which came that day when they came in, they did
not have a warrant for it, and said they would have to drive overo
SF to get one unless he volunteered to give it up.  Robert signed off
that they could take it, and they did.  He noted this morning that the
original warrant he has was neither signed nor dated, though a judge's
name was typed in.

I don't know if this is something of marginal concern to those of us
concerned with government abuse of people's computers and
communications or a major concern.  I intend to find out more, but if
the ECPA is applicable, this guy had about 3500 users, over 2k pieces
of protected email on his system plus (I think) agreements with his
users for him to represent them in an ECPA-related legal action--two
million dollars if I am multiplying right.  (My "Warning to Law
Enforcement Agents" was part of his signup screens.)

Question for Mike Godwin (of EFF).  One aspect of this case gives me
the shakes. *Anyone* with a grudge (and access to this kind of stuff)
can send you a package in the mail and tip off the postal inspectors.
Short of the obvious (don't make enemies!) how can you protect
yourself from this kind of attack?

My non-lawyer thoughts:

              Burn it at once!
              Call my lawyer.
              Call the cops.

For a while this will be a very serious problem, because *any* of us
with readily available morphing tools can make (what looks like) kiddy
porn out of legal porn.

[After finding out where this came from, I think burning it might get
you charged with "Destruction of Government Property"!]

Keith Henson
408-972-1132
hkhenson@cup.portal.com


A Very Weird Turn of Events [Friday 1/14/94]

To recap:  Last Monday (Jan 10) Robert Thomas, Sysop of Amateur
Action, an erotic BBS, got a call to pick up a priority postal
package.  His wife picked it up and opened it.  It turned out to have
*real* child pornographyn it, and was sent (unsolicited) by one
Lance White.  This was not the first odd thing sent in by some of the
people on the BBS, but it was certainly of no use to Robert.  He runs
a scrupulous *business*.  He is so careful that he will not permit gif
uploads from the AA members at all.

While he is trying to figure out what to do with this stuff, a person
by the name of David H. Dirmeyer and identifying himself as a postal
inspector showed up with an unsigned and undated warrant, which says
on the face of it that it was issued by Hon. Wayne D. Brazil, U.S.
Magistrate-Judge at San Francisco, CA.  (The case number is 3.94.3005
and what might be WDB.)  By itself, a copy lacking date and signature
may be ok, but both the locallice and a newspaper reporter were
quite surprised that they were missing.

Attachment A is just a description of the house where the BBS was
located.

I may type in all of Attachment B at some point, but not now.

Point A was for all the hardware, manual, etc.

Point B was for a list of video tapes (which AA sells).

Point C was for gif from these tapes.

Point D was a list of gifs from a description file designed to
generate maximum curiosity--kinky or racy stuff, but what it points to
is not beyond what you can pick up at porn shops in any large city.

Point E asked for records on the origin etc. of the tapes and gifs.

Point F asked for ads or any other kind of pointers to these.

[verbatim from here, modulo typos.]

      G.   "Cardboard boxes, envelopes, and other shipping container
bearing United Parcel Service (UPS) logo and or shipping numbers."

      H.  Any and all records showing business transactions with
Lance White, 1770 North Germantown Pkwy., Suite 166, Cordova,
Tennessee  38018, including, but not limited to: books, records,
receipts, bank statements, canceled checks, wire transfer records,
passbooks, payment journals, and other documentation, whether stored
in any of the storage devices listed in Paragraph A above.

      I.  Any andll records showing or bearing indicia of the
use, ownership, possession, or control of the abovesaid
residential/business premises, of the obscene material, of the
databases described above, orf such records, whether stored on
paper, in files, invoices, bills, leases, deeds, permits, licenses,
telephone bills, tax receipts, or other documentation, or on
magnetic media such as tape, cassette, disk, diskettes, or on memory
storage devices such as optical disks, or other storage media.

[As you might note in passing, no mention about email in the warrant,
and none that AA may be protected as a *publisher* under 2000aa.]

Sounds like they are *really after this Lance White dude--right?

Perhaps postal inspectors opened this ackage of kiddy porn on the way
and got a search warrant to go after him?  They ask about the package
received today.  The package is lying where it was left when opened,
they must know about it, so Robert shows it to them.  The inspector
wants it, but Robert will not give it up without something saying *he*
sure as heck did not order it.  After some argument about taking its
taking two hours or more to get an added warrant from San Francisco,
they come to an agreement.  The inspector pulls out a PERMISSION TO
SEARCH form and modifies it.  It reads:

  "I, *Robert Thomas*, have been informed by *Postal Inspector
  Dirmeyer* and [blank] who made proper identification as (an)
  authorized law enforcement officers(s) of the *United States Postal
  Inspection Service* of my CONSTITUTIONAL RIGHT not to have a search
  made of the premises and property owned by me and/or under my care,
  custody and control, without a search warrant.

  "Knowing of my lawful right to refuse to consent to such a search, I
  willing give my permission to the above namedicer(s) to conduct
  a compete search of [premises scratched out] property
                                                          *namely
  priority mail package from Lance White addressed to Robert Thomas sent
  without his knowled   ^^^^^^^^^^^

[The rest is boilerplate, time (5:29), and date.  Dirmeyer and one of
the San Jose police sign as witnesses, and (strangely) a home phone
(901-576-2077) for Dirmeyer, not an office phone like the SJPD officer
used.  The material between the *s is block printed by Dirmeyer.]

Robert thought the name was familiar, but he has about 3500 members
signed up.  Robert runs the BBS from home but has an office as well.
To turn over what the search warrant demands, he and the agents go
there while the computer setup is bein taken down and seized.  They
find some Lance White orders and such in the files and the officers
take them, but White's original signup form is missing.

Robert called me while the agents were carrying out the seizure, and
(to my surprise, it is not usual practice) David Dirmeyer talked to
me.  He has a slightly nasal Tennessee accent--distinctive.  I ask him
about ECPA, Secret Service, 2000aa, Steve Jackson case, and proper
warrants.  He says none of these laws apply but promises to get the
hardware back ASAP; when pressed he says a week.  I am skeptical.

Next day he shows up with subpeonas for Robert and his wife to submit
handwritting samples and fingerprints.  As he is leaving, he tells
Robert something to the effect that "it will go worse for you if you
mention Lance White on the board when you gets it back."

Tuesday I wrote the first report on AA for computer network
distribution.  Wednesday and Thursday I put in some time on bringing a
lawyer up to speed on the ECPA, related laws, and such case law as
came out of the Steve Jackson Games suit.

Mid afternoon Friday I am about to go meet Robert (first time ever in
person), and discuss filing a claim with San Jose in preparation for a
2000aa lawsuit.

Robert calls me.  His wife found the oral "Lance White" signup
which had not been filed.

Bombshell.

The sloppy block printing of "Lance White" on the "Membership and
Registration form" dated 2/93 and the "Lance White" block printed on
the PERMISSION TO SEARCH look *idcal*.  It is possible that a
regular handwriting expert might find them different, but all seven
people, including two cops, who looked at them think they were written
by the same person.

Thegistration form has an address, 1770 Germantown Parkway, #166,
Cordova, TN 38018.  This is really close to the warrant, except someone
is trying to make what I expect is a box look like an apartment.
Perhaps a net reader knows someone who lives near there and could
check.

There is also a phone number (901-685-2206) on it.  Robert tries it,
and asked me to try.  Again, an expert might disagree, but to my ear,
the answering machine's message which says it is Lance White's phone,
and the person I talked to who said he was Dirmeyer are the samerson.  *If* I can believe my ear and eye, it looks like David H.
Dirmeyer, Postal Inspector and Lance White "Sender of Unsolicited
Child Pornography" are the same person.

[Update 1/26/94.  As of today, the message is still there--call if you
would like to know what this voice sounds like.  :)]

*If* this is the case, (not exactly impossible, because the postal
inspectors have been in the news lately *for* sending child porn),
then what the heck is going on here?

When Robert figured out the strange connections, he called the local
(Milpitas) police.  They said he should talk to the San Jose Police,
since they were the ones who came out and took the computer.

Late this evening I talked to the San Jose Police who were on duty
"down at the station."  Just for the record, they are Lera and
Morales.  I mentioned that San Jose may be liable in this odd
business, but they felt it was purely a post office problem.

Not long after Robert called the Milpitas Police (coincidence I hope)
Dirmeyer called and told Robert they were finished with his machines,
that he ho get down to a postal facility in San Jose (1st and
St John) at 8:30 am Saturday and pick them up or he couldn't get his
system back till Tuesday, and that he (Dirmeyer) was leaving Saturday
morning to go back to TN.  Robert told Dirmeyer he wants the system back,
but how about *they* bring it back, since Robert is sick, and not up
to moving the hardware, and may not be able to round up enough friends
to move it. I don't know what is going to happen, bI plan to be
down there in a few hours to see what goes down, and get a look at the
Dirmeyer.  (*I* can't help, I am on crutches at the moment.)

I made a few more calls myself this evening.  Unfortunately the
holiday has the US government shut down until Tuesday.  The few people
I could reach, a Postal Officer in SF named Bishop, and an FBI agent
who only gave his shift and title, were of limited help.  The FBI
agent said that a Federal Agent should give a *local* contact when you
ask who his supervisor is even if he is working out of his district.
(He was kind of boggled by the idea of an out-of-area supervisor who
couldn't be contacted anyway because he was at a conference.  Where's
his *deputy*?)  The Postal Officer was originally quite concerned, but
(in a call back to me after about 10 minutes) said he was unable to
contact any agents at this hour of the night, and that I should take
it up Tuesday.

If Dirmeyer and White are distinct, I am going to be doing some heavy-
duty apologizing.  If they are not, it raises some really odd
questions:

What is an officer of the law doing asking a Federal Judge for a
warrant for the seizure of records when (assuming he was making
copies) he must *have* records of whatever correspondence he had with
AA?  Was "Lance White" included in the affidavit to cov another
reason for the warrant?  For example, could they have been trying to
conduct an illegal sweep of email, names and passwords on the AA
board?  Was the Judge informed of how easy this would be?

Did Inspector Dirmeyer *tell* Judge Brazil that he was also "Lance
White"?  Would a Judge sign a warrant this misleading?

*Did* a Judge sign the warrant?  For that matter, is "Dirmeyer" really
a postal inspector?  He gave me a number for his boss, but said his
boss was out of contact for the week.  I tried tonight, and the number
I gave in a previous note does not answer, no voice mail or anything;
not definite, but most Federal offices have *something*.

I am distributing this at 5 am in kind of a rough form to the CP list
and some otheoups.  Please let me update it before it goes too
far.  I will do my best to update by early afternoon.

[1/15/94]

Update Saturday noon.  Back from seeing Robert's sons and friend pick
up his computer equipment, and a 10-minute chat with Postal Inspector
Dirmeyer, and a San Jose Police officer by the name of Weidner.  At
least one point is clear, David Dirmeyer and Lance White are the same
person:  I simply asked him, and he admitted it. I also found out why
he was willing to talk to me during the search.  He figured that
anybody who starts quoting chapter and section from the Federal Code
must be his target's lawyer. [Dirmeyer reminds me somewhat of one of
my cousins when he was about 18.  My cousin was tall and gangly, and
given to putting on a hick act.]

Dirmeyer/White seemed completely unconcerned with having generated any
liability for the government under the ECPA or the Newspaper Privacy
Protection Act (2000aa).  He backed this up by being very proud of
getting the system (well, most of it anyway) back to the sysop in
under a week.  [The Electronic Frontier Foundation *has* had a
positive effect:  this is the first time I ever heard of any LEA's
caring how long they take to return a computer.]  He was very
confident that a judge would dismiss any civil lawsuit brought by the
users because of what he peived as criminal obscenity activities by
the sysop.  How actions, criminal or not, of one person (the sysop)
cancels the rights of others (email customers) to civil recovery from
those who block ss to their email is beyond me.  If that did not
get them off the hook, Dirmeyer figured they would get out of civil
liability claims because they interrupted people's email access for
such a short time, as opposed to the lengthy time the Secret Service
kept Steve Jackson's BBS.

I can almost quote from memory the relevant sections of the ECPA, and
*I* don't remember any time limits under which the civil penalties of
law do not apply ("But Judge, I only exceeded the speed limit for a
*few* miles!"). I wonder how the Postal Service would react to sone
locking *their* patrons out of a local office and away from their mail
boxes for a week?

I expressed my hope (as a San Jose resident and taxpayer) to Officer
Weidner that the Post Office had agreed to take responsibility for any
civil liability arising out of the case.  He was close to uncivil in
stating that I had no standing in the case, and it was none of my
concern.  He advised me to butt out of being involved in any way.  He
asked if I had ever *seen* the material on that BBS (my answer was
no), and expressed the opinion that I would be smeared by it and
greatly regret getting involved.

Back to Dirmeyer, I asked him about the warrant.  He said that what he
did is ordinary investigation practice, including sending people
unsolicited material and then picking it up under a warrant.  I asked
him if the Judge knew, and he assured me the Judge was fully aware
that the person getting a warrant for "Lance White's" correspondence
was also Lance White.  He also said the Judge was aware of the 2000aa
and ECPA issues, and that they were under orders not to look at
anything labeled email.  For some reason, this did not reassure me.

I also asked them why they did not just get a court order and back the
material up in the field?  They said it would take far to long.  I
know this to be untrue.  They certainly spent more time at obert's
house taking the system appart and moving it than a backup to tape
would have taken.

Robert's sons and a friend got the last pieces of the computer down to
the lobby and we parted comp with a few comments on my part about
Postal Service agents legally sending kiddy porn through the mail,
like the Nebraska case recently ruled entrapment by the Supreme Court.

Just one minor thing to add.  Because of a persistent back injury, I
am on crutches most of the time.  I was making my way across the lobby
of the old Post office nearing the doors.  Dirmeyer and Weidner passed
me, opened the doors, went through and let them swing shut in my face.

Keith Henson