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law/1changin01.law
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September 1991
COUNTERINTELLIGENCE CHALLENGES IN A CHANGING WORLD
By
William S. Sessions
Director
Federal Bureau of Investigation
In recent years, the world witnessed some truly amazing
events--the fall of the Berlin Wall and the reunification of
East and West Germany, the beginnings of democratic governments
across Eastern Europe, and the easing of political tensions
between the United States and the Soviet Union. As a result,
the current perception of most Americans is that foreign
intelligence activity directed against the United States and the
West is decreasing, and therefore, the need for an active,
aggressive counterintelligence response has abated.
Unfortunately, this is far from true.
There can be no doubt that important changes are taking
place in the world today. However, improved diplomatic
relations do not necessarily decrease the foreign intelligence
threat to U.S. national security. The truth remains: That
threat still exists, as it did in the past and as it will in the
future.
DECADE OF THE 1980S
The last decade of the cold war, the 1980s, was designated
by the media as "The Decade of the Spy." It was a time when
Americans knew who their enemies were--a time when President
Ronald Reagan referred to the Soviet Union as "The Evil Empire."
The American public showed strong support of counterintelligence
efforts and participated in the process by reporting suspicious
events.
During the 1980s, more than 45 people were arrested for
espionage. Increased human and technical resources, enhanced
analytical and training programs, and improved coordination
within the U.S. intelligence community and with friendly foreign
intelligence services contributed significantly to these
arrests. However, much of the success in counterintelligence
efforts came as a result of a heightened public awareness of the
full damage caused by espionage, as well as the public's support
of the measures designed to protect Americas vital information.
In addition to the importance of public awareness, the
1980s taught us several other important lessons. First, the
American public received a rude awakening regarding the
vulnerability of the U.S. national security community from spies
within its own ranks. For example, both John Walker and Jerry
Whitworth served in the U.S. Navy; Karel Koecher, Larry Chin,
and Edward Howard all worked for the Central Intelligence Agency
(CIA); Ronald Pelton was a National Security Agency employee;
Richard Miller was an FBI Special Agent.
Second, many of the dangers were posed by volunteers. That
is, many of those arrested during the 1980s, including Walker,
simply offered to spy on their country. And they offered to spy
not because they had ideological differences with the U.S.
Government or ideological sympathy with a foreign government, as
was the case during World War II and the first decade of the
Cold War. They spied for the basest of reasons--money.
Third, prosecuting spies was found to be an effective tool
to determine the extent of the damage caused to national
security. Unfortunately, some of the espionage cases of the
1980s resulted in grave damage to U.S. national security
interests. But, without the prosecutions that followed, an
accurate accounting of what was lost would not have been
possible, and appropriate steps to minimize the damage would not
have been taken. Fortunately, in 45 percent of the espionage
cases during the 1980s, the work the U.S. counterintelligence
community uncovered either prevented the espionage activity or
significantly limited the damages.
THE CHANGING WORLD
In the 1990s, with the easing of tensions between
superpowers and military blocs, it is no longer possible to
identify the U.S. counterintelligence mission in terms of these
relationships alone--the world has become much too complex for
that. America has negotiated historic arms reduction treaties
with the Soviets. The Soviets have introduced their programs of
Glasnost, openness to the West, and Perestroika, internal
economic and political restructuring. And, the world has
witnessed the nations of Eastern Europe revolt against their
former Communist leaders in favor of new freedom and economic
diversity, and in some cases, more democratic forms of
government.
While all Americans can agree that the world has changed,
and most see that change as positive in terms of an enhanced
prospect for world peace, the public tends to view this new
world order to be devoid of danger. So, the logic goes, that if
there is no longer a threat to U.S. national security, then
counterintelligence measures are not needed.
But, the reality is that arms reduction treaties between
the United States and the Soviet Union give Soviet "inspectors"
potential access to some of this country's most sensitive
projects. Glasnost has dramatically expanded the number of
exchanges between the United States and the Soviet Union in such
areas as business, science, and education. In fact, since
Glasnost, the number of Soviets traveling to the United States
increased almost 400 percent; in 1990 alone, more than 100,000
Soviets visited the United States. Past experience shows that
these exchange groups often contain intelligence officers.
Furthermore, the countries of Eastern Europe, while attempting
to move away from the Soviet sphere of influence, are now
fighting for their own economic survival--and they, too, have a
need for Western technology.
CURRENT INTELLIGENCE THREATS
Arms control treaties between the Soviet Union and the
United States will hopefully lead to a diminished threat level
between the nations. However, from a counterintelligence
perspective, these treaties will give the Soviet intelligence
services routine access to sensitive areas and to knowledgeable
Americans who are linked to classified information which, until
now, was attainable only on a very limited basis. Other
treaties presently being negotiated, concerning strategic arms
reduction and chemical weapons, would require numerous
verification sites, again expanding Soviet access.
But, the Soviets are interested in more than American
military secrets. The Soviet economy is in desperate shape and
can be revitalized with Western technology, capital, and
expertise. In order to strengthen that economy, the chairman of
the KGB has publicly stated that it plans to assist Soviet
businesses because, as he says, "They are not good businessmen."
The Soviets have systematically expanded their intelligence
collection beyond military intelligence targets and now
routinely include Western economic information and technologies.
Since the Soviets can no longer rely on their former
surrogate intelligence services in the Eastern Bloc to collect
intelligence for them, they must find other sources of
intelligence and develop new surrogate services. The Soviets
have started using the intelligence services of other countries
to obtain Stealth technology and acquire restricted computer
technologies for themselves.
Recent repression by the Soviet government of dissent in
the Baltic Republics may very well signal a new shift in Soviet
internal policy away from the liberalization of Glasnost. This,
in turn, may have far-reaching implications involving the Soviet
military and its intelligence services, U.S. national security,
and the emerging "new world order."
All in all, while the nature of the Soviet intelligence
threat may be changing, its objectives and actions are not. The
Soviet intelligence services are more active now than they have
been at any time in the past 10 years, and there is every reason
to believe that they will continue their pursuit of Western
intelligence during the 1990s.
The threat of Eastern European countries to the United
States cannot be fully assessed because they themselves have not
yet fully defined the nature and scope of their intelligence
services. Some of these countries are no longer collecting
intelligence on behalf of the Soviet Union; however, they will,
in all likelihood, refocus their collection activities in the
United States to fulfill their own requirements. Since, as with
the Soviets, the current major focus of these nations is
economic reorganization and growth, they also have a real need
for Western technology.
What about the People's Republic of China (PRC)? The PRC
has the largest foreign official presence in the United
States--2,700 diplomats and commercial officials, 43,000
scholars, 25,000 commercial delegates visiting the United States
annually, and 20,000 emigres coming to America each year. The
PRC remains a major counterintelligence threat to the United
States. Their intelligence services target well-educated
Chinese-American scientists and other professionals who have
access to useful information and technology using the approach:
"Please help China modernize."
While the Soviet Union, the former Eastern Bloc countries,
and the People's Republic of China are all traditional
intelligence threats, U.S. counterintelligence efforts can no
longer focus exclusively on these countries. In this
information age, any number of countries can attempt to
establish the infrastructure required to carry out intelligence
collection activities in the United States, both overtly and
clandestinely. Essentially, Americans need to be concerned
about nontraditional intelligence threats to this country as
well.
With this point in mind, the intelligence activities of
countries in the Middle East and Central Asia are becoming more
significant. For example, the Iraqi intelligence service was
very active in the United States during the 1980s, and in light
of the recent war in the Persian Gulf, its activities are likely
to continue.
COUNTERINTELLIGENCE RESPONSIBILITIES
The FBI is charged with countering the hostile activities
of foreign intelligence services in the United States by
identifying and neutralizing these activities. It does this by
penetrating these services, disrupting or publicizing their
illegal activities, and expelling, arresting, or prosecuting
those responsible.
However, the FBI cannot meet its counterintelligence
mission alone. Coordination of counterintelligence operations
with other members of the intelligence community, and frequently
joint operations, is critical to the Bureau's success, along
with the support of the Executive and Legislative Branches of
the Federal Government, the law enforcement community, and the
American public.
While the FBI has the responsibility to make the public
more aware of the hostile intelligence threat, it relies heavily
on information from the public to fulfill its
counterintelligence mission. Because many Americans no longer
perceive the Soviet Union and other Eastern European countries
as a threat to U.S. security, the FBI must comprehensively
expose the full scope of this threat to American institutions,
facilities, and citizens. The purpose behind this is to protect
national security, not to discourage improved relations and
trade between the United States and the rest of the world.
CONCLUSION
The world is in a constant state of flux. What is true
today may not be true tomorrow. For this reason, it is
critical to identify the exact nature of any hostile
intelligence threat to national security and to counter that
threat.
A heightened awareness by all Americans is the most
effective weapon available to accomplish this task. By working
together, citizens and law enforcement agencies can successfully
meet the counterintelligence challenges of today and those of
the years to come.

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Article reprinted from STATES NEWS SERVICE, August 5, 1990
Author: Brooks Boliek
Showdown over computer 'crime'
Some of the nation's computer pioneers see the digital world in
which they toil as a cybernetic rangeland with its own kind of
frontier justice. And some of them have set out to change the
system.
Their rallying cry is Operation Sun Devil and other government
probes into malfeasance by so-called computer "hackers." These
investigations, they assert, smack of hang-em-high justice and
all to often become examples of government heavy-handedness.
"Some of the government's actions clearly weren't
constitutional," said Mitch Kapor, founder of Lotus Development
Corp. and a new software firm ON Technology in Cambridge, Mass.
Kapor, along with a small group of fellow computer pioneers,
recently announced the formation of the Electronic Frontier
Foundation, a group dedicated to protecting the rights of
computer users. Its ultimate goal is to extend the same First
Amendment protection that the print and broadcast media enjoy to
digital communications.
"Our idea is to get people to understand the issues and not to
try and make decisions in a controversial and confrontational
atmosphere," Kapor said.
Secret Service and U.S. Justice Department spokesmen in
Washington declined to comment on Operation Sun Devil or other
computer investigations. But they stressed that the federal
agencies are mindful of the need to protect civil rights.
"We are not just some renegade agency breaking into peoples's
computer systems,"said Secret Service Agent Rich Adams. "We
would not be investigating if we were not mandated by Congress.
That's why we're involved."
The foundation is pushing its goals by providing legal assistance
to computer users who become victims of what they see as overly
zealous law enforcement officials. It also is awarding grants to
civil liberties organizations such as the Computer Professionals
for Social Responsibility in Palo Alto.
Kapor stresses that the foundation is not a defense fund for
"hackers" and does not support breaking into computer systems or
pirating software.
The foundation has already had an impact. It recently located
defense witnesses in the government's case against computer
bulletin board operator and newsletter publisher Craig Neidorf.
On July 27, in the middle of the trial, the government abruptly
dropped its case against Neidorf.
Neidorf was accused of interstate transportation of a stolen
BellSouth Corp. document describing its emergency 911 system, a
charge which stems from the government's investigation into a
group of hackers called the Legion of Doom.
Prosecutors dropped Neidorf's case when Sheldon Zenner, Neidorf's
attorney, showed that the information which BellSouth alleged was
proprietary could be purchased by calling an 800 number and
paying $13.
'Private police force'
Terry Gross, an attorney that aided Neidorf's defense team,
accused the government of serving as a private police force for
large corporations.
"I think it is a very serious concern that we should all have of
the government being used as a private police force for private
corporations," Gross said. "Especially when BellSouth made a
claim that the government accepted."
The foundation contends that prosecutors, policemen and judges
must think of computer communications in the same way they think
of printed and broadcast communications.
In the eyes of foundation leaders, their main opponent is the
federal government. Operation Sun Devil, a two-year
investigation, has so far resulted in seven arrests and some 40
computers and 23,000 disks of data.
Kapor's group draws a parallel between the Pentagon Papers case,
which involved classified government papers documenting the
history of U.S. involvement in Vietnam, and Neidorf's. If
Neidorf had published the document in a newspaper, as The New
York Times and The Washington Post published the Pentagon Papers,
he would have been protected.
"The example they use is a good one," said Ken Wasch, executive
director of the Software Publishers Association. If someone
printed a document on how to get into a federal facility there
would be no restrictions on publication, he explained. "But if
you put it on a (computer) bulletin board there would be."
Complex issues
Kapor said the Secret Service, the lead investigating agency for
computer crimes, as well as the FBI and prosecutors often fail to
understand the complex issues that arise with computer crimes.
He said law enforcement officers are like most people when it
comes to computers: uninformed.
Kapor believes that people are afraid of computers because they
don't understand them. To minimize the misunderstanding, the
foundation wants to educate law enforcement officers, judicial
officers and the public about digital communications.
"There is a hugh gap between where most of us regular folk are
today and where the technology is," Kapor said.
Feds claim expertise
Secret Service agent Adams disputed the notion that federal
officials lack computer expertise. The service has been
investigating computer crimes since 1984, he said.
"I think it's just the opposite is true," Adams said. "We are
very effective in our investigations and if we didn't have the
expertise we wouldn't be as effective."
Adams acknowledged that a lack of manpower means his agency must
pick and choose what to investigate.
"They (the EFF) would lead you to believe that we are out there
cracking everyone's computer system and looking into every
bulletin board," he said. "We simply do not have the manpower to
do that. We pinpoint the large dollar losses and those are the
ones we investigate."
At least one member of Congress has expressed some concern over
the government's crackdown on computer crime. Sen. Patrick
Leahy, D-Vt., wants to change the Computer Fraud and Abuse Act of
1986 to prevent the government from going too far. Neidorf was
indicted under the law.
"As far as I can tell all he did was republish a document in
Phrack (his newsletter)," Leahy said during a hearing on the
issue. "That's not a heck of a lot different than someone
walking down the street who picks up a document and writes a
letter to the editor."
The Neidorf case has disturbed Leahy, who said he is face with
the nettlesome problem of balancing the need for computer
security with individual rights.
"We know people work very hard to create products with their
computers," he said. "They ought to be able to protect those.
At the same time, I don't want to see the mass resources of the
United States Justice Department turned loose on things that
don't make that much difference."
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law/1urbanp01.law
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October 1991
URBAN TRANSPORTATION SECURITY
By
Robert W. Dart
Commander
Gang Crimes Section
Chicago Police Department
Urban transit systems are the very lifeblood of
metropolitan areas. They preserve our cities as vital
commercial centers. Their lines carry citizens to and from
their places of work, as well as to educational, recreational,
and cultural facilities.
Unfortunately, however, many citizens perceive that their
personal safety is endangered on urban transit systems because
they believe that dangerous levels of crime exist in subways.
For many riders, descending into the noisy, disorienting
subterranean world of rapid transit increases their fear of
crime.
Also contributing to the false perception of danger is the
reaction of the media to incidents that occur on subways. Even
though only about 5 percent of Chicago's total crime occurs on
the Chicago Transit System, the media tend to publicize these
crimes, while seeming to ignore these same types of crime when
they occur on the streets. This action only serves to reinforce
the belief that subway transit is unsafe.
Because citizens believe this to be true, and because
citizen perception of security affects volume and revenue, (1)
officers who police these systems must now incorporate into
their normal duties the critical task of changing citizen
apprehension about using a subway transit system. Riders must
not only be safe; they must also feel safe. Using the Chicago
Transit System as a case study, this article discusses possible
strategies that departments can use to reduce crime on urban
transportation systems, thereby changing citizen perception.
THE PROBLEM
The Chicago Transit System (CTA) operates over 1,000 cars
that transport approximately one-half million persons daily. It
has over 140 stations and over 200 miles of track that are
policed by the Public Transportation Section of the Chicago
Police Department.
Future plans for the CTA call for an additional 9.2-mile
stretch of line to connect the existing loop to Midway Airport.
However, since local citizens and tourists arriving at the
airport will not use a system they believe to be unsafe, the
City of Chicago was confronted with the dilemma of how to police
the city's public transportation system more effectively.
THE PROGRAM
To begin, officials reviewed the nature and scope of crimes
committed on the transportation system. Their goals were to
find possible solutions to these crime problems, and at the same
time, change the public's belief that subways were unsafe.
However, reducing the rate of crime required an organized
effort--a bandaid approach would not be effective. It was
necessary to reorganize totally in order to establish a program
with new goals and direction. Officials wanted to make a clear
commitment to the safety of the ridership.
Areas Addressed
Personnel
A primary consideration in the reorganization was how to
deploy personnel efficiently. Based on studied needs, transit
personnel are divided among three watches. The first shift
(midnights) receives 23 percent of the personnel, the second
shift (days) receives 34 percent of the personnel, and the third
shift (afternoons) receives 43 percent of the personnel. In
addition to patrol personnel, each 8-hour shift includes a
canine unit, a tactical unit, and a crime assault team (CAT).
These special units are deployed to any problem areas that need
their specific skills.
Patrol squads
Because it was not effective to assign police officers to a
designated stretch of track during periods of low crime or low
ridership, the squad concept was born. This concept is designed
around first-line supervisors (sergeants), who deploy all or
part of their teams to high-crime platforms during certain times
and then to other platforms during peak ridership. This
enhances the citizen perception of safety by increasing the
presence of uniformed police officers.
At any given time, the transportation section has as many
as 10 squads assigned to different areas of the transit system.
A typical squad consists of four to six uniformed officers, two
plainclothes officers, and two canine officers, who are separate
from the canine units. Although users of transit systems
commonly believe that plainclothes officers combat crime most
effectively, riders are not at ease unless they also see
uniformed officers. And, because both plainclothes and
uniformed officers can make arrests, officials are able to
achieve a balance of visibility and productivity.
Canine units
Canine units are also used to police the transit system.
The dogs, which are donated by citizens, are given 8 weeks of
intensive training in aggression, protection of their handlers,
and moving safely among crowds. Canine units not only give
transit users a greater sense of safety but they also reinforce
positive public relations. Riders look forward to seeing their
dogs and seem to take a personal interest in them.
Tactical units
Tactical units, which have the flexibility to be deployed
to any situation or crime pattern, play an integral part in the
effort to reduce the crime rate. These plainclothes officers
can move freely through the system without arousing the
suspicions of potential offenders. They observe all transit
criminal activity for patterns, such as time of day, day of
week, and modus operandi. Personnel in the unit then devise a
plan to address specific crime problems.
For example, thieves and pickpockets are a major problem on
transit systems. Most of them ply their trade during rush-hours
and during lunch times, when the subways are crowded. However,
because CTA tactical units target these thieves, the problem has
been greatly reduced.
Crime assault teams
The crime assault teams consist of experienced police
officers who exhibit a high degree of self-discipline and are
team players. They pose as ordinary transit users and wait for
criminals to take advantage of their apparent vulnerability. In
order to avoid a charge of entrapment, these officers react only
when they have been victimized.
During the trials of these criminals, the victim/officer
testifies as the complainant, and a crime assault team member
testifies as the arresting officer. These two factors
contribute to an extrodinarily high conviction rate in these
cases.
Ordinance enforcement team
Another major problem the CTA experienced was unlicensed
vendors. Prior to the new program, these illegal vendors were
issued ordinance complaint forms or citations similar to traffic
citations. However, because this method of enforcement provided
no assurance that offenders would appear in court to answer the
charge, it failed to serve as a deterrent. For this reason,
illegal vendors are now arrested by members of ordinance
enforcement teams, whose primary role is to ensure that vendors
comply with city ordinances. This approach has reduced the
number of vendors on the platforms, allowing passengers to move
freely and safely in the subway areas.
Assigning Personnel
Watch commanders use three methods to assign personnel,
including Operation Impact, Operation Vacuum, and Operation
Saturation. Commanders who use Operation Impact assign their
officers based on ridership traffic patterns. Officers are
assigned to stations that handle large numbers of riders, while
those stations with fewer riders are monitored by moving police
patrols.
Criminals tend to explore transit systems for areas where
there is no police presence. Operation Vacuum enables watch
commanders to withdraw uniformed officers from a specific
station and deploy them to another area. The ostensibly vacant
station can then become the focal point of a tactical team.
When officials want to convey the impression that police
are everywhere, such as during rush-hour at busy stations, they
use Operation Saturation. This operation, which may last either
all or part of a shift, involves saturating particular lines
with uniformed officers. It is an effective way to both deter
criminals and build citizen confidence in the CTA's policing
methods by conveying the impression that officers are
everywhere.
CONCLUSION
Mass transit systems are an integral part of large cities,
and as these cities expand in both population and size, the
importance of this mode of transportation will also increase.
However, if citizens refuse to use subways because they believe
that they are unsafe, the full potential of the systems will
never be realized. For this reason, officials must begin to
look at ways to reduce crime on rapid transit systems, which
will also help to change citizen perception.
The initiatives put into operation by the Chicago Mass
Transit System are examples of how a concerted effort to reduce
crime can work. During the first year of the program, there was
a 40-percent reduction in reported serious crime, and the crime
rate continues to decline. The plan has been a resounding
success, with ridership on the rise again. The Chicago subway is
finally becoming a safe--and popular--mode of transportation.
FOOTNOTE
(1) "Policing Urban Mass Transit Systems," U.S. Department
of Justice, Law Enforcement Assistance Administration, National
Institute of Law Enforcement and Criminal Justice, 1977.

law/250law.law
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/* The text of Section 250.12 of the Model Penal Code follows.
Many states have adopted parts of the Model Penal Code. (New
Jersey and Pennsylvania have adopted the code in great part.) This
portion of the Model Penal Code specifies a crime of "Violation
of Privacy." Section (2) of the code can be applicable to certain
BBS situations. Many states have used this provision as the basis
of their own privacy laws. */
Model Penal Code, Section 250.12
VIOLATION OF PRIVACY
(1) Unlawful eavesdropping or surveillance. A person commits a
misdemeanor if, except as authorized by law, he:
(a) trespasses on property with purpose to subject anyone to
eavesdropping or other surveillance in a private place; or
(b) installs in any private place, without the consent of the
person or persons entitled to privacy there, any device for
observing, photographing, recording, amplifying or broadcasting
sounds or events in such place, or uses any such unauthorized
installation; or
(c) installs or uses outside a private place any device for
hearing, recording, amplifying or broadcasting sounds originating
in such place which would not ordinarily be audible or
comprehensive outside, without the consent of person or persons
entitled to privacy there.
"Private place" means a place where one may reasonably expect to
be safe from casual or hostile intrusion or surveillance, but
does not include a place to which the public or a substantial
group thereof has access.
(2) Other Breach of Privacy of Messages. A person commits a
misdemeanor if, except as authorized by law, he:
(a) intercepts without the consent of the sender or receiver a
message by telephone, telegraph, telegraph, letter or other means
of communicating privately; but this paragraph does not extend to
(i) overhearing of messages through a regularly installed
instrument on a telephone party line or on an extension, or (ii)
interception by the telephone company or subscriber incident to
enforcement of regulations limiting use of the facilities or
incident to other normal operation and use; or
/* A BBS is a form of message by telephone, or, "other means" of
communication. Sub-section (ii) is intended to provide only a
very limited exception to the general prohibition on security of
messages. The exception cannot be used to allow general review of
message traffic. Many BBS systems are trying to get around this
by declining to allow any private message traffic. However, if
a system allows encrypted messages, un-encrypting of these
messages would appear to violate the statute. */
(b) divulges without the consent of the sender or receiver the
existence or contents of any such message if the actor knows that
the message was illegally intercepted, or if he learned of the
message in the course of employment with an agency engaged in
transmitting it.
/* Thus, if a BBS employee goes through messages for systems for
the purpose of maintenance, revealing the same is prohibited. */
Downloaded From P-80 International Information Systems 304-744-2253
Downloaded From P-80 International Information Systems 304-744-2253
law/251law.law
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/* The Model Penal Code (MPC) is arguably the most important work
on criminal law in the past 30 years. This Model Code has been
used as the basis of many state's criminal codes. New Jersey and
Pennsylvania have adopted the MPC as their criminal code.
However, sections of the MPC or slight re-writes are used by
virtually every state. The MPC's prohibition on "obscenity" and
distribution of obscenity follows. */
Section 251.4. Obscenity.
(1) Obscene Defined. Material is obscene if, considered as a
whole, its predominant appeal is to prurient interest, that is, a
shameful or morbid interest, in nudity, sex or excretion, and if
in addition it goes substantially beyond customary limits of
candor in describing or representing such matters. Predominant
appeal shall be judged with reference to ordinary adults unless
it appears from the character of the material or the
circumstances of its dissemination to be designed for children or
other specially susceptible audience. Undeveloped photographs,
molds, printing plates, and the like, shall be deemed obscene
notwithstanding that processing or other acts may be required to
make the obscenity patent or to disseminate it.
(2) Offenses. Subject to the affirmative defenses provided in
Subsection (3), a person commits a misdemeanor if he knowingly or
recklessly:
(a) sells, delivers or provides, or offers or agrees to sell,
deliver or provide, any obscene writing, picture, records or
other representation or embodiment of the obscene; or
(b) presents or directs an obscene play, dance or performance, or
participates in that portion thereof which makes its obscene; or
(c) publishes, exhibits or otherwise makes available any obscene
material; or
(d) possesses any obscene material for purposes of sale or other
commercial dissemination; or
(e) sells, advertises or otherwise commercially disseminates
material, whether or not obscene, by representing or suggesting
that it is obscene.
A person who disseminates or possesses obscene material in the
course of his business is presumed to do so knowingly or
recklessly.
(3) Justifiable and Non-Commercial Private Dissemination. It is
an affirmative defense to prosecution under this Section that
dissemination was restricted to:
(a) institutions or persons having scientific, educational,
governmental or other similar justification for possessing
obscene material; or
(b) non-commercial dissemination to personal associates of the
actor.
/* Okay, so something is "obscene." It is nevertheless
permissible to distribute it to "personal associates" if there is
no commercial element to the distribution. Accordingly, in MPC or
MPC based states, a not for profit BBS could distribute even items
that are ""obscene"" among ""personal associates." This is the
"live and let live: exception to the law. The document generator
contains a form for persons to apply for access to an adult area.
The form requires that the users do not commercially exploit the
pictures they receive. */
(4) Evidence; Adjudication of Obscenity. In any prosecution under
this Section evidence shall be admissible to show:
(a) the character of the audience for which the material was
designed or to which it was directed;
(b) what the predominant appeal of the material would be for
ordinary adults or any special audience to which it was directed,
and what effect, if any, it would probably have on conduct of
such people;
(c) artistic, literary, scientific, educational or other merits
of the material;
(d) the degree of public acceptance of the material in the United
States;
(e) appeal to the prurient interest, or absence thereof, in
advertising or other promotion of the material; and
(f) the good repute of the author, creator, publisher or other
person from whom the material originated.
Expert testimony and testimony of the author, creator, publisher
or other person from whom the material originated, relating to
factors entering into the determination of the issue of
obscenity, shall be admissible. The Court shall dismiss a
prosecution for obscenity if it is satisfied that the material is
not obscene.
Downloaded From P-80 International Information Systems 304-744-2253
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September 1991
CORRUPTION:
A CONTINUING CHALLENGE FOR LAW ENFORCEMENT
By
Otis E. Cooksey
Major, Military Police Advisor
U.S. Army Readiness Group
Fort Sam Houston, Texas
All too frequently, the public's confidence in law
enforcement is shaken by reports of officers falling victim to
corruption. While no profession is untouched by corruption, its
effect on law enforcement is especially damaging. As guardians
of law and order in a free society, law enforcement officers
must maintain a consistently high standard of integrity.
Combating crime claims many victims from the ranks of law
enforcement. As criminals become more violent, increasing
numbers of officers are being killed or injured in the line of
duty. But increasing numbers of officers are also being lost to
corruption. The lure of fast money associated with the drug
trade and other temptations are creating new and potentially
devastating problems for police departments and law enforcement
managers across the country.
While there is no proven approach to eliminate all
corruption, there is an emerging understanding that an effective
strategy must begin with recruitment and continue into training.
In addition, a procedure should be instituted to investigate
charges of police misconduct within an agency. To combat
corruption successfully, police managers must acknowledge that
it is a serious threat to the organization, and they must work
to reduce its damaging effects.
ACKNOWLEDGING THE PROBLEM
The key to any effort aimed at preventing corruption in a
law enforcement agency is acknowledging that corruption, or the
potential for corruption, exists. Given the current environment
wherein drug dealers regularly transact business while carrying
more cash than an officer makes in a year, law enforcement
managers can no longer ignore the issue of corruption.
For the most part, managers use three general approaches
when failing to deal with corruption. First, managers attempt
the "ostrich" approach, denying the existence of a problem. As
a result of this approach, when the manager is faced with an
allegation of corruption, there is no effective mechanism in
place to deal with the problem. This may force the manager into
courses of action directed by those outside the department.
Second, managers try to deal with corruption by taking a
"pollyanna" approach. Here, the manager acknowledges that
corruption exists in the organization, but downplays its impact.
Again, in a situation where the manager fails to respond
effectively to an incident, the course of action may be directed
from outside the agency.
The third, and potentially most damaging, approach occurs
when a manager responds to corruption with a "cover-up." Here,
the manager not only acknowledges corruption in the organization
but also takes overt action to cover it up. This tactic
violates the special trust and confidence society places in law
enforcement and establishes a climate in the agency for
corruption to flourish.
Fortunately, the law enforcement manager can overcome the
shortfalls of these approaches by taking a more-realistic
approach to corruption. To respond effectively to corruption,
the manager must acknowledge the devastating impact it can have
on an agency. A manager with a realistic appreciation of the
potential effects of corruption is in a position to develop a
strategy to deal with corruption internally. This will enable
the department to minimize the damaging effects of the
corruption.
ESTABLISHING A POLICY
Once the manager is committed to preventing corruption, the
next step is developing a policy before a crisis situation
develops. While no one policy will meet the needs of all law
enforcement agencies, any effective policy should cover
recruitment, training, and investigation. (1)
Before an effective strategy can be established, however,
the manager must decide on a suitable definition of corruption.
Arthur Niederhoffer defines corruption to include activities
ranging from the acceptance of a free cup of coffee to the
actual commission of criminal acts. (2) But, including acts on
such a wide continuum creates a potential problem for the
manager. The dilemma is whether to include this whole range of
activities in the policy or to draw a line on the continuum to
mark when seemingly innocent acts become corrupt.
The problem for those managers who attempt to "draw the
line" or separate degrees of corruption will be the tendency
toward interpretation and rationalization. Managers faced with
complex situations must then try to decide on which side of the
line an act falls. At the same time, officers serving under
this policy can rationalize their actions, and given a healthy
imagination, one can rationalize almost any action.
The alternative to defining specific corrupt acts is the
approach adopted by the International Association of Chiefs of
Police (IACP), which established a definition of corruption by
using the intended results of an action, not by the specific
acts.(3) The IACP defines corruption as acts involving the
misuse of authority by a police officer in a manner designed to
produce either personal gain or gain for others. This approach
simplifies the managers role in identifying corrupt actions and
provides officers with a simple way of determining where their
actions fall in relation to agency policy.
The Model for Management-Corruption Prevention, prepared by
the IACP, is an effective tool to aid the law enforcement
manager in preparing a corruption prevention policy. This model
policy covers the key aspects of a corruption prevention
strategy--recruitment, training, and investigation. This model
can also be tailored to the specific needs of departments,
regardless of size.
PREVENTION STRATEGY
Recruitment
As Edwin J. Delattre notes in his book, "Character and
Cops," people do not just happen to wear badges. They wear
badges because police managers recruit and hire them. (4) It is
only commonsense, then, that a comprehensive corruption
prevention policy address recruitment. No agency knowingly
hires people who will commit corrupt acts in the future. Yet,
many departments suffer the devastating effects of corruption.
The Los Angeles County Sheriff's Department discharges
approximately 20 officers a year, primarily as a result of
misconduct. (5)
There are, of course, many reasons why police agencies
should screen recruits and eliminate those who may become
corrupt. One important factor is money. For all agencies,
training is an expensive resource that cannot be wasted. If an
officer completes training and then commits corrupt acts, the
department faces a potentially more complex and more serious
problem, mainly because rehabilitation and disciplinary actions
are more difficult and expensive the longer an individual is
employed. (6) Law enforcement managers should be alert for
signs indicating trouble during the recruitment, initial
training, and probationary periods.
An additional concern for departments in the coming years
is the declining number of qualified recruit applicants.
Reasons for this include low pay and the deteriorated image of
law enforcement. Other factors include the increased demand for
police officers nationwide and a declining trend in the
population of 18 to 25 year olds. (7)
A model that may assist recruitment managers is the
Standards Manual of the Law Enforcement Agency Accreditation
Program. This model stresses the following guidelines:
* The department should advertise broadly for candidates
and not restrict recruiting to its own jurisdiction,
* The department should have trained personnel conduct a
written background investigation of every eligible
candidate. In some cases, the polygraph may be used as
an investigative tool,
* The department should have trained personnel conduct an
oral interview of each candidate, and also test the
candidate's general health, physical fitness and agility,
emotional stability, and psychological fitness,
* The department should require all candidates to complete
at least a 6-month probationary period and entry-level
training. (8)
While this model may not be suitable for every agency, the
principles described provide a guide for managers to include
recruitment as part of an anticorruption strategy.
Training
Training provides the best and most powerful tool for
making a corruption prevention strategy work. Training
conducted in an integrated and realistic manner is an effective
deterrent to corruption for two reasons. First, training
publicizes agency policy. A policy that is merely written but
not disseminated widely and regularly is likely to be
ineffective. Second, training allows officers the opportunity
to interact and request clarification of standards of conduct in
terms of specific actions commonly encountered in police work.
In most agencies today, training is separated into two
categories--recruit and inservice. Corruption prevention
indoctrination logically begins during recruit training and
should be integrated into as many subject areas as possible by
the academy instructors. This approach is effective for two
reasons. First, this will incorporate corruption prevention
standards into the enforcement of laws and regulations. Second,
the instructors, usually veteran police officers, have built a
rapport and have the respect of the students. They, along with
the chaplain, can establish a solid foundation for the new
officers to resist corruption.
The second phase of the training process is the inservice
training that officers receive during their careers. Inservice
training provides a department with a mechanism to reinforce the
standards of corruption prevention.
Law enforcement managers have several options when planning
inservice training. Many colleges and universities have courses
in sociology, psychology, religion, and management that will
reinforce and supplement corruption prevention strategies. In
addition, expert consultants can be contracted to develop
corruption prevention training programs.
Although academically engaging and easy to institute,
neither of these approaches may be as effective and complete as
a program developed within the agency. The Los Angeles
Sheriff's Department is an example of an agency that decided to
create its own training program to combat corruption.
Using its own personnel and based on an assessment of the
problem, the sheriff's department designed a program that
covered the following:
* Discussions of different ethical dilemmas, preceded by a
review of several problem situations,
* Issues of concern, an overview of misconduct cases in
the department,
* Standards for decision-making,
* Rationalization, and
* Situational planning
One of the strengths of this program is that it allows open
discussion of problem areas and standards of performance
required by the agency. It integrates real-life law enforcement
issues with the expected standards of conduct.
Investigation
The last, and possibly most difficult, phase of a
corruption prevention strategy to implement is the investigation
of police misconduct. However, an effective investigation
policy must be established or the other elements of the strategy
lose their effectiveness. Through objective investigation of
all possible incidents involving misconduct, a police agency can
foster a sense of confidence and credibility with the public.
Most agencies approach the investigation process by forming
an internal affairs unit. To assist in this endeavor, the IACP
developed a model that can be used by police departments. (9)
This model covers the various issues that should be considered
when forming this special unit.
The first task for the manager is staffing. In large
departments, several full-time officers may work solely in the
internal affairs unit. In small departments, the unit may
consist of one officer, operating on an as-needed basis.
Another viable alternative for the small department is to pool
resources with other local agencies as situations require.
After the unit is staffed, the manager must decide where to
place the internal affairs unit in the organization. Ideally,
the unit will report directly to the chief or ranking officer of
the agency. The manager should provide clear, comprehensive
directives outlining the procedures for dealing with complaints
coming from both inside and outside the agency.
The manager should also ensure that the unit investigates
all complaints quickly and impartially. The internal affairs
unit does not determine guilt or innocence; it merely gathers
facts concerning the complaint that should be well-documented.
This documentation will ultimately benefit both the officer
involved and the public, in the case of an external complaint.
The establishment of an effective internal affairs unit
reinforces proper police conduct, as well as ensures the public
of effective and honest police service. The existence of an
internal affairs unit in the agency structure tells the public
and police officers that the department is willing to "police
the police" and supports the overall corruption prevention
strategy.
CONCLUSION
Corruption can destroy the special bond of trust between
law enforcement and the public. Citizens in a free society
expect law enforcement officers to perform their duties with a
high standard of integrity. When corruption occurs, not only is
the bond between police and public strained, but citizen
cooperation, on which law enforcement depends, can be
jeopardized.
In order to combat corruption effectively, law enforcement
managers must first acknowledge the potential for corruption and
appreciate the devastating effects it can have on their
agencies. The key elements of a corruption prevention strategy
should integrate agency policy into recruitment, training, and
thorough investigation of all alleged corruption.
While corruption has always been a factor in law
enforcement, the need for effective corruption prevention
strategies has never been stronger. Today's officers face more
violent criminals and more potential temptations. Law
enforcement must present a unified front against an increasingly
sophisticated criminal element. It is important that managers
provide today's officers with proper corruption prevention
skills.
FOOTNOTES
(1) John D. Glover, "Maintaining Police Integrity:
Federal Police of the United States," Police Studies, Spring
1986, p. 24.
(2) Sanford H. Kadish, "Corruption," Encyclopedia of Crime
and Justice, 1983, p. 1161.
(3) International Association of Chiefs of Police, "Models
for Management--Corruption Prevention," Police Chief, May 1989,
p. 60.
(4) Edwin J. Delattre, Character and Cops (Washington,
D.C.: American Enterprise Institute for Public Policy Research,
1989), p. 117.
(5) Duane T. Preimsberger and Sherman Block, "Values,
Standards and Integrity in Law Enforcement: An Emphasis of Job
Survival," Journal of California Law Enforcement, January 1987,
p. 10.
(6) Supra note 4, p. 119.
(7) Bruce W. Cameron, "Where Will We Get New Recruits?"
Law and Order, September 1989, p. 3.
(8) Commission on Accreditation for Law Enforcement
Agencies, Inc., "Standards for Law Enforcement Agencies: The
Standards Manual of the Law Enforcement Agency Accreditation
Program," 1984, pp. 31-32.
(9) International Association of Chiefs of Police, "The
Disciplinary Process: Internal Affairs Role," Training Key #
228, undated.

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October 1991
DEVELOPING POLICE LEADERSHIP
By
Paul Hansen
Sergeant
Irondequoit Police Department
Rochester, New York
Effective leadership, or the lack of it, can impact
dramatically on organizations. There have been many instances
when private organizations near bankruptcy, such as the Chrysler
Corporation, have become more efficient, effective organizations
by replacing ineffective administrations with competent, dynamic
leadership. Similarly, successful military leaders have turned
ineffective military units into highly effective, motivated
teams.
Unfortunately, however, police departments often do not
evaluate management practices until a crisis, such as a lawsuit,
serious accident, or public pressure caused by misconduct or
mismanagement, forces them to re-evaluate their positions. This
type of crisis management in police organizations has been
disruptive and costly and has even threatened the existence of
some departments.
The absence of good management practices in police
departments may be due, in some part, to the fact that it is
difficult to measure the effectiveness of police organizations.
However, a lack of measurable standards often allows ineffective
organizations, including police departments, to survive without
much change.
Fortunately, however, the same leadership principles and
skills that turn around private organizations and military units
can be used to change police organizations and motivate
personnel. This article discusses how some of today's
ineffective police practices evolved and what is needed to
change these management practices. Various leadership styles
will also be discussed, as well as how effective disciplinary
measures can be taken when necessary.
POLICE LEADERSHIP PRACTICES
Certain ineffective police leadership practices that exist
today evolved from two sources--the authoritarian military style
of management and management practices used during and after the
Industrial Revolution to control unskilled factory laborers.
These autocratic practices were based on the assumption that
employees were basically lazy, and leaders believed that this
type of management was necessary to gain as much production as
possible from the labor force.
Unethical political influences and corruption were also
factors in the early development of police leadership practices.
A strong chief executive was required to combat these problems.
This, along with the low education level of most officers and
the existence of a structure-oriented society, made the
authoritarian leadership style both appropriate and effective.
However, authoritative leadership practices do not meet the
needs and expectations of today's better educated and more
technically competent police officers.
For the most part, as society evolved, work ethics and
leadership styles changed. Today, police officers are expected
to function effectively in a more sophisticated society, and as
a result, the education and prestige level of officers has
increased significantly. Officers are not willing to accept
autocratic leadership that requires them to follow orders
without question. This autocratic style of management not only
causes poor morale and reduced organizational effectiveness but
it also leads to the loss of quality personnel, who seek
employment elsewhere rather than being subjected to ineffective,
poor leadership.
CHANGING LEADERSHIP PRACTICES
If police leadership is to improve, officials in the
department, from the chief executive down through the chain of
command, must be committed to change poor leadership practices
and values. (1) They must master leadership skills, such as
patience, understanding, fairness, and judgment. (2)
Supervisors must also recognize that leadership is important to
successful management, and that past practices, such as public
criticism, tactlessness, and unfairness, are destructive to
organizations. Instead, leaders should stress the importance of
consideration, caring, and loyalty. Stressing the importance of
these values produces positive results, such as a higher degree
of employee motivation and morale. This, in turn, may result in
more effective organizations.
For example, loyalty, both to the supervisor and to the
employee, is important. Some administrators expect loyalty from
employees; yet, they fail to show loyalty to the employees.
This is often demonstrated through their lack of trust or
confidence in their subordinates. Some supervisors, when they
receive citizen complaints about their officers, automatically
assume the officers are guilty. This seriously undermines
employee confidence in the supervisor's leadership ability. It
also causes confusion and reduced performance in subordinates.
For these reasons, supervisors must presume that employees are
innocent of any wrongdoing until the facts prove otherwise.
An important step in the commitment to change leadership
practices is to identify the various leadership styles and how
they impact on employee performance. Studying leadership styles
also allows supervisors to identify their personal styles of
management and to make necessary changes in their management
styles.
BASIC LEADERSHIP STYLES
There are two basic leadership styles--job-oriented and
employee-oriented. (3) Job-oriented leaders are primarily
concerned with tasks, and they rely on the formal power
structure and close supervision for task accomplishment.
Conversely, the employee-oriented leader is concerned with
maintaining good relations with subordinates. Tasks are
delegated, and the leader is concerned with the employees'
personal growth. Although one leadership style is not clearly
superior over the other, the employee-oriented leader generally
promotes higher morale in subordinates. This results in lower
absenteeism and fewer employee grievances. Employees of
job-oriented leaders generally produce less because they are
closely monitored and are not allowed to participate in
decisionmaking, which results in employee dissatisfaction.
ADDITIONAL LEADERSHIP STYLES
In "The Managerial Grid," authors Blake and Mouton
identified five styles of leadership: Task management, country
club management, impoverished management, middle of the road
management, and team management. (4) The "task management
supervisor" is concerned with achieving production goals by
planning, directing, and controlling subordinates' work, whereas
the "country club" management style stresses the importance of
good employee relations. On the other hand, the "impoverished
management" supervisor attempts to maintain organizational
membership, while the "middle-of-the-road" manager attempts to
maintain both good employee relations and production. And, the
"team manager" maintains a high degree of production through
integration of tasks with subordinate input and decision
participation.
Of these five management styles, "team management" is
considered to be the most effective. Leaders with this style of
management are able to build effective teams, solve problems,
resolve conflicts, and encourage employee development.
Although a leader's basic management style is important, it
is equally important for the leader to adjust that style
according to existing circumstances. This is referred to as
situational leadership.
SITUATIONAL LEADERSHIP
A good leader must be flexible, must adapt to a variety of
situations, and must have the ability to select the most
effective leadership style for any given situation. While a
particular leadership style may be extremely effective in one
situation, it may be disastrous in another. Other times, a
combination of styles may be necessary to provide the most
effective leadership. The situational leader takes a
commonsense approach to leadership, with the focus on the leader
adapting to the follower's needs.
According to Paul Hersey, author of "The Situational
Leader," a flexible leadership style should be based on the
particular employee's needs. (5) There are four basic styles
that could meet these needs, including telling, selling,
participating, and delegating.
The telling style is high task and low relations oriented.
This style has a greater probability of success when used with
new employees who have low readiness levels because of their
limited abilities and inexperience in performing tasks.
On the other hand, when dealing with experienced,
motivated, or willing employees, leaders will find that the
delegating style has the greatest probability of success. This
allows employees to participate in decisionmaking and gives them
a certain degree of independence.
Correctly analyzing where employees are in terms of
readiness and the ability of leaders to remain flexible are
critical to the success of situational leaders. Leaders should
first evaluate where the employee is in terms of both ability
and willingness to perform tasks. Based on these two factors,
leaders can determine what management style would most likely be
effective.
Hersey further suggests that leaders who work with groups
must also remain flexible. This allows the leader to progress
from group supervisor to group leader as the group's readiness
level increases.
Fillmore Sanford, author of "Authoritarism and Leadership,"
also believes that leadership style should be based on the
employee's level of job maturity--the employee's ability to
perform a task. (6) A new employee often lacks the training or
experience to function without assistance or close supervision.
As the employee matures by gaining experience and training, it
is possible for the leader to move from a task-oriented
management style to an employee-oriented management style.
Eventually, it may be possible for the leader to simply delegate
tasks to the employee.
However, the rate and degree to which employees mature
varies, and not all employees will mature to the level of simply
being delegated tasks. In order to choose the proper management
style, then, the leader needs to assess the employee's level of
maturity. Choosing the wrong management style may result in the
incorrect amount of supervision.
For example, in police organizations, the performance of
new officers must be monitored more closely. They generally
lack self-confidence and need more feedback. Seasoned veterans,
however, view this type of supervision as inappropriate because
they have gained job maturity through experience.
LEADERSHIP EFFECTIVENESS
There are three leadership traits associated with
leadership effectiveness--intelligence, personality, and
ability. (7) Superior intelligence affects the leader's
judgment and decisiveness and allows the manager to make
correct, timely decisions. Additionally, adaptable, creative,
confident leaders with integrity can influence and motivate
employees. Tact and diplomacy are also important to gain
employee cooperation.
Also found consistently in effective leadership are three
leadership dimensions: The assumption of the leadership role,
the closeness of supervision, and being employee-oriented. (8)
To assume the leadership role, effective leaders need to plan,
delegate, communicate, and supervise. However, close control by
the supervisor may result in lower employee productivity. This
lack of employee freedom can prevent necessary decisions being
made at the lowest level possible and creates a lack of employee
ownership.
Additionally, the degree to which a supervisor cares about
subordinates has a significant impact on leadership
effectiveness. If police department organizational practices
and procedures are designed to aid management at the expense of
employee safety, it sends the message that the officers are
expendable. This creates resentment and alienates the officers.
DISCIPLINARY MEASURES
Disciplinary measures are necessary to ensure that
organizational standards of performance and conduct are met.
Both inappropriate discipline and the failure of management to
discipline can lower employee morale and can also lead to the
retention of unqualified or undesirable employees.
Some employees will not respond to positive leadership
practices and motivational techniques. Sound leadership
practices mandate the use of discipline only when all other
reasonable courses of action have failed; however, the negative
effects will be minimal if management is not indiscriminate and
if the administration of punishment is fair. (9) Supervisors
must ensure that employees know what the standards are and that
those standards are not being met. Employees must also be aware
of what disciplinary action will be taken for continued poor
performance. Leaders, however, should ensure that employee
deficiencies are not the result of a lack of training.
When a leader takes disciplinary action, it should be done
quickly and fairly. This is critical in order to ensure that
there is as little adverse effect on organizational morale as
possible. Leaders should always bear in mind that the objective
is to correct performance, not to teach employees to avoid
discipline.
Fairness and proper administration of the disciplinary
process are also critical to avoid legitimate complaints.
Leaders should also avoid the shift of focus from the issue of
performance to the issue of management's fairness.
PROMOTING EMPLOYEES
In some police agencies, administrators fail to implement a
fair promotion system, while in other agencies, administrators
try to circumvent systems already in place in order to promote
the officer of their choice. For example, some administrators
fail to promote from an existing list of qualified officers, and
instead, wait for a new promotion list to be established in the
hopes a particular officer will be promotable.
This type of leadership is demoralizing to the entire
department, and it reduces organizational effectiveness.
Officers soon learn that hard work, education, and good
performance are not the criteria on which promotions are based,
undermining everything leaders hope to accomplish. For this
reason, leaders must set the highest standard of integrity
possible when promoting officers.
CONCLUSION
In many police organizations, especially poorly managed
departments, the leadership philosophy is to control the officer
rather than encourage team building. When this type of
leadership exists within departments, it becomes increasingly
difficult to retain officers. Leaders within police departments
must, therefore, shift their emphasis from employee control to
employee team building, and they must involve officers at every
level in decisionmaking. They must also work to develop the
traits found in effective leaders, and they should study
effective leadership styles.
Sound leadership knowledge and practices are critical to
effective police organizations. Dynamic leadership can lead to
progressive, highly successful, and innovative departments. It
is only through this type of leadership that departments will
meet both the demands of today and the challenges of the future.
FOOTNOTES
(1) James B. Lau and A.B. Shani, "Behavior in
Organizations" (Homewood, Illinois: BPI Irwin, 1988), pp.
16-17.
(2) B.M. Bass and Roger M. Stogdill, "Handbook of
Leadership" (New York, New York: Free Press, 1982).
(3) R. Likert, "New Patterns of Management" (New York, New
York: McGraw-Hill, 1961).
(4) Robert Blake and Jane S. Mouton, "The Managerial Grid"
(Houston, Texas: Gulf Publishing, 1964).
(5) Paul Hersey, "The Situational Leader" (New York, New
York: Warner Books).
(6) Fillmore H. Sanford, "Authoritarism and Leadership"
(Philadelphia Institute for Research in Human Relations, 1950).
(7) Supra note 2, pp. 75-76.
(8) David Krech, Richard S. Crutchfield, and Egerton
Ballachy, "Individual and Society" (New York: McGraw-Hill,
1962), pp. 472-473.
(9) James Gibson, John Ivancevich, and James Donnelly,
Jr., "Organizations Behavior Structure Process" (Homewood,
Illinois: BPI Irwin, 1988), pp. 210-211.

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September 1991
FOREIGN COUNTERIANTELLIGENCE:
AN FBI PRIORITY
By
James E. Tomlinson
Special Agent in Charge
Foreign Counterintelligence Division
FBI Field Office
New York City, New York
To law enforcement agencies and the American public, the
FBI is recognized traditionally for its criminal investigations
of bank robberies, kidnapings, and fugitives. Within the last
decade, they also came to learn about the Bureau's active
participation in organized crime, white-collar crime, violent
crime, and drug investigations. However, few Americans realize
that a major investigative responsibility of the FBI is foreign
counterintelligence (FCI).
This article provides a brief overview of the FBI's foreign
counterintelligence mission. It then addresses how local and
State law enforcement can assist the FBI in its FCI efforts.
THE FBI'S FCI MISSION
The foreign counterintelligence mission of the FBI is to
collect, analyze, and use information to identify and neutralize
the activities of foreign powers and their agents that adversely
affect national security. The Bureau also conducts and/or
supervises espionage investigations in U.S. diplomatic
establishments abroad and investigates worldwide espionage
activity directed against the United States that involves
non-military U.S. citizens.
Historically, the FBI has carried on major intelligence and
counterintelligence operations since World War II, when it
actively sought out Axis saboteurs operating in this country.
Even after the war, the FBI played a role in civilian
intelligence collection. However, when the National Security
Act of 1947 established the Central Intelligence Agency, which
was given the responsibility for collecting positive
intelligence, (1) the FBI's focus was directed to
counterintelligence.
Since FCI investigations are usually classified, little
information on the FBI's efforts is ever disseminated to the
public. Only in major espionage cases, such as those involving
William Holden Bell, the John Walker family, and Ronald Pelton,
did the public even get a glimpse into the Bureau's
counterintelligence world. Yet, espionage activity still exists
in this country. Between 1976 and 1990, there were 67
successful prosecutions for espionage in the United States.
The damage caused by these cases from a financial
perspective alone is incalculable. For example, William Holden
Bell, a senior radar engineer at Hughes Aircraft Company in Los
Angeles, California, received $110,000 for information passed to
Marian Zacharski, a Polish businessman and covert agent for the
Polish Intelligence Service. The information Bell provided on
the F-15 Look Down-Shoot Down Radar, TOW anti-tank missile,
Phoenix air-to-air missile, and quiet radar saved the Soviets
(2) approximately $185 million in technological research and
advanced their technology by about 5 years by permitting them to
implement proven design concepts. (3) But, the dangers placed
on each and every U.S. citizen from a national security
standpoint cannot be measured in dollar figures alone.
Arrests and prosecutions for espionage, however, make up
only a minute portion of the FCI work that the FBI does. Of
greater importance is the ability to identify those involved in
espionage activities and to stop them before they pass
classified or sensitive information. Early detection of
individuals who might be inclined to sell sensitive information
or who are targeted for coercive recruitment by foreign
intelligence agents to provide such information is the primary
goal of the FBI's foreign counterintelligence program.
Prosecution will always be an option for deterrence
purposes, but complete success will only be achieved if
detection is accomplished before national security is damaged.
For example, in the case of the John Walker spy ring, the U.S.
Navy suffered an unprecedented loss of classified data that
provided the Soviet Union with information on Naval operations
and capabilities. It is estimated that damage to national
security was in excess of $1 billion in research and development
alone. However, as an expert witness and outside observer noted
during the trial, "..the information provided by Walker was
priceless and its acquisition would be beyond the wildest dreams
and hopes in the office of the KGB." (4)
FCI RESOURCES
A sizable portion of the Bureau's work force is dedicated
to its FCI mission. In fact, every FBI field office has
designated personnel whose primary investigative responsibility
is foreign counterintelligence. An FCI staff may range in size
from one Special Agent in a small Midwest office to several
hundred in the New York City Office, where foreign
counterintelligence is considered the number one investigative
priority.
Yet, even though the FBI dedicates a sizable portion of its
resources, both personnel and monetary, to counterintelligence,
it is still greatly outnumbered by known or suspected foreign
intelligence officers. There are nearly 3,000 foreign
diplomatic officials in New York City alone who are affiliated
with the United Nations or with consular posts and who are from
countries with interests traditionally viewed as hostile to the
United States.
The FBI has determined that a number of these officials are
intelligence officers or have some relationship with foreign
intelligence services. While in this country, these
intelligence officers enjoy the freedoms of the United States.
They have generally unrestricted access to public source
information, as well as contact with U.S. industrial and
academic personnel from whom they can obtain technology and
other intelligence-related information. In addition, experience
has shown that a threat to U.S. security also exists from
nontraditional adversaries. For example, Jonathan Pollard, an
intelligence analyst at the Naval Investigative Service, was
arrested for spying for Israel, for which he received a life
prison sentence.
Despite the resources devoted to FCI investigations, the
FBI alone cannot monitor all foreign intelligence service
officers adequately. The Bureau recognizes that it needs help
to protect the security of this country. And to this end, it
enlists the help of the U.S. law enforcement community in its
FCI mission.
LAW ENFORCEMENT COOPERATION
In cities where most foreign intelligence officers are
assigned, such as New York City and Washington, D.C., the FBI
has a concentration of FCI resources. However, when foreign
intelligence officers travel outside these areas, they are often
afforded less scrutiny. Furthermore, individuals not yet
identified as intelligence officers, such as diplomats,
students, or tourists, may also carry out intelligence
functions. This is where local and State law enforcement can
assist the FBI.
All law enforcement personnel should be aware of vehicles
registered to foreign embassies, consulates, and U.N. missions,
and their personnel, traveling in their jurisdictions. These
vehicles can be identified by their distinctive license plates.
Through the Office of Foreign Missions Act, the U.S. State
Department issues special license plates for vehicles of foreign
missions and their staffs accredited in the United States.
These license plates are red, white, and blue and have a letter
code that denotes the status of the registered owner. The
letter "D" signifies diplomat, "C" means a member of a
consulate, and "S" denotes a staff member. A separate
two-letter abbreviation on the license plate identifies the
country of origin of the registrant. For example, the letter
designation for the U.S.S.R. is "FC." Therefore, a diplomatic
license plate that reads "FCD," along with three numbers, means
that the vehicle is registered to a Soviet diplomat assigned to
the Soviet mission in New York City. A "DFC" designation
identifies a Soviet bilateral diplomat assigned to Washington,
D.C. Local FBI offices have wallet-size cards available that
list the various diplomatic designations.
When these individuals travel outside their diplomatic
area, their activities may be of interest to the FBI. This is
especially the case if such a license plate is observed in a
rural area, near a U.S. military installation, in the vicinity
of a defense contractor, or for that matter, anywhere at an
unusual time. Noting the license plate number and reporting it
immediately to the local FBI office may be of great importance.
Of course, individuals operating these vehicles may be
legitimate diplomats fulfilling their official responsibilities
or just traveling on personal business. And since only a small
percentage of diplomats are active in clandestine intelligence
operations, no action should be taken against these individuals.
Providing information on the license plate, the number of
occupants, and the location of the vehicle when observed to the
local FBI office is all that is necessary.
It should be noted, however, that not all individuals
operating vehicles with these official State Department plates
automatically enjoy full diplomatic immunity. Such immunity is
granted only to those who are accredited by the U.S. Department
of State and only to the extent appropriate to their status.
Distinctive license plates themselves confer no immunity; they
simply alert law enforcement officials that the vehicle's
operator is likely to be a person enjoying some degree of
immunity. (5)
Law enforcement officers who have any questions regarding
the diplomatic status of any individual need only contact the
local FBI office or the U.S. Department of State. FBI personnel
can quickly confirm through FBI Headquarters and the State
Department the individual's official standing and accompanying
entitlements.
CONTINUED THREAT TO NATIONAL SECURITY
Even with the many changes occurring in Eastern Europe and
the Soviet Union, the FBI must maintain a "business as usual"
attitude with regard to counterintelligence operations. As long
as the United States continues to be a leader in technological
research and design, countries that are less developed will
continue to seek a "quick fix" to solve their economic problems.
Therefore, despite an era of Glasnost or "openness," Americans
cannot afford to disregard the unusual activities of diplomats
and foreign visitors who pose a threat to national security.
In addition, because of this new "openness," the high rate
of crime and drug problems experienced by Eastern European
countries and the Soviet Union is coming to light. In their
efforts to address these crime problems, these countries
routinely request assistance from U.S. law enforcement. Soviet
journalists have requested information regarding laboratory
techniques and drug prevention from both the FBI and the Drug
Enforcement Administration. More and more, local, State, and
other Federal law enforcement agencies, regardless of size, are
also being approached to provide crime-fighting assistance to
their Eastern European and Soviet counterparts. And, there is
every reason to believe that these requests for scientific
training and technological information from U.S. agencies will
continue.
ALERT TO LAW ENFORCEMENT
Countries seeking assistance from U.S. law enforcement can
benefit from the vast knowledge that has been developed over the
years. And, because of the unselfish willingness of local,
State, and Federal agencies to provide such assistance, the
world should see significant improvements in the law enforcement
systems operating in Eastern Europe and the Soviet Union. This,
in turn, will hopefully result in a more positive image for law
enforcement worldwide.
As is often the case, but particularly within the law
enforcement community, strong bonds develop between professional
personnel. However, U.S. law enforcement officers must remain
alert to the distinct possibility of exploitation by Eastern
European countries and the Soviet Union. Many foreign law
enforcement agencies have strong ties to their intelligence
services. And, these intelligence services, in turn, are very
interested in access to U.S. law enforcement computer systems,
equipment, training methods, and operational techniques for
intelligence purposes.
Accordingly, the FBI has expanded its FCI awareness
education program for defense contractors to include U.S. law
enforcement agencies that are involved in exchange programs with
other countries. Law enforcement agencies are strongly urged to
contact their local FBI offices if they plan to participate in
an exchange program with a foreign police service. Trained
personnel will provide appropriate specialized briefings that
can help to ensure foreign intelligence services do not gain
information that may be harmful to the interests of national
security.
CONCLUSION
The FBI's foreign counterintelligence mission is not as
publicized as its other law enforcement functions. However,
individuals committing espionage or aiding agents of foreign
intelligence services are often greater threats to the American
public than major criminal offenders. The collective damages
caused by the John Walker spy ring, Ronald Pelton, William Bell,
and others, the espionage cases that have occurred since 1985,
are beyond financial comprehension.
The FBI alone cannot hope to identify all intelligence
activity conducted in the United States and actively monitor all
intelligence officers operating in this country. The
cooperation and assistance of the U.S. law enforcement community
is essential. By working together, local, State, and Federal
law enforcement personnel can curtail the inimical activities of
foreign intelligence agents in the United States, and thereby,
safeguard the security of this Nation.
FOOTNOTES
(1) Positive intelligence refers to information gathered
from both domestic and foreign sources that may be of use to
U.S. Government agencies in fulfilling their responsibilities.
(2) At the time, the Polish Intelligence Service was a
surrogate of the KGB, and information acquired by its agents was
funneled directly to Moscow.
(3) "Soviet Acquisition of Militarily Significant Western
Technology: An Update," (unclassified), Central Intelligence
Agency, September 1985, p. 20.
(4) Whitworth Trial Transcripts, Federal District Court,
San Francisco, California, 1986.
(5) The Office of Foreign Missions has prepared a booklet
entitled "Guidance for Law Enforcement Officers: Personal
Rights and Immunities of Foreign Diplomats and Consular
Personnel," U.S. Department of State publication No. 9533,
revised February 1988, which provides guidance on this and other
related issues.

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October 1991
POLICE PRACTICES
TELEMARKETING CRIME PREVENTION
By
David I. Rechenmacher
Lieutenant
Downers Grove, Illinois, Police Department
In dealing with residential burglaries, traditional law
enforcement practices tend to be strictly reactive and do little
to deter future crime. Additionally, due to fiscal constraints
in many jurisdictions, this problem is compounded by the limited
number of police officers available to patrol neighborhoods.
And, while neighborhood watch programs are important, they can
be difficult to maintain due to the high mobility of our
society.
The problems of residential burglaries confront every law
enforcement agency in the country. And, the Downers Grove,
Illinois, Police Department, with a sworn and civilian staff of
92, is no different. However, even with a crime prevention
program in place, local residents did not request any crime
prevention assistance.
HOME SECURITY SURVEY
The police department determined that the best service it
could provide to deter residential burglary was to offer a home
security survey. The home security survey, performed by members
of the department's Crime Prevention Unit, is a proactive
program aimed at reducing the number of residential burglaries.
In the past, however, the Crime Prevention Unit performed
home security surveys when requested by citizens.
Unfortunately, this method resulted in only 30-40 home surveys
being conducted annually, despite an area population of 46,000.
It was clear that in order for the program to be more effective,
it needed to reach more residents.
REACHING THE PUBLIC
As a result, in October 1988, the unit began having
messages printed on all water bills forwarded to Downers Grove
residents. These messages encouraged residents to call the
police department to make appointments for free home security
surveys. This initiative was met with a very positive response
from the community and resulted in 258 home security surveys
being conducted during 1989.
TELEMARKETING
Encouraged by the success of this initiative, the unit
thought that a more-aggressive marketing campaign would deliver
even better results. Therefore, in early 1990, the unit began a
telemarketing program using the city telephone directory as a
source for contacts.
Under this program, the Crime Prevention Unit's community
support assistant telephones residents to explain the free home
security survey and to make appointments to conduct the survey
at a time and date convenient to the resident. During the
survey, which takes approximately 1 hour, a crime prevention
practitioner evaluates home security risks, such as exterior
lighting and landscaping, doors, windows, and locks, and gives
advice to homeowners that would make their property and
possessions less vulnerable to burglars.
RESULTS
The telemarketing of home security surveys in Downers
Grove, Illinois, has not only proved successful but it has also
paid big community relations dividends for the police department
and the Village of Downers Grove. In 1990, the Crime Prevention
Unit completed 380 surveys and expects to perform over 400
during 1991.
CONCLUSION
Unfortunately, the importance of adequate crime prevention
is oftentimes difficult to instill in the general public until
it is too late. However, if law enforcement agencies want
successful crime prevention programs, they need to reach out to
the citizens before the unfortunate occurrence takes place.
Programs of this type are especially appropriate for departments
with small crime prevention components, because instead of
expensive equipment or capital outlay, they require only time
and dedication.

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September 1991
POLICE PRACTICES:
MINISTERS TEAM WITH POLICE TO KEEP THE PEACE
By
D. R. Staton
Minister
President
Police and Ministers Associaton
Virginia Beach, Virginia
and
Larry Edwards
Minister
Coordinator
Daytona Beach Police-Ministers Association
In 1989, an annual Labor Day weekend gathering of college
students in the resort city of Virginia Beach, Virginia, erupted
into violent rioting. Thousands of students who had gathered to
celebrate "Greekfest," so-called because of its origins as a
fraternity gathering, took to the streets, looting shorefront
shops and creating social unrest. The event captured media
attention. Nationwide, Americans witnessed the rioting and law
enforcement response that mirrored police actions of the 1960s.
Once the student uprising was quelled, the city council and
police department looked for ways to avert similar situations.
Virginia Beach had built a reputation as a family vacation spot.
But the events of the 1989 Labor Day weekend, combined with
rising youth gang activity, threatened to mar the peaceful
atmosphere of the resort.
In searching for new approaches to deal with the large
number of students (and other young visitors) who stream into
the city for the Labor Day weekend, Virginia Beach Police
officials focused on a similar event that occurred annually in
Daytona Beach, Florida. Each year, college students and other
young adults converge on the resort area during Spring Break.
While slightly higher arrest rates and the expected parking
infractions occur during this time, there are no largescale
disturbances as the one that took place in Virginia Beach.
THE DAYTONA BEACH EXPERIENCE
When Virginia Beach police officials visited the Daytona
area, they found that an integral part of the police
department's strategy to quell potential unrest is an expanded
police chaplain program. Since its establishment in 1986, the
Daytona Beach Police-Ministers Association has served as both a
buffer and liaison between the police and the community. The
association is made up of area chaplains, both black and white,
representing many faiths. The ministers ride with officers
throughout the year, but increase their presence during special
events, such as Spring Break and college homecomings.
The ministers are trained and sensitized to the rigors of
law enforcement. The majority of their instruction comes from
the programs coordinator, who is a former police officer.
In addition, the ministers are trained to spot crowd
"leaders." As they mingle with groups of young people in the
resort area, they explain what the police are doing and why.
Though this is not an easy task, their success rate has been
very high. As a result, the ministers are credited with
quelling many would-be, and potentially explosive, disturbances.
They, in particular, create a calming effect upon young,
would-be troublemakers who, at the slightest provocation, could
confront the police.
The coordinator of the Daytona association persuaded the
Virginia Beach Police Department, and then a somewhat reluctant
community, to consider the same approach in that city. The
result was the creation of the Virginia Beach Police and
Ministers Association.
MINISTERS TEAM UP WITH POLICE
At the direction of the police chief, 40 members of the
clergy from Virginia Beach area churches of all denominations
were asked to become certified police chaplains. Over 30
volunteer chaplains, including military chaplains from the
nearby naval base in Norfolk, attended a weeklong workshop and
orientation in June 1990. The coordinator of the Daytona Beach
program made several visits to Virginia Beach to help set up the
program and to supervise the training. The instruction
included:
* Crowd control techniques,
* General communication skills,
* Basic self-defense,
* Police radio operation,
* Patrol car conduct/activity,
* Police patrol regulations and procedures,
* General counseling (of both officers and citizens),
* Instruction concerning when to assist officers,
* Coping with failure,
* Human relations skills, and
* Relating to military personnel.
In addition, the ministers were shown films, complete with
critical assessments, of the 1989 riot in Virginia Beach and
Daytonas 1990 Spring Break.
On the last day of training, the volunteer chaplains were
assigned to accompany officers on foot patrol. One chaplain was
assigned to each of the 16 two-officer foot patrol teams
covering the resorts main strip roadway. In addition, a
chaplain accompanied each of the 12 two-officer units patrolling
the boardwalk area (approximately 50 blocks.)
RESULTS
During the first weeks of the program, chaplains proved
very effective in calming potentially explosive situations.
Often, they succeeded in averting confrontations before police
involvement was required. Gradually, reluctant officers began
to request the assistance of the chaplains in various
situations.
The volunteer chaplains worked every Friday and Saturday
night from June 29th to the Labor Day weekend (also including
the July 4th holiday). When the summer tourist season came to
an end, the volunteer chaplains had completed 1,626 hours of
walking beats with police officers.
LABORFEST 1990
The "big test" for the chaplain program, however, was the
Labor Day weekend and the task of helping to "keep the lid" on
the potentially explosive annual gathering of students and young
adults, now called Laborfest. The holiday weekend was the
program's most active, with 35 chaplains contributing 740 hours
of service. The result of the chaplains' efforts and the other
measures adopted by the city proved very successful. During
Labor Day weekend 1989, there were approximately 1,500 arrests
and significant property damage to the city. During the same
weekend in 1990, there were 100 arrests and only minimal
property damage.
There were several reasons for this success. A
comprehensive strategy had been developed to alleviate some of
the factors that contributed to the unrest of the previous year.
Checkpoints were erected at the entrances to the resort strip to
restrict traffic flow, and only residents and visitors with
confirmed accommodations were allowed to proceed past the
checkpoints. Other motorists were required to park their
vehicles at satellite sites where a shuttle service was
operating to take them to and from the waterfront. In addition,
concerts, dances, and other events were organized by the city,
as part of Laborfest.
The chaplain program, too, was an integral part of the
police department's strategy to reduce the possibility of
unrest. Officers maintained a low profile and allowed the
chaplains to approach problem situations in pairs or groups.
When crowds began to get overzealous or rowdy, chaplains
provided a calming influence that kept the atmosphere peaceful.
After the Labor Day weekend, 23 chaplains chose to remain
active in the program. They were provided additional training
and are now assigned to accompany patrol units in all areas of
the city. The remaining chaplains are available for special
events and for resumption of the summer program.
CONCLUSION
When violence and criminal activity threatened the peaceful
atmosphere in Virginia Beach, police officials decided to
approach the problem with innovative strategies. Basing an
expanded police chaplain program on the successful Daytona Beach
experience, they were able to provide an effective response to
the problem at a minimal cost to the city.
Volunteer chaplains have proved to be a very valuable
police resource. They provide a calming influence and help to
reduce anxiety during potentially violent situations. In the
process, they have helped to foster a sense of good will between
the police, the community, and visitors to the resort area.

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October 1991
THE RESPECTABLE PUSHER
By
Jeffrey D. Lane
Agent serving as Director of Investigations
Georgia Examining Boards Division
Office of the Secretary of State
Atlanta, Georgia
In November 1989, children playing in a wooded area behind
their apartment complex discovered a partially decomposed body.
Although an autopsy revealed that the person died of
hypothermia, a contributing factor to the death was an overdose
of drugs.
After a search warrant was issued, investigators found
numerous empty bottles of prescription drugs from surrounding
pharmacies in the victim's apartment. These labels revealed
that the deceased had received drugs from the same doctor on a
regular basis over an extended period of time, which most likely
resulted in addiction.
Did the doctor prescribing the drugs contribute to this
persons death? Were any criminal statutes violated in this
case? Was this doctor a "pusher" or a "healer"?
This article discusses how Federal statutes apply to
medical practitioners when they prescribe controlled substances.
It also offers an overview of how law enforcement personnel
should conduct investigations concerning unscrupulous medical
practitioners who illegally dispense prescription drugs.
FEDERAL STATUTES
Medical practitioners are licensed by the States in which
they practice, and in order to prescribe controlled substances
lawfully, they must also be registered with the Drug Enforcement
Administration. According to Federal statutes, practitioners
must issue prescriptions in the usual course of a professional
practice, and these prescriptions must be issued for a
legitimate medical purpose. (1)
When patients come to them with medical problems,
physicians must determine whether controlled substances are
necessary to treat the problem. However, to show that
prescribing the drugs was in the course of professional
practice, it is essential that physicians establish a
doctor/patient relationship. (2) In order to establish this
type of relationship, three criteria must be met:
* The patient must desire treatment for a legitimate
illness or condition,
* The physician must make a reasonable effort to determine
what the patient's legitimate medical needs are through
physical examinations and questioning the patient about
medical problems,
* There must be reasonable correlations between the
drugs prescribed and the patients legitimate medical
needs. (3)
INVESTIGATION OF PRESCRIPTION ABUSE CASES
When abuse is suspected, there are two basic methods of
investigation--undercover operations and documentary
investigations (commonly referred to as "paper cases"). Both
methods work, but investigators should not opt for one method
over another without considering the circumstances surrounding
the case. Therefore, it is necessary to conduct preliminary
investigations before deciding which method to use.
Preliminary Investigation
During the preliminary investigation of suspected
offenders, officers should determine what specific drugs the
doctor is prescribing, the patient traffic patterns in and out
of the medical office, whether the doctor conducts physical
examinations, the frequency and quantity of drugs prescribed,
and whether the doctor accepts new patients. This information,
which is invaluable when investigators try to develop a
believable undercover scenario or decide what areas to target
for pharmacy surveys, can come from several sources, including
other practitioners, pharmacists, family members of patients,
informants/defendants, wholesalers/distributors, other law
enforcement/regulatory agencies, surveillance of suspect, and
reference materials and texts.
Interviews with persons listed above can provide details
concerning what specific drugs were prescribed and ordered,
current investigations, practitioner history, required
examinations, and the cost of a prescription for undercover
purposes. Surveillance helps to determine patient traffic
patterns, number of out-of-State patients, parking lot
transactions, and the type of patient clientele. Reference
materials help to identify drugs and determine their legitimate
uses and abuse potential.
The information developed during the preliminary
investigation helps investigators to determine if further
investigation is warranted, to plan successful undercover
operations, and to decide what undercover scenarios might be
most effective. Any undercover operation should precede the
documentary investigation, because interviews and subpoenas may
alert the doctor to the fact that there is an ongoing
investigation.
Undercover Operation
Before undertaking an undercover operation, it is important
to consult with the local prosecutor to clarify any legal
questions concerning the operation. Once this has been done,
and all the legal issues have been addressed, planning for the
undercover office visit can continue. The undercover scenario
must be plausible or the operative will be told to leave the
office. Also important to a successful undercover operation is
that the operative not give a legitimate medical need for the
drugs that are prescribed.
The purpose of the initial undercover operation is
threefold: To obtain evidence, to gather information for future
undercover visits, and to determine whether to continue the
investigation. During the initial undercover visit,
investigators should determine whether examinations are given,
the kind of questions asked by the doctor, and whether the
physician tries to establish a doctor/patient relationship. A
minimum of two people is necessary to conduct this visit to the
physician's office. (One to act as a patient; the other to
monitor any recording equipment and to serve as backup.)
Recording undercover visits provides the best evidence,
because taped conversations reveal that the doctor knows that
the drugs being prescribed are not for legitimate purposes.
Also, if the physician requires the "patient" to state a
legitimate reason for needing drugs, the investigator can direct
the conversation to show that the physician is merely trying to
appear legitimate. For example, if the doctor requests that the
undercover officer write a legitimate reason for the drugs on a
patient information form, the officer should respond by asking
what, exactly, should be written.
Also, some physicians, after writing a prescription,
instruct patients to go to a particular pharmacy to have it
filled or to fill it in another area of town to avoid
suspicions. These types of interchange are an indication of the
lack of a legitimate doctor/patient relationship, and having
these conversations recorded strengthens the case against the
physician.
Once a physician issues an illegal prescription to one
operative, other undercover investigators should make
appointments with the same physician. However, too many new
"patients" may arouse suspicion. Doctors who operate illegally
will be wary of undercover operatives and may attempt to weed
them out by questions and examinations. Several operatives who
make a minimum of two to three successful visits each will show
an abusive practice, establish multiple counts, and corroborate
that the physician is dispensing drugs indiscriminately.
If no drugs are prescribed illegally during the initial
undercover visit, a second operative should visit the physician.
This operative should be different in gender from the first, and
a different scenario might also be used. If the physician fails
to prescribe drugs illegally during this visit, officers should
end the undercover operation and begin a documentary
investigation.
The length of the undercover operation, as well as how soon
the undercover operative can repeat a visit, depends on the type
of drugs the operative receives. The information gathered
during the preliminary investigation will help investigators
make a decision on how frequent the visits should be. For
example, if the doctor is running a "diet" practice and
prescribes amphetamines, the operative may only be able to go in
once every 30 days, the usual time period diet pills are
prescribed. Other doctors may give another 30-day supply after
only 2 weeks.
If, on the other hand, the physician prescribes pain pills,
the undercover operative may be able to go in more often. This
type of medication is prescribed more frequently than diet pills
or sleeping pills.
Documentary Investigation
Officers should pursue a documentary investigation when the
preliminary investigation reveals that there is little chance of
a successful undercover operation, the physician accepts no new
patients, or if the undercover operation fails to produce
evidence of the physician's guilt. However, even when the
undercover operation does produce evidence, it is still
important to document the investigation with interviews, patient
records, prescriptions, prescription data, and expert witness
reports.
A documentary investigation is a five-step process, with
each step building upon the preceding step. For this reason,
investigators should complete the steps in proper sequence.
They should:
1) Survey pharmacies within certain geographical
boundaries to obtain prescription data,
2) Organize the prescription data,
3) Obtain and review patient records,
4) Interview patients, and
5) Obtain expert witness reports/testimony.
Survey area pharmacies
In order to obtain data and information about a physicians
prescribing patterns, investigators should survey all pharmacies
that are located within an established geographical target area.
Investigators should also review all prescriptions issued by the
physician during a particular time span, such as 1 or 2 years.
Knowing the length of time the doctor has kept certain patients
on addictive medications helps to establish a pattern of abuse.
Pharmacists can be either of great value or a hindrance to
the investigation. Their information contains details and
knowledge to which only they are privy. However, because
pharmacy income is directly tied to the prescriptions from the
doctors in the area, some pharmacists will inform them of
current investigations. Because the interview of only one
pharmacist has caused some doctors to close their practices
immediately, investigators should weigh this factor heavily when
conducting the investigation.
Some pharmacists will not allow investigators to review the
prescriptions, making it necessary to obtain subpoenas or search
warrants. Other pharmacists will provide investigators with
computer printouts of the requested information. If there is a
problem with a particular pharmacist, the State Medical Board or
Pharmacy Board may be able to assist investigators.
Investigators should record the information found on the
prescription forms in an organized format for future reference.
Of particular interest are the date the prescription was issued
to the patient, the drug name, drug dosage, total amount
prescribed, and the prescription number.
Perhaps the most important piece of information found on
the prescription form, aside from the drug and quantity, is the
prescription number. This is usually a four-to eight-digit
number found either on the container label of the drug or on the
prescription form. Each prescription has a separate number that
investigators can use to prepare search warrants or identify
particular prescriptions in court. This number also assists
investigators in finding a specific prescription among
thousands.
Organize the prescription data
After investigators contact all the pharmacies in the
target area for prescription information, the data should be
organized to help investigators concentrate on the blatant
cases. The prescriptions should be put in alphabetical order by
the patient's last name, and then each patient's prescriptions
should be placed in chronological order. By doing this,
investigators immediately know what drugs each patient received,
the quantity, and how frequently the drug was prescribed.
Organizing the data also reveals dangerous drug combinations and
helps investigators to determine which patients should be
interviewed later.
Since many "patients" go to numerous pharmacies to avoid
detection, a computerized data base is helpful for recording and
organizing all the data collected. Once the information is
entered into the data base, it can be sorted in a variety of
ways that will reveal patterns or other clues to investigators.
For example, a profile will show which pharmacy filled the
majority of the prescriptions. This information is important if
investigators suspect a conspiracy between the doctor and
pharmacist.
In some cases, the prescription data, coupled with expert
witness testimony, can establish probable cause for a search
warrant to obtain patient records from the physician's office.
If this is not the case, investigators should interview the
doctor's patients to determine whether a doctor/patient
relationship existed. These interviews, along with the other
information obtained up to this point in the investigation,
should be sufficient to obtain a search warrant.
Obtain and review patient records
Investigators should thoroughly review all of the patient
records to pinpoint inconsistencies and document the fact that
the physician prescribed drugs illegally. For example, a
patient may have been receiving an amphetamine, supposedly to
lose weight. If, however, this patient had a history of
hypertension, with dangerously high blood pressure recorded on
the day of the doctor's visit, an amphetamine prescription would
be inappropriate because amphetamines tend to further elevate
the blood pressure. In addition, the patient's recorded height
and weight may show there was not a legitimate need for a diet
medication.
Patient records that do not document patient histories,
physical exams, laboratory tests, consultations, or referrals
are also an indication that a legitimate doctor/patient
relationship did not exist. On the other hand, some physicians
keep thorough patient records in order to appear legitimate.
Patient interviews and expert witness reviews help refute this
false documentation.
Interview patients
Investigators should interview patients to determine as
much as possible about whether the doctor establishes a
doctor/patient relationship before prescribing drugs. For
example, one physician assigned six patients per examining room
for cursory examinations, and investigators were later able to
interview these patients to corroborate the lack of a legitimate
doctor/patient relationship. When witnesses learn that they are
not the focus of the investigation, they will oftentimes
cooperate with investigators. Investigators can then subpoena
these witnesses to testify at trial.
Obtain expert witness reports/testimony
Expert witnesses may include physicians, dentists, medical
school professors, pharmacology professors, or other
professionals who can testify to the proper legal procedures
needed to practice medicine. These witnesses may give expert
opinions concerning drug tolerance and addiction. They may
testify about the appropriateness of the time period the drugs
were prescribed and what the law requires with regard to the
usual course of professional practice.
It is important for investigators to inform expert
witnesses that their review may require them to testify in
court. If they are not aware of this from the beginning, they
may be hostile or uncooperative on the witness stand. It is
also important that investigators give expert witnesses copies
of the original records so that important evidence is not
altered in anyway.
When this last step of the investigation is complete,
investigators should discuss the case with their local
prosecutors. They can troubleshoot any problems before the
grand jury hears the case and arrest warrants are issued.
CONCLUSION
Prescription drug abuse is a serious problem that is
sometimes overlooked. This may be a result of a lack of
interest or a lack of knowledge on the part of investigators,
who are unsure about how to pursue such an investigation.
However, law enforcement officers must dedicate themselves
to the problem of drug abuse, not only where hard drugs are
concerned but also by keeping legitimate drugs out of the hands
of the "respectable pushers." By doing this, they will bring to
the forefront a problem that has, in the past, been largely
ignored.
FOOTNOTES
(1) 21 USC 802, 21 CFR 1306.02 (b).
(2) U.S. Drug Enforcement Administration Bulletin issued
by the Associate Chief Counsel, 1987.
(3) Supra, note 1.

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October 1991
TAKING THE BOUNCE OUT OF BAD CHECKS
By
Vinse J. Gilliam
Senior District Attorney Investigator
Ventura County, California, District Attorney's Office
Today, banking officials estimate that about 1 percent of
the 50 billion checks written in the United States each year are
returned due to nonsufficient funds (NSF). This figure
translates into approximately 500 million NSF checks annually,
1,369,860 daily, 57,075 per hour, or roughly 15 every second.
In many jurisdictions, NSF checks are so numerous that the
problem overwhelms local law enforcement agencies. The sheer
volume also restricts the type of NSF checks that can be
investigated and prosecuted effectively.
Traditionally, only those individuals who are prolific or
pass NSF checks for large dollar amounts are pursued. And,
restitution is available only for those victimized individuals
or businesses that are included in the criminal prosecution or
are able to pursue a civil remedy successfully. As a result,
many victims simply stop submitting NSF checks to local law
enforcement agencies.
In Ventura County, California, conservative estimates have
placed the business community's losses due to NSF checks at more
than $3 million per year. In a non-cash-carrying society,
accepting checks for goods and services has become a requirement
for conducting business. However, when an accepted check marked
"NSF" is returned by the bank, the business incurs a double
loss--one for the purchased item and another for the cost of
trying to obtain restitution. As a result, businesses are
forced to raise prices in an attempt to cover their losses,
thereby passing the cost of NSF checks on to the customer. This
article will address how Ventura County, California, attacked
the pervasive problem of NSF check writers successfully.
THE RESTITUTION/DIVERSION PROGRAM
In order to combat effectively the NSF check problem in
Ventura County, the district attorney's office established an
NSF Check Restitution and Prosecution Unit, which became
operational in February 1986. This unit, staffed with one
district attorney investigator, two investigative assistants,
and four collections officers, formulated and operated a unique
restitution/diversion program.
Ventura County's NSF Check Program begins with processing
all NSF and account-closed checks directly into the district
attorney's office, using an official complaint form. Then, in
each case, a decision is made as to whether the offense is a
felony or misdemeanor.
Cases involving felony conduct are referred directly to the
appropriate law enforcement agency for investigation, and if
possible, returned to the district attorney's office for
prosecution. If the NSF check constitutes a misdemeanor
offense, it is earmarked for deferred prosecution and
restitution efforts.
At this point, the unit prepares and sends letters to NSF
check writers, giving them the opportunity to make full
restitution and pay a $25 administrative fee for each NSF check.
If these individuals fail to respond to the first letter, a
second letter is sent. This letter, in addition to requesting
full restitution and a $25 administrative fee for each NSF
check, states that the addressee must attend a 4-hour diversion
class for which there is a $40 fee.
CHECK DIVERSION CLASS
The NSF check diversion class, similar to existing classes
for traffic and alcohol offenders, emphasizes prioritizing
resources, value orientation, and how to balance a checkbook
accurately. Its curriculum, reviewed and approved by the
county's personnel department, is taught by certified private
instructors.
Since the inception of the NSF Check Program, a total of
1,422 individuals have attended the diversion class. The
success of this educational segment can be demonstrated best by
the fact that fewer than five of the class participants
continued to write NSF checks and were criminally prosecuted.
RESTITUTION FUNDS
All restitution funds received directly from NSF check
writers as a result of the letters are deposited through the
county auditor's office. The victim merchants then receive
restitution via a county warrant issued by this office.
Handling restitution in this manner serves as a deterrent and
prevents the NSF Check Unit from issuing a warrant for the bad
check writer's arrest unnecessarily.
If the NSF Check Unit is unable to obtain restitution, the
district attorney investigator evaluates the case and makes a
decision regarding criminal prosecution. Where criminal
prosecution is supported, the investigator completes the
necessary followup and prepares the case for filing. This
eliminates the need to refer the case back to the local law
enforcement agency. If criminal prosecution is not possible,
the NSF check is returned to the victim merchant, and the
district attorney's small claims advisor assists the merchant
with obtaining a civil judgment.
GOALS AND OBJECTIVES
Ventura County's NSF Check Program targeted four primary
goals and objectives. The program:
* Provides a central clearinghouse for all NSF/account
closed checks
* Establishes a deferred restitution/prosecution program
that allows NSF check writers the opportunity to pay
restitution in lieu of prosecution
* Ensures timely prosecution of NSF check writers who
failed to make full restitution, and
* Is self-sufficient based on administrative and diversion
fees collected from the NSF check writers.
At first, enabling legislation authorized the Ventura
County District Attorney's Office, along with six other district
attorneys' offices, to institute this program as a 1-year pilot
project. (1) However, at the conclusion of the pilot project,
the programs results were so noteworthy that the California
Legislature amended the legislation to allow the district
attorney in each of California's 58 counties to establish similar
deferred prosecution programs. The continued success of the
Ventura County NSF Check Program throughout the first 5 years of
operation has proved that it provides a viable and
cost-effective way to attack the spiraling NSF check problem.
PROGRAM SUCCESSES
During the program's first 5 years of operation, 3,811
individuals and merchants submitted 53,748 NSF and account-closed
checks to the NSF Check Unit. These NSF and account-closed
checks were written by 14,515 different people. During the same
period, the NSF Check Unit collected and returned over $2,195,500
in restitution on over 25,400 checks to local victim merchants.
Each year, the amount of restitution to victim merchants has
steadily increased. During 1990, restitution averaged $47,000
monthly.
Of the 53,748 NSF and account-closed checks submitted to
the NSF Check Unit, followup investigation has been completed on
a total of 48,412 checks. Fifty-two percent (25,174) of the
investigated checks were cleared by the check writer making full
restitution through the diversion component of the NSF Check
Program. However, 32 percent (15,492) of the investigated
checks were not cleared, and the check writers failed to
participate in the diversion phase of the program. As a result,
felony and misdemeanor arrest warrants were issued against these
1,700 individuals. To date, 738 of these offenders have been
apprehended and successfully prosecuted. The sentences imposed
in these cases have ranged from probation and restitution on all
checks to a 5-year-8-month term in State prison. Court-imposed
restitution in these cases represents an additional $713,300.
The remaining 15 percent (7,262) of the checks submitted to
the NSF Check Unit were referred to the appropriate law
enforcement agency for investigation or returned to the victim
merchants because either: 1) The check did not meet the
criteria for the NSF Check Program, 2) the NSF Check Unit was
unable to obtain voluntary restitution from the NSF check
writer, or 3) criminal charges could not be initiated because
the criminal intent to defraud could not be proven beyond a
reasonable doubt.
COSTS VS. REVENUE
Due to the lack of resources, the Ventura County Board of
Supervisors approved the creation of the NSF Check Program on
the condition that the program would be self-supporting through
fees obtained from those NSF check writers who elected to
participate in the diversion program. On the average, the NSF
Check Unit collects $14,300 in fees each month, while its
monthly operating expenses have averaged $12,600.
Like any new business, the operating expenses during the
program's first year exceeded the revenue collected. However,
the 5-year average indicates that the revenue received from the
restitution/diversion fees surpassed the programs operating
expenses by 13.2 percent. This surplus allows the district
attorney's office to donate over $100,000 to the Ventura County
general fund to help supplement other county programs.
BENEFITS TO LAW ENFORCEMENT
The NSF Check Program has largely eliminated the NSF check
problem for law enforcement in Ventura County. Because the
district attorney has county-wide jurisdiction, all NSF and
account-closed checks can be collected, combined, investigated,
and prosecuted by one agency. Police and sheriff's personnel no
longer have the burden of spending valuable hours deciding which
checks are worthy of criminal investigation, determining if
other agencies have similar NSF checks from the same person, and
deciding which agency should conduct the investigation. Now,
local law enforcement can devote additional resources to other
white-collar crimes, such as check and credit card forgeries and
computer frauds. Only felony NSF check cases are referred to
local law enforcement agencies for followup investigation.
The NSF Check Program has also saved deputy district
attorneys countless hours of court and case review/preparation
time. If restitution had not been obtained, thousands of
additional court cases, both criminal and civil, would have been
processed through the criminal justice system. The additional
expenses associated with the filings of these cases would have
amounted to hundreds of thousands of dollars.
PUBLIC INFORMATION
A continuous public information campaign was initiated for
the NSF Check Program with a twofold purpose: 1) To inform the
business community of the existence of the NSF Check Program,
and 2) to capitalize on the deterrent effect of the NSF Check
Program by making potential NSF check writers aware of the
consequences of writing a bad check. To help meet these goals,
the NSF Check Unit developed a handbook for businesses, which
includes information on the following topics:
* NSF Check Program guidelines
* Safeguards against taking a bad check
* Steps to follow when accepting checks
* How to identify forged/counterfeit checks
* What to do with a bad check
* NSF check report, and
* Suggested Ventura County check policy.
The NSF Check Unit also designed NSF check warning signs
and distributed them to local merchants. These warning signs
alert customers to the fact that passing a bad check with the
intent to defraud is a crime. The customer is also put on
notice that the business reports NSF check writers to the
district attorney's office. Merchants who have posted these
warning signs in their front windows or next to their cash
registers have reported a marked decrease in the number of NSF
checks received from their clientele.
In addition, district attorney staff members routinely
address business and community groups in an effort to inform
them about the benefits of participating in the NSF Check
Program. Regular press releases and annual reports are also
distributed to increase citizen awareness and to deter potential
NSF check writers. Copies of the NSF handbook, NSF check
warning signs, and NSF check reports are also available at all
Chamber of Commerce offices and local law enforcement stations.
NSF CHECK ROUNDUP
In a continuing effort to deter potential NSF check
writers, the Ventura County District Attorney's Bureau of
Investigation conducted a NSF check round-up in March 1990.
Over a 2-day period, 15 teams of district attorney investigators
made a concerted effort to execute a substantial portion of the
outstanding felony and misdemeanor NSF check warrants. At the
conclusion of the roundup, 29 suspects had been arrested or had
surrendered to the court. The publicity surrounding the NSF
check roundup also had a positive impact on the number of checks
cleared in subsequent months by NSF check writers submitting
voluntary restitution to the NSF Check Unit.
CONCLUSION
The success achieved by the Ventura County District
Attorney's NSF Check Restitution and Prosecution Unit has far
exceeded its original goals. The business community has shown
overwhelming support, and the proactive stance has allowed a
timely financial recovery for many victims, as well as educating
the public on these crimes. Because local law enforcement has
been relieved of the task of investigating NSF checks,
detectives have been able to reallocate more of their
investigative resources to check and credit card forgeries and
other types of white-collar crimes.
However, the most innovative and impressive part of the NSF
Check Program is the fact that it is completely self-supporting
and operates at no cost to local taxpayers or participating
victim merchants. This factor makes the Ventura County NSF
Check Program one of the few criminal justice programs that is
cost-effective and revenue offset. The large dollar amount of
restitution returned to victim merchants, coupled with the fact
that the entire program is financed by the NSF check writers,
makes this a truly innovative government program that should be
encouraged and supported, especially in this time of shrinking
resources.
FOOTNOTE
(1) The creation of this program was made possible by the
passage in 1985 of Senate Bill 1108, which created California
Penal Code Sections 1001.60 - 1001.67.

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September 1991
ESPIONAGE AWARENESS PROGRAMS
By
Freddie L. Capps, Jr.
Special Agent
FBI National DECA Coordinator
Intelligence Division Assignment
FBI Headquarters
Washington, D.C.
On a Saturday morning in January 1980, while on patrol,
Cpl. Thomas E. Hutchins, a Maryland State trooper, noticed a car
with diplomatic tags traveling slowly on a major highway. The
trooper also observed that the driver of the car was constantly
checking his rearview mirror as he drove. The actions of the
driver, combined with the speed of the vehicle, the early hour,
and the diplomatic tags, aroused his suspicions enough that he
ran a check of the car's registration. It was registered to a
Soviet, Ivan Ivanovich Odintsov. The trooper then asked himself
what could a Soviet diplomat be doing at 6:00 a.m. on a cold
Saturday morning? Now, more suspicious than ever, Corporal
Hutchins continued to follow the diplomat's car.
The diplomat, noticing the patrol vehicle, tried to evade
the trooper. Then, he attempted several countersurveillance
techniques to determine if he was still being followed. Losing
his composure, the diplomat accelerated to more than 60 m.p.h.
and ran a stop sign. This was when Corporal Hutchins decided to
pull him over.
As he approached the stopped vehicle, Corporal Hutchins
noticed that the Soviet diplomat appeared frightened and
nervous. When asked to identify himself, Odintsov stated he was
a Soviet diplomat and produced a diplomatic passport and a
District of Columbia driver's license. Also, with no prompting,
he told the officer that he was going fishing.
Corporal Hutchins, seeing no fishing gear in the car and
knowing that there was no place to fish in the area, asked his
dispatcher to contact the U.S. State Department to advise them
of the stop and seek its guidance. A short time later, the
dispatcher informed the trooper that no one was available at the
State Department at that hour. Concerned about the proximity of
the Soviet to Andrews Air Force Base and the Naval
Communications Station, which were both less than 5 miles away,
but running out of alternatives, he decided to issue the Soviet
a warning citation and allowed him to depart. However, before
the end of his patrol, the trooper did notify the Security
Police at the airbase of the Soviet's presence in the area.
Unknown to Corporal Hutchins, the Soviet was a known KGB
intelligence officer. Later, in 1985, the FBI learned that
Odintsov was one of the KGB officers responsible for handling
John Walker, the most notable Soviet penetration of the U.S.
Navy in this century. The fact that Walker was not identified
on that Saturday morning, 5 years earlier, was just bad luck.
COUNTERINTELLIGENCE MISSION
Identifying agents and activities of foreign intelligence
services in the United States is the most difficult task of
counterintelligence. Without identification, plans cannot be
developed to penetrate and neutralize an espionage operation.
However, once the identification is made, even the most
sophisticated network can be brought down.
To be successful in its counterintelligence mission, the
FBI depends on an informed, enlightened citizenry and local and
State law enforcement to assist in the identification process.
Public participation in the identification process has led to
the identification of past KGB activities, and it still remains
critical to current counterintelligence efforts.
Unfortunately, however, the American public's perception of
the Soviet threat has changed considerably in recent years. In
June 1989, public opinion polls conducted in the United States
indicated that 65% of Americans no longer consider the Soviet
Union an immediate threat. (1) And, Stern Magazine reported
that during the summer of 1989, 50% of West Germans polled
believed they were more threatened by the United States than the
Soviet Union. (2) Interesting facts, especially since both
polls were taken before the fall of the Berlin Wall.
Now, incidents witnessed by American citizens that were
previously viewed as suspicious or threatening are no longer
seen in that light. In turn, citizens report fewer of these
incidents.
Today, the uninformed might conclude that an effective
counterintelligence program is no longer necessary. Nothing
could be further from the truth. As Nicholas Daniloff, former
Moscow reporter for U.S. News and World Report and one-time
prisoner of the KGB, stated in a recent newspaper article,
"Despite the reforms...Soviet spying against the United States
will continue with intensity for a long time to come." (3)
What the American public fails to realize is that the
Soviets continue to spend billions of dollars annually on
espionage and intelligence collections activities in an attempt
to close the gap with the West in microelectronics, computers,
and sophisticated weapons systems. (4) In fact, heightened
citizen awareness and cooperation is needed just as much now as
it was in the past.
THE DECA PROGRAM
The FBI has developed a variety of techniques and programs
to counter the activities of hostile foreign intelligence
services in the United States. One of the most effective of
these efforts is the Development of Espionage and
Counterintelligence Awareness Program (DECA). DECA links the
FBI's counterintelligence program to the security countermeasures
employed by defense contractors. Under this program, FBI
resources are focused on the spy's targets--U.S. employees with
access to classified information--not on the intelligence
officer or the diplomatic establishment.
The DECA Program operates in all 56 FBI Field Offices. In
each office, a DECA coordinator administers the program. The
coordinator's primary responsibility is to visit firms that have
been awarded classified contracts to update them on current
foreign intelligence threats.
Because of the dramatic increase in the threat posed by
foreign intelligence services, the focus of the DECA Program has
been expanded to now include American firms not engaged in
classified government contracts and the public in general.
Also, with the increase in exchange programs among Soviet and
East European governments and U.S. Government agencies and local
law enforcement agencies, DECA coordinators are now providing
espionage briefings to other Federal agencies and local police
departments.
At the beginning of 1990, the FBI appointed a national DECA
coordinator (NDC) to manage the program throughout the country.
A short time later, a national DECA advisory committee was
organized. This committee, composed of DECA coordinators from
the larger FBI field offices, assists the NDC with the
formulation and implementation of DECA goals, training, slides,
videos, (5) and literature.
INDUSTRIAL SECURITY AWARENESS COUNCIL
In August 1988, as another step designed to increase
espionage awareness, the Industrial Security Awareness Council
(ISAC) was formed. ISAC is a joint Government/private sector
working group whose membership includes the Defense
Investigative Service (DIS), the FBI, and 11 defense
contractors. (6)
ISAC's goal is to promote security awareness in the defense
industry by focusing on the collective resources of industry and
government. Its members share awareness resources, thereby
reducing needless duplication of efforts that occur when
companies operate alone, without coordination and cooperation.
This concept has since been expanded by DIS and the FBI to other
regions of the country and plans are in progress to make it a
national organization.
CONCLUSION
The United States continues to have secrets that some
foreign powers seek and are willing to steal. These secrets go
beyond the strategic military and technological information that
impact on national security. They also include sensitive
economic information and proprietary technologies of America's
private sector. These technologies may never be classified, but
their loss could have a negative impact on those companies who
developed them. A loss in the private sector, if significant
enough to threaten a company's survival, could also endanger
national security.
The successes achieved by Soviet and other foreign
intelligence services during the 1980s serve to reinforce the
fact that counterintelligence is a strategic issue that requires
a coordinated, effective national response. Because the world
is so complex and is in a constant state of flux, the FBI must
be able to articulate clearly this evolving intelligence threat
and work with America's private sector to meet today's
counterintelligence challenges successfully.
FOOTNOTES
(1) David Remnick, The Washington Post, June 13, 1989, p.
A 1.
(2) Ibid.
(3) Nicholas Daniloff, "Reforms In Soviet Union Only
Increase Appetites For Secrets From The West," Los Angeles
Times, August 9, 1989.
(4) Hughes Aircraft Company, A Counterintelligence
Awareness Primer, 1987, p. 5.
(5) Hughes Aircraft Company and the FBI jointly produced a
video entitled "Espionage 2000." This 30-minute video contains
interviews of experts in the counterintelligence and security
countermeasures fields discussing important awareness issues.
It is available to any government agency or defense contractor
for use in espionage awareness programs by contacting the FBI,
the Defense Investigative Service, or the Hughes Aircraft
Company.
(6) The 11 defense contractors are Aerospace Corporation,
Hughes Aircraft Company, Jet Propulsion Laboratory, Lockheed
Aeronautical Systems Company, Logicon, McDonnell Douglas
Corporation, Northrop Corporation, Rockwell International
Corporation, Science Applications International, Trident Data
Corporation, and TRW.

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September 1991
POINT OF VIEW:
MANAGING FOR EXCELLENCE
By
David A. King
Chief of Police
Perkasie, Pennsylvania, Police Department
So much has been written on effective personnel management
that very little is left to be said on the topic. However, law
enforcement is such a unique field that specific methods for
selecting, training, deploying, and managing police employees
are essential in order for any department to be successful.
Obviously, the police officer is the most visible and
important component of a law enforcement agency. How well we
use the personnel resources of our police associates will
determine how positively the organization is perceived and how
successfully we attain organizational goals.
In the past, most agencies went to great lengths to attract
and recruit highly motivated, educated individuals. But, once
these individuals were in place, they were oftentimes
discouraged, and in some instances, even punished for performing
tasks outside the "standard" parameters. In doing so, we
systematically eliminated innovative, creative thinking at the
line level.
THE COMMUNITY POLICING MODEL
During the late 1970s, when police departments nationwide
began facing severe budget constraints, we, as police managers,
were forced to look for more effective methods in order to meet
increasing demands for police services. Interestingly enough,
one such method was increased cooperation between police
officers and members of the community. This led to the creation
of separate crime prevention and community service programs in
nearly every police department in the country.
At the time, most police administrators believed that
additional contact with the public would serve not only to
provide increased service to the citizens but also to enhance
the police department's professional image. Crime prevention
programs provided police departments with the opportunity to
move closer to a positive proactive working relationship with
the community.
However, this practice eliminated systematically many
police officers from the community service equation. The
specialized service that "crime prevention officers" now
provided set them apart from their patrol division counterparts.
Without even realizing it, we had created two distinct, and for
the most part, separate law enforcement efforts--crime
prevention and traditional police patrol services.
Only recently did we realize that community-based policing
must involve every component of the police organization--from
administration to command, from investigative to uniformed
patrol. All aspects of the police organization need to be
joined in a concerted effort with the community to be effective.
Community policing allows us to get back in touch with the
citizens and find out how we can work together for the
betterment of all. After all, who better to tell us what the
real law enforcement problems are in our communities than the
citizens we serve. And, it is these same citizens who can tell
us how well we are meeting our commitment to address these
problems. We cannot possibly determine how effective we are
without listening to those who benefit, or suffer, from our
efforts.
Traditionally, beat cops took a personal interest in their
service areas and were known to be astute at detecting,
preventing, and suppressing criminal activity through their own
innovative expertise. Today, the concept of community policing
is merely an extension of that simple philosophy.
THE POLICE OFFICER AS A MANAGEMENT RESOURCE
As police executives, we have sometimes allowed ourselves
to become too far removed from the operational aspects of
effective law enforcement. In meeting the challenges of
providing the department with long-range goal planning, we have
sometimes become too concerned with the future and not as aware
of the present as we should be. As police administrators, we
need to sense the changes in our environments and adjust our
methodology to meet those changes.
The line police officers are probably one of the most
overlooked management resources in any police agency. No one is
more familiar with the environment in which they must operate
than law enforcement patrol officers, and no one is more capable
of making effective suggestions to meet the demands for their
service. Therefore, we must rethink the philosophy that
requires unquestioned conformity to departmental procedures and
discourages individualism. Instead, we should consider the
input of those on the forefront of the criminal activity
battleground. Society demands no less.
As administrators, we must empower our employees to make
the kinds of decisions that can be effective for specific
problems in the community in which they serve and in which the
officer is looked to by the citizen to solve the problem. We
need officers who work with and for the community. We need
police officers as community organizers who can serve as
catalysts for positive action in the crime detection,
suppression, and prevention. We need personnel who view members
of the public as concerned, supportive, proactive assistants in
the law enforcement function. Without an understanding,
supportive community, the job of effective policing becomes
increasingly more difficult. And, many officers have for too
long viewed the general citizenry as more of a nuisance than as
an effective tool that could assist them in being a
more-efficient agent against criminal activity.
SUMMARY
Community policing empowers officers to make a real
difference. Police administrators need to become supportive of
officers in their ranks who can and will serve the community
policing model, provided that they are allowed to make practical
decisions that use creative and effective resources. As police
administrators, we go to great lengths to find the best
personnel available to meet the difficult challenges of law
enforcement. We must allow them to use those skills and
abilities that not only make them good police officers but also
allow them to become more-effective public servants.
Administrators have the ability to give patrol officers the
support they will need in order to manage their individual
community microcosms. By delegating responsibility, empowering,
and giving commensurate authority to these officers, we will not
only provide the essential components to successful applications
of community policing philosophies but we will also become more
successful in our search for management excellence.
______________
"Point of View" is a forum for law enforcement
professionals to suggest recommendations to improve police work.
Submissions for this feature should be typed, double spaced, and
forwarded to Editor, FBI Law Enforcement Bulletin, Room 7262,
10th & Pennsylvania Ave., NW, Washington, DC 20535.
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October 1991
RESEARCH FORUM
MCGRUFF ROBOT TEACHES KIDS
(RESULTS OF A SPRINGFIELD, MISSOURI, PILOT PROGRAM)
Once considered a science fiction fantasy, robots are now
becoming an integral part of the instructional curriculum in
some schools. A growing body of knowledge suggests that
children learn more readily when they are allowed to manipulate
concrete objects before moving to abstract concepts. (1) The
use of robots is well-suited for engaging children with a
tangible object that reinforces positive concepts and ideas.
Three elementary schools in Springfield, Missouri, were
chosen as sites for an innovative program that includes a
robotic version of McGruff, the crime dog. In the program,
McGruff, assisted by a police officer, delivers safety messages
to children and interacts with them in order to convey a
positive safety theme. The results, gauged by a survey
conducted in three of the participating schools, have proved the
program's effectiveness.
THE ROBOT
The McGruff robot is approximately 4 feet tall and weighs
60 pounds. Every effort has been madf''fe to give the robot human
traits. The computerized interior is hidden by clothing, the
arms move up and down, the head rotates, the eyelids open and
shut, and the mouth can be manipulated by remote control to
indicate various facial expressions and to give the appearance
of speech. The actual voice is that of the operator, via a
two-way wireless system that allows the robot to appear to
listen and respond to questions and comments from the audience.
Speakers are mounted on the robot's legs. In addition to the
remote voice, a cassette player is also mounted in the robot so
that various safety jingles and other messages can be played.
THE SURVEY
Two hundred and ninety-one elementary students who
participated in the McGruff Program at three elementary schools
were surveyed. The majority (230) were 7- or 8-year-old
children in the second grade. Forty-eight students surveyed
were 9 years of age.
The questionnaire consisted of 14 close-ended questions
concerning McGruff's appearance and the message the robot
presented. The students were asked to respond on a 5-point
Likert scale from "yes" to "no" with responses of "somewhat,"
"maybe," and "a little" as options between the two extremes.
Examples of survey questions include: "McGruff and the
police officer have helped me understand how to prevent crime";
"I will do what McGruff says so that I will be safe"; and "I
want McGruff to come back and visit my school again." Other
questions asked students to rank what they liked most/least
about the robot.
Two hundred and thirty-two (80 percent) of the students
said they liked to listen to McGruff. Eighty-five percent said
they understood McGruff's message about avoiding drugs and
strangers. Seventy-seven percent responded that McGruff's safety
message was factual, credible, and provided information in a
straight-forward manner.
Two hundred and sixty-three students (90 percent) believed
McGruff and the officer effectively explained the consequences
of being careless about safety. Almost 80 percent (232
students) believed that McGruff made the police officer's
message clearer and easier to understand.
The majority of the children (88 percent) believed that
McGruff sincerely cares about them, and 91 percent of the
students responded that they were not afraid of the robot. In
fact, 86 percent expressed a desire to have McGruff return for
another visit.
When asked what they did not like about the robot, the
majority (54 percent) of students said there was nothing they
did not like. Fourteen percent said that if they had to choose
something to improve, it would be the robot's clothing.
Significantly, when general positive and negative reactions
were cross-tabulated, it became apparent that younger students
were more receptive to the McGruff robot. Half of the 7 year
olds demonstrated affection to the robot by hugging him; only 13
percent of the 9 year olds were willing to hug the robot.
Forty-two percent of the 7 and 8 year olds said they were not
afraid of the robot, while a significantly lower number (15
percent) of the 9 year olds responded that they were not afraid.
CONCLUSION
This survey, while admittedly focused on students from one
geographic/social perimeter (a midwest, midsize city),
reinforces earlier research that indicates students absorb more
information concerning abstract concepts when tangible objects
are used to instruct. Because the McGruff robot is a familiar
symbol of safety to children, he is an ideal "teacher" to
reinforce positive themes concerning crime, safety, and the
dangers of drug abuse.
While children watch and listen to McGruff and the officer,
they internalize positive safety messages, whether consciously
or subconsciously. The jingles are infectious and easy to
remember. Combining words, music, and actions, the robot
reinforces important messages that not only help children to
make correct choices but also help to instill a positive
foundation concerning safety and crime.
FOOTNOTE
(1) H. Barnett and J. Belter, "The Language of Robots,"
Computer-Reading & Language Arts, Spring 1984, pp. 35-37.
_______________
Information in this Research Forum is based on a survey
conducted by Edna Bell, Ph.D., an Associate Professor, and Debra
McDowell, an Assistant Professor, at Southwest Missouri State
University in Springfield, Missouri.

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October 1991
EFFECTIVE CROWD CONTROL
By
Steven J. Schmidt
Lieutenant Colonel
Assistant Chief of Police
Covington, Kentucky, Police Department
While small to midsized departments may be located in areas
where the problem of crowd control is virtually nonexistent,
there could be times when they have to police large groups of
people during special local events. There are also times when
smaller cities that border large municipalities must deal with
the overflow of people attending an event in that municipality.
For example, Covington, Kentucky, currently has 91 sworn
officers to police a population of 50,000. But, because
Covington is separated from Cincinnati, Ohio, by only the Ohio
River, the Covington Police Department must prepare for overflow
crowds that are generated by special events held in Cincinnati.
And, because police managers must regard even peaceful crowds as
having riot potential, planning is critical to effective crowd
control. (1) This article discusses exactly what areas of
concern should be addressed when planning for crowd control and
how police managers should approach the task.
PLANNING FOR CROWD CONTROL
A step-by-step plan is important to effective crowd
control. In order to ensure a well-policed event, police
managers should prepare ahead of time for any conceivable
problems.
Personnel
To plan for effective crowd control, police managers should
consider what personnel resources are available. For example, a
traffic division with officers who are experienced in traffic
flow is invaluable. Also invaluable when planning for crowd
control is a police auxiliary, which could help in areas where
sworn officers are not needed. In extreme cases, the National
Guard can be used as additional resources.
Other personnel resources to draw from include officers
from neighboring police departments, the fire department, the
public works department, the Red Cross, and citizen band radio
clubs. Private businesses, such as bus companies, are also
sometimes willing to lend equipment to assist in crowd control.
Buses make effective barricades to block intersections.
Advance Notification
Another important task when planning for a special event is
to notify businesses and residents in the affected area of how
much disruption they can expect. Ground rules should be
discussed ahead of time so that there are no misunderstandings
during the event. Also, if public transportation is expected to
be disrupted, alternate routes should be designated prior to the
event, and fire and ambulance personnel should be contacted to
determine checkpoints for rapid access routes.
Traffic Control
Traffic control is important to policing any major event.
"No parking" areas should be designated and posted before the
event. Officials should advertise these restrictions through
the media and through flyers sent to residents and businesses in
the affected areas.
Officials should also contract with a wrecker service to
tow vehicles parked in restricted areas. Because special events
often place unusual demands on wrecker services, they should be
given advance notice of what to expect. It is also important to
choose an impoundment location and agree on the release
procedure.
Command Posts
Command posts are an integral part of any special events
operation. Department personnel should determine how much space
they need for the post, the amount of parking space available in
the areas being considered, and whether the locations have land
lines for communication purposes. Officials should also make
provisions for a remote dispatch location. If officers have
more than one channel on their radios, this could be as simple
as switching to a secondary channel for the event and using a
portable radio with a charger.
If an event lasts more than 8 hours, food, coffee, and soft
drinks should be available in the command post for officers who
work the detail. Police managers should also make arrangements
to clean the post after use, especially if the space was loaned
to the department by a local business.
Assignments
All officers who work the event should receive clear,
written instructions about the assignment. For example, a map
of the event area should be prepared, showing its parameters,
with all checkpoints clearly marked. If a specific checkpoint
is one of "no-access under any circumstance," the officer
assigned to that checkpoint should be aware of that stipulation
ahead of time.
Officials should also prepare a contingency personnel plan
in the event officers who are assigned to work the event call in
sick. And, there should be additional flexibility in the
assignments in order to cover holes in the perimeters that even
the most careful planner may overlook.
Also a consideration when planning for personnel is whether
a meal break will be necessary for the officers. Although extra
teams are sometimes required to relieve officers, if enough
officers are assigned to the teams, half the team can be
relieved at a time.
Equipment
Extra equipment should always be available during large
events. Police managers should ensure that extra radios,
flashlights, batteries, and handcuffs are stored at the command
post. When planning for extra equipment, police managers should
also consider whether there will be special transportation
needs. All-terrain vehicles (ATV) and golf carts that local
businesses may loan to the department could prove invaluable.
Officers can use ATVs to check unpaved areas and police managers
can use golf carts to get to checkpoints if the size of the
crowd does not permit using an automobile.
Special Considerations
Officials should make every effort to keep large events
free of alcohol. If this is impossible, either through legal
means or simple reasoning, managers should document problems
arising from the use of alcohol to argue for alcohol-free events
in the future.
If officials are successful in banning alcohol consumption
during the event, it is important to publicize this fact. All
coolers taken into the event area should be checked for alcohol,
and dumpsters should be available at the perimeters to dispose
of any confiscated liquor.
The Perimeter
Police managers should decide ahead of time what the
perimeter of the event site will be and then publicize this
perimeter. Officials should bear in mind that if the perimeter
is too large, it will be difficult to control the crowd, and the
officers would have too large an area to police. The perimeter
should be checked thoroughly for any gaps that would allow
lapses in security. Specific areas should be blocked, including
intersections and checkpoints.
It may also be prudent to block off parking lots inside the
perimeter. If a large amount of pedestrian traffic is expected
following the event, the mixture of automobiles and pedestrians
could prove dangerous. Controlling the parking lots allows the
bulk of the pedestrian traffic to leave the perimeter first.
Cars can then leave in stages, minimizing the likelihood of
either a pedestrian/automobile accident or total gridlock.
THE EVENT
Before
Except for the officers who need to start their shift
earlier in order to remove cars parked in restricted areas or to
block off critical areas, officers working the detail should
assemble about 1 hour before the event. During this time,
police managers can hold a final briefing with the supervisors
and discuss any necessary changes. They can also ensure that
all officers are using the correct radio channel and give
directions for ending the detail.
Just prior to the start of the event, officers should again
check the restricted area for possible problems. It is much
easier to resolve problems before the crowds begin to arrive
than to deal with both problems and crowds.
During
The majority of the officers should position themselves at
the perimeter of the event. By keeping the majority of the
officers where the spectators pass, the perceived numbers
advantage remains with the police. It also makes it easier for
police managers to know the location of their officers. And,
although most of the officers involved in controlling the crowd
will be on foot, mobile units should also be available to
respond to critical incidents that occur within or around the
perimeter.
The number of officers working together in a group will
vary with the situation, but no officers should work alone.
Also, if possible, officers from a plainclothes unit should
mingle with the crowd. Not only can plainclothes officers spot
violations more easily than uniformed officers, but they also
can make quick arrests that minimize any disruptions to the
crowd.
Any person arrested during the event should be quickly
removed from the crowd and transported away from the area by
officers who are specifically assigned this duty. This
minimizes the loss of personnel who are working the actual
event.
When the event ends, stragglers sometimes remain. To
counter this problem, floodlights that can be borrowed from the
local fire department should be concentrated on the areas in
which spectators are likely to congregate. This serves as a
signal that it is time to leave. Officers should also scan the
area for any remaining spectators as they leave their posts to
return to the command post.
After
The hours following the end of an event are busy for patrol
officers. If possible, officials should schedule additional
patrol units to work until things return to normal. Because no
major event can be kept completely alcohol and drug free, patrol
units may have to deal with fights, injuries, and accidents that
occur among the spectators. (2)
All officers should report to the command post before going
off duty. This allows officials to record overtime and check
the records for accuracy, as well as recover any equipment that
has been loaned out.
Police managers should keep detailed records of the
planning stages, and they should compile a list of recommended
changes for policing the next event. They should also write
formal letters of appreciation to any person outside the
department who donated equipment or assisted in some other
manner.
CONCLUSION
Policing an event that generates large crowds is a major
undertaking that requires extensive planning. Police managers
must follow a step-by-step plan that ensures that the crowd is
controlled with the fewest number of problems possible. A
well-developed, well-executed plan results in events that are
safe to police officers, visitors, and the community.
FOOTNOTES
(1) Richard A. Berk, "Collective Behavior" (Dubuque, Iowa:
William C. Brown Co., 1974).
(2) Adrian F. Aveni, "The Not-So-Lonely Crowd: Friendship
Groups in Collective Behavior," Sociometry, vol. 40, No. 1,
January 1977, pp. 96-99.

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September 1991
THE KENTUCKY STATE POLICE DRUG TESTING POLICY
By
W. Michael Troop
Acting Kentucky State Police Commissioner
Secretary of Justice
and
Jerry Lovitt
Major
Commander, Operations Division (East Branch)
Kentucky State Police
Today, it is no longer enough for a law enforcement agency
to claim that it is drug free; it must prove it. To this end,
the Kentucky State Police developed and implemented an employee
drug testing policy. This policy is an enhanced version of the
Kentucky State Government's policies that will help to promote
further the concept, and hopefully, the reality of a drug-free
workplace.
CREATING THE POLICY
Department administrators set out to make the drug testing
policy a product of employees. To begin, they appointed
representatives from the Trooper Advisory Panel and the Civilian
Advisory Panel, whose members are elected by sworn and civilian
employees respectively, to a Drug Testing Advisory Committee.
Then, employees from other areas of the agency, such as data
processing, the laboratory, personnel, and the Legal Office,
were also appointed to the committee. A Branch Commander from
the Operations Division headed the 16-member committee. After 4
months of research and planning, the committee formulated a drug
testing policy that was fair, workable, and one that ensured
employee privacy, integrity, and dignity throughout the testing
process.
The committee also developed a 20-page booklet to
communicate the key points of the drug policy to the employees.
And, prior to implementing the policy, a staff officer visited
each of the Kentucky State Police's 16 posts to present the
program to the employees and to address their questions and
concerns. Additionally, post and section commanders received
training in the drug testing program procedures.
THE DRUG TESTING PROCESS
Random Drug Testing
As of January 1, 1991, all sworn employees hired since
1984, when drug testing of job applicants began, and all
aircraft support personnel became subject to random drug
testing. Employees hired prior to 1984 are also subject to
random drug testing. Random drug testing of civilian employees
in certain safety-sensitive classifications, such as arson
investigations, communications, the forensic laboratory, and in
the armed facilities security section, will also become
mandatory in 1991. However, before an agency employee can be
randomly tested, written authorization is obtained on a
voluntary consent form. This form stipulates that the employee
agrees to be drug tested no less than once and no more than
twice over a 2-year period.
Specific Selection Drug Testing
In addition to a random drug testing policy, the committee
also set a specific selection drug testing policy. Under this
policy, drug testing is mandatory for the following groups of
employees:
* All sworn employee applicants
* Employees eligible for promotion
* Employees transferring into aircraft support
* Drug enforcement/special investigations staff members
* Special response team members and/or those involved in
drug interdiction work.
Drug testing is also required for any sworn employee upon
documented, reasonable suspicion of illegal drug use. If an
employee refuses to be tested for possible drug use, they are
then subject to disciplinary action. In addition, should an
employee be involved in an accident or critical incident, drug
testing is available upon request.
The Drug Test
Every Monday, the post and section commanders coordinate
the matching of employee names to individual identification
numbers--not Social Security numbers. Only those employees
subject to and available for random drug testing during a
particular week are assigned identification numbers. Then, the
identification numbers only are forwarded to the agency's
personnel branch for entry into a computer system. The computer
randomly selects a subset of the entered identification numbers,
and any employee whose identification number matches one of the
numbers that the computer selects will be drug tested within 5
working days. The selected employees post or section commanders
withholds notification of testing until the day of the test so
that drug testing is not compromised and that it occurs in a
timely and efficient manner.
Drug testing is performed through urinalysis. Only
Kentucky State Police Forensic Laboratory personnel and post or
section commanders are authorized to administer the drug tests.
At the time of the test, each employee is asked to complete a
more-detailed voluntary consent form. This enhanced consent
form: 1) Requests employee permission for a urine specimen to
be collected and tested; 2) describes the list of drugs for
which the specimen will be tested; 3) describes how the test
results will be used and to whom they may be communicated; 4)
delineates possible agency action if the test is positive; and
5) informs the employee of the consequences of violating any
testing procedure. The form also requests a list of any
medication the employee has taken over the last 15 days.
The employee is then handed a sealed, plastic specimen
container with a built-in thermometer. The employee provides
the urine specimen in a secured, private restroom. In the
interest of employee privacy, there are no witnesses, and
disrobing is not required. When the employee returns the filled
specimen container to the drug testing personnel, it is
immediately checked for temperature to ensure that the employee
has provided an authentic sample. Next, in the presence of the
employee, the specimen is divided into two containers. One of
the samples is held as a control sample in case an employee
would wish to verify positive results later with a laboratory of
their choosing.
Drug testing personnel then explain the chain-of-custody
form to the employee. Once the employee verifies the
information on this form, drug testing personnel seal the
specimen containers with lids and with tamper-proof sealing
tape. A label that identifies the specimens only by employee
identification number is affixed to each container. The
employee, after verifying that the identification number on the
specimen containers matches the identification number on the
list held by the post or section commander, signs off on this
list. Afterward, drug testing personnel forward the
chain-of-custody form and the specimen containers to the
Kentucky State Police Forensic Laboratory.
At the laboratory, each employee's specimen is checked for
possible tampering, logged in, and processed. A test tube
sample is also drawn from an original specimen and stored for
future testing, if needed. Several test tube samples are
batched together, of which approximately 20 percent will be
control samples for quality assurance checks.
Analysis
Immunoassay tests are used to screen the samples. These
tests serve to identify substances, such as proteins, through
their ability to stimulate physical responses from the body's
immune system. Each specimen is screened for marijuana,
cocaine, opiates, amphetamines, barbiturates, benzodiazepine,
and propoxyphene. It is also checked for the presence of other
elements to ensure the authenticity of the urine specimen.
The drug detection levels set in the agency's drug testing
policy are as follows:
* Marijuana--50 ng/ml
* Cocaine--300 ng/ml
* Opiates--300 ng/ml
* Amphetamines--300 ng/ml
* Benzodiazepine--300 ng/ml
* Propoxyphene--300 ng/ml
If the first screening of a particular specimen is positive,
a more-complex and expensive chemical analysis, such as gas
chromatography or mass spectrometry, is performed to confirm the
initial results of the immunoassay screening. If this test is
positive, the specimen is sent to an independent laboratory for
further analysis. A second positive confirmation will trigger
administrative and/or disciplinary action against the tested
employee.
Agency Response to Positive Test Results
All test results are sent directly to the Kentucky State
Police's Employee Assistance Program--the only place where an
identification number can be correlated to an employee's name.
From this point, a medical review officer, who is a physician
employed on a contract basis, meets privately with the employee
whose test results indicate unsanctioned drug use.
If the medical review officer finds no legal reason for the
positive test results, the physician notifies the Employee
Assistance Program. The Employee Assistance Program then
notifies the Internal Affairs Section, if the results concern a
sworn employee, or the Legal Office, if the results concern a
civilian employee. Internal Affairs or the Legal Office will
then contact the employee. The commissioner, who is empowered
to authorize an immediate nondisciplinary administrative leave
for the employee in question, is also informed of
"presumptive" positive test results.
Any employee found to be involved in illegal drug use faces
disciplinary action, up to and including dismissal. However,
for prescription drug misuse, the agency's emphasis is on
employee rehabilitation only. All employees, regardless of the
type of drug use violation, are required to make themselves
available to the Employee Assistance Program if referred to the
program by a supervisor. Employees may also be required to
complete satisfactorily a drug abuse assistance or treatment
program as a condition of continued employment.
In an effort to direct employees to the best available drug
abuse assistance or treatment programs, the Employee Assistance
Program maintains an updated list of drug abuse treatment
facilities nationwide.
CONCLUSION
The Kentucky State Police's drug testing policy is a
product of its employees. It provides what is believed to be a
total approach to the substance abuse issue, of which drug
testing is but one component. The policy also emphasizes
employee awareness/education programs; supervisor/manager
training; prohibitions against the use, sale, possession or
manufacture of illegal drugs; specific guidelines about the
misuse of alcohol and prescription drugs; employee and family
counseling through the Employee Assistance Program; and support
for long-term rehabilitation. As of February 1991, 98% of all
sworn employees have voluntarily submitted to drug testing. As
a whole, 84.4% of both sworn and civilian personnel within the
Kentucky State Police have been tested.
It is the Kentucky State Police's belief that the general
public has a right to expect a stricter accounting of law
enforcement employees concerning possible illegal drug use than
would routinely be expected of most government employees. Drug
testing of law enforcement employees is a small step to take
toward meeting that expectation. A law enforcement agency could
not deliver a stronger message to the public it serves.

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October 1991
CIVIL FORFEITURE:
REAL PROPERTY USED IN DRUG TRAFFICKING
By
Thomas V. Kukura
J.D., Special Agent
Drug Enforcement Administration
Legal Instructor
FBI Academy
The U.S. Department of Justice has determined that a
crucial component of effective drug law enforcement is the
forfeiture of real property used to facilitate illicit drug
trafficking. It was not until 1984 that Congress, in 21 U.S.C.
Section 881(a)(7) of the Controlled Substances Act (CSA),
authorized the civil forfeiture of real property used or
intended to be used to facilitate drug trafficking. (1)
This article discusses recent court decisions involving both
Federal and State investigations where the Federal forfeiture of
real property has provided law enforcement with an important
additional weapon to fight the war on drugs. Specifically, the
article addresses the following three legal issues:
1) How courts define real property subject to civil
forfeiture,
2) What evidence law enforcement must produce to establish
that real property facilitated drug trafficking, and
3) The circumstances under which the "innocent owner
defense" will defeat law enforcement's ability to
forfeit real property. Knowledge of the way Federal
courts have addressed these three issues is essential to
law enforcement officers contemplating the forfeiture of
real property for violation of 21 U.S.C. Section
881(a)(7).
REAL PROPERTY SUBJECT TO CIVIL FORFEITURE
The range of real property subject to civil forfeiture
under Section 881(a)(7) is very broad and includes unimproved
land, as well as improvements built on land, such as
residences, (2) restaurants, apartment buildings, (3) office
buildings, (4) athletic clubs, (5) and taverns. In addition,
real property used to manufacture, grow, store, conceal,
deliver, receive, or process illicit drugs, as well as property
used as a meeting place to negotiate drug trafficking, is
potentially subject to forfeiture.
There is also significant case authority that Section
881(a)(7) allows for the forfeiture of an entire tract of land,
even though only a portion of the land is used in violation of
the statute. For example, United States v. Reynolds (6) involved
a 30-acre tract of land on which only the house, driveway, and
swimming pool had been used to facilitate the distribution of
cocaine. The U.S. Court of Appeals for the Fourth Circuit
upheld the forfeiture of the entire 30-acre tract, finding that
"Congress expressly contemplated forfeiture of an entire tract
based upon drug-related activities on a portion of the tract."
(7)
In a similar case, United States v. Santora, (8) the
defendant's real property consisted of approximately 26 acres
bisected by a road that had been taxed as two separate parcels.
However, the property's deed described it as a single undivided
tract. On one side of the road was a 5-acre parcel on which a
home, barn, and several outbuildings were located. The balance
of the property, all of which was unimproved, was on the other
side of the road.
Following a State investigation, a Federal forfeiture
action was initiated against the defendant's real property,
based on the distribution of small amounts of cocaine to an
undercover officer on four separate occasions. All of the
cocaine sales occurred on the smaller portion of the property.
The owner attempted to characterize the property as two tracts
of land and argued that only the smaller portion of the
property, where the cocaine sales actually occurred, could be
forfeited.
The Fourth Circuit Court of Appeals rejected the
defendant's argument and ruled that "the whole of any lot or
tract of land" must be determined from the duly recorded
instruments and documents filed in the county offices where the
property is located and not simply from the tax records. Thus,
the court held the entire 26-acre parcel was subject to
forfeiture. (9) In this regard, law enforcement officers should
carefully research county land records to help determine the
exact extent of property subject to forfeiture.
EVIDENCE IN CIVIL FORFEITURE CASES
The forfeiture of real property must be based on a showing
of probable cause that the property was used or intended to be
used to commit or to facilitate a felony drug violation. A
Federal forfeiture action against real property is often
initiated based on evidence gathered during a joint
Federal/State criminal investigation or during an independent
State criminal investigation. A conviction of the owner in
either Federal or State court can serve as the necessary
probable cause to initiate civil forfeiture against a parcel of
real property, if the violation leading to conviction involved
the use of that property.
For example, the U.S. Court of Appeals for the Second
Circuit decided that a civil forfeiture of real property
pursuant to Section 881(a)(7) may be based on illicit drug
activity resulting in a State conviction. (10) In that case,
undercover New York City police officers entered a five-story
building with a street-level storefront and several residential
apartments. Once inside, the undercover officer purchased
several vials of crack from the owner, who was subsequently
convicted in State court.
Approximately 1 year later, the New York City Police
Department and the Drug Enforcement Administration (DEA)
determined that the storefront, operating as a restaurant, was
actually a lucrative crack cocaine distribution point. The
court noted that the property owner's earlier State court drug
conviction alone provided sufficient probable cause for
forfeiture of the owner's property. Despite the owner's
argument that his State conviction did not support forfeiture
because he had filed a notice of appeal, the court found that
the trial transcript of the State criminal proceedings provided
probable cause that the defendant's property was used for an
unlawful purpose. (11)
It is important to note that if the owner's State
conviction had been overturned, civil forfeiture of his property
would not be precluded. Unlike criminal forfeiture cases,
conviction for the underlying criminal activity is not a
prerequisite for the civil forfeiture of real property.
Civil forfeiture is an "in rem" proceeding against the
property that has been involved in some violation. "In rem"
refers to any legal proceeding directed solely against property.
The property is the defendant. Therefore, real property is
subject to civil forfeiture "even if its owner is acquitted
of--or never called to defend against--criminal charges." (12)
In this regard, the Supreme Court stated in Various Items of
Personal Property v. United States that "it is the property
which is proceeded against, and by resort to a legal fiction,
held guilty and condemned as though it were conscious instead of
inanimate....The forfeiture is no part of the punishment for the
criminal offense." (13)
A Clear Connection Required
The provision in Section 881(a)(7) for the forfeiture of
real property that "facilitates" drug trafficking has spawned
considerable litigation and some judicial disagreement. The
litigation and extent of disagreement centers on the degree of
connection or "nexus" that must be shown between drug
trafficking and the property to be forfeited. (14) However, all
courts agree that the connection must be more than merely
incidental or fortuitous. As the following cases illustrate,
there is a judicial willingness to interpret the "facilitation"
provision broadly to permit forfeiture whenever law enforcement
establishes a clear connection between real property and a drug
felony.
Case Accounts
One of the first cases to interpret the "facilitation"
provision was United States v. 124 East North Avenue, Lake
Forest, Illinois. (15) In this case, the government's complaint
alleged that the property was used for a 6-month period to
facilitate the sale and delivery of cocaine as follows:
1) The telephone at the residence was used regularly to
negotiate the sale of cocaine; (16)
2) The owner used an electronic paging device to be
contacted at the property regarding cocaine sales;
3) The owner used the property as the only location where
he would be contacted by telephone regarding the sale of
cocaine; and
4) The owner arranged to use the property as a location
for the delivery of approximately 5 kilograms of
cocaine.
The court held that the facts alleged in the complaint
were sufficient to constitute probable cause to believe the
defendant's property facilitated the violation of Federal drug
laws. The court highlighted the "intent" to deliver 5 kilograms
to the property and the regular use of the telephone at the
property to negotiate the sale of cocaine as providing a
"sufficient nexus between the alleged illegal activity and the
defendant property." (17) Importantly, the court noted that an
isolated use of a telephone in a home to discuss a drug sale
might not be a sufficient basis to subject the home to
forfeiture. (18)
In another case, United States v. Real Property and
Residence, (19) the owner arranged for and directed a
10-kilogram cocaine delivery, which occurred on the driveway of
his residence. A court-authorized interception of the owner's
telephone conversations prior to the transaction demonstrated
his insistence that the deal take place on familiar territory at
his home. The court upheld the forfeiture since "...a portion
of the defendant property, the driveway, served as the planned
site of a ten kilogram cocaine delivery." (20)
A different result was reached in United States v. Certain
Lots in Virginia Beach, (21) where a government informant contacted
the property owner and requested a drug transaction be
consummated at the owner's home. The owner at first refused and
only upon the informant's insistence agreed to use his home as
the transaction site. A Federal district court did not uphold
forfeiture, because the necessary "substantial connection"
between the illegal activity and the defendant property did not
exist sufficiently to prove facilitation. The court found that
the owner merely allowed the government informant to meet him
there, and then only as a result of the informant's insistence.
(22)
In United States v. Schifferli, (23) the U. S. Court of
Appeals for the Fourth Circuit found a substantial connection
between a dentist's office building and his drug offenses, and
therefore, permitted forfeiture of the office building and
property on which it was located. Facts in the case indicated
the dentist used his office over 40 times during a 4-month
period to write illegal prescriptions. In upholding the
forfeiture, the court broadly interpreted the "facilitation"
requirement by noting that it is irrelevant whether the
property's role in the crime is indispensable. (24)
In another case, the U. S. Court of Appeals for the Eighth
Circuit upheld the forfeiture of a residence, finding that it
was substantially connected to illegal drug activity because a
2-ounce purchase of cocaine occurred at the residence and law
enforcement officers found $12,585 in a pocket of a sportscoat
hanging in a closet intermingled with $250 in official
government funds that had been used in previous undercover
purchases of cocaine. (25) Cocaine, drug scales, and weapons
were also found in the residence. The court upheld the
forfeiture, even though the quantity of the drug actually
involved was "relatively small." (26)
The U. S. Court of Appeals for the 11th Circuit found
probable cause to believe a residence and the surrounding
property facilitated the importation of cocaine where evidence
indicated the property was used to negotiate and plan the
importation of cocaine. (27) The co-conspirators met several
times on the defendant's property and discussed the details of
their plan. They also traveled from the residence to inspect a
proposed landing site for the aircraft used to transport the
cocaine. (28) The court ruled the real property was forfeitable,
even though it was not used or intended for use as a delivery or
storage site for cocaine. (29)
As the above cases reveal, courts have broadly interpreted
the plain language of the facilitation provision of Section
881(a)(7). However, law enforcement's use of this provision
should be tempered by reason and fundamental fairness, because
an overzealous use of the facilitation provision to forfeit real
property could produce adverse public opinion or court
decisions, which could spawn more restrictive legislation. (30)
It is, therefore, recommended that law enforcement agencies
adopt a policy that limits the civil forfeiture of real property
to cases where there has been a substantial use of the real
property to facilitate a drug felony violation as opposed to a
remote or incidental use. (31)
THE "INNOCENT OWNER" DEFENSE
Section 881(a)(7) provides for an "innocent owner" defense
to forfeiture where property owners can establish their lack of
knowledge or consent to the drug trafficking. Once the
government establishes probable cause that property facilitated
drug trafficking, the burden shifts to owners of the property to
prove by a preponderance of the evidence that they did not know
of or consent to the underlying illegal conduct. This statutory
defense is available to any person with a recognizable legal or
equitable interest (i.e., standing) in the property, such as an
owner, spouse of the owner, or lienholder.
The possession of bare legal title, however, may be
insufficient to establish such standing. (32) Because people
engaged in drug trafficking often attempt to disguise their
interest in property to prevent forfeiture by placing title in
another's name, law enforcement officers investigating drug
trafficking should look behind the formal title to determine
whether the record title owner is a "strawman" (33) set up to
conceal the true owner.
In a recent case illustrating this "strawman" concept, the
U. S. Court of Appeals for the 11th Circuit held that possession
of mere legal title by one who does not exercise dominion and
control over the property is insufficient to establish standing
to challenge a forfeiture. The court found the claimant lacked
standing to contest the forfeiture because: (1) He presented no
documentary evidence regarding his finances or payments with
respect to the purchase of property; (2) he could not remember
how much he had contributed or borrowed from others; and (3)
there was no record to support his claim that he had paid the
property taxes on the land for at least 2 years. (34)
Courts have also held that a fugitive from justice does not
have standing to contest a forfeiture action. For example, the
11th Circuit Court of Appeals ruled that a fugitive who had been
indicted for drug trafficking and was residing in Colombia was
precluded from contesting the forfeiture of his estate located
in Miami, Florida. (35)
Some courts hold that claimants must establish both lack
of knowledge and lack of consent to avoid the forfeiture, (36)
while others hold that owners with knowledge of drug activity
may nonetheless avoid forfeiture by establishing that the
illegal drug activity took place on their property without their
consent. (37) Courts that recognize lack of consent alone as a
sufficient basis for the "innocent owner" defense nevertheless
require owners to prove they did all that reasonably could be
expected to prevent illegal activity after learning of it. (38)
For example, the "innocent owner" defense based on a lack
of consent was rejected by the U. S. Court of Appeals for the
Second Circuit in a case involving the forfeiture of a
six-story, 41-unit apartment complex that the court
characterized as "a veritable anthill of drug activity." (39)
The court found that the owner who asserted a lack of consent
did not prove he did all that reasonably could be expected to
prevent the illegal activity.
From December 1986, through May 1988, New York City police
received complaints of drug trafficking in 24 of the 41
apartments and determined that the common areas of the building
were littered with crack vials and other paraphernalia and that
lookouts were constantly posted in front of the building. Law
enforcement officers were able to produce evidence of numerous
unsuccessful attempts to contact the owner about these drug
problems through telephone calls, letters, and discussions with
the superintendent of the building. In June 1988, several
arrests were made at the apartment complex. While the owner
admitted visiting the apartment complex on approximately 100
occasions and speaking with the superintendent on a weekly
basis, he claimed he had no idea that drug transactions were
occurring on the premises until the June 1988, arrests, at which
time he instructed the superintendent not to accept rent from
the tenants arrested and called his lawyer. The court denied
the "innocent owner" defense, reasoning that the owner either
knew of the drug activity before June 1988, and did nothing to
stop it, or that his response after learning of it was
inadequate. (40)
CONCLUSION
The civil forfeiture of an entire tract of land where the
whole tract or just a portion of the tract has facilitated drug
trafficking is a powerful weapon in the war on drugs. The
government must establish probable cause that the property has
facilitated and/or is intended to facilitate a felony drug
violation.
Owners of real property can successfully assert an
innocent owner defense only if they can prove lack of knowledge
or consent to the illegal activity subjecting the property to
forfeiture. Early coordination between the various
investigative agencies and the U. S. Attorney's Office is a
strategic necessity in any investigation that may potentially
lead to the forfeiture of real property. (41)
FOOTNOTES
(1) 21 U.S.C. Section 881(a)(7) subjects to forfeiture:
"All real property, including any right, title, and interest
(including any leasehold interest) in the whole of any lot or
tract of land and any appurtenances or improvements, which is
used, or intended to be used, in any manner or part, to commit
or facilitate the commission of, a violation of this title
punishable by more than one year's imprisonment, except that no
property shall be forfeited under this paragraph, to the extent
of an interest of any owner, by reason of any act or omission
established by that owner to have been committed or omitted
without the knowledge or consent of that owner." It should be
noted that in 1978, Congress, in 21 U.S.C. Section 881(a)(6),
authorized the civil forfeiture of real property that is
traceable to the proceeds of drug trafficking. Also, real
property is subject to criminal forfeiture under 21 U.S.C.
Section 853.
(2) United States v. Lots 12, 13, 14, and 15, Keeton
Heights, 869 F.2d 942 (6th Cir. 1989).
(3) United States v. All Right, Title and Interest, 901
F.2d 288 (2d Cir. 1990).
(4) United States v. Schifferli, 895 F.2d 987 (4th Cir.
1990).
(5) United States v. Parcel of Land With Building App. And
Imp., 928 F.2d 1 (1st Cir. 1991).
(6) 856 F.2d 675 (4th Cir. 1988).
(7) Id. at 676.
(8) 866 F.2d 1538 (4th Cir. 1989).
(9) Id. at 1540-43.
(10) Supra note 3.
(11) Id. at 292.
(12) See United States v. Property Ident. As 3120 Banneker
Dr. N.E., 691 F.Supp. 497 (D.DC. 1988). For a discussion of the
various legal procedures available to initiate the seizure of
real property, see Landman and Hieronymus, "Civil Forfeiture of
Real Property under 21 U.S.C. 881 (a)(7)," Michigan Bar Journal,
February 1991, pp. 176-177.
(13) 282 U.S. 577, 581 (1931).
(14) Three Federal circuit courts have held that the
government must show the real property had a "substantial
connection" to a drug felony. See United States v. Parcel of
Land and Residence at Emery Street, 914 F.2d 1 (1st Cir. 1990);
United States v. One Parcel of Real Estate Located at 7715 Betsy
Bruce Lane, 906 F.2d 110 (4th Cir. 1990); United States v.
Premises known as 3639--2nd St. N.E., 869 F.2d 1093 (8th Cir.
1989). However, another court rejected the "substantial
connection" test and required only that the real property had
"more than an incidental or fortuitous connection to the crime."
See United States v. Real Estate Commonly Known as 916 Douglas
Avenue, 903 F.2d 490 (7th Cir. 1990).
(15) 651 F.Supp. 1350 (N.D. Ill. 1987).
(16) The use of a telephone to arrange or otherwise
facilitate a drug felony violation is itself a felony violation
under 21 U.S.C. Section 843(b).
(17) Supra note 15, at 1352-54.
(18) Id. at 1353.
(19) 921 F.2d 1551 (11th Cir. 1991).
(20) Id. at 1556.
(21) 657 F.Supp 1062 (E.D. Va. 1987).
(22) Id. at 1065.
(23) 895 F.2d 987 (4th Cir. 1990).
(24) Id. at 990-91.
(25) United States v. Premises Known as 3639--2nd St.,
N.E., supra note 14.
(26) Id. at 1096.
(27) United States v. Approximately 50 Acres of Real
Property, 920 F.2d 900 (11th Cir. 1991).
(28) The property used as a landing strip was a separate
parcel of property owned by the same claimant and was also
forfeited under the authority of Section 881(a)(7).
(29) Supra note 27, at 903.
(30) Possible constitutional challenges to
disproportionately severe forfeitures were raised in United
States v. Real Estate Known as 916 Douglas Ave., supra note 14;
and United States v. Livonia Road, 889 F.2d 1258 (2d Cir. 1989).
(31) For example, see DEA's policy statement in Drug
Agents' Guide to Forfeiture of Assets (rev. 1987). (Available
from U.S. Department of Justice, Drug Enforcement
Administration.)
(32) United States v. Real Property at 5000 Palmetto Drive,
928 F.2d 373 (11th Cir. 1991).
(33) The term "strawman" is used to denote one who holds
title in name only or is a nominal owner. h) 0*0*0* 34 United
States v. Lot 111-B, Tax Map Key 4-4-03-71(4), 902 F.2d 1443
(9th Cir. 1990).
(35) United States v. One Parcel of Real Estate Dade
County, Fla., 868 F.2d 1214 (11th Cir. 1989).
(36) Supra note 34.
(37) See, e.g., United States v. 141st Street Corp. by
Herch, 911 F.2d 870 (2d Cir. 1990).
(38) Id.
(39) Id. at 877.
(40) Id. at 880.
(41) For more expansive discussions of forfeiture concepts,
see Drug Agents' Guide to Forfeiture of Assets (rev. 1987)
(Available from the U.S. Department of Justice, Drug Enforcement
Administration); Asset Forfeiture: Law, Practice, and Policy
(vols. I & II) (Available from the U.S. Department of Justice,
Asset Forfeiture Office); and David B. Smith, Prosecution and
Defense of Forfeiture Cases (1991).

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September 1991
CUSTODIAL INTERROGATION:
IMPACT OF MINNICK V. MISSISSIPPI
By
Kimberly A. Crawford
Special Agent
Legal Instructor
FBI Academy
Quantico, Virginia
In Minnick v. Mississippi, (1) the U.S. Supreme Court
announced a rule of law that could have a substantial impact on
the way many law enforcement agencies conduct custodial
interrogations. Specifically, the Court severely curtailed the
law enforcement officer's ability to reinitiate custodial
interrogation of suspects who had previously invoked the right
to counsel.
This article examines the Minnick decision and assesses its
impact. It also suggests legitimate steps officers can take to
limit its adverse effects on criminal investigations.
SUMMARY OF FACTS
Robert Minnick and James "Monkey" Dyess escaped from the
Clarke County Jail in Mississippi and were in the process of
burglarizing a mobile home when they were surprised by the
arrival of the occupants. Using weapons found in the home, the
escapees murdered two of the occupants and eventually fled the
scene in a stolen pickup truck. Minnick was arrested 4 months
later in California on a fugitive warrant.
Following his arrest, Minnick was interviewed by two FBI
agents. Prior to this interview, he was advised of his Miranda
(2) rights, and although he refused to sign a waiver, he agreed
to answer some questions. (3) During the course of the
interview, Minnick made some incriminating statements before
telling the agents that he would make a more-complete statement
when his lawyer was present. Believing that Minnick had invoked
his right to counsel, the agents promptly terminated the
interview.
Following the FBI interview, Minnick met with appointed
counsel. Three days later, Deputy Sheriff J.C. Denham of Clarke
County, Mississippi, arrived in California and attempted to
interview Minnick. Although once again declining to sign a
written waiver of his Miranda rights, Minnick agreed to talk
with Denham. Statements made during the subsequent interview
ultimately led to Minnick's prosecution for murder.
Prior to trial, Minnick moved to suppress his statements
made to Denham. That motion was denied by the trial court, and
Minnick was sentenced to death after being found guilty on two
counts of capital murder. Minnick's conviction and sentence
were upheld on appeal by the Mississippi Supreme Court. (4)
However, on review, (5) the U.S. Supreme Court reversed the
conviction.
THE COURT'S ANALYSIS
The fifth amendment to the U.S. Constitution provides in
part that "no person...shall be compelled in any criminal case
to be a witness against himself...." (6) Over 2 decades ago, the
Supreme Court in Miranda v. Arizona (7) held that custodial
interrogation of an individual creates a psychologically
compelling atmosphere that works against this fifth amendment
protection. (8)
In other words, the Court in Miranda presumed that an
individual in custody undergoing police interrogation would feel
compelled to respond to police questioning. This compulsion,
which is a by-product of most custodial interrogations, (9)
directly conflicts with an individual's fifth amendment
protection against self-incrimination. Accordingly, the Court
developed the now-familiar Miranda warnings as a means of
reducing the compulsion attendant in custodial interrogations.
The Miranda rule requires that these warnings be given and the
embodied rights waived prior to the initiation of custodial
interrogations.
If Miranda warnings are given, and individuals in custody
choose to exercise their rights by invoking either the right to
silence or counsel, the Court has held that all interrogations
must cease immediately. (10) Whether, and under what
conditions, law enforcement officers may subsequently readvise
an individual of his rights and attempt to secure a waiver
depends on which rights the individual has invoked.
In Michigan v. Mosley, (11) the Supreme Court essentially
interpreted the invocation of the right to silence as a request
for time so a suspect could think clearly about the situation.
If the suspect's initial request is scrupulously honored, the
Court held that attempts to reinterrogate may occur if given the
time asked for, or if he indicates, by initiating
communications, that he had enough time to think and has changed
his mind.
As a result, reinterrogations following an invocation of the
right to silence are deemed appropriate if: 1) A reasonable
period of time has elapsed; (12) or 2) interrogation was initiated
by the suspect. In either case, any renewed attempts to
interrogate a suspect must be preceded by a fresh warning of
Miranda rights and a waiver of those rights.
An invocation of the right to counsel, on the other hand,
necessarily carries with it a different set of procedural
safeguards. Obviously, a suspect invoking the right to counsel
is not simply asking for time to assess the situation; he is,
instead, requesting the assistance of an attorney. Whether this
request is satisfied by giving the suspect an opportunity to
consult with an attorney or requires the actual presence of an
attorney during questioning was the issue before the Court in
Minnick.
Minnick's motion to suppress the statements made to Denham
was based on his claim that under the fifth amendment, (13) the
earlier invocation of his right to counsel during the FBI
interview precluded Denham from making any subsequent attempts
to question him in the absence of counsel. In opposition, the
government argued that Minnick's fifth amendment rights had been
satisfied when he was given the opportunity to consult with his
counsel on two or three occasions prior to meeting with Denham.
In order to resolve this issue, the Supreme Court found it
necessary to revisit the Miranda decision and its progeny to
determine when, if ever, law enforcement officers may reinitiate
interrogation of an in-custody suspect who has invoked the right
to counsel.
"MIRANDA" REVISITED
In Miranda, the Court held that "once an individual in
custody invokes his right to counsel, interrogation `must cease
until an attorney is present; at that point, the individual must
have an opportunity to confer with the attorney and to have him
present during any subsequent questioning.'" (14) Later, in
Edwards v. Arizona, (15) the Supreme Court attempted to clarify
its holding in Miranda by announcing the following rule:
"...an accused..., having expressed his desire to
deal with police only through counsel, is not subject
to further interrogation by the authorities until
counsel has been made available to him, unless the
accused himself initiates further communication,
exchanges, or conversations with the police." (16)
Following Edwards, many courts focused on the expression
"made available to him" and concluded that the rule simply
required that a suspect in custody who had invoked the right to
counsel be given the opportunity to consult or confer with his
attorney before law enforcement officers could lawfully attempt
to reinterrogate him. (17) Under this interpretation, there
would be no necessity to show that the suspect had actually
consulted with an attorney, but only that he had been afforded
the opportunity to do so. The Supreme Court, however, held that
such an interpretation of Edwards was both unintended and
inconsistent with Miranda. Therefore, the Court concluded that
"when counsel is requested [by a suspect in custody],
interrogation must cease, and officials may not reinitiate
interrogation without counsel present, whether or not the
accused has consulted with his attorney." (18) Applying this
rule to the facts in Minnick, the Court found that because
Minnick had invoked his right to counsel during the FBI
interview and Deputy Sheriff Denham subsequently reinitiated
interrogation without counsel being present, Minnick's rights
under Miranda had been violated, and the resulting statements
must be suppressed.
IMPACT OF "MINNICK"
As a result of Minnick, law enforcement officers will be
unable to interrogate a suspect in custody once that suspect has
invoked the right to counsel unless: 1) The suspect's attorney
is actually present; or 2) the suspect changes his mind and
reinitiates the interrogation. (19) Because the first
alternative is frequently unpalatable and the second unlikely,
custodial reinterrogations after requests for counsel may
quickly become rare.
Although not specifically addressed by the Supreme Court,
it is important to note that the rule in Minnick will
undoubtedly apply regardless of the crime that is the intended
topic of the reinterrogation. (20) In other words, when an
individual is advised of his Miranda rights and invokes the
right to counsel, he is not simply saying that he will not deal
with the police about the crime for which he has been arrested
without the assistance of an attorney. Rather, a request for
counsel under these conditions implies that the individual will
not deal with the police on any criminal matter without the
benefit of counsel. Consequently, once a suspect invokes the
right to counsel under the fifth amendment, law enforcement
officers are prohibited from initiating further custodial
interrogation involving the original crime or any other criminal
act without complying with the dictates of Minnick by having the
suspect's attorney present.
Moreover, the rule in Minnick appears to be perpetual; once
a suspect in custody invokes the right to counsel, the
prohibition against reinterrogation remains in effect as long as
custody continues. Conceivably, a suspect who invokes the right
to counsel during the early stages of custody and is thereafter
unable to make bond could be shielded from all further
interrogation throughout the remainder of the prosecution of the
case and for as long as he is incarcerated. (21)
LIMITING THE ADVERSE EFFECTS OF "MINNICK"
Writing the dissenting opinion in Minnick, Justice Scalia
recognized the far-reaching effects of the Court's decision on
law enforcement when he made the following statement:
"Today's ruling, that the invocation of a right to counsel
permanently prevents a police-initiated waiver, makes it
largely impossible for the police to urge a prisoner who
has initially declined to confess to change his mind--or
indeed, even to ask whether he has changed his mind." (22)
While the Minnick decision may hamper law enforcement efforts to
conduct custodial interrogations, there are certain legitimate
steps law enforcement officers can take to limit its adverse
effects on criminal investigations.
The first step law enforcement officers should take is to
ensure that they understand and take advantage of the procedural
differences that are required when a suspect invokes the right
to silence as opposed to invoking the right to counsel. Because
there is a significant difference between the procedural
protections offered to a suspect who invokes the right to
counsel and one who merely expresses a desire to remain silent,
law enforcement officers should be certain they know which right
a suspect is invoking. If, following the advice of rights, the
suspect's response leads officers to believe that the suspect is
invoking his rights, but the officers are unsure of which right
is being invoked, the officers could conceivably follow up by
asking the suspect if he is, in fact, invoking the right to
silence. If a suspect gives an affirmative response, then
officers should immediately stop questioning. However, since
only the right to silence has been invoked, a second attempt to
obtain a waiver may be made after waiting a reasonable period of
time.
Similarly, when a suspect is being read his rights for the
first time, it may be best to avoid encouraging a blanket
invocation of rights that could occur if the entire list of
rights is given before inquiring whether the suspect wishes to
waive or invoke any or all of them. There is nothing in the
rule to preclude the suspect being told first that he has the
right to remain silent and then asked whether he wishes to waive
that right.
If the suspect indicates a desire to waive the right to
silence, then he should be advised of the remainder of his
rights and asked whether he wishes to waive those rights as
well. If, on the other hand, the suspect is first advised of
the right to remain silent and chooses to invoke that right,
then no further advice of rights need be given at that time and
the interrogation should cease.
However, a subsequent attempt to interview a suspect could
be made after waiting a reasonable period of time, since only
the right to silence was invoked. By refraining from advising a
suspect of the right to counsel until the right to silence has
been waived, the law enforcement officer may reduce the
possibility that the rule in Minnick will be triggered.
Along these same lines, law enforcement officers should be
extremely careful when documenting an invocation of rights.
Because the procedural safeguards offered to a suspect depend on
the specific right invoked, officers should maintain accurate
records indicating the actual language a suspect used to invoke
his rights. By doing so, officers will later be able to
establish which right was invoked and demonstrate that they
afforded the suspect the appropriate safeguards.
Finally, law enforcement officers should be careful not to
apply this rule in instances where it is not required. For
example, if a suspect makes a request for counsel at a judicial
proceeding, as opposed to during custodial interrogation, police
are not barred from interviewing that suspect concerning other
uncharged offenses.
The Court in Minnick based its decision on Miranda, which
is intended to govern custodial interrogations and protect the
fifth amendment privilege against self-incrimination. Minnick
does not apply when the right invoked is the sixth amendment
right to counsel.
In Michigan v. Jackson, (23) the Court held that an
individual's request for the appointment of counsel at an
initial appearance constitutes an invocation of the sixth
amendment right to counsel, which only precludes
police-initiated interrogation regarding the crime for which the
individual was charged. (24) And recently, in McNeil v.
Wisconsin, (25) the Court reaffirmed that the invocation of the
sixth amendment right to counsel at issue in Jackson is
crime-specific and does not make suspects "unapproachable by
police officers suspecting them of involvement in other crimes,
even though they had never expressed any unwillingness to be
questioned." (26)
Thus, a suspect who invokes the sixth amendment right to
counsel by requesting the appointment of an attorney at an
initial appearance cannot, thereafter, be subjected to
police-initiated interrogation regarding the crime for which he
has been charged. (27) However, because the suspect's invocation
of the sixth amendment rights is not the same as an invocation
of the fifth amendment rights, Minnick would not preclude
police-initiated interrogation on unrelated matters, as long as
the Miranda safeguards for custodial interrogation are
satisfied.
CONCLUSION
The Supreme Court's decision in Minnick is likely to cause
many law enforcement agencies to change their policies and
practices regarding custodial interrogations. No longer will
law enforcement officers be permitted to reinitiate custodial
interrogation of a suspect who had previously invoked the right
to counsel without having the suspect's attorney present. When
assessing their policies, however, law enforcement agencies
should be careful to keep Minnick in its proper fifth amendment
perspective and consider various options, such as the
suggestions discussed above, that could limit the effects of the
rule.
FOOTNOTES
(1) 111 S.Ct. 486 (1990) (hereinafter cited as Minnick).
(2) Miranda v. Arizona, 384 U.S. 436 (1966) (hereinafter
cited as Miranda).
(3) The FBI report indicates Minnick waived his rights
and said he would not answer "very many" questions, Minnick,
supra note 1, at 488.
(4) Minnick v. State, 551 So.2d 77 (Miss. 1988).
(5) The Supreme Court granted certiorari at 110 S.Ct. 1921
(1990).
(6) U.S. Const. Amend. V.
(7) Miranda, supra note 2.
(8) Id. at 436.
(9) Not all forms of custodial interrogation create the
compelling atmosphere that Miranda was designed to protect
against. See, e.g., Illinois v. Perkins, 110 S.Ct. 2394 (1990).
(10) Miranda, supra note 2, at 474.
(11) 423 U.S. 96 (1975).
(12) In Mosley, 2 hours were considered to be a sufficient
period of time. Id.
(13) Minnick also claimed that the statements in question
were taken in violation of his sixth amendment right to counsel.
Reversing Minnick's conviction on fifth amendment grounds, the
Court found it unnecessary to address the sixth amendment issue.
(14) Minnick, supra note 1, at 489, quoting Miranda, supra
note 2, at 474.
(15) 451 U.S. 477 (1981).
(16) Id. at 485, 486.
(17) See, e.g., United States v. Skinner, 667 F.2d 1306
(9th Cir. 1982), cert. denied, 103 S.Ct. 3569 (1983), (court
found defendant who was released after requesting counsel, then
re-arrested, had the opportunity to consult with counsel, and
therefore, his rights were satisfied). See also, United States
v. Halliday, 658 F.2d 1103 (6th Cir. 1980), cert. denied, 102
S.Ct. 978 (1981).
(18) Minnick, supra note 1, at 491.
(19) In Minnick, the Court stated that "Edwards does not
foreclose finding a waiver of Fifth Amendment protections after
counsel has been requested, provided the accused has initiated
the conversation or discussions with the authorities...."
Minnick, supra note 1, at 492.
(20) See, Arizona v. Roberson, 108 S.Ct. 2093 (1988),
where the Supreme Court held that the assertion of the right to
counsel is effective against all topics of custodial
interrogation.
(21) In a prison setting, the perpetuality of this rule
could make it virtually impossible to conduct routine
interrogations of inmates suspected of committing new crimes
without having an attorney on hand to represent the inmates
interests.
(22) Minnick, supra note 1, at 496 (Scalia, J., dissenting).
(23) 106 S.Ct. 1404 (1986).
(24) The Court in Jackson found that the rule in Edwards
applied in the sixth amendment context. Consequently, it can be
deduced that reinterrogation would be permitted in the sixth
amendment context if initiated by the suspect or done in the
presence of the suspect's attorney.
(25) ___S.Ct.___ (1991).
(26) ___S.Ct.___, ___ (1991).
(27) At the present time, it is unclear whether a
non-custodial suspect, who previously invoked his sixth
amendment right to counsel, could be requested to waive that
right without having an attorney present. Because Edwards has
been applied in the sixth amendment context, and Minnick is
simply an interpretation of Edwards, it would appear that the
rule in Minnick could preclude any police-initiated attempts to
obtain a waiver of a previously invoked sixth amendment right to
counsel outside the presence of the suspect's attorney.

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LEADERSHIP IN THE NINETIES
By
Ronnie Garner, M.P.A.
Deputy Chief
Beverly Hills, California, Police Department
On a hot, lazy afternoon, a small boy sits barefoot under a
shade tree, idly watching a small stream of water from a
sprinkler trickle down the street toward him. As tiny rivulets
inch their way along the asphalt gutter, they seem to pause at
each pebble to build momentum and then push forward again.
Eagerly, the boy grabs handfuls of dirt and builds a small
dike that momentarily halts the flow. However, the water slowly
wells up in a puddle and edges its way around the barrier. The
boy adds more dirt, vainly attempting to outflank and contain the
water.
As the battle progresses, it becomes apparent that despite
the boy's best efforts, he will never prevail. There are larger
forces of nature at work.
How often do organizations struggle in a like manner against
the forces of human nature? An organization is, after all, a
large pool of human resources. Not unlike the stream of water,
this pool seeks movement--PROGRESS. It cannot stand still; that
is not the natural order. It must either move forward or
stagnate.
What organizations require is guidance of that movement.
This guidance comes in the form of direction and leadership.
Visionary leadership is not for everyone. A gnarled police
veteran once counseled me to "never try to teach a pig to sing.
It sounds like hell and it annoys the pig."
There is some wisdom in that advice. Many police
administrators become so preoccupied with current problems that
they fail to plan for the future. Some do not believe that
strategic planning is worth the effort. Others lack the
imagination and creativity required to project in the abstract.
To ask them to conceptualize the organization 5 years in the
future is akin to asking a pig to sing--it only annoys them. For
these individuals, the vision of the future must be articulated
with such vividness and detail that the abstract becomes
concrete.
ORGANIZATIONAL VISION
An organizational vision presents a clear picture of what
direction the organization plans to take in the future. It should
represent an achievable, challenging, and worthwhile long-range
target toward which personnel can direct their energies.
For example, one police department's vision statement
projects that a mutual understanding of shared problems will
result in a high level of confidence and harmony between the
police and the community. The statement then specifies that the
department and the community will forge a close and consistent
partnership to address issues and to solve problems effectively,
making the city a safe, healthy, and attractive place for
commerce and community life.
Having a clear understanding of the organizational vision
can change an employee's entire perspective. The story is often
told of a passer-by who asked a bored bricklayer, "What are you
doing?" The bricklayer replied, "I am placing one brick on top of
another." The passer-by then asked another bricklayer, who was
working with greater enthusiasm, "What are you doing?" The second
bricklayer replied, "I am building a magnificent cathedral where
hundreds will worship."
To form an analogy, how many officers simply drive around
answering radio calls and how many actually make a meaningful
contribution to the quality of life in the community by
maintaining order and ensuring that justice prevails? To attach
real meaning and value to their jobs, employees must understand
that they are collectively engaged in a worthwhile endeavor. A
clear organizational vision fills this need.
ROWING v. STEERING
Articulating the organizational vision and holding it firmly
in focus for personnel is a demanding task. Frequently,
operational problems divert the attention of administrators from
their primary role as leaders. They must ensure, however, that
they do not become so involved in rowing the boat that they
forget to steer the boat.
In fact, some organizations shift to systems that separate
policymaking from service delivery in order to allow top managers
to concentrate on decisionmaking and direction. (1) Those who
steer must possess the ability to view the whole spectrum of
issues and possibilities and then balance competing demands for
resources; rowing requires individuals who focus on one task,
performing it well. (2)
Unfortunately, law enforcement administrators often become
so intent on overseeing the delivery of services that they
neglect their primary responsibility--steering. Instead, they
should concentrate on a basic steering challenge: Communicating a
clear vision of what they hope the organization will become in
the future, giving employees a goal to work toward.
While setting such a goal is crucial, leaders must, at the
same time, make additional information available to employees.
For example, employees need to know how managers plan to meet
this goal, what types of conduct are acceptable, and what
criteria leaders will use for decisionmaking. Administrators
should make this information available to employees through
mission and value statements.
MISSION STATEMENT
A clear mission statement may be an organization's most
important asset. It calls attention to what management believes
is important, and it sets goals that align practices with values.
(3) In addition, it expresses the purpose for which the
organization exists, allowing management to set priorities in
decisionmaking. In other words, it acts as a guide for the
organization. The mission statement of a California police
department reads as follows: "The mission of [this department] is
to work in partnership with the community to protect life and
property, solve neighborhood problems, and enhance the quality of
life in our City."
When developing a mission statement, the process of arriving
at consensus among leaders can, itself, be a positive experience.
It requires a debate of the various attitudes and beliefs
existing among organizational leaders and then, finally,
agreement on one basic mission. (4) The final statement should
help employees at all levels make decisions.
VALUES STATEMENT
The values statement declares the moral and ethical
qualities to which the organization is committed. For example,
values statements often clarify how much significance the
organization places on honesty, customer satisfaction, ethical
conduct, innovation, teamwork, community awareness, self-directed
work, tolerance of dissenting views, and public relations. While
the mission statement describes where the organization is going,
the values statement articulates how it will get there. It is a
detailed guide of behaviors that management accepts and supports
within the organization.
A POSITIVE FRAMEWORK
The organizational vision, mission statement, and values
statement form a framework to support management decisions by
attaching reasons to actions. The philosophy, goals, and work
standards embodied within these documents provide a basis for
decisionmaking within the organization. They are the lodestars
by which the organization navigates its course through the
uncharted waters of both the present and the future.
Creating this framework for leadership is vital to maintain
consistency and direction in the management of the organization.
However, this framework alone is not sufficient to attract and
motivate employees to achieve the organization's mission.
Organizations need to incorporate a final leadership principle--
empowerment.
Much like the stream discussed earlier, it is the nature of
an organization to change and progress. Individual members of the
organization continually develop plans and expectations about
their roles. Each creates a personal agenda. It is the confluence
of these personal agendas that creates a dynamic under-current
within organizations. Leaders must channel this undercurrent in
order to accomplish the organization's objectives.
The cumbersome, monolithic organizational structures in
which many agencies currently labor do not allow leaders
sufficient latitude to channel individual talents. A more open,
flexible participative model must be used so that leaders can
successfully empower subordinates.
EMPOWERMENT
Empowerment is enabling others to participate in the process
of change within the organization. It often involves sharing
power with subordinates and allowing them sufficient leeway to
accomplish tasks in their own way.
Empowerment is the most effective way to gain the active
participation of others. When employees are truly empowered to
make meaningful decisions and effect appropriate change within
the organization, they develop a stake in the system--a
franchise. Enfranchised and empowered employees have a vested
interest in the success of the group. They become important
members of a team with a meaningful purpose.
Most individuals want to believe they are contributing to a
common purpose and that they are not consumed with pointless
exercises. Leaders who promote such an atmosphere secure the
commitment and trust of employees. (5) True leadership involves
providing a collaborative atmosphere, where all workers focus on
the critical work of the organization. (6)
However, some leaders resist sharing power. They fear that
subordinates, if not sufficiently controlled, may take over the
organization. Although there may be some rationality to this
fear, establishing a positive leadership framework ensures that
employees are both motivated and unified in achieving the
organizational mission. By focusing on vision, mission, and
values, an enlightened leader empowers and energizes
subordinates toward the attainment of organizational objectives.
CONCLUSION
The issue of leadership in law enforcement is neither broad
nor obscure. It involves the concrete process of articulating the
vision, mission, and values of the organization within the
context of a long-range strategic plan and giving impetus to that
plan by empowering subordinates. Without this base, police
managers serve only as custodians of a bureaucracy that
preoccupies itself with the present at the expense of the future.
ENDNOTES
(1) Ted Gaebler and David Osborne, Reinventing Government
(Reading, Massachusetts: Addison-Wesley Publishing Company,
1992), 35.
(2) Ibid.
(3) Ibid.
(4) Ibid.
(5) Burt Nanus, The Leader's Edge: Seven Keys to Leadership
in a Turbulent World (Chicago, Illinois: Contemporary Books,
Inc., 1989).
(6) Ibid.

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EMPLOYEE EMPOWERMENT
By
Shelia Berglund
Manager
Records Section
Lakewood, Colorado, Police Department
In many organizations, particularly those in the public
sector, employee satisfaction is often sacrificed to the demands
of other compelling objectives, such as cost containment and the
constant pressure to do more with less. Unfortunately, employers
who take this stance fail to recognize that unhappy employees are
unable to put customers first, no matter what the organization
mandates.
While budget cuts require that police managers learn to
accomplish objectives with fewer resources, employees do not have
to suffer as a result. By balancing the needs of employees with
the demands of the organization, police departments can empower
workers to meet--or even exceed--the goals of the agency
willingly.
Empowered employees actively participate in setting and
achieving department objectives. In doing so, they feel a sense
of ownership and pride in the tasks they perform. The Lakewood,
Colorado, Police Department recently discovered the benefits of
employee empowerment when faced with the problem of increasing
turnover in the Police Records Section.
BACKGROUND
Lakewood's police department consists of 200 sworn and 100
civilian employees. With 25 employees, the Police Records
Section represents 25 percent of the civilian staff. The
section's daily functions support a customer base that includes
citizens, criminal justice agencies, other city employees,
businesses, and police officers. Employees provide comprehensive
information management services, including the processing and
release of police records and impounded vehicles, quality
control, research, and bonding of arrestees. These employees
have to possess computer proficiency, knowledge of municipal and
State statutes, and the capacity to interact positively with
customers. As the department's central repository of arrest
warrants and police reports, this section operates 24 hours a day
to provide support to on-duty police personnel.
THE PROBLEM
For years, members of the Records Section worked five 8-hour
days per week, with staffing levels based on the varying demand
for services during a 24-hour day. Employees chose which of the
three shifts they preferred to work and kept that schedule during
their career with the agency. Seniority determined days off.
By 1990, this system had become increasingly unsatisfactory.
More than one-half of the work group had accrued 10 years of
service and consistently selected weekends off. This meant that
the remaining employees--some with as much as 8 years' tenure--
worked every weekend.
As a result, during a 2-year period, one-third of the work
group resigned or transferred to other positions within the city
government. At exit interviews, these departing employees
consistently cited the prospect of potentially endless weekend
work as a major factor in their decision. This high turnover had
a particularly debilitating effect on operations because new
employees required at least 9 months of intensive training due to
the technical nature of the positions they filled.
In addition, even though job applicants learned of
scheduling limitations during pre-employment interviews, many new
employees--quickly tiring of weekend work--resigned or
transferred. Morale, productivity, and customer service suffered
as the work schedule became an issue that divided junior and
senior staff members.
THE SOLUTION
Realizing that employees are its most valuable resource, the
Records Section formed an administrative team composed of the
Records Section manager and three supervisors to solve its
schedule-related difficulties. The Administrative Services
Division commander, well-versed in team building and a proponent
of employee empowerment, provided ongoing support and expertise
to the group.
The eventual solution was forged through the combined
efforts of the staff and their leaders over a year-long period of
formal and informal discussions. First, the administrative team
met with the employees--individually and in groups--to assess
perceptions, solicit suggestions, and discuss issues related to
the work schedule. After identifying the most acute problem--
the inability to retain a trained staff-the team defined its
principal objective, that is, to improve working conditions by
distributing weekend work more equitably. As brainstorming and
discussions continued, one question repeatedly surfaced: What
would happen if employees were allowed to select their own work
schedules?
To answer this question, the administrative team decided to
test the proposition that empowered employees might become more
effective employees. Formal and informal groups met with their
supervisors to discuss the potential impact of a new,
employee-driven schedule.
Later, in private meetings, individual employees had the
option of retaining their existing schedules or selecting a new
4- or 5-day schedule. They could also choose their days off and
starting times, within reason. Those employees who selected a
4-day schedule did so with the understanding that they would work
some weekends. Fortunately, a number of employees viewed this
option favorably because of the additional time off it provided
during the week.
Following these meetings, the administrative team inserted
employees' schedule preferences into a calendar matrix. After
numerous manipulations and revisions, they fit the selections
into a schedule that supported required staffing levels, while
satisfying employee requests. Then, they took the ultimate
product, a well-engineered combination of 4- and 5-day workweeks,
reviewed it with employees, and refined it further. Following
approval by the division commander, the chief, and the city's
director of employee relations, the new schedule--which complied
with the Fair Labor Standards Act--was successfully implemented
in the Records Section.
RESULTS
The administrative team tested the theory that permitting
employees to select their own work schedules would improve job
performance and stability. And, as anticipated, the new
schedules produced tangible and intangible benefits.
To begin, the section experienced a 90-percent reduction in
overtime, representing a yearly savings of more than $2,500.
Next, the amount of sick leave used remained relatively constant,
despite the fact that employees working 10-hour days would need
to use more leave per day if ill.
The new schedules also allowed for better deployment of
personnel. The variety of schedules provided greater flexibility
to manage absences. Planned overlap at the beginning and end of
the night shift reduced the number of employees needed to work
all night--an unpopular option for most.
In addition, staggered starting times relieved an
unproductive bottleneck caused by entering and departing staff at
shift changes. There was also a dramatic decrease in the amount
of so-called "work in progress," a reliable gauge of the
efficiency of day-to-day operations.
Further, because of the number of employees who chose a
4-day week, weekend work was distributed among a much greater
percentage of the staff. Therefore, in contrast to the old
schedule, no employee worked every weekend.
Finally, no employees resigned because of dissatisfaction
with the work schedule. In fact, in a survey conducted by the
department, employees who did not change their work schedules
reported as much of an increase in their level of satisfaction
with the overall work environment as those who selected new
schedules.
In addition to the quantitative benefits, management
observed other, more qualitative, benefits. First, because the
new schedule allowed for at least 1 day per week with increased
staffing levels, training, review, and recertification
opportunities rose dramatically.
The supervisory staff, whose schedules changed from a 5- to
a 4-day workweek, faced a more equitable distribution of
employees under their command. And, working a 10-hour shift
increased their availability during critical time periods.
Most important, the level of cooperation and teamwork
increased markedly. An unexpected benefit, employees
demonstrated this esprit de corps through their greater
willingness to adjust their work schedules to cover for other
staff members when needed.
INSIGHT GAINED
During this project, the administrative team discovered not
only that employees' priorities change over the course of their
careers but also that their values regarding work change with
time. Employees have a diverse set of needs--some employees
maintain single-parent households, some pursue educational goals,
others prepare for retirement. Because of these
responsibilities, employees highly value their discretionary
time. As a result, they welcome the flexibility to balance work
and their personal lives more effectively. Because management
recognized these needs, employees reciprocated by willingly
cooperating when asked to work a different shift than scheduled.
CONCLUSION
The Records Section of the Lakewood Police Department
successfully implemented an unconventional work schedule that was
the product of employee empowerment and administrative teamwork.
Records administrators crafted a schedule that balanced worker
preferences with staffing requirements, which resulted in more
evenly distributed weekend work, improved morale, increased
retention of trained staff, and decreased burnout.
Some of today's management problems defy traditional
solutions. Lakewood's administrative team discovered a solution
that was unconventional, yet successful.
Many experts believe that the greatest potential for
improvements in organizational quality involves putting people
first. This project proved that employee empowerment can work
and provide benefits beyond expectations.

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POLICE PRACTICES: CITIZEN ADVISORY COMMITTEES
By
Major Dan Flynn, M.P.A.
Northside Station Commander
Metro Dade, Florida, Police Department
Like many law enforcement agencies around the Nation, the
Metro Dade, Florida, Police Department embraces the community
policing model as a way to forge closer relationships between the
police and citizens. The department's strategy involves several
elements, including a special community-oriented police squad,
team police units, and a tactical drug team that conducts
large-scale sweeps of drug-infested neighborhoods.
However, the basic component of the Metro Dade approach is a
system of citizen advisory committees that operate in each police
district. By working closely with these committees, police
administrators can more closely tailor departmental services to
the specific needs of residents.
JURISDICTION
The jurisdiction of the Metro Dade Police Department covers
1,840 square miles, which is almost entirely suburban, with a
population exceeding 1 million. To serve the residents of the
county effectively, the department divides its patrol force into
seven districts, each with approximately 225 sworn and nonsworn
employees. The seven districts house relatively distinct
geographic, economic, ethnic, and demographic segments of the
county's population.
CITIZEN ADVISORY COMMITTEES
Each district has a citizen advisory committee composed of
representatives from various segments of the community. These
groups include homeowners, business operators, public housing
residents (if applicable), church and school representatives, and
others. On a regular basis, the committees meet with the command
staff and officers of their district to discuss community
problems.
The advisory committees focus on local concerns. One
committee from a predominantly middle-class district works with
the district police staff to develop antigraffiti strategies.
Another committee, representing a primarily retail business
district, works with the police to deal with problems involving
roadside vendors. Another, from an economically disadvantaged
district, works with the police in focusing on street-level drug
trafficking.
While the concerns of both citizens and police may
periodically change as existing problems are resolved and new
ones emerge, the basic process remains the same. Committee
members express their concerns, the district police staff advises
on the legal parameters of different approaches, and both groups
then discuss the feasibility of various options. Once a course
of action is implemented, the advisory committees and district
police officers monitor progress closely and make necessary
adjustments. By keeping the number of objectives manageable, the
districts can address all committee concerns simultaneously.
COMMITTEE MAKEUP
Each committee is composed of 15 volunteers, recommended by
community groups and appointed by the county manager. In
addition, because meetings are open to the public, some of the
committees have several nonmember observers who attend on a
regular basis.
There is no set limit as to the number of terms a committee
member may serve. However, a moderate natural attrition rate and
the subsequent entry of new members prevent committees from
becoming stagnant.
BENEFITS
Involving citizens in the police planning process produces
more than the inherent benefits of collaborative decisionmaking.
Committee members quickly learn the limitations--as well as some
of the frustrations--that police officers experience in
confronting various enforcement problems. Citizens also
experience first-hand the impact of citizen involvement and
cooperation on law enforcement initiatives. At the same time,
members of the police department develop and refine a
problem-solving process that all employees in the agency can
employ.
The police department as a whole also benefits from the
focus provided by the committees. As suburban crime rates rise
nationwide, the resources of such agencies as the Metro Dade
Police Department become increasingly strained. The advisory
committees assist police managers to direct the department's
efforts in the most efficient and effective manner possible.
CONCLUSION
Communication between citizens and the police represents an
integral feature of the community policing concept. Citizen
advisory committees developed by the Metro Dade Police Department
help to foster and coordinate the type of cooperation necessary
to resolve entrenched community problems. These committees not
only help to direct police resources to the specific problems
being experienced in the community but they also give concerned
citizens an opportunity to cultivate ongoing relationships with
officers in their individual districts. It is through such open
communication that police departments and communities together
make the best use of limited resources to resolve crime problems.
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POSITIVE ORGANIZATIONAL CULTURE:
A PRACTICAL APPROACH
By
Randall Aragon, M.A.
Chief
Whiteville, North Carolina, Police Department
One of the most difficult leadership tasks that police
administrators face is creating an appropriate culture for their
agencies. By developing a healthy culture--which includes
values, beliefs, and behaviors--effective leaders build a solid
foundation that enables them to foster truly committed employees
with high morale, and in turn, enhanced departmental performance
and genuinely satisfied citizens.
These triumphs do not materialize by accident. In fact,
most police executives find that conditions deteriorate unless
they initiate deliberate steps to create a positive culture for
their agencies.
An effective formula for accomplishing this goal involves
combining the core principles of several leadership techniques
and modifying them to suit a police environment. The recommended
process, which this article outlines, involves examining the
dynamics of performance, developing an understanding of Total
Quality Management (TQM), employing empowerment techniques, and
finally, instituting a system to monitor the agency's progress.
PERFORMANCE
An agency's level of performance plays an important role in
developing a positive organizational culture. Therefore, police
managers should fully understand the dynamics of performance.
A simple equation, P = A x M, illustrates the elements of
performance. In this equation, "P" represents performance; "A,"
ability; and "M," motivation. Performance constitutes the effort
directed toward achieving the department's goals. Ability may be
subdivided into the components that affect it--experience and
training. Motivation involves employees' willingness to expend
effort to accomplish tasks. Accordingly, if employees lack
either the ability or the will to complete their assigned tasks
(A or M = 0), performance will suffer (P = 0).
Leaders can almost guarantee acceptable employee performance
by employing a process known as PRICE. (1) The acronym PRICE
stands for pinpoint, record, involve, coach, and evaluate.
First, the leader must pinpoint or determine the area of
performance that needs attention. This might affect one or more
employees. For example, business owners may complain to the
department that officers are not enforcing parking regulations in
their district. This may signal insufficient patrols in that
area.
Next, the leader records, or quantifies and graphs, the
current performance level of employees. In the case of deficient
patrols, the chief would review patrol records to see how often
officers checked this area. Graphing the results, if possible,
helps to simplify and emphasize them.
Armed with this information, the leader involves employees
by showing them the data. Together, they determine the best way
for the department to achieve its goal of increased patrols. The
officers also decide on a coaching strategy, that is, how their
supervisor should monitor their progress and what rewards or
punishments they should receive for success or failure. In this
way, the officers make a firm commitment to accomplish the goals
that they have set for themselves.
Next, the leader implements the chosen coaching method by
observing performance and providing advice, encouragement, and
positive reinforcement whenever possible. Finally, the leader
evaluates the employees' performance. If the officers have
achieved their goals of increased patrols, effective parking
enforcement, and satisfied citizens, the leader should reward
them.
However, if performance did not attain the agreed upon
level, the leader needs to determine the cause. The officers may
need to redefine their goals. Or, they may need further
assistance to achieve them. For example, an employee who cannot
perform may require additional training or experience, while an
employee who will not perform may require motivation.
Police leaders can easily control the amount of training
employees receive. And, experience, of course, grows with time.
However, leaders may find it difficult to motivate their
employees. One highly effective system for developing motivation
is Total Quality Management.
TOTAL QUALITY MANAGEMENT
Total Quality Management is an invaluable leadership
technique that assists in developing a positive,
customer-oriented culture and a genuine level of employee
commitment that pervades the entire work environment. TQM
techniques result in employees' contributing to attain the
department's objectives without a pushing or shoving style of
leadership. The technique takes time to institute, but the
rewards are well worth the effort.
TQM relies on the capabilities of both labor and management,
working as a team, to continually improve quality and
productivity. (2) Because TQM provides employees with
opportunities for participation, problem solving, and teamwork,
it creates a tremendous level of motivation within each employee.
In fact, employees are more than motivated--they are empowered.
EMPOWERMENT
Empowerment is a force that energizes employees to perform.
Empowered employees take a personal interest and responsibility
in setting and achieving the department's goals. Because they
know they have a say in how tasks are accomplished, they feel a
sense of pride and ownership in their work. (3) In addition,
empowered employees improve the overall performance of the
agency, which results in higher levels of morale. Developing
empowered employees is a key element in the formulation of a
positive departmental culture, and today's leaders should be
skilled in it.
EMPOWERMENT TECHNIQUES
Leaders can empower employees by applying four basic, yet
highly effective, principles. To begin, leaders should strive to
maintain employees' self-esteem. To accomplish this, leaders
should let employees know that they are important to the
organization and sincerely praise them for good performance. A
simple "good job" can go a long way with subordinates.
In addition, leaders should actively listen to their
employees and respond with empathy. Active listening involves
rephrasing and restating the employees' concerns back to them.
This technique will ensure not only that leaders fully understand
their employees' concerns but also that employees feel
understood.
Employees are also empowered when leaders ask for their
assistance in solving department/community problems. Employees
feel committed to the department when leaders include them in the
decisionmaking process. Therefore, leaders should seek input
from employees by either approaching individuals directly or by
forming employee groups, such as advisory councils.
Further, empowered employees welcome responsibility. For
example, they might be put in charge of a new community project,
asked to head a task force, or assigned a department problem in
need of a solution. However, they may need assistance in
carrying out these additional duties. And, while leaders should
offer employees help in completing tasks, they should be careful
not to take over these projects. (4)
These four techniques increase employee commitment to the
organization, as they begin to realize that they will help decide
how the agency will achieve its goals. Leaders who strive to
apply these principles will discover that empowered employees
generate their own praise and rewards, a phenomenon known as
self-motivation.
SELF-MOTIVATION
Employees who become genuinely committed to their work and
the department's goals reach a high level of readiness--that is,
a high state of ability and motivation. Their pride in their
work, feelings of self-worth, and morale are self-maintained,
and they do not require continual praise and rewards from their
leaders. Leaders must respond to these employees by delegating
greater responsibility to them.
Furthermore, leaders should implement strategies that allow
all employees to assume more responsibility and/or authority for
decisionmaking in their normal working environment. To do this,
leaders can focus attention on employees who possess
demonstrated, but untapped, ability. These may be employees who
have proven themselves in the past, or merely those who show the
potential to accept responsibility. Even employees who seem to
shy away from responsibility may only need a few words of
encouragement to accept a leadership position and perform
admirably in it.
MONITORING PROGRESS
Police administrators cannot simply implement leadership
strategies and hope for the best. They also need to monitor the
effects of these techniques. An effective method, and a hallmark
of the TQM approach, involves implementing teams of employees
called department advisory councils, process action teams, or
quality circles. These teams continually analyze all facets of
the agency's efficiency and effectiveness.
Each major division within a department should establish a
quality circle (QC) of line employees. While a small department
might have one QC with 3 to 5 members, a large department might
have several, each with 7 to 10 members. More important, the
number of employees should reflect a cross-section of the
department itself. For example, a QC with six members might
include two mid-level managers, two line officers, and two
civilian employees.
A trained facilitator--a leader from the division with no
voting rights--should attend the meetings to assist the group.
The facilitator keeps the group focused on the issues and helps
to ensure objective and complete discussions. Because the
facilitator may be the key to a successful QC, the chief may want
to act in that capacity.
Department employees choose the issues they wish to discuss.
For example, the officers might want to change their uniforms or
adjust their workhours. Once the QC researches and narrows the
issue, all department employees vote. QC members tally the votes
and report the outcome to the chief.
The chief may not decide every issue. Departments should
determine what majority of the vote an issue must obtain in order
for the chief to act on it. That may be a simple majority of 51
percent or a clear mandate of, for example, 75 percent. In
addition, the chief may not have the authority to approve issues
that are budgetary, legal, or politically sensitive in nature.
In this case, the city's governing body would have to make the
final decision.
And, while the chief has the power to reject the QC's
recommendation, approving it greatly enhances the integrity of
the group and the process itself. In this way, the QC ensures
that the entire organization operates on a system of checks and
balances. (5)
CONCLUSION
Police leaders may erroneously believe that all is well when
their departments appear stable and free of internal problems.
As a result, they may be surprised to find their positions in
jeopardy due to a negative vote of confidence from their
employees, their superiors, the community, or a combination of
these. Those leaders that opt for a "watchman"--or reactive--
style of leadership are not being sensitive to the needs of a
department's internal or external environment.
Today's modern law enforcement leaders must be proactive and
develop an organizational culture that creates genuinely
committed employees who enthusiastically contribute to achieving
the department's goals. While developing a positive culture can
be an arduous task that involves implementing numerous
techniques, the entire agency benefits. By adopting the
leadership strategies outlined in this article, police leaders
can develop an organizational culture comprised of truly
dedicated employees who are capable of positively satisfying the
citizens they serve.
ENDNOTES
(1) K. Blanchard and K. Lorber, Putting the One Minute
Manager to Work (New York, New York: Berkley Publishing Group,
1984), 58.
(2) J.R. Jablonski, Implementing TQM (San Diego,
California: Pfeiffer & Co., 1992), 21.
(3) Ibid, 84.
(4) W.C. Byham and J. Cox, Zapp! The Lightning of
Empowerment (New York, New York: Ballentine Books, 1988), 90.
(5) Supra note 2, 90.

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THE FAMILY AND MEDICAL LEAVE ACT OF 1993
By
Jeffrey Higginbotham, J.D.
Special Agent
Legal Instructor
FBI Academy
Recently, Congress enacted and the President signed a new
Federal statute--the Family and Medical Leave Act of 1993 (FMLA).
The act may require law enforcement administrators to modify
certain departmental leave practices.
This article provides an overview of the FMLA, followed by a
more thorough analysis of its requirements and the potential
impact on law enforcement agencies. It also sets forth a sample
policy to guide agencies in light of the FMLA. (1)
OVERVIEW
The FMLA became effective on August 5, 1993, (2) and applies
to all public employers, regardless of the size of the agency.
(3) Under the FMLA, persons who have worked for their employer a
total of 12 months and at least 1,250 hours during the year
preceding the start of any qualifying leave are entitled to take
up to 12 weeks' leave in a 12-month period (4) for:
1) Care of a newborn child
2) Adoption of a child or placement of a child in the
employee's foster care
3) Care of a son, daughter, spouse, or parent who has a
serious health condition, or
4) A serious health condition that makes the employee unable
to perform the functions of the job. (5)
While the employee is on leave, the employer is obligated to
"maintain coverage under any `group health plan'...for the
duration of such leave at the level and under the conditions
coverage would have been provided..." if the employee had not
gone on leave. (6) On return to work from FMLA leave, the
employee is to be restored to the position held when the leave
began or to an "equivalent position with equivalent employment
benefits, pay, and other terms and conditions of employment." (7)
Employers who violate the FMLA are liable in damages for any
wages, salary, employment benefits, or other compensation denied
or lost, or for any actual monetary loss sustained by the
employee where leave was denied, up to an amount equal to 12
weeks of the employee's salary or wages. (8)
IMPACT ON LAW ENFORCEMENT AGENCIES
Childbirth, Adoption, Foster-Care Issues
Eligible employees are entitled to take leave upon the birth
of a child, the adoption of a child, or the placement of a child
with the employee for foster care. Any such leave must be taken
within the first 12 months (9) and can be taken intermittently
only if the employer permits. (10) If both husband and wife work
for the same employer, they are entitled to take a combined 12
weeks of leave for the birth, adoption, or foster-care placement
of a child. (11)
Care for Family Members
Under the FMLA, an employee is entitled to take up to 12
weeks of leave to provide care for a spouse, son, daughter, or
parent (12) who has a serious health condition. Child care leave
is available to care for a child with a serious health condition
who is under the age of 18 or, if older, is "incapable of self
care because of physical or mental disability." (13)
The law does not require leave be made available to care for
family members with routine illnesses or short-term ailments that
would normally be covered by the employer's sick leave or
personal leave policies. Family care leave under the FMLA is
available only for serious health conditions involving (a)
"inpatient care in a hospital, hospice or residential medical
care facility," (14) or (b) continuing treatment by a health care
provider. (15)
Where inpatient treatment is not required, the family member
must have been absent from work, school, or normal activities for
more than 3 days and have received treatment from or under the
direction or supervision of a health care provider or
practitioner on two or more occasions. (16) Medical treatment
received on a voluntary basis or for cosmetic purposes that are
not medically necessary is excluded from the coverage, unless
inpatient care is required. (17) Thus, orthodontic care,
treatment for acne, outpatient cosmetic surgery, or minor illness
not involving medical treatment are not covered. Examples of
conditions for which family leave would be available include
heart attacks, strokes, pneumonia, severe arthritis, prenatal
care, stress, and substance abuse treatment. (18)
An employer who receives an employee's request for leave to
care for a family member may require the employee to provide
certification from a health care provider that the employee is
needed to provide care, physical assistance, or psychological
support. To be eligible for family care leave, the assistance to
the family member must be provided by the employee, not by a
nurse, nursing home, or personal aide. (19)
An employee who is needed to care for a family member with a
serious health condition and who provides the requested medical
certification may take the leave on an intermittent or reduced
work schedule basis when medically necessary. (20) That is, the
employee may need FMLA leave for only a few days or hours in a
given workweek or can work part-time.
Where intermittent leave for planned medical treatment is
needed, the employee must attempt to schedule it so as not to
disrupt the employer's operations. (21) Where the employee holds
a position that does not accommodate a reduced work schedule or
irregular attendance, the employer may require the employee to
transfer to an alternative position, with equal pay and benefits,
that better accommodates the recurring leave. (22)
Leave for Self-Care
The FMLA also permits a covered employee to take leave to
provide self-care, when the employee is unable to perform the
functions of the job. Like the rules regarding family care
leave, the employee must suffer a serious health condition that
requires inpatient treatment or absence of work for more than 3
days and treatment by or under the supervision or direction of a
health care provider or practitioner on two or more occasions.
An employee taking leave for self-care, who has a medical
need for intermittent leave, must also try to schedule it to
reduce disruption to the employer's operations and may be
reassigned to an equivalently paid position that better
accommodates the need for recurring leave. The employee may also
be required to provide a health care provider's certification of
the need for the self-care leave, including a statement that
based on a review of the employee's essential functions, the
employee is unable to perform the job. (23) An employee who has
taken leave for a serious health condition may also be required,
as a condition of returning to work, to provide a medical
fitness-for-duty report. (24)
Paid or Unpaid Leave Issues
The 12 weeks of leave provided under the FMLA need not be
paid leave. Where an employer provides less than 12 weeks of
paid leave per year, the leave beyond the period of paid leave
may be required to be taken without pay. (25) However, absent an
employer's policy concerning use of paid leave, an employee may
take unpaid leave or use available paid leave, or any combination
of paid and unpaid leave. On the other hand, an employer may
require the employee to exhaust available paid leave before
resorting to unpaid FMLA leave.
If the leave is necessary to care for a newborn, adopted, or
foster-care child, or because of the serious health condition of
a family member, an employee may elect, or an employer may
require the employee, to substitute any accrued paid vacation,
personal, or family leave before unpaid leave is taken under the
FMLA. (26) If the leave is occasioned by the serious health
condition of a family member or the employee's own illness or
condition, the employee may elect, or the employer may require,
substitution of accrued paid vacation, personal, family, or sick
leave before unpaid leave is taken. (27)
Law enforcement administrators should carefully consider
their prerogatives under this section of the FMLA. Unless the
employer decides as a matter of policy that accrued paid leave
must be used before unpaid FMLA leave, an employee would be
entitled to take available accrued paid leave, in addition to the
12 weeks' leave available under the FMLA. (28)
If an agency decides that it is the better practice to
substitute accrued paid leave for unpaid FMLA leave, it must
determine that the reason leave is requested qualifies under the
FMLA and notify the employee of the substitution requirement at
the time the employee requests leave. (29) To ensure this
practice functions smoothly, departments could require employees
to indicate the general reason for leave whenever it is
requested. (30)
Job and Benefit Protections
The FMLA provides two major job and benefit protections.
First, an employee who returns from FMLA leave is entitled to be
restored to the position held at the time of the leave or to an
equivalent position with equivalent employment benefits, pay, and
other terms and conditions of employment. (31)
Job restoration rights do not guarantee that the employee
will return to the old position, although normally that should
occur if the position remains available and the employee
continues to meet the job qualifications. (32) If the position is
no longer available, the employee is to be placed in a position
with the same pay, benefits, and working conditions. If the
employee held a position for which pay premiums were earned
(e.g., shift differential pay) or that regularly entailed
overtime work and pay, the employee is entitled to a like
position upon return to work. (33)
The position must also "involve the same or substantially
similar duties and responsibilities, which must entail
substantially equivalent skill, effort, responsibility, and
authority." (34) In addition, the employee is entitled to receive
any unconditional pay raises, such as cost of living adjustments,
that occurred during the period of leave.
Second, unless waived by the employee, the employer is
obligated to maintain the employee's insurance coverage under any
"group health plan" during the period of leave at the same level
of coverage and under the same conditions that existed prior to
the leave. (35) An employee on unpaid FMLA leave may be required
to pay the employee's share of the health insurance premiums,
including any increase or decrease in the premiums that occurs
during the period of leave. (36)
Agencies that require employee contributions for health
insurance coverage must devise a system for ensuring the
employee's share of the premium is paid and must provide the
employee with advance written notice of the terms and conditions
under which the payments must be made. Only health coverage is
required to be maintained; life insurance and other benefits need
not be continued, although upon return to duty, the employee is
entitled to resume receipt of those additional benefits without
having to wait for "open season" enrollment periods. (37)
An employee who was on unpaid FMLA leave and who does not
return to work for at least 30 days at the expiration of that
leave is liable for the employer's share of health insurance
premiums and any part of the employee's share that was paid by
the employer. (38) However, an employee who does not return to
work because of the "continuation, recurrence, or onset of a
serious health condition which would entitle the employee to
leave under FMLA" or for circumstances beyond the employee's
control, cannot be held liable for the insurance premiums. (39)
Where recovery of premiums is permitted, the employer is entitled
to set off the amount against any final pay or monetary benefit
to which the employee would otherwise be entitled.
CONCLUSION
Law enforcement administrators must remain alert to changes
in the law that affect the personnel practices of their agencies.
Police administrators with responsibility for personnel
management should carefully review departmental leave policies to
ensure they comply with the four primary requirements of the
FMLA.
First, leave policies must permit leave to care for a child
upon birth, adoption, or placement in foster care; to care for a
son, daughter, spouse, or parent with a serious health condition;
and to provide self-care when the employee is not able to perform
the essential functions of the job. Second, leave policies
should specify whether the employee will be permitted or required
to substitute accrued paid leave available under existing leave
policies for unpaid leave under the FMLA. Third, policies must
be implemented to ensure that employees returning to duty are
restored to their old or an equivalent position. Fourth, health
insurance coverage should be examined to ensure mechanisms exist
to continue coverage at the same levels and under the same
conditions as if the employee were not on leave. Administrators
should conduct this review of their leave practices now so as to
be prepared when employees request the leave to which they are
entitled under the FMLA.
ENDNOTES
(1) Similar legislation already exists in several States
and is not preempted unless the State law conflicts with the
Federal law. State laws that grant employees greater rights or
protections must be followed.
(2) P.L. 103-3, Section 405. For agencies operating under
a collective bargaining agreement on that date, the effective
date is delayed until expiration of the agreement or February 5,
1994, whichever is earlier.
(3) P.L. 103-3(4)(A)(iii); 29 C.F.R. 815.108. There
must, however, be at least 50 employees of the employing
municipality working within a 75-mile radius before an employee
is eligible for FMLA leave. Id. Title I of the FMLA applies to
State and local governments. Title II contains similar
provisions, which apply to the Federal Government.
(4) P.L. 103-3, Section 101(2). An employer is permitted
to designate the 12-month period in which the leave may be taken.
An employer may elect the regular calendar year, a fiscal year, a
leave year, any fixed 12-month period, a rolling 12-month period
forward from the date leave is first used, or a rolling 12-month
period measured backward from the date leave was last used. 29
C.F.R. 825.200. Choosing one of the first four options permits
the employee to "stack" leave by taking 12 weeks at the end of
the year and an additional 12 weeks at the beginning of the next
12-month period.
(5) P.L. 103-3, Section 102(a).
(6) P.L. 103-3, Section 104(c).
(7) P.L. 103-3, Section 104(a).
(8) P.L. 103-3, Section 107(1)(A). In addition, if the
employer acted in bad faith and caused the loss of wages or
salary, the FMLA contains a liquidated damages provision that
doubles the amount otherwise payable. P.L. 103-3, Section
107(a)(1)(A)(iii).
(9) 29 C.F.R. 825.201. Leave related to pregnancy or
prenatal care is included but is generally taken under the
self-care provisions of the FMLA. See, 29 C.F.R. 825.114.
(10) 29 C.F.R. 825.203.
(11) P.L. 103-3, Section 102(f); 29 C.F.R. 825.202. Where
combined leave is taken, the employee is entitled to take the
remainder of the 12 weeks for other FMLA purposes. For example,
if a husband and wife working for the same employer both took 6
weeks of leave to care for a newborn child, each would be
eligible to take 6 weeks' additional leave to care for other
family members or for self-care. Id.
(12) The parent-child relationship may be biological, by
reason of adoption or foster care, guardianship, or because of
"day-to-day responsibilities to care for and financially support
a child." 29 C.F.R. 825.113. More distantly related persons and
parents-in-law are not covered. Id. Common-law marriages, if
recognized under State law, are sufficient to establish a spousal
relationship; however, unmarried domestic partners do not qualify
for leave to care for their partner. Id.
(13) P.L. 103-3, Section 101(12).
(14) P.L. 103-3, Section 101(11)(A); 29 C.F.R. 825.114.
(15) P.L. 103-3, Section 101(11)(B).
(16) 29 C.F.R. 815.114. The regulations also include
conditions that, if left untreated, would result in the absence
from normal activities for more than 3 days.
(17) Id.
(18) 29 C.F.R. 825.114.
(19) 29 C.F.R. 825.116.
(20) P.L. 103-3, Section 102(b).
(21) 29 C.F.R. 825.118. The FMLA also imposes a duty on
employees intending to use FMLA leave to provide the employer
with at least 30 days' notice, or such notice as practicable,
when the use of the leave is foreseeable. P.L. 103-3, Section
102(e).
(22) P.L. 103-3, Section 102(b)(2).
(23) 29 C.F.R. 825.306. Where the employer questions the
adequacy of the medical certification, it may require the
employee to be examined by an independent health care provider,
at the employer's expense. If the two medical opinions conflict,
an examination by a third health care provider, mutually agreed
upon by the employer and employee, may be required. The expense
of the third examination is to be borne by the employer and the
opinion shall be binding. 29 C.F.R. 825.307.
(24) P.L. 103-3, Section 104(a)(4); 29 C.F.R. 825.310.
Such a requirement must be pursuant to a uniform policy, and the
employee must have been put on notice that the employer would
require the fitness-for-duty certification. The act imposes
other notification requirements on the employer, including a
requirement that a description of rights and obligations under
the FMLA be included in any written leave and benefit materials
normally provided employees or provided in writing at the time
the employee requests or gives notice of the need for FMLA leave.
(25) P.L. 103-3, Section 102(c).
(26) P.L. 103-3, Section 101(d)(2)(A).
(27) P.L. 103-3, Section 101(d)(2)(B). However, the FMLA
does not require an employer to provide paid sick leave when it
would not otherwise be available. If paid sick leave cannot be
used to care for other persons'illnesses under existing
employment practices, the FMLA does not require a change to that
practice. 29 C.F.R. 825.207.
(28) The accrued paid leave must be used in accordance with
the employer's policy governing its use. See, note 27, supra.
If the accrued paid leave is taken for purposes other than child,
family, or self-care, the employee is entitled to up to 12 weeks'
additional leave for those purposes under the FMLA. 29 C.F.R.
825.207.
(29) 29 C.F.R. 825.208.
(30) 29 C.F.R. 825.208 provides that "...[a]n employee
requesting unpaid FMLA leave must explain the reasons for the
needed leave so as to allow the employer to determine that the
leave qualifies under the Act...In any circumstance where the
employer does not have sufficient information about the reason
for an employee's use of paid leave, the employer should inquire
further to ascertain whether the paid leave is potentially
FMLA-qualifying."
(31) P.L. 103-3, Section 104(a).
(32) 29 C.F.R. 825.214. If the employee's job
qualifications, e.g., a licensing requirement, lapse during the
period of leave, the employee must be "given a reasonable
opportunity to fulfill those conditions upon return to work." 29
C.F.R. 825.215.
(33) 29 C.F.R. 825.215.
(34) 29 C.F.R. 825.215(a).
(35) P.L. 103-3, Section 104(c).
(36) 29 C.F.R. 825.209.
(37) Id.
(38) 29 C.F.R. 825.213 and 825.212(b).
(39) P.L. 103-3, Section 104(c)(2); 29 C.F.R. 825.213.

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EYESIGHT STANDARDS:
CORRECTING MYTHS
By
Richard N. Holden, Ph.D.
Chairman
Criminal Justice Department
Central Missouri State University
Warrensburg, Missouri
For decades, law enforcement agencies required applicants
to satisfy certain eyesight requirements before being considered
for employment. Few would challenge the belief that public
safety officers need good eyesight. What many do challenge,
with some success, is the idea that applicants must possess
perfect uncorrected vision. A basic question emerges: Should
police recruits be allowed to compensate for imperfect vision
with corrective lenses? If the answer is "yes," then how much
variation should agencies allow?
Several factors converge to make this a timely issue for
law enforcement managers to consider. With a dwindling pool of
suitable applicants from which to fulfill future personnel
needs, some argue that unnecessary selection requirements
undermine law enforcement's recruiting efforts.
In addition, the recent enactment of the Americans with
Disabilities Act (ADA) prohibits employment discrimination on
the basis of physical disabilities, if a person is able to
perform the essential functions of the job. Because visual
impairment could constitute a protected disability, agencies
that cannot defend their vision standards leave themselves open
to litigation under this new act.
Finally, advancements in medical science need to be
considered. Present-day optical technology renders obsolete
many of the age-old arguments in favor of vision requirements.
This article explores the issues involved in vision
standards. It goes on to discuss these issues as they relate to
the experiences and sentiments expressed in a recent survey of
law enforcement officers concerning eyesight requirements.
SUPPORTING ARGUMENTS
The necessity for good vision in law enforcement--corrected
or otherwise--rests in the visual nature of police work. Law
enforcement officers spend a good portion of their working hours
observing people and events and then reporting what they see.
Additionally, officers must respond quickly to events taking
place around them. They must interpret and react to the actions
of others.
One basic tenant of vision standards is that a significant
impairment translates into an equally impaired ability to
interpret events and react appropriately. Moreover, evidence of
poor vision might make officers vulnerable in court. If an
officer's vision becomes open to judgment, so too may the
evidence offered based on the officer's observations.
The argument for strict uncorrected vision standards rests
on the belief that an officer may have lenses forcibly removed.
Should this occur, the argument is that the officer would be
unable to function adequately. That is to say, the officer
would not be able to fire a weapon accurately, discern if a
suspect was armed, or operate a police vehicle. This would
place the officer in a physically dangerous situation that could
possibly jeopardize others.
Although these arguments constitute the underpinning for
vision requirements, police administrators are clearly not in
agreement over the necessity for uncorrected vision standards.
A 1984 study found that while a majority of the 323 police
agencies surveyed required some minimum uncorrected standard, 26
percent of the responding departments required only that vision
be correctable to 20/20. Another 22 percent allowed uncorrected
vision of 20/100. (1)
Further, differing vision standards exist in otherwise
similar agencies. Some large police departments, including New
York City, Los Angeles, and Dallas, apply restrictive standards.
Other large departments--such as Chicago, Detroit, Newark, and
Tulsa--have no uncorrected vision standards.
The academic community also fails to reach a consensus on
the subject. Some argue for a strict standard. (2) Others,
however, question strict uncorrected vision requirements,
especially in light of evolving vision technology, such as
shatterproof plastic and soft contact lenses. (3)
And, even before passage of the ADA, the controversy over
uncorrected vision standards attracted the attention of the
courts. Although some courts upheld individual agency vision
requirements in the past, this congruence may be coming to an
end. In 1985, a Wisconsin court ruled that an uncorrected
vision standard violated a State law prohibiting discrimination
against the handicapped. (4)
In addition to these issues, several other factors fuel the
argument over vision requirements. Few law enforcement agencies
require incumbent officers to maintain the vision standard
required for recruits. This means that many police agencies,
even those with strict uncorrected vision standards for
recruits, employ numerous veteran officers who now need to wear
corrective lenses in order to perform their duties. Still,
despite this fact, little concrete data exists concerning the
relationship between corrective lenses and police performance.
BASIC ISSUES
Three basic issues emerge as arguments for a restrictive
uncorrected vision standard. First, an officer who loses
corrective lenses becomes visually impaired and vulnerable to
physical assault. Second, the officer will not be able to see
sufficiently to aim a service weapon, and as a result, may
become vulnerable to an armed suspect. Third, the officer's
vision will be too impaired to operate a police vehicle, and
therefore, the officer could not pursue a fleeing suspect. In
addition, a corollary to these issues emerges. If an officer's
ability to perform becomes hampered, then other officers will be
placed at a similar risk due to the loss of support of the
vision-impaired officer.
Many observers both within and outside law enforcement
offer these beliefs in sincerity. However, some dissenting
opinions exist. With regard to the first issue, it could be
argued that an officer engaged in hand-to-hand combat does not
need eyeglasses to identify an assailant. At that range, the
officer would have to be nearly blind to be incapacitated. An
individual's uncorrected vision is not likely to be that bad if
it is correctable to 20/20.
Second, the vast majority of shoot-outs with handguns occur
at very close range. Of the 735 officers killed by firearms
between 1980 and 1989, for example, 652 (89 percent) were shot
from 20 feet or less. Indeed, nearly 60 percent of the
fatalities resulted from shootouts of 5 feet or less. (5) At
this range, officers point their firearms, rather than aim them.
Therefore, officers with less-than-perfect vision suffer from no
significant disadvantage. As the range increases, vision
capabilities become more important, but handgun accuracy
diminishes drastically as the distance increases beyond 20 feet,
regardless of the officer's vision.
Last, with regard to the issue of visual impairment and the
inability to pursue fleeing suspects, few issues currently
generate as much debate among police administrators as vehicle
pursuits. Several departments now prohibit pursuits in all but
the most extreme circumstances, and few departments possess the
facilities to teach effective pursuit procedures. In addition,
police vehicles are notoriously subject to poor maintenance.
These factors cloud arguments concerning vision
capabilities. Should perfect vision be required when proper
training and equipment are not. Those who question the need for
strict uncorrected vision requirements frame the question in
simple terms. If an officer feels inadequate to initiate a
vehicle pursuit, for whatever reason, the pursuit should not
occur. This remains true for any situation involving the
potential for pursuit and currently represents standard policy
in the majority of police agencies.
Finally, it may be argued that officers who lose their
corrective lenses in a duty-related incident are no more
impaired than officers with perfect vision who get foreign
objects in their eyes, such as chemical mace, fingers, or sand.
In some cases, an officer with corrective eyewear may actually
be better protected than those without eye covering.
RESEARCH STUDY
The lack of quantifiable data regarding the correlation
between corrective lenses and police performance hampers any
productive discussion of the subject. For this reason, a
research study was recently conducted in an attempt to clarify
the issue and provide sufficient baseline information so that
future debate might center upon fact rather than supposition.
Method
The survey method emerged as the logical means to determine
the association between vision requirements and police
performance. Unfortunately, no police agency contacted kept
relevant records in this area.
There may be several reasons for this lack of information.
One may be that officers who wear corrective lenses do not wish
to be perceived as weaker than those with perfect vision.
Therefore, they do not include information relating to any
vision-related incapacitation in police reports. Or, law
enforcement agencies may simply not perceive loss of corrective
lenses in a physical confrontation as a problem worth studying.
For whatever reason, agencies do not routinely record such
information in police databases. The only information available
appeared to be the cost to agencies for replacement of damaged
lenses. However, this information failed to address the issue
of police performance immediately after loss of the lenses.
Failing to obtain agency data relating to vision and
performance required that the research effort concentrate on
officers' experiences. While this method yielded primarily
anecdotal information, it remained the only viable way of
establishing some quantifiable data regarding this issue.
In order to gauge the relationship between vision and
policing effectively, the project focused on police managers
from a wide variety of agencies. The survey population
consisted of 92 police executives from across the United States,
England, Australia, and Canada attending a conference at the FBI
Academy in Quantico, Virginia. (6) The combined length of service
for the survey population totaled 1,714 years, for an average of
18.6 years per respondent.
Participants were asked if they knew of cases where
officers lost their corrective lenses in duty-related incidents.
If respondents answered yes, they were asked if the loss of the
corrective lenses resulted in injury to the officer or to
others.
Further, researchers asked if the loss of corrective lenses
prevented the officer from completing the activity being
attempted at the time of loss. Then, respondents were asked to
report any incidents in which impaired vision presented a
problem, regardless of corrective lenses. Finally, researchers
asked respondents to offer comments about police vision
standards and to provide phone numbers for further contact.
Results
Of the 92 participants, 48 (52 percent) said they knew of
incidents where officers lost their corrective lenses in the
course of duty. Forty-four (48 percent) knew of no such
incidents. Twelve respondents (13 percent) recalled incidents
where officers sustained injuries related to the loss of
corrective lenses. Five (5 percent) reported incidents in which
loss of corrective lenses impaired an officer's performance, and
12 (13 percent) recalled incidents where impaired vision
unrelated to corrective lenses created a problem.
While the data appear fairly straightforward and easy to
interpret, several factors actually make it more complex.
Analysis of comments and followup telephone interviews revealed
misinterpretation in several responses to the questionnaire.
For example, a number of respondents understood the question
regarding injuries to mean wounds suffered during the specific
incident in which officers lost corrective lenses. In fact, the
intent of the question was to determine if respondents knew of
incidents where loss of lenses directly led to an ensuing
injury. The same confusion occurred with regard to the question
of performance. These misinterpretations led to a slightly
inflated representation of the number of cases with injuries.
By analyzing the comments on the survey instruments and
conducting followup telephone interviews, a slightly different
picture emerged. In nine of the cases where respondents
reported injuries, the wounds were not due to lost corrective
lenses and presumably would have occurred anyway. The injuries
happened during the same struggle that caused the officers to
lose their lenses. In one case, a subject struck an officer
with sufficient force to render him unconscious. The force of
the blow also broke the officer's glasses. Similarly, two of
the incidents initially reported as failures to perform
adequately due to lost eyewear were physical confrontations in
which the officers lost corrective lenses but still controlled
the subjects and the situations.
In these cases, loss of lenses inconvenienced the officers,
but did not impair their performance. Likewise, in several
instances, an officer's failure to complete an assignment
actually resulted from an accompanying injury, rather than lens
loss.
Additionally, several anomalies bear mention. One
respondent initially reported that he sustained injury when he
lost his corrective lenses. A followup interview determined
that vision impairment did not lead to the injury. Rather, when
a subject knocked a pair of expensive eyeglasses from his face,
the officer instinctively reached for them. When he did so, the
subject grabbed and twisted his arm. Although sustaining an
injury to his arm, the officer did regain control of the
subject.
Another respondent reported that an officer who lost his
lenses could not read the license number of an escaping
suspect's vehicle. However, his partner did manage to record
the number, leading to an eventual arrest.
In addition, several respondents reported instances where
officers' eyeglasses became temporarily fogged as they exited
air conditioned vehicles. One respondent also reported that
exposure to sand and wind required officers with contact lenses
to take periodic breaks for lens cleaning.
Ultimately, only three of the reported cases of injury or
failure to perform satisfied the intended perimeters of the
survey questionnaire. This represents 3 percent of the survey
sample. When accounting for the number of service years
represented by the respondents, the number equates to 1 case per
every 571 years. Of these, only one incident could be verified.
The sole verified case involved a major shootout between
several FBI agents and two heavily armed suspects. After the
exchange of gunfire, two of the agents and both suspects lay
dead, and five other agents sustained serious wounds.
Immediately prior to the shootout, one of the agents lost his
glasses when he brought his automobile to an abrupt halt just
feet from the suspects' vehicle. He was fatally wounded during
the ensuing gunfight, and his fellow agents speculate that the
loss of his glasses significantly affected his ability to
observe the movements of the gunmen. If that assessment is
accurate, then the loss of eyewear may be cited as a
contributing factor in the agent's death.
The experiences of the officers surveyed indicated that
officers wearing corrective lenses do encounter situations in
which they momentarily lose their corrective lenses or have them
forcibly removed. However, the vast majority of these cases
occur in arrest situations or within detention facilities.
These face-to-face confrontations rarely involve weapons. In
most of these cases, the loss of lenses produced no negative
results either for the officer or the eventual outcome of the
situation.
In their personal commentaries, respondents expressed
uniform opposition to uncorrected vision standards. Several
noted that their agencies lost a number of well-qualified
applicants, who later gained employment in other agencies. The
following comment offered by a lieutenant in charge of training
and personnel for his department typifies the observations:
"I think this is one of the most meaningless fitness
standards remaining to bar qualified people from police
service. While I am sure that somewhere at some time some
officer was seriously hurt and maybe died because of an
eyesight issue--lost glasses, etc.--officers have not been
fired, dismissed, or even had assignments changed because
of diminished sight capacity after the hiring process.
This standard only serves to eliminate otherwise qualified
and acceptable candidates."
In addition, several officers offered personal accounts.
They acknowledged their own vision problems and argued that
their performance remained unhindered. Several reported that
their agencies changed their standards due to lawsuits. Other
respondents reported that their agencies were reevaluating their
standards because they felt the current requirements barred too
many qualified candidates.
CONCLUSION
Does this mean that law enforcement agencies should
immediately eliminate their policies concerning standards for
uncorrected vision? Not necessarily. This study is neither
sufficiently comprehensive nor scientifically representative
enough to draw such a sweeping conclusion.
However, surveys of this type do provide a starting point
for meaningful discussion. The arguments upon which agencies
base uncorrected vision requirements offer little in the way
of empirical support. They remain based on largely hypothetical
arguments. Nowhere has any agency documented such situations
and studied the data concerning this issue.
This points to the underlying problem. Police vision
standards, as well as other areas, should be based on proven
capabilities necessary to fulfill the terms of employment.
Instead, the reverse often happens.
Lacking supporting data, law enforcement agencies adopt
standards based on "what if" scenarios. In the process, they
lose qualified applicants and perpetuate myth-based standards
with questionable relationships to police performance or agency
needs. Perhaps this survey and future studies can help to
counter these myths and lead to a more productive approach in
establishing vision standards for today's law enforcement
agencies.
ENDNOTES
(1) Richard N. Holden, "Vision Standards for Law
Enforcement: A Descriptive Study," Journal of Police Science and
Administration, 12, 1984, 125-129.
(2) O.W. Wilson, Police Administration (New York:
McGraw-Hill Co., 1961); James E. Sheedy, Jeffrey T. Keller,
Donald Pitts, Gerald Lowther, and Stephen C. Miller,
"Recommended Vision Standards for Police Officers," Journal of
the American Optometric Association, 54, October 1983, 925-928;
Gregory W. Good and Arol R. Augsburger, "Uncorrected Visual
Acuity Standards for Police Applicants," Journal of Police
Science and Administration, 12, 1987, 18-23; C.J. Forkiotis,
"Vision Requirements and the Police Officer Selection Process,"
Police Chief, November 1981, 56-59.
(3) Michael A. Sciales and Leonard Territo, "Eyesight
Standards for Police Applicants," Police Chief, February 1983;
James E. Sheedy, "Contact Lenses for Police Officers," Journal
of the American Optometric Association, 57, 1986, 658-660; Terry
Cox, Annis Crabtree, Daniel Joslin, and Adrienne Millet, "A
Theoretical Examination of Police Entry-Level Uncorrected Visual
Acuity Standards," American Journal of Criminal Justice, 11,
1987, 199-208.
(4) Brown County v. LIRC, 124 Wis. 2d. 560, 397 N.W. 2d.
735 (1985).
(5) Law Enforcement Officers Killed and Assaulted, U.S.
Department of Justice, Federal Bureau of Investigation, 1989,
Washington, DC.
(6) The First International Symposium on the Future of Law
Enforcement, FBI National Academy, Quantico, Virginia, April
1-5, 1991.

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THE COMPUTER
HIGH-TECH INSTRUMENT OF CRIME
By
Michael G. Noblett
Chief
Document Analysis, Research, and Training Unit
FBI Laboratory
Washington, DC
The use of computers as criminal instruments or as devices
to collect information associated with criminal enterprises
increases yearly. Criminals use computers to store data
relating to drug deals, money laundering, embezzlement, mail
fraud, extortion, and a myriad of other crimes. In addition to
the simple storage of records, criminals also manipulate data,
infiltrate computers of financial institutions, and illegally
use telephone lines of unsuspecting businesses.
Statistics suggest that the law enforcement community must
act quickly and decisively to meet the challenge presented by
the criminal use of computers. For example:
. Over 4.7 million personal computers were sold in the
United States in 1988, as compared with 386,500 in 1980
. An estimated 60 percent of personal computers are now
networked
. $500 million is lost annually through illegal use of
telephone access codes
. $1 trillion is moved electronically each week, and
. Only 11 percent of computer crime is reported.
While the law enforcement community, in general, often
thinks of computer crime as high-tech crime, a growing segment
of the population looks at computers and the data they store as
nothing more than electronic paper. They feel very comfortable
keeping their records, whether legal or illegal, in this format.
In order to address the legitimate need for access to
computers and the information they contain, law enforcement must
develop a structured approach to examine computer evidence. The
examination of this evidence can provide investigative and
intelligence information, and at the same time, preserve the
information for subsequent admission in court.
PRESERVING COMPUTER EVIDENCE
As more and more records are converted from paper to
electronic storage, individuals are becoming more and more
computer literate. Unfortunately, a growing number of
individuals use their computer knowledge for illegal activities.
While there is no typical computer case, the majority fall
into the broad category of white-collar crime. During
investigations of these cases, several problems repeatedly
occur. However, by following the guidelines offered in this
article, law enforcement agencies can protect valuable computer
evidence.
Conduct Preliminary Examinations
Investigators should take immediate action to protect a
computer's memory. Often, investigators attempt to generate
investigative and intelligence information on site. While this
approach is reasonable and should be encouraged, it is equally
important that the computer be protected from any input
introduced unintentionally by investigators.
For instance, many computer systems update files to the
current date when read. In order to preserve the evidence in
the same condition as it was when seized, steps must be taken to
ensure that no dates are changed and nothing is written into or
deleted from the computer's memory. Specialized software
currently on the market protects the computer's memory and
should always be used before an examination.
Investigators should also consider that anyone conducting a
preliminary examination may be called on to testify concerning
the procedures followed and the accuracy of the results.
Because of this possibility, documented policy and protocol
detailing steps to follow during examinations must be
established. Examiners should closely follow guidelines set by
their particular agency to avoid any legal discrepancies.
Seize Supporting Software
When investigators seize a computer, they should also take
all supporting software and documentation. This simple action
eliminates a host of problems that may arise during the
examination of the computer. It is logical, but not necessarily
correct, to assume that the software that runs the seized
computer is common and commercially available.
As commercial software is developed and marketed,
manufacturers add new features and correct previously identified
problems. Once the manufacturer revises the old programs, the
data seized may not be compatible with the particular version of
the same software. Therefore, it is good policy to seize all
software, documentation, handwritten notes, and any other
related items found near the computer.
Seize the Entire Computer System
Many of the items connected to the seized computer are
probably standard pieces of equipment found in any computer
facility. However, it only takes one unique, nonstandard piece
of equipment to render a system incompatible with others. For
this reason, it is best to seize all the equipment related to
the computer. If it turns out that some of the items are not
needed for the examination, they can be quickly returned to the
site.
The FBI Laboratory does not recommend that investigators
remove and submit the hard drive (memory), located inside the
computer, for examination. The manner in which the computer is
set up internally is often crucial to reading, displaying, and
printing the data on the hard drive. Thus, removing just the
hard drive may be useless to the investigation.
In light of technical considerations, it may be appropriate
to use an expert as a consultant in the execution of these
types of search warrants. This is especially true if
investigators do not seize the entire system. Concerns
regarding incompatibilities of computer systems should be stated
in the supporting affidavit as justification if investigators
plan to seize the entire computer system.
Package Equipment Properly
If investigators need to ship the computer to another
facility for examination, they should package it properly.
Oftentimes, examinations take an inordinate amount of time
because poorly packaged computers are damaged in shipment and
must be subsequently repaired.
Likewise, shipment of computer diskettes and other memory
devices requires certain precautions. Because of the potential
hazard of static electric discharge, these items should not be
shipped in plastic evidence envelopes. In addition, the
evidence should be marked to avoid exposure to strong magnetic
fields, such as those generated by x-ray machines.
COMPUTER ANALYSIS AND RESPONSE TEAM
To assist with investigations involving computers as
evidence, the FBI Laboratory established the Computer Analysis
and Response Team (CART) at FBI Headquarters. Computer
professionals with a variety of experience and expertise, along
with a sensitivity to the needs of the law enforcement
community, staff the team. The CART has a full range of
hardware available, as well as unique utility software useful in
forensic examinations of computer-related evidence.
Limited by the number of technical personnel available to
conduct these investigations, this service is available to
police agencies authorized to submit evidence to the FBI for
forensic examination. In addition to its traditional forensic
examination, the FBI Laboratory's CART provides on-site field
support to both Bureau field offices and local police
departments. Approval for this on-site support depends on the
individual case, the resources available, and the needs of the
requesting agency.
CONCLUSION
The FBI Laboratory has seen the submission of computer
evidence double and then double again in the past few years,
reflecting the proliferation of computers in society. With the
role of the computer becoming more predominant in society, its
impact is felt in every law enforcement investigative program.
Therefore, it is important for law enforcement to have the
necessary knowledge and procedures ready to address adequately
the examination of computer evidence and records.

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ELEVATOR VANDALISM SQUAD
By
Ronald Welsh
Captain
Housing Authority Police Department
New York, New York
and
Peter Cestare
Sergeant
Commanding Officer
Elevator Vandalism Squad
Housing Authority Police Department
Today, most Americans take elevators for granted. These
wonders of the modern age allow architects to design structures
that provide ample working and living areas, while making
efficient use of limited space in urban centers.
However, elevators also create special problems for law
enforcement agencies that provide police service to public
housing highrise buildings. In New York City, this
responsibility rests with the Housing Authority Police.
With an increasing number of apparent elevator vandalism
cases that caused some New York City elevators to come to a
halt, new problems confronted Housing Authority officers.
Department leaders responded by creating the Elevator Outage
Reduction Program, which evolved into the Elevator Vandalism
Squad (EVS).
This article discusses the EVS and how it aids in reducing
vandalism and serious injuries on elevators. It also explains
how the squad assists in investigations of crimes that occur on
elevators, such as robberies and sexual assaults.
BACKGROUND
In 1980, the estimated cost of elevator vandalism in New
York City's public housing developments approached a staggering
$10 million annually. In addition to this large financial loss,
the vandalism also caused great inconvenience to scores of
housing development residents.
To combat the problem, Housing Authority administrators
developed the Elevator Outage Reduction Program. They began the
program by assigning two investigators to review elevator
records in buildings that reported an unusually high number of
outages. Officials hoped to determine whether the outages were
actually caused by vandalism or whether the problem was,
instead, a result of stolen elevator parts.
These investigations revealed that most outages were a
result of parts thefts, not merely vandalism. However,
investigators also discovered a far more dangerous situation--
juveniles were playing in and on the elevators, which resulted
in many injuries and deaths. This discovery led department
leaders to expand the program and to form the Elevator Vandalism
Squad, which now focuses on reducing the number of juvenile
deaths and injuries on elevators.
SQUAD SELECTION
Given the technical nature of the assignment, most
investigators chosen for the EVS have either a mechanical or
electrical background. These backgrounds are helpful because
squad members receive extensive training, much like that given
to elevator mechanics. Squad members learn about elevator
electrical systems and how to read wiring schematics and
blueprints.
The extensive training provided to squad members gives them
an added edge in solving cases. Their expertise in elevators
allows them to pursue suspicions they may have about how the
crimes were actually committed or how the accidents really
occurred, either proving or disproving the original theories of
responding investigators.
SQUAD DUTIES
The Elevator Vandalism Squad focuses primarily on reducing
the number of elevator injuries and fatalities among juveniles
who play dangerous elevator games. However, they also
investigate other elevator injuries and deaths and make
recommendations for elevator safety modifications that may
reduce unsafe access to elevator shafts. In addition, they
assist in other investigations that involve elevators, and they
support drug teams when they raid apartments in highrise
buildings.
Investigate Elevator Deaths
The expertise of EVS members is crucial in investigations
of elevator deaths. This expertise allows them to determine
whether an injury or death resulted from a dangerous elevator
game or whether it resulted from an elevator malfunction.
For example, when Housing Authority officers found a blind
woman at the bottom of an elevator shaft, they originally
believed that the woman was murdered. However, the responding
officers immediately called in EVS members to assess the
incident.
When squad members arrived, tenants advised them that the
elevator doors on the third floor (the victim's floor) would
often fail to open. With trained eyes, EVS members focused on
the elevator's locking mechanism, which should have prevented
the outside door from opening before the elevator arrived at the
floor. When squad members took the lock apart, they found that
the catch to the lock had actually been bent, allowing the door
to open without the elevator being on the floor.
Further investigation revealed that the blind victim had no
way of knowing when the elevator arrived at her floor. Because
of this, she constantly pulled on the hallway door to the
elevator until it opened. When the door opened, she assumed the
elevator was there. Tragically, on the day she died, the lock
failed because of the repeated pulling action.
In other cases, EVS members determined how juveniles died
while playing dangerous elevator games. The youths would gain
entry to the elevator shafts by circumventing safety features
and then jump from the top of the elevator to the counterweight
or from one elevator to the next. Eventually, bad timing, lack
of concentration, or other factors led to the loss of life.
Investigate Elevator Injuries
The EVS also investigates elevator injuries to determine
how the injuries actually occurred. For example, one youth left
his apartment and returned later with three fingers missing.
The youth told responding Housing Authority officers that the
injury was caused by the elevator door closing on his fingers.
A trail of blood from the elevator to the youth's apartment
appeared to corroborate this story, but the officers could not
find the severed fingers.
When EVS members arrived to investigate, they meticulously
searched the garbage-strewn elevator shaft for the fingers.
They then examined the top of the elevator, actually riding the
top to check every ledge, where the fingers might possibly have
fallen.
Past experience then led them to check the guide rollers on
the floor where the accident occurred. (Guide rollers are
wheels attached to the steel tracks that run vertically inside
the shaft. The elevator runs on these tracks, and the rollers
stabilize the cab while it is in motion.) Juveniles who ride the
tops of elevators sometimes grab the steel tracks for balance.
This young man, while playing a dangerous game on the elevator,
grabbed the steel tracks for balance, and his hands slid up to
the guide roller, severing his fingers. EVS members found the
fingers still in the guide roller.
Through investigations of this type, the EVS provides
valuable information that protects the Housing Authority from
costly negligence lawsuits. Officials estimate that this
program saved the Housing Authority between $40 and $50 million
over the last 10 years.
Recommend Modifications
In addition to investigating injuries or deaths on
elevators, EVS members make recommendations concerning possible
safety modifications that could prevent future incidents. In
some cases, simple modifications can totally eliminate specific
problems.
For example, prior to the formation of the EVS, the city
required that all safety hatches at the tops of elevators remain
unlocked in order to allow trapped riders to exit the elevators
in cases of emergency. However, EVS members determined that
juveniles were being killed or injured when they climbed through
the hatches to ride the tops of elevators.
EVS members convinced city administrators that trapped
riders would be safer if they remained inside the elevator until
help arrived, rather than risking injury by climbing through the
safety hatch. Now, the city requires all safety hatches to
remain locked. This simple modification resulted in an
immediate decrease in the number of juvenile injuries and deaths
caused by riding the tops of elevators.
At times, specific cases serve as the impetus for changes
that enhance elevator safety. When the blind woman died as a
result of the faulty elevator lock, the EVS recommended certain
changes that have since been implemented. First, whenever
possible, building managers rent ground floor apartments to
blind individuals. Second, elevator maintenance workers now
focus special attention on the locks of elevator hallway doors
on the floors of blind residents. These simple precautions can
help to reduce elevator fatalities among the blind.
Investigate Other Elevator Crimes
The EVS also investigates other types of elevator crimes,
such as robberies and sexual assaults. Elevators provide ideal
environments for such crimes because criminals can contain the
movements of the victim and control the movement of the
elevator. The isolation also heightens the victim's fear.
When a particular crime pattern develops, EVS personnel
mount cameras (approximately the size of a pack of cigarettes)
equipped with pinhole lenses on the roofs of elevator cabs.
This allows them to view the interior of the elevator on a
television monitor located in the motor room. They can also
video tape any action within the elevator.
This technique helps to obtain valuable information in
cases where authorities identify particular crime patterns. The
EVS has used the cameras in over 20 crime patterns that
detectives identified, solving cases in 8 of these patterns.
Assist Drug Teams
Often, EVS members are called on to assist drug teams that
plan to raid apartments in highrise buildings. When such a raid
is planned, the drug teams contact EVS members, who enter the
buildings disguised as elevator mechanics. They then hold an
elevator at the main floor so that the drug team can enter the
building, quickly get on the elevator without waiting for one to
arrive, and go straight to the appropriate floor.
Another benefit of having the EVS present during drug raids
is that they can keep the elevator at the floor where the raid
takes place. This way, if any injuries occur during the raid,
an elevator is immediately available to take the injured persons
directly to the lobby.
CONCLUSION
The Elevator Vandalism Squad has proved to be an asset to
the New York City Housing Authority Police. The professional,
knowledgeable investigations conducted by the squad avert costly
lawsuits, saving the Housing Authority large amounts of money.
Because of their speedy responses to elevator accidents, the
squad can reconstruct the incident almost immediately, as
opposed to reconstructing the incident at some later date in
response to a civil lawsuit. In addition, the EVS reduces the
amount of vandalism to elevators, as well as thefts of elevator
parts.
Most importantly, however, the EVS saves lives. Buildings
that previously experienced numerous elevator incidents now
report no problems. This is due, in large part, to the
implementation of EVS recommendations.
Departments continually seek out programs that make their
citizens safer, while conserving money. This is a program well
worth consideration by departments that must ensure the safety
of their citizens while in elevators.

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POLICE PRACTICES
DRUG EDUCATION
SAVING AMERICA'S YOUTHS
By
Damon Davis
Sheriff
Essex County, Virginia, Sheriff's Office
As America grapples with the increasing use of drugs among
its young people, police leaders throughout the country seek
effective solutions to the problem. However, when considering
specific programs, these leaders must also consider their
impact. They must find programs that youths, as well as adults,
accept and support.
When members of the Essex County, Virginia, Sheriff's
Office considered ways to reduce drug use in their county, they
decided to build on a program already in existence in most
States-the Drug Abuse Resistance Education (DARE) Program.
Moreover, the sheriff's office expanded the program to begin the
drug education process in kindergarten and continue it through
the 12th grade.
Two full-time, uniformed deputy sheriffs spend the first
semester of the school year teaching kindergarten through 7th
grade students and the second semester of the school year
teaching 8th through 12th grade students. Funds for the
program come from both the sheriff's office budget and a Federal
grant.
THE PROGRAM
The goals of Essex County's drug education program are to
teach students at an early age how to recognize and resist peer
pressure to use drugs and to help them understand that most
individuals do not use drugs. Drug education instructors also
attempt to impress upon the students that citizens and law
enforcement agencies must work together to eliminate the drug
problem. Instructors reinforce these two recurring themes
throughout the students' elementary and high school years.
The program concentrates on five general topics. Students
learn about drug demand reduction, drugs and the law, how to
communicate choices assertively, how to manage stress without
using drugs, and how drugs and violence mix. Instructors begin
at a very simple, general level with the younger students and
progress to more complex material with students in the higher
grades. For example, instructors may discuss drug-use symptoms
in very general terms with younger students, telling them that
drug use makes individuals sick. With the older students, they
can be more graphic in their explanations of how drug use ruins
the health and lives of those who choose to indulge.
Drug Demand Reduction
After years of attempting to reduce the supply of illegal
drugs, criminal justice leaders now believe that the drug
problem must be attacked by reducing the demand for the drugs as
well. Drug education instructors approach this problem by
familiarizing students with the risks associated with drug use.
They then ask the students to describe the effects drugs have on
their peers and how this drug use may affect their neighborhoods
and community.
Instructors also discuss drugs in connection with crime
rates, violence, medical emergencies, and suicide rates. They
attempt to bring the problem closer to home by discussing with
the students incidents involving either themselves or family
members that may have occurred as a result of an individual's
drug use. For example, the homes of students may have been
burglarized by someone who needed money to buy drugs.
In addition, instructors discuss the types of peer pressure
young people may encounter in connection with drugs. Drug
dealers attempt to coerce students to use drugs by exerting
different types of pressure-teasing or tempting. Preparing
students for this possibility and giving them ways to avoid
yielding to negative pressures help to prepare them to just say
"No."
Drugs and the Law
Through this segment of the program, students gain insight
into the criminal justice system so that they can better
understand how it works. The younger students can discuss areas
as simple as how buying or selling drugs can get them in
trouble, while the older students discuss the laws more
specifically. For example, they may discuss why society needs
such laws, the penalties for violating the law, and the
differences between misdemeanor violations and felonies.
Instructors also explain under what circumstances juveniles can
be tried as adults, the investigation and arrest procedures, and
how an arrest record on drug charges can affect students in the
future.
Communicating Choices
Another area of emphasis in the Essex County program is how
students can assertively communicate their choices and feelings
about drug use to their peers. Instructors suggest certain
courses of action for students being pressured to engage in drug
activity. They advise students to change the subject, walk
away, ignore the person who approaches them, or simply say "No."
Students also learn to react assertively to drug dealers
and to design their actions to let them know that the presence
of drug dealers is unwanted. By acting out different scenarios,
students learn how to deal with various situations.
Managing Stress
This vital segment of the program allows students to
discuss the stress they feel in their lives and offers positive
ways to deal with this stress. Instructors encourage the young
people to manage this stress through constructive activities or
by simply talking their problems over with another person. The
instructors' goal is to convince students that they can deal
with stress in positive, effective ways-they need never resort
to drugs.
Drugs and Violence
The final section of the drug program deals with how the
illegal use of drugs contributes to the increase in violence
among young people. During this segment, instructors help
students develop ways in which they can decrease drug-related
violence. They also educate the students on the possible
tactics of drug dealers.
For example, drug dealers sometimes attempt to intimidate
students into using drugs by force or the threat of force. This
intimidation may take the form of verbal, mental, or physical
abuse.
Instructors warn that drug use can also cause the users to
hurt either themselves or others. As instructors make clear,
drug use often contributes to motor vehicle accidents, suicides,
and murders.
CONCLUSION
The key to reducing drug abuse may lie in the education of
young people. Clearly, those students who receive drug
education are better prepared for the temptations they may
confront in later years.
An added benefit to drug education given by police officers
is the rapport built between law enforcement and the youth in
the community. Drug education instructors sometimes become
confidants to the students and often render the moral support
youths need when trying to avoid drugs.
Citizens and law enforcement agencies must come together to
form a united front against the use of drugs. Unless this
happens quickly, America may lose a generation to drugs.

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POLICE VIOLENCE
ADDRESSING THE ISSUE
By
Daniel B. Boyle
Lieutenant
Syracuse, New York, Police Department
A young man lies dead in the street. Kneeling next to him,
a woman holds his head and screams "police brutality!" A crowd
begins to gather as the woman continues her outcry. The subtle
whispers of "brutality" overcome the onlookers, who believe the
woman but have no idea what actually took place.
The police officer who shot the man stands alone, visibly
shaken, as he awaits medical and supervisory assistance. No one
notices that he, too, has been wounded--the cries of brutality
overshadow his injuries. Coming upon this scene, an uninformed
individual might perceive police brutality. However, in
reality, the police officer interrupted the man committing an
armed robbery. When the young man shot at the officer, the
officer returned fire, killing him.
Oftentimes, citizens believe an incident constitutes police
brutality even though they did not witness the incident or learn
all the facts regarding the case. In addition, media reports,
eyewitness accounts, and even film coverage may be biased in
their depictions of the event. Indeed, they may tell just one
side of a complicated story.
Recent events highlighting alleged excessive force by
police have heightened public awareness of the police brutality
issue. Consequently, many people believe that the police often
use excessive force. In reality, police brutality occurs less
often than the public perceives. The discrepancy arises, in
part, because brutality means different things to different
people. To some, it means the unjustified use of an officer's
firearm, while to others, it means verbal harassment by an
officer.
Indeed, no clear definition of brutality exists. One
researcher who conducted a study on the use of force by police
stated that the use of force is "...a product of interacting
variables that can be traced to the individual, the situation,
or the organization." (1) Consequently, since no two arrests are
exactly alike, what may constitute excessive force in one
situation might not in another.
The police stand as barriers between the good and the bad
with no clear direction on how to combat the violent criminal.
However, if police officers learn effective ways to handle
specific situations, and they apply these methods consistently,
cases alleging police brutality should decrease.
This article discusses several methods that police
administrators can use to address police violence. These
include the preselection and selection processes; police
academy, field officer, and inservice training; evaluations;
community relations; and discipline procedures.
PRESELECTION AND SELECTION PROCESSES
An effective program to eliminate excessive use of force
begins before a candidate is even selected. First, the
department must provide the foundation for the program by
establishing and enforcing clearly defined procedures, policies,
and rules of conduct for all behavior, including the use of
force. The top administrator must commit to the department's
programs and instill the same attitude in all the department's
officers, including the selection officer. In turn, the
selection officer should attempt to recruit applicants who best
exemplify the philosophy and goals of the department.
The selection process should involve several comprehensive
stages, including a written examination; an interview;
psychological, polygraph, and physical examinations; and an
extensive background investigation. When reviewing an
applicant's file, the selection officer should pay particular
attention to any area that might indicate overly aggressive
tendencies. For example, the background investigation might
reveal that an applicant constantly instigates fistfights. Or,
psychological testing might indicate a volatile temper.
Obviously, candidates who exhibit such behaviors may not be
suited to serve as law enforcement officers because of their
predispositions to either overreact or underreact to given
situations.
POLICE ACADEMY
The police academy provides crucial training and education
on the use of force. This formal training serves as the
foundation for recruits to step into the organization's culture.
Instructors can mold new recruits to fit the agency. They
advise the recruits of the rules, regulations, policies, and
procedures of the department and the consequences for breaking
the rules. No one in the department should bend with regard to
the use of excessive force so that recruits do not get a false
image of the organization's policies.
Like selection officers, academy instructors must believe
in the department's goals, objectives, and ethical policies in
order to instill them in recruits. Once established,
instructors can move on to formal training in the law, firearms,
philosophy, cultural awareness, etc. In other words,
instructors set the tone prior to the learning process.
In the past, training dealt with such mandatory
requirements as criminal procedures, basic law, defensive
driving, and firearms training, just to name a few. Today,
administrators must ensure that contemporary training in
ethics, human behavior, stress management, cultural awareness,
and sensitivity does not take a back seat to traditional
training.
One important area of police training that could stand
revision is conflict management. Most police departments
currently teach their new officers to deescalate, or defuse,
tense situations by using physical defense tactics. A more
appealing option would be to help officers avoid physical
confrontation entirely. In fact, one clinical psychologist
suggests that "law enforcement academy training courses,
specifically those that utilize primarily tactical or physical
techniques, should regularly debrief students from both a
psychological and physical standpoint." (2) In other words,
officers should be taught to use diplomacy instead of
aggression, their brains instead of their brawn.
FIELD OFFICER TRAINING
Once in the field, new police officers start to apply what
they learned in training. However, through experience, they
begin to realize that the realities of the street do not always
compare to life at the academy. For the first time, they see
where the thin blue line of excessive force lies, and they will
learn to stay within its boundaries if coached in a positive
manner.
Now comes the job of the field training officer (FTO),
which is probably one of the most important positions to hold.
FTOs can have either a positive or negative effect on new
officers. If FTOs abuse their power, new officers will probably
follow along, because they desparately want to fit in and be
accepted as team players. However, FTOs who adhere to the
philosophies, ethics, and professional demeanor of an
organization set an example that will last new officers
throughout their careers.
FTOs must also evaluate the new officer's ability to do the
job. Even with a good preselection process, an unsuitable
candidate can still slip through. A private counselor for
officers suffering from stress warns that police officers, as
well as supervisors, must weed out those with the inclination to
use excessive force. He states, "Police are out there looking
for troubled people, they ought to be able to spot troubled
cops." (3)
Troubled police officers may be easy to spot, but would
their fellow officers turn them in? Officers rarely inform on
one another for fear of being accused of "whistle blowing,"
"breaking the blue code," or "breaking the code of silence."
Consequently, training and education must change officers'
attitudes regarding the reporting of undesirable behavior by
their peers.
INSERVICE TRAINING
Even experienced officers can benefit from additional
training. Therefore, police administrators should schedule
inservices that reinforce the department's policies, procedures,
and directives, especially in the area of excessive force.
These inservices allow officers to brush up on deescalating
and technical techniques, as well as any areas in which they
demonstrate deficiencies. Quality of training should take
precedence over quantity, and as always, the most qualified
instructors should teach.
Teaching officers about human behavior can also lessen
claims of police brutality. Officers who learn what makes
people aggressive can possibly defuse potentially volatile
situations without creating conflict. If a confrontation
appears to be inevitable, however, police officers can still
help to resolve the situation by thinking before they react.
This, too, can be covered in inservice training.
Training sessions should also include stress management.
Officers suffering from personal or job-related stress may
overreact in certain situations, becoming aggressive and using
excessive force. Supervisors should watch out for those who
exhibit this type of behavior. Teaching officers how to
recognize and relieve stress can reduce the number of such
incidents.
Stress can be mental, as mentioned above, or physical, as
in the case of the rush of adrenalin that officers experience
during a heated confrontation or a pursuit. Officers who are
surprised by their bodies' reactions to such situations may be
unprepared to handle these reactions. Effective training
increases officers' awareness of these responses and provides
practical means to deal with them.
EVALUATIONS
An effective evaluation program can enlighten
administrators as to officers' performance and can serve to
combat officers' tendencies to use force. If officers
demonstrate deficiencies in their work performance, their
evaluations should reflect these inadequacies. Supervisors
should address and correct problem areas through either training
or discipline. If all else fails, the department might consider
terminating the officer.
COMMUNITY RELATIONS--EDUCATING THE PUBLIC
In many regards, a police department is only as productive
as the community perceives it to be. Sometimes, however, the
public's perception of a police department is prejudiced by a
lack of knowledge. For example, because citizens do not
normally face violent, aggressive criminals, they might not
realize the force required to subdue such individuals.
Therefore, police administrators need to educate the public as
to the nature of the police officer's job, as well as the
department's policy, procedures, and the law regarding the use
of force. The police and the community should have the same
understanding of what the overall job requires, and residents
should know that force is sometimes necessary to end a violent
confrontation.
When officers must use force, they should document the
entire incident to avoid misunderstandings by the public or the
press. The department should also maintain and make the public
aware of statistics regarding situations resolved without force,
as well as the number of officers injured by force against them.
Police managers should investigate all police brutality cases,
keeping the public abreast of the process and the outcome.
Withholding information from the public only clouds the issue by
creating the perception of a coverup.
Open communication with the public also counteracts the
false perceptions that the public might hold regarding a case.
To many people, a videotape presents undeniable proof that an
act of brutality has occurred. However, in many instances, the
person filming might not have presented all the facts. The dead
man in the street, the officer with the gun, the woman screaming
police brutality--what the camera recorded and what actually
occurred may be two different things.
DISCIPLINE PROCEDURES
All of the issues discussed so far--the preselection and
selection processes; police academy, field, and inservice
training; evaluations; and community relations--are all attempts
to keep citizen complaints of brutality to a minimum. A police
department that administers these areas effectively and
efficiently, using qualified personnel, should accomplish this
goal. Ideally, administrators, field officers, citizens, and
the media would all be working toward the same goals--education
and understanding.
However, should a citizen file a complaint that proves
valid, management should discipline the officer(s) involved.
The department can maintain integrity with the public and its
officers by dispensing fair and consistent punishments. In
turn, officers will conform to the established policies and
procedures to avoid suffering the consequences, while the public
will trust the department to protect its interests. As noted
above, the department should advise the public of the outcome of
the case and the disciplinary action taken.
CONCLUSION
Police violence is a complicated and controversial issue.
Most people do not even agree on what constitutes excessive
force, let alone how to combat it. Educating the public as to
the complexities of policing can align the community with the
police instead of against them, thus decreasing brutality
charges.
In addition, police administrators must select the best
possible officer candidates and provide them thorough training,
not only at the police academy but also throughout the officers'
careers. Furthermore, management must continually evaluate the
policies, procedures, and statistical data on their department's
use of force, revising policy when necessary and disciplining
violators. Police managers should accept no less than full
compliance from their employees.
Law enforcement, as a profession, continues to make
headway, even when confronted with difficult issues like police
violence. Indeed, if dealt with effectively, the issue of
police violence may be reduced to a mere mention in the annals
of law enforcement.
ENDNOTES
(1) Robert J. Friedrich, "Police Use of Force:
Individuals, Situations and Organizations," The Annals, November
1980, 82-92.
(2) John Nicoletti, Ph.D., "Training for De-Escalation of
Force," The Police Chief, July 1990, 37-39.
(3) Lance Morrow, "Rough Justice," Time, April 1, 1991,
15.

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FOCUS ON TRAINING
THE AMERICANS WITH DISABILITIES ACT
By
John A. Leonard
Captain
Connecticut State Police Training Academy
Hartford, Connecticut
In July 1990, President George Bush signed into law the
Americans with Disabilities Act (ADA). This milestone
legislation, which is intended to end discrimination based upon
physical or mental disabilities, presents new challenges to law
enforcement administrators. These administrators must now
ensure that their agencies comply with the provisions of the new
law.
In order to meet this challenge successfully, police
executives must first implement training that focuses on the ADA
and how this law may affect hiring practices. The legislation
explicitly defines what is expected of employers; however,
before employers can meet these expectations, they must develop
training programs that focus on educating all employees within
their agencies. This education process should accomplish two
goals: It should educate employees on the specifics of the law,
and it should allay their fears that the law may have a negative
impact on the agency or its current employees.
EARLY TRAINING
Agency leaders should begin the education process by
targeting selected personnel to receive early training in the
particulars of the ADA. The initial training sessions should
include those employees who will direct the implementation of
the law. This encompasses the agency heads themselves, as well
as their administrative staffs.
Administrators should then target for training those
involved in the hiring process. In order to ensure that hiring
procedures adhere to the new regulations, background
investigators, polygraph examiners, and oral interviewers must
know what information they should obtain, how they can
legitimately obtain this information, and what types of
inquiries are inappropriate. Early training of these employees
may avoid problems for the agency at a later date.
BROADENING THE SCOPE OF TRAINING
After key personnel receive training on the specific
provisions of the ADA that directly affect their job
responsibilities, all other personnel within law enforcement
agencies should receive training to broaden their understanding
of the law. Taking this critical step may help to minimize many
of the misconceptions that occur when agencies lack training of
this nature.
For example, any modification of hiring criteria by police
agencies, either real or imagined, will likely be greeted with
skepticism by some officers and outright hostility by others.
Some officers will immediately begin to speculate on how the new
legislation may affect them and whether it will lower the
standards of the agency--a source of great pride to most
officers.
Early intervention by administrators in the form of
training can do much toward allaying any unfounded fears that
employees may have. Clearly, if employees view the
implementation of the ADA as a reduction in hiring standards,
concern--and even resentment--can build. This may, in turn, cause
the employees' sense of pride, which is built on traditional
practices within the department, to be challenged, lowering
employees' morale. In addition, new recruits who do not meet
the expectations of the existing personnel may never be fully
assimilated into the organization.
However, with effective training programs in place,
employees learn not only what the ADA is but also what it is
not. They will then understand that the employment provisions
of the ADA do not reduce or eliminate selection criteria--the
law simply attempts to offer equal employment opportunities to
qualified individuals with certain disabilities.
Through effective training programs, employees also learn
that persons with disabilities must demonstrate that they can
perform the essential functions of the position they seek. The
essential functions of a job may be determined by a variety of
factors, including written job descriptions, collective
bargaining agreements, the amount of time spent performing the
task, the consequences that may occur if the task is not
performed, and the employer's judgment. (1)
Finally, effective training programs underscore the fact
that the ADA expressly excludes certain individuals, including
current drug users, transvestites, kleptomaniacs, and
pyromaniacs, among others. In addition, the law allows certain
employers, such as law enforcement agencies, to exclude
applicants with a history of illegal drug use if it is
established that such an exclusionary standard is job-related
and consistent with business necessity. (2)
Providing employees with this critical information reduces
employee stress and the opposition that frequently accompanies
change. Through education, employees gain both an understanding
and an acceptance of the law.
CONCLUSION
Law enforcement administrators who develop instructional
programs that prepare employees for the changes the ADA brings
to their agencies create an atmosphere where well-informed
employees both understand and support the law. This, in turn,
creates an atmosphere that fosters the successful fulfillment of
this legislative mandate.
ENDNOTES
(1) Jeffrey Higginbotham, "The Americans with Disabilities
Act and the Federal Rehabilitation Act of 1973: An Overview,"
(unpublished manuscript, 1992).
(2) Ibid.

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COMPUTER SEARCHES AND SEIZURES
CHALLENGES FOR INVESTIGATORS
By
John Gales Sauls
Special Agent
Legal Instructor
FBI Academy
An informant tells a detective preparing an affidavit for a
warrant to search a drug trafficker's home that the trafficker
is a "computer wiz" who keeps all financial records on a "50
megahertz 486." To trace the drug trafficking proceeds for
forfeiture purposes, the detective wishes to seize the financial
records.
A second officer is investigating a crime in which a
computer virus was introduced into a university's mainframe
computer, shutting down the school's computer operations for 48
hours. As a result of the officer's investigation, a computer
science student becomes a prime suspect. In order to search the
student's computer "account" on the school's mainframe for the
virus' computer code, the officer seeks a search warrant. He
also suspects the "account" to contain an article that the
student wrote on computer viruses.
These officers, in seeking to search for computerized
information, must contend with both statutory and constitutional
restraints that limit police authority. This article examines
the effect of these legal restraints on searches for computers
and computerized information and suggests strategies to ensure
the admissibility of evidence detected.
THE PRIVACY PROTECTION ACT OF 1980
In 1980, Congress enacted a statute to give special
protection to documentary materials prepared or gathered for
dissemination to the public. (1) The statute requires the
government to use a subpoena, rather than a search warrant, to
acquire documentary materials, unless one of the statute's
exceptions that permits the use of a search warrant applies. (2)
Although the statute specifically provides that its
violation is not grounds to suppress evidence, (3) it does provide
a civil remedy in Federal court against either the government
entity or individual officers involved in the search where a
search warrant is used contrary to its provisions. (4)
Because personal computers are used for word processing and
desktop publishing with increasing frequency, officers
contemplating use of a warrant to search for computerized
information should consider the potential application of this
statute. (5) When officers have reason to believe that the computer
stores information created or gathered for public dissemination,
they should make sure that one of the exceptions to the act's
prohibitions applies before a search warrant is used.
The exception most likely applicable permits the use of a
search warrant when there is probable cause to believe the
person possessing the materials sought "has committed or is
committing a criminal offense to which the materials relate...."
(6) If none of the act's exceptions apply, a subpoena should be
used to acquire the evidence.
DRAFTING THE APPLICATION AND SEARCH WARRANT
The fourth amendment protects the right of the people to be
"secure in their persons, houses, papers, and effects" against
unreasonable government intrusion. (7) This protection extends
to computers, which are effects, and to information processed
and stored by computers, which can be categorized as papers.
The constitutional demand on the officer seeking to search for
and seize a person's computer or computerized information is
that the search and seizure be reasonable. (8)
"Reasonableness" is generally best achieved with a valid
search warrant. (9) This is especially true when business or
residential premises, the most likely locations for computers,
must be entered to perform the search. (10)
The fourth amendment sets forth certain procedural
requirements that must be met for a valid warrant to be issued.
There must be a showing of probable cause, supported by oath or
affirmation, and the warrant must particularly describe the
place to be searched and the persons or things to be seized.
(11) The requirement of oath or affirmation raises no special
problems where computer searches are concerned; however, the
probable cause and particularity requirements pose unique
problems where computers are the search target.
ESTABLISHING PROBABLE CAUSE
The fourth amendment probable cause requirement has been
interpreted to command that before a search warrant is issued,
the government must set forth facts that would cause a
reasonable person to conclude that three factors are probably
true. Specifically, it must be probably true that a crime has
been committed, that evidence of the crime exists, and that the
evidence presently exists at the place to be searched. (12)
Crime Committed
Magistrates are familiar with the mechanics of how a murder
might be committed with a gun, but they may have difficulty
understanding how an embezzlement might be accomplished by means
of a computer. When computers are used to commit a crime,
officers need to detail how the suspect committed the crime,
primarily because the process involves unfamiliar technology.
(13) The problem becomes an educational one. (14)
Obviously, when seeking to convince a magistrate that a
crime has been committed in a novel manner, an officer should
explain the mechanics of the crime carefully and clearly. If
the officer wishes the magistrate to consider the officer's
interpretations of the facts, the officer must inform the
magistrate in the affidavit of the experience and training that
accredit these interpretations. (15)
An officer seeking to establish probable cause that an
unusual crime has been committed may also elect to use the
services of an expert. (16) The challenge for the officer is
providing sufficient details in layman's terms to familiarize
the magistrate with the mechanics of an unusual criminal
technique.
Evidence of the Crime Exists
A computer may be used as a tool to commit a crime and to
create and/or store records of crime. In order to acquire a
search warrant to seize both the computer and records, officers
need to establish factually the probability that each of these
things exists and the link between them and the criminal
activity. When facts establish the probability that a computer
was used to commit a crime, those same facts establish the
existence of the computer, as well as its link to the crime.
(17)
When an officer seeks to establish that computerized
records of criminal activity probably exist, the focus should be
on establishing the creation and retention of records rather
than the mechanism by which this was accomplished. (18) In the
past decade, computer use to create and store records has become
so pervasive that the concept of a document existing as binary
code imprinted magnetically or optically on a computer disk is
no longer novel. Consequently, when documents are the target of
the search, the process by which the suspect created the
documents need not be set forth for a magistrate in an
affidavit. The critical facts are those that demonstrate the
probability that records are being kept and that these records
are evidence of the criminal activity.
United States v. Falon (19) is illustrative of this point.
In Falon, investigators established probable cause that Falon
was operating a fraudulent loan advance fee scheme out of two
adjacent luxury apartments. They obtained a search warrant that
authorized the seizure of "borrowers' files; lists of borrowers;
banking and financial records; financial statements; advertising
records; correspondence, memoranda and documents relating to
loans, loan guarantees, potential loans and potential loan
guarantees; and sales literature and brochures." (20) Also
listed were "checkbooks; canceled checks; telephone records;
address indexes; message slips; mail, telex, and facsimile
records; calendars and diaries; memory typewriters; word
processors; computer disks, both hard and floppy; and other
electronic media devices, electronic storage media and related
software." (21)
Items on the first list, because of the clear link to the
fraudulent advance fee scheme set forth in the probable cause
statement, were held to have been properly seized under the
search warrant. (22) "Borrowers' files," for example, have a
clear relationship to a loan advance fee scheme.
Items on the second list were held to be insufficiently
linked to the alleged criminal activity, and their seizure was
held improper, causing them to be inadmissible as evidence. (23)
"Calendars and diaries" located in the search might as likely be
innocent and personal as criminal.
Factually linking, in the affidavit, the relationship of
the items to be seized to the alleged criminal activity is the
key. Had the warrant specified, for example, "calendars listing
events related to loan-making activity," the linking requirement
would have been satisfied for such items. Likewise, listing
"floppy disks containing documents related to making or
guaranteeing loans" would make such items validly subject to
seizure.
Evidence Present at the Search Site
An officer seeking to establish probable cause to search
must also factually establish the probability that the evidence
sought is presently located at the place to be searched. (24) At
times, having a computer or its records as the target of the
search may simplify meeting this requirement.
If a suspect used a computer to commit a crime
telephonically, it is also possible that the suspect set up the
computer to "answer" incoming calls. This allows other computer
operators to call it using their computer terminals and a
telephone.
When such an operation exists, an incoming call will be
answered with a tone called a "carrier." (25) When a particular
phone is answered with a "carrier," it seems reasonable for a
magistrate, informed of the carrier's significance in the
affidavit, to find that a computer and related equipment are
probably present at the telephone's location. (26)
When computerized records are sought, the magistrate should
consider that records, by their very nature, are created to be
kept for at least a minimum period of time. This fact, along
with the other facts presented, should be weighed in determining
whether the records are presently at the place to be searched.
(27) Although each case must be evaluated on its own facts, the
U.S. Supreme Court and lower courts have held that under
certain circumstances, it is reasonable to expect that records
seen 3 months previously will still be present at the location
where they were observed. (28)
SUFFICIENTLY PARTICULAR DESCRIPTIONS
The fourth amendment limits valid warrants to those
"particularly describing the place to be searched and the
persons or things to be seized." (29) This provision mandates
that a warrant authorizes only a search of a specific place for
specifically named items.
Coupled with the probable cause requirement, this provision
prevents general searches by ensuring that warrants describe a
discrete, defined place to be searched, describe only items
connected with criminal activity for which probable cause has
been established, and describe the items so definitely that it
removes from an officer executing the warrant the unguided
discretion of determining which items to seize. (30) It also
provides a signal of when to end a search, that is, when all
items named in the warrant have been located and seized or when
all possible hiding places for items not located have been
explored.
The "place to be searched" portion of the particularity
requirement has no special impact on computer searches.
However, the "things to be seized" portion has a significant
impact in seeking warrants to authorize the seizure of computers
and information processed by computers.
Describe the Computer System
The primary rule of particularity is to describe the items
to be seized as precisely as the facts allow. For example, when
a computer has been reported stolen, it is reasonable to expect
that the owner can provide a detailed description of the stolen
item. Therefore, if the object of the search is a stolen
computer, a detailed description, including make, model, and
serial number, if known, will probably be required.
When computer equipment is sought because it was an
instrumentality of crime, only a more general description may be
possible. For example, when a victim complains that the
computer system has been accessed telephonically by an unknown
person, the investigating officer may only be able to determine
what types of devices were used to accomplish the crime. The
officer may determine that a computer terminal (a keyboard and
display monitor) and a modem (a device that permits digitally
encoded computer information to be transmitted over telephone
lines) were necessary to perform the acts accomplished, but the
officer may not have any information regarding the manufacturers
of the equipment, model numbers, or serial numbers. If a
telephone trace reveals the location from which the intruding
call originated, the officer may have probable cause to search.
Under such circumstances, a rather general description of "a
computer terminal and modem of unknown make or model" would
likely suffice. (31)
Because numerous component parts comprise computer systems,
an investigator applying for a warrant to seize a computer
should ensure that the warrant describes all computer system
parts that are probably present, including mechanisms for data
storage. (32) Consulting with an expert increases the likelihood
of listing thoroughly the items of evidence probably present.
The expert's education and experience should be set forth in the
affidavit to give the magistrate a sound basis for concluding
that the items sought are probably located at the place to be
searched.
Information Processed By Computer
Because the fourth amendment particularity requirement is
strictly applied where documents are concerned, the descriptive
task where computerized information is the subject of a search
warrant is often a demanding one. (33) Nonetheless, courts
reviewing applications for search warrants evaluate the
particularity of the document's description in light of the
degree of precision that the facts of a case allow.
For example, in United States v. Timpani, (34) a search
warrant authorizing the seizure of "any and all records relating
to extortionate credit transactions (loansharking)" (35) was
challenged as being insufficiently particular. In reviewing the
warrant, the court noted that the warrant included a lengthy
list of types of records (including "lists of loan customers,
loan accounts, telephone numbers, address books" (36)) and that
the warrant "provide[d] a standard for segregating the
`innocent' from the `culpable' in the form of requiring a
connection with [the] specific, indentifiable crime [of
loansharking]." (37) The court upheld the particularity of the
warrant, stating, "It is difficult to see how the search warrant
could have been made more precise." (38)
When aware of specific documents sought, an officer should
designate them by type (letter, memo, etc.), date, subject,
author, and addressee, providing as much detail as possible.
For example, when "a letter from John Jones to Bill Smith dated
November 9, 1985, and concerning the ownership of 200 shares of
IBM stock" is sought, officers should describe the letter in
such specific terms.
When only the general nature of the information sought is
known, a highly detailed description is impossible. In such
cases, officers must use great care to give a description that
includes the information sought but limits the search as
narrowly as possible. This is accomplished by using a general
description, qualified by some standard that will enable the
executing officers to separate the information to be seized from
innocent information that may also be present.
Such limiting phrases must be crafted based on the facts
establishing probable cause to search. If the facts establish
that the information sought comes from a particular time period,
the phrase should limit the warrant to information of that time
period. If the information sought is known to have been
produced by a particular individual, the phrase should limit the
description to material authored by that person. If the phrase
combines several such factors, it is even more effective. As
in United States v. Timpani, the phrase may restrict the
description to particular criminal conduct. In that case, the
limiting phrase was "records relating to extortionate credit
transactions (loansharking)." (39)
It is most important that the limiting phrase restrict the
scope of the search so that it remains within the bounds of the
probable cause set out in the affidavit. A warrant may not
validly authorize the seizure of items for which probable cause
to search has not been established. In upholding the
description of items in the warrant in the Timpani case, the
court noted that "[e]ach item is plausibly related to the
crime--loansharking or gambling--that is specifically set out [in
the affidavit]." (40) The description, even though the items to
be seized were described in generic terms, did not exceed the
probable cause because of the use of an appropriately narrow
limiting phrase. (41)
When information sought is described with sufficient
particularity, the form in which the information may be found is
not of great concern. Concluding the list of described items
with the phrase "the documents listed above may be found in
written or electronic form" should be sufficient to permit
lawful seizures of the documents regardless of the form in which
they are found. (42)
EXECUTING THE SEARCH WARRANT
The protection of the fourth amendment does not end when an
officer obtains a valid search warrant. The right of citizens
to be free of "unreasonable searches and seizures" extends to
the manner in which officers execute a search warrant.
The "reasonableness" requirement demands that officers
executing search warrants:
1) Give notice of their authority and purpose, under most
circumstances, prior to forcibly entering premises to
execute the warrant
2) Take only reasonable action, once inside, to control
the premises and prevent the destruction of evidence
3) Conduct the search within the limits set forth in the
warrant, and
4) Refrain from seizing items not listed in the warrant
(unless there are independent, legal grounds for the
seizure).
Each of these requirements has potential impact on computer
searches.
The "Knock and Announce" Requirement
To protect safety, and because of a judicial preference for
peacable entries based on submission to lawful authority,
officers are generally required to knock and announce their
identity and purpose before forcibly entering premises to
perform a search. (43) This requirement is subject to certain
exceptions that allow entry without notice under certain
circumstances, including when officers have information that an
announcement would likely result in the destruction of evidence.
(44) The ease and rapidity of destruction of the evidence sought
is a factor courts will consider in determining whether a
"no-knock" entry was reasonable. (45)
Due to the manner in which it is processed and stored,
computerized information is easily and quickly destroyed.
Information in the computer's active memory can be instantly
destroyed by switching off the machine's power. Information
stored on magnetic media (with capacities of thousands of pages)
can be quickly erased by exposing the storage device to a
magnet. Consequently, when officers know prior to executing a
warrant that information has been stored by computer and that
persons with a motive to destroy the information are likely
present at the place to be searched, an unannounced entry is
likely reasonable. (46)
Controlling the Premises
The U.S. Supreme Court has noted that officers executing a
search warrant exercise "unquestioned command of the situation."
(47) Consequently, officers executing a search warrant have the
power to control access to the premises being searched and to
control the movement of persons present to facilitate the search
and to prevent the removal or destruction of evidence. Because
of the ease of destruction of computerized information and the
size and complexity of some computer facilities, it will often
be reasonable to take full control quickly of the facility to be
searched. (48)
Searching Within the Scope of the Warrant
Requiring a particular description of the items to be
seized limits the allowable scope of a search in two ways.
First, it restricts where an officer may look to only those
places where the items sought might reasonably be concealed.
(49) Second, it restricts the duration of the search to the
point where either all listed items have been located and seized
or until all possible places of concealment have been explored.
(50) Failure to comply with either of these restrictions can
result in a search that violates the fourth amendment.
A sensible first step is to ensure that all searching
officers know the items listed on the warrant. (51) Once on the
scene, the officers should carefully restrict the search to the
items listed in the warrant.
A problem that frequently arises is that of sorting the
items subject to seizure from those that are innocently
possessed. This problem is especially common in cases where
business records are the target of the search. In all cases,
the officers must limit the examination of innocent items to
that necessary to determine whether the items are among those
listed in the warrant. (52)
A search for documents stored in electronic form by a
computer will require use of the computer's display screen to
view documents or the computer's printer to print them. A
sorting process should be used where each document is briefly
examined to determine if it is one of those to be seized,
similar to that used to search through "ink on paper" documents.
Obviously, this type of search requires certain operational
knowledge regarding computer equipment. For this reason, expert
assistance during the search may be essential, especially where
efforts have been made to encrypt or conceal the documents. (53)
In general, the sorting process should be performed at the
scene of the search to prevent unnecessarily denying the owner
access to and use of innocent records. The mere fact that the
sorting process is time consuming does not justify a wholesale
seizure of all records present.
Nonetheless, certain characteristics of computerized
recordkeeping support off-site sorting. First, the storage
capacity of some computerized systems is so great that review of
all documents stored in the system could take a very long time.
Second, unlike with paper files, the number of investigators who
may assist in the search is limited by the number of computer
terminals available for document display. Finally, records
stored by computer can usually be quickly duplicated in their
computerized form, allowing copies to be left for the owner's
use.
Officers who anticipate the need to seize a large quantity
of computerized documents for sorting at a later time should
seek approval from the magistrate when applying for the search
warrant. A likely legal concern in this situation is that the
innocent documents included in the seized records will be
available for unrestrained viewing by investigators, resulting
in a postponed "general search." A potential control on such
unrestricted viewing is continued judicial supervision of the
sorting process. (54)
Disconnecting the Computer from Telephone Lines
The Electronic Communications Privacy Act of 1986 provides
that in order to intercept an electronic communication (which
includes transmission of words or characters from computer to
computer) during its transmission, without the consent of one of
the parties to that communication, an officer must obtain an
extraordinary court order, similar to that required to lawfully
wiretap. (55) Because the computer that is the subject of a
search warrant may be connected electronically to others,
forbidden interception of electronic communications might result
during execution of the warrant. To avoid this, and to ensure
that commands to destroy evidence are not transmitted to the
computer from a remote location, it is sound practice to
disconnect the computer from telephone lines at the outset of
the search.
CONCLUSION
Addressing the situations faced by the two officers
described at the beginning of this article, the first officer
needs to establish factually in his affidavit the probable
existence of financial records that are evidence of crime, and
to describe particularly those records in the search warrant.
The fact that the records may be computerized somewhat
complicates the execution of the warrant, and the officer may
need to seek expert guidance in order to locate and seize the
records in question successfully.
The second officer needs to consider whether the Privacy
Protection Act of 1980 permits the use of a search warrant in
his case when he is seeking authority to search for items he
reasonably believes are, in part, materials prepared for public
dissemination that are in the possession of an innocent third
party. If the officer determines that a search warrant is
appropriate under the circumstances, the officer must then
contend with the challenge of communicating to the magistrate
how a novel criminal offense has been committed by means of a
computer.
As officers approach such challenges, they should carefully
adhere to established fourth amendment principles. These
principles, coupled with the use of expert assistance where
needed, enhance the likelihood of obtaining computerized
evidence that is judicially admissible.
ENDNOTES
(1) Privacy Protection Act of 1980, 42 U.S.C. 2000aa,
et seq.
(2) 42 U.S.C. 2000aa.
(3) 42 U.S.C. 2000aa-6(e).
(4) 42 U.S.C. 2000aa-6. The statute also provides for
award of costs and attorneys fees to a prevailing plaintiff.
For a detailed discussion of the act, see Rissler, "The Privacy
Protection Act of 1980," FBI Law Enforcement Bulletin, February
1981.
(5) Federal law enforcement officers should be aware that
the Attorney General, as directed by 42 U.S.C. 2000aa-11, has
issued guidelines to assure compliance with the Privacy
Protection Act of 1980, which Federal officers must follow to
avoid being the subject of disciplinary proceedings. These
guidelines are found at 28 CFR Part 59.
(6) 42 U.S.C. 2000aa(a)(1), 2000aa(b)(1).
(7) U.S. Const. amend. IV.
(8) See Katz v. United States, 389 U.S. 347 (1967).
(9) Id. at 357.
(10) See Michigan v. Tyler, 436 U.S. 499 (1978).
(11) U.S. Const. amend. IV.
(12) Zurcher v. Stanford Daily, 436 U.S. 547, 556-557 n. 6
(1978), quoting Comment, 28 U. Chi. L. Rev. 664, 687 (1961).
(13) See, e.g., United States v. Morris, 928 F.2d 504, (2d
Cir. 1991), cert. denied, 112 S.Ct. 72 (1991) (defendant
introduced computer "worm" into national research computer
network, shutting down university and government computer
systems across the country); United States v. Taylor, 945 F.2d
1050 (8th Cir. 1991) (defendant accessed American Express
computer system by phone and acquired "working" but unissued
credit card numbers, which he then used to purchase thousands of
dollars worth of merchandise).
(14) An example of an officer successfully obtaining a
search warrant in a case where novel technology was being
employed to commit the crime of fraud is found in Ottensmeyer v.
Chesapeake & Potomac Telephone Co., 756 F.2d 986 (4th Cir.
1985).
(15) See, e.g., United States v. Ortiz, 422 U.S. 891
(1975).
(16) An example of using information provided by experts
in affidavits for search warrants is found in United States v.
Steerwell Leisure Corp., Inc, 598 F. Supp. 171 (W.D.N.Y. 1984).
(17) See United States v. Steerwell Leisure Corp., Inc.,
598 F. Supp. 171 (W.D.N.Y. 1984).
(18) See, e.g., United States v. Truglio, 731 F.2d 1123
(4th Cir. 1984), cert. denied, 469 U.S. 862 (1984).
(19) 959 F.2d 1143 (1st Cir. 1992).
(20) Id. at 1149.
(21) Id. at 1145.
(22) Id. at 1149.
(23) Id.
(24) Illinois v. Gates, 462 U.S. 213, 238 (1983).
(25) See Fitzgerald and Eason, Fundamentals of Data
Communication (John Wiley & Sons, 1978), pp. 42-43.
(26) Cf. United States v. Harvey, 540 F.2d 1345 (8th Cir.
1976).
(27) United States v. McManus, 719 F.2d 1395 (6th Cir.
1983).
(28) Andresen v. Maryland, 427 U.S. 463, 478 n. 9 (1976).
(29) U.S. Const. amend. IV.
(30) See Marron v. United States, 275 U.S. 192 (1927).
For a thorough discussion, see 2 W. LaFave, Search and Seizure,
95-101 (1978).
(31) An analogous case is State v. Van Wert, 199 N.W.2d
514 (Minn. 1972).
(32) Equipment components will probably include a central
processing unit, printers, terminals (keyboards and display
screens), magnetic disk drives, optical disk drives, and
magnetic tape drives. Software and manuals are also critical
components of an operating computer system and should be
included as items to be seized, especially if the officer
anticipates operating the system for investigative or
evidentiary purposes. Common storage media include magnetic
hard disks, floppy disks, and magnetic tapes, as well as optical
disks.
(33) See Andresen v. Maryland, 427 U.S. 463 (1976).
(34) 665 F.2d 1 (1st Cir. 1981).
(35) Id. at 4.
(36) Id.
(37) Id. at 5.
(38) Id.
(39) Id. at 4.
(40) Id. at 5.
(41) An innovative means of limiting the items described
to those for which probable cause to search has been established
is found in the case In Re Search Warrant Dated July 4, 1977,
Etc., 667 F.2d 117 (D.C. Cir. 1981), cert. denied, 102 S.Ct.
1971 (1982). Here, the scope of the description of items to be
seized was limited to documents related to "the crimes ... which
facts recited in the accompanying affidavit make out." The
court, in upholding the warrant, noted with approval the
limiting phrase. As was done in this case, it is often
desirable to incorporate the affidavit into the warrant by
appropriate language and to attach it to the warrant.
(42) See United States v. Truglio, 731 F.2d 1123 (4th Cir.
1984), cert. denied, 469 U.S. 862 (1984). See also, United
States v. Offices Known as 50 State Distrib., 708 F.2d 1371
(9th cir. 1983), cert. denied, 79 L.Ed.2d 677 (1984).
(43) For a thorough discussion, see 2 W. LaFave, Search
and Seizure, 122-140 (1978).
(44) Id.
(45) Id.
(46) Id. The announcement requirement is also less
stringently applied where warrants are executed against business
premises. See United States v. Francis, 646 F.2d 251, 258 (6th
Cir. 1981), cert. denied, 70 L.Ed.2d 616 (1981).
(47) Michigan v. Summers, 452 U.S. 692, 703 (1981).
(48) An example of such action is found in United States
v. Offices Known as 50 State Distrib., 708 F.2d 1371 (9th Cir.
1983), cert denied, 79 L.Ed.2d 677 (1984).
(49) Harris v. United States, 331 U.S. 145 (1947).
(50) Id. In addition to suppression of evidence, civil
liabilityy may result when a search continues after all items
named in the warrant have been seized. See Creamer v. Porter,
754 F.2d 1311 (5th Cir. 1985).
(51) See In Re Search Warrant dated July 4, 1977, Etc.,
667 F.2d 117, 123 (D.C.Cir. 1981), cert. denied, 102 S.Ct. 1971
(1982) (noting with approval that "[i]n preparation for the
search the agents attended several meetings to discuss and
familiarize themselves with the areas and documents described in
the search warrant and accompanying affidavit. They were
instructed to confine themselves to these areas and documents in
their search. During the search each agent carried with him a
copy of the search warrant and its 'Description of Property' and
could contact one of three persons on the scene who carried the
supporting affidavit.")
(52) An officer executing a search warrant will frequently
need to sort through information to determine what portion of it
may be seized pursuant to the warrant. If, during the course of
the process, the allowed limited perusal of information is
sufficient to cause the officer to conclude that the information
is probable evidence of a crime, the officer may lawfully seize
the document without obtaining a second warrant under the "plain
view" exception provided he can later demonstrate that he was
searching reasonably within the limits of the warrant he was
executing when he encountered the evidence, and there was
probable cause upon proper examination of the item that it was
evidence of criminal activity. Horton v. California, 110 S.Ct.
2301 (1990).
(53) An expert accompanied officers executing the search
warrant in Ottensmeyer v. Chesapeake & Potomac Telephone Co.,
756 F.2d 986 (4th Cir. 1985). Another case considering the role
of an expert accompanying officers executing a search warrant is
Forro Precision, Inc. v. International Business Machines Corp.,
673 F.2d 1045 (9th Cir. 1982).
(54) See United States v. Tamura, 694 F.2d 591 (9th Cir.
1982); DeMassa v. Nunez, 747 F.2d 1283 (9th Cir. 1984) (special
master appointed to supervise sorting of documents during search
of attorney's office).
(55) 18 U.S.C. 2511(1).

law/9brief.txt
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LEGAL BRIEF
By
Special Agent Jeffrey Higginbotham,
Legal Instructor, FBI Academy
In May 13, 1991, the U.S. Supreme Court decided in "County
of Riverside v. McLaughlin" that the U.S. Constitution requires
a judicial determination of probable cause within a prompt
period of time following warrantless arrests. In effect, the
Court established a maximum 48-hour period, including
intervening holidays and weekends, in which persons arrested
without a warrant are entitled to a probable cause
determination.
The Court stated that a 48-hour standard recognizes the
existence of some unavoidable delay following the arrest caused
in transporting arrested persons, handling bookings and
late-night bookings when no magistrate is readily available, and
having the arresting officer present, who may otherwise be
occupied with other duties. In its decision, the Court noted,
"[A] jurisdiction that provides judicial determinations of
probable cause within 48 hours of arrest will, as a general
matter, comply with the promptness requirement."
The Court cautioned, however, that a probable cause
determination held within 48 hours could be found to be
unreasonable if the delay was for the "purpose of gathering
additional evidence to justify the arrest...motivated by ill
will against the arrested individual, or delay for delay's
sake." The Court also stated that if the probable cause
determination is delayed beyond 48 hours, the "burden shifts to
the government to demonstrate the existence of a bona fide
emergency or other extraordinary circumstance."
County of Riverside v. McLaughlin may require some law
enforcement organizations to modify their post-warrantless
arrest practices to ensure that a mechanism exists for a
judicial determination of probable cause within 48 hours of a
warrantless arrest. This constitutional requirement for a
prompt judicial determination of probable cause only applies
where the arrested person remains in custody. It is advisable
for law enforcement organizations to coordinate all such
judicial determinations with the appropriate prosecuting
attorney.

law/9briefp32.law
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LEGAL BRIEF
By
Special Agent Jeffrey Higginbotham,
Legal Instructor, FBI Academy
In May 13, 1991, the U.S. Supreme Court decided in "County
of Riverside v. McLaughlin" that the U.S. Constitution requires
a judicial determination of probable cause within a prompt
period of time following warrantless arrests. In effect, the
Court established a maximum 48-hour period, including
intervening holidays and weekends, in which persons arrested
without a warrant are entitled to a probable cause
determination.
The Court stated that a 48-hour standard recognizes the
existence of some unavoidable delay following the arrest caused
in transporting arrested persons, handling bookings and
late-night bookings when no magistrate is readily available, and
having the arresting officer present, who may otherwise be
occupied with other duties. In its decision, the Court noted,
"[A] jurisdiction that provides judicial determinations of
probable cause within 48 hours of arrest will, as a general
matter, comply with the promptness requirement."
The Court cautioned, however, that a probable cause
determination held within 48 hours could be found to be
unreasonable if the delay was for the "purpose of gathering
additional evidence to justify the arrest...motivated by ill
will against the arrested individual, or delay for delay's
sake." The Court also stated that if the probable cause
determination is delayed beyond 48 hours, the "burden shifts to
the government to demonstrate the existence of a bona fide
emergency or other extraordinary circumstance."
County of Riverside v. McLaughlin may require some law
enforcement organizations to modify their post-warrantless
arrest practices to ensure that a mechanism exists for a
judicial determination of probable cause within 48 hours of a
warrantless arrest. This constitutional requirement for a
prompt judicial determination of probable cause only applies
where the arrested person remains in custody. It is advisable
for law enforcement organizations to coordinate all such
judicial determinations with the appropriate prosecuting
attorney.

law/abouteff.law
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************************************************************************
General Information about the Electronic Frontier Foundation
************************************************************************
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Downloaded From P-80 International Information Systems 304-744-2253
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August 1991
CITIZEN POLICE ACADEMIES
By
Martin Alan Greenberg, M.A.
Professor
Chairman, Department of Criminal Justice
Ulster County Community College
Stone Ridge, New York
During the past 2 decades, law enforcement has expanded the
involvement of private citizens in community-based crime
prevention efforts. The nature of the public's involvement
depends on the individual department. Usually, local police
departments center their efforts on one or two programs and
invite the public to participate. One such program for citizens
is the citizen police academy.
Basically, citizen police academies provide a mechanism for
educating the public about the criminal justice system and the
ways to resist crime. The overall goals are to gain support for
police work, explain the operations of police agencies, and
encourage private citizens to undertake appropriate security
measures. Typically, police personnel conduct the classes,
which are coordinated by community relations units.
This article gives an overview of citizen police academies
and describes their inherent advantages and disadvantages. It
then addresses ways to expand the scope of such academies.
OVERVIEW
In 1977, the Devon and Cornwall Constabulary designed a
program to familiarize private citizens with the nature of
police work and the organization of the police system in the
United Kingdom. The course, known as the "Police Night
School," met for 10 consecutive Wednesday evenings and was
conducted by police personnel on a volunteer basis. The success
of this program prompted other British police departments to
imitate it. (1)
Eight years later, in 1985, the Orlando, Florida, Police
Department organized the first citizen police academy in the
United States. Modeled after the British Police Night School,
the academy convened one evening a week for 10 weeks. Also,
participants were given an option to complete a short course on
the use of police sidearms and to ride as observers with
officers on patrol. (2) Graduates of the citizen police academy
received a departmental cap, certificate of completion, and a
commemorative paperweight. (3)
Other U.S. communities followed Orlando's lead. The
Missouri City, Texas, Police Department introduced its first
citizen police academy in 1986. Media announcements attracted
academy participants, who were screened through background
checks. This program's success resulted in the expansion of the
academy to 11 evening sessions and the incorporation of firearms
practice and safety training as a regular part of the
curriculum. Several followup activities implemented by the
police department, such as a quarterly newsletter and special
invitations to police public relations activities, kept interest
in the program alive.
In Commerce City, Colorado, the police department recruited
participants for its first citizen police academy through
personal contacts. The curriculum, initially based on the
regular police academy schedule, was condensed into 11 nightly
sessions and some weekend activities. The extra sessions were
devoted to firearms practice and safety training, ride-alongs,
and the use of department vehicles on the department's driving
course. From the outset, departmental officials, personnel from
other criminal justices services, and community members (e.g.,
news media representatives) served as instructors or special
guest lecturers. Police department instructors also
volunteered, but were given compensatory time off for their
participation.
ADVANTAGES OF CURRENT PROGRAMS
The public's involvement in a citizen police academy
expands community-based crime prevention efforts. Academy
participants become better prepared to cope with criminal
incidents, are more willing to report crime, and realize the
need to testify when they observe a crime. They also gain an
understanding of police procedures that is more reflective of
everyday police work than what is portrayed by the media. This
helps to reduce complaints about routine police matters.
Participants in academy classes also learn how they can
help to make their communities crime-free. They become sources
for new ideas or provide ways to better educate the public. For
example, a bank executive, who participated in a citizen police
academy, offered to include crime prevention messages in the
monthly statements mailed to depositors. (4)
For police departments, citizen police academies provide an
avenue to learn about the concerns of community members. These
academies encourage police interaction with the public, which
can augment police job satisfaction and provide a measure of
accountability to the community.
At the same time, police departments can use a citizen
police academy to recruit individuals into the profession. They
can also emphasize specific problems in the course of
instruction, that is, types of crime that are specific to the
locale.
The use of guest instructors from other agencies furthers
interagency cooperation. In addition, these academies are a
means to increase morale within a department as a result of the
internal cooperation necessary for organizing the academy
program.
DISADVANTAGES
While citizen police academies offer several avenues to
police departments to encourage community support, they also
have their disadvantages. First, two of the existing programs
have been designed for suburban communities with relatively low
populations. Consequently, the programs reach only a small
number of residents and probably are not suited to urban areas.
Inherently, some academy instructors could lose sight of
the goal of citizen police academies. They might overplay the
public relations aspects and curtail the delivery of more useful
information about the realities of policing and the ability of
the criminal justice system to contend with crime.
At the same time, planning activities for the academy, such
as preparing curriculum and screening applicants, may detract
from the time and resources needed for routine police work. In
addition, local liability considerations may limit or eliminate
high-interest activities, such as firearms instruction and
ride-alongs. And while the expenditures needed to maintain a
citizen police academy are supposedly minimal, instruction may
be costly if volunteer instructors are unavailable. For
example, in Commerce City, Colorado, firearms training was
preceded by a 3-hour orientation class, and individual
instructors were provided for each student while on the firing
range.
Police departments need to maintain citizen interest when
the academy ends. This is difficult unless followup activities
are planned. A few months after completing the academy, some
participants may be disappointed if all they have to show for
their efforts are a cap or T-shirt, a certificate, and memories.
Academies could also turn into victims of their own
success. Participants could become so overzealous in their
concern for justice that they engage in conduct that undermines
departmental policies and programs, e.g., establishing a
vigilante-type neighborhood patrol organization.
Another area of concern is the number of requests for crime
prevention speakers and home and business security surveys that
academy participation may generate. While this is not a
disadvantage, per se, such requests could over-burden officers
by increasing their workload.
RECOMMENDATIONS
The existing citizen police academies demonstrate a
willingness on the part of local police departments to share
information with the general public. However, their efforts
should merely be considered as a beginning, especially if large
metropolitan areas adopt this initiative.
Obviously, achieving the support and cooperation of diverse
segments of a metropolitan population will require more than an
annual course for a few hand-picked participants. A better
approach would be for urban police departments to use their
resources to train and certify classes of citizen volunteer
instructors who would then be qualified to offer a series of
continuous free courses to the public. This would allow for all
age groups, sooner or later, to learn a variety of self-help
skills.
Moreover, since graduates of the certification program are
expected to become future teachers of citizen police academies,
concern about followup activities diminishes significantly. And
if departments want to maintain close supervision of citizen
instructors, they could include the program as part of a new or
existing auxiliary or reserve police unit.
Another recommendation is to apply a much broader term to
these academies, such as "neighborhood police academy." This
term emphasizes the importance of people working together for
the betterment of the community and works to broaden the format
of the academies. Future participants might be drawn from
occupations holding peace officer status, such as correctional
personnel and reserve officers.
INCREASED SCOPE
By expanding the role of these police academies, most of
the current disadvantages would be reduced. For example, newly
certified citizen instructors would be more motivated to
concentrate on crime prevention topics and less likely to
overemphasize public relations. Their services can be used to
develop new curriculum guides or to expand and revise current
materials for diverse populations. They could also serve to
augment the department's personnel resources as crime prevention
speakers and home security inspectors.
If made part of a police auxiliary or reserve unit, the
department maintains the interest of volunteer instructors. In
turn, upon completion of a certification class, highly qualified
reservists could increase the availability of firearms
instructors for one-on-one safety instruction and practice.
Also, in the event regular patrol officers are unavailable
to accommodate a citizens' ride-along program, auxiliary or
reserve officers could be used. Finally, the existence of a
volunteer police unit that has been thoroughly trained, closely
guided, and given meaningful assignments would reduce the
possibility that overzealous course participants might establish
their own independent vigilante-type patrols.
CONCLUSION
As FBI Director William S. Sessions stated, "We need
citizen involvement more than ever today." (5) Therefore,
police agencies should not hesitate to enlist the services of
their law-abiding community members. Without the cooperation of
victims and witnesses in reporting crime and testifying about
what they saw, criminals would be virtually held unaccountable
for their actions.
Moreover, additional human resources are urgently needed to
provide educational programs in urban areas (e.g., family abuse
prevention, etc.). By expanding the current model of citizen
police academies, departments take one step forward in resolving
many of the crime problems facing their communities.
FOOTNOTES
(1) R. Ferguson, "The Citizen Police Academy," FBI Law
Enforcement Bulletin, vol. 54, No. 9, September 1985, p. 6.
(2) Ibid.
(3) Ibid., p.7.
(4) J. Seelmeyer, "A Citizen's Police Academy," Law and
Order, vol. 35, No. 12, p. 28.
(5) W. Sessions, "Directors Message," FBI Law Enforcement
Bulletin, vol. 57, No. 10, October 1988, p. 1.

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November 1990
POLICE PRACTICES
WIN: AFIS TECHNOLOGY FOR RURAL STATES
Large law enforcement agencies have experienced remarkable
success with the Automated Fingerprint Identification System
(AFIS) technology in recent years. In fact, AFIS is
revolutionizing the way fingerprints are processed and used in
the identification and apprehension of criminals. Currently,
over half of the States and about 50 city or county agencies
have operational automated fingerprinting systems. However, the
high cost of this incredible technology prevents many smaller
agencies, both State and local, from realizing its benefits.
This is changing, however, in a handful of western States
because of an innovative and cooperative effort among law
enforcement officers, administrators and planners to make the
implementation of AFIS a reality in their region. Their
accomplishments could well be replicated in other areas of the
country and among other jurisdictions that are looking for a
feasible means of keeping up with progressive technology.
PLANNING
Early in January 1988, representatives from law enforcement
agencies in six western States (Idaho, Montana, Utah, Nevada,
Wyoming, and Oregon) met in Boise, Idaho, to discuss their
individual and collective needs for an AFIS. Each
representative could demonstrate a documented need for such a
system. But they shared a common problem--lack of sufficient
capital to purchase the full complement of hardware needed to
maintain the system.
In search for a solution, the representatives considered a
network of leased "smart" terminals (remote input stations)
linked by dedicated telephone lines to a central, remotely
accessible processing center. Initial data indicated that a
combined shared database could produce a cost savings of up to
50 percent.
Such links already existed within California and Washington,
where remote terminals are connected by telephone lines to a
central process unit at a designated site. However, when trying
to ensure the compatibility of the identification systems, the
issue of individual State laws arose.
It was discovered that individual States would have a
problem with leasing laws, which could be solved by creating a
corporation among the States. By doing this, leasing laws would
no longer be a restraining factor. Once this was resolved,
interstate connections were solidified, and each State's system
could talk to the systems of the other States. However, without
this capability, no interchange of database access is possible.
FORMATION OF WIN
To protect individual members' rights and investments, the
States formed a nonprofit corporation. In May 1988, articles of
incorporation and bylaws were filed in Nevada to create the
Western Identification Network, Inc. (WIN). This nonprofit
corporation facilitated the creation of a multi-State network
designed to address the needs of the States, both collectively
and individually. A request for proposal (RFP) for the system
was released in June 1988, and by September, an information
systems company was selected to provide equipment and training.
The company would also serve as a consultant should any problems
arise.
During the RFP process, criminal justice executives
convinced State legislatures to fund participation in WIN. For
many, this required an extensive education program because, even
though the WIN concept is far cheaper than outright purchase or
lease on an individual basis, the project still involved a
considerable outlay of tax dollars. Through a multi-State,
combined effort, using departmental resources and talent, the
representatives produced a promotional video used to educate
officials and the public on the advantages of the system.
By June 1989, Alaska, California, Idaho, Nevada, Oregon,
Utah, Washington, Wyoming, and the Portland Police Bureau had
obtained funding appropriations. Once the funds became
available, WIN quickly established an office and a staff of two
to administer billings, oversee the vendor operations, and
ensure that contractual requirements were met.
During October 1989, the WIN host computer was installed in
Sacramento, California, and 900,000 records from five States
were converted to AFIS data and loaded into the system. Remote
subsystems were installed in Boise, Idaho, Carson City, Nevada,
Cheyenne, Wyoming, Portland, Oregon, Salem, Oregon, and Salt
Lake City, Utah. In addition, booking terminals are slated to
be installed in numerous other locations throughout these
States. California was connected to the system during the first
6 months of 1990, and the Alaska and Washington AFIS systems
came online in August 1990.
PROGRAM SUCCESSES
As of June 1990, Idaho, which came online just 6 months
prior, has had over 37 hits, resulting in the identification of
suspects in a 25-year-old homicide case, 2 armed robberies, 1
auto theft, 2 rape cases, 4 drug cases, and 27 major burglaries.
The director of the Idaho Department of Law Enforcement praised
the system for bringing a predominantly rural State, such as
Idaho, to the "leading edge of effective crime control."
The WIN AFIS, now fully operational, is capable of
processing 24,240 arrest cards and 4,500 crime scene latent
prints per month against a database of 1.3 million criminal
fingerprint records. With the pooling of data, individual State
records can be searched as necessary, and since crime knows no
borders, the probability of hits increases greatly.
CONCLUSION
Results obtained during training and the first months of
implementation indicate that benefits derived from WIN will be
comparable to system successes in other States. With 10,000
records being added each month, and other States expected to
come online in the near future, the entire western United States
will soon share a common access to an automated fingerprint
identification system. The capability to search criminal data
in multiple States may, indeed, prove to be valuable beyond the
most optimistic expectations.
_______________
Information for this column was submitted by W.C. Overton,
Chief of the Office of Public Affairs, Idaho Department of Law Enforcement.

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Arizona Identification
Council Newsletter
President: Dwane Hilderbrand
Editor: Mitchell Small
July, 1990
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Latent Shoeprint Analysis
Submitted by Dwane S Hilderbrand, CLPE
Criminalist III
Scottsdale Police Department
Scottsdale, Arizona
For decades, latent impressions have provided investigators,
identification technicians and criminalists invaluable clues to
establish the identity of individuals. Yet, another type of print
impressions that could be just as valuable has been overlooked.
Latent shoe impressions exist in almost all interior crime scenes
but they are often ignored by investigators or destroyed by initial
responders before these impressions may be processed.
Latent shoe impressions are the reproduction of the shoe sole
or tread through grease, oil or other foreign substance transferred
to an object it has touched or come into contact with. While these
prints can not be seen by the naked eye, they may be revealed by
using standard fingerprint powders. Most casual shoes have rubber
soles which are a petroleum product that secretes an oil base and
impressions may revealed using an iodine fuming gun. Although crime
scene investigators routinely search for visible shoe impressions
in exterior crime scenes, they often overlook the existence of
latent shoe impressions.
Like fingerprints, latent shoe impressions can be used to
place an individual at a crime scene. Although each shoe
manufacturer produces hundreds of various styles of footwear with
the same tread design, these identical prints quickly become unique
through the owner's use. Wear will vary depending on individual
walking styles and contact with different surfaces. Any scratch,
nick, or cut will result in points of comparison, making the shoe
"one of a kind".
As previously mentioned, most casual shoes have rubberized
soles, when exposed to light amounts of moisture, react in a way
similar to a finger leaving its impression on a surface. Vinyl,
linoleum, glass, smooth tile and doors, and painted floors provide
the best surfaces for recovery of latent shoe impressions.
Many of the same factors that are involved in lifting latent
finger and palm impressions made by friction skin are to be
considered in recovering latent shoe impressions i.e, the surface
must be smooth enough to reveal the characteristics of the soles
and temperature and weather conditions must be conducive to the
preservation of the impression. Like latent impressions, latent
shoe impressions are fragile and can be damaged if further contact
is made after the print is placed. They can be easily altered or
destroyed by the first responders and curious bystanders so it is
very important to carefully secure the crime scene if recovery of
the impression is to be successful. Latent shoe impressions have not been widely used on crime
scene investigations. Although recovery of the impressions depends
on several unpredictable variables, they may yield valuable
information and, therefore, should be considered a viable option
for investigators.
Information for this column was found in the FBI Law
Enforcement
Bulletin and provided by Dwain A Pierce, Criminalist Specialist,
Knoxville Police Department, Knoxville, Tennessee.
This author (Mr. Hilderbrand) has verified the finding of Mr.
Pierce through tests and experiments using various powders,
chemical enhancement and other techniques including lasers. Using
these techniques, he has developed and recovered many latent shoe
sole impressions.
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An Alternative Method Of Fixing
Iodine Developed Latent Prints
Submitted by Mark Hatcher
Latent Print Examiner II
Crime Laboratory Bureau
Phoenix Police Department
Iodine fuming is a great tool in the development of latent
prints on porous surfaces. One of its biggest drawbacks, however,
is that the developed print will fade. There are several
commercially available products that will allow fixing the
developed print. An alternate method can be accomplished by using
a steam iron to fix iodine prints without any of the drawbacks of
commercial processes.
After completing the Iodine fuming process, apply a steam iron
to the fumed print. The print will now be fixed and the color will
have changed from a yellowish-brown to a bluish-purple. When a
steam iron, and or, electricity is not available at a crime scene,
the print can be fixed by immersing the article in water. Steam is
the preferred method because dipping the article in the water may
be destructive to ridge detail or other trace evidence.
There are many advantages in favor of using water (steam) for
a fixing agent of Iodine fumed prints. These include cost, safety,
and practicality. Water is inexpensive, readily available and
posses no threat if inhaled or touched. In addition, fixing an
iodine print with water limits an item to as few chemicals as
possible. This will reduce the chances of destroying other types of
forensic evidence, and fixing the iodine print using a steam iron
does not preclude the use of ninhydrin or silver nitrate.
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ÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍ
Do you have an unknown deceased individual in your files? The AIC
may be able help you identify the individual. We can print the
fingerprints of an unknown deceased along with a physical
description of the individual in the Newsletter. Send your
information to the editor.
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THE SOAP BOX
The Arizona Identification Newsletter is under new management!
After his long term as Editor, Mr. John Jolly has stepped down as
editor and I have been appointed the editor until the AIC holds
elections. This newsletter also begins one of the new features of
the new Newsletter, the Soapbox. As is traditional, everyone is
invited to get up on the Soapbox and speak their minds. If you have
an evidence processing problem, an unusual case, someone who needs
a public pat on the back or any other reason to sound off, this is
the place. As Editor, I have the honor of inaugurating the column
with an explanation of proposed editorial policies and submission
procedures. I hope this will be the last column I need to write:
the newsletter should be the product of the members and we need
your contributions to make it work.
To make submission as painless as possible, your articles may
find their way into the newsletter in a variety of ways:
øASCII file on a 5¬" MS-DOS compatible diskette. Preformatted
diskettes will be supplied, on request, for the transfer. If
your word processor does not save in this format, or you are
not sure what an ASCII file is, send a copy of the file
anyway! Don't worry about "special effects" like underlining
and such; if submitted early enough, you will receive a copy
of the edited version for approval.
øIf you have access to a computer with a modem, I will be
maintaining a part time Electronic Bulletin Board System (BBS)
for information transfer. Between 2pm and midnight, Tuesday
through Friday, the BBS may be reached through 971-4677; baud
rates up to 2400 bps are supported and the standard 8 data
bits, No Parity and 1 stop bit is used. Through the modem, I
can accept any ASCII document for inclusion into the
newsletter. The BBS will also provide E-mail between members
and other information will be on file for downloading.
øScottsdale PD will accept FAX transmissions of your articles
if your agency has FAX capabilities. Send your articles
addressed to Dwane Hilderbrand, Technical Investigations, at
391-5097.
øTyped submissions will always be welcome. Don't be concerned
with line spacing or margins, but please be sure all technical
terms are spelled properly.
øHand written articles are acceptable, but please take time to
make them legible!
øAs a rule, photographs do not reproduce well, but line
drawings, diagrams and original artwork is welcome.
Fingerprint patterns should be enlarged 2-3 times normal size
and Polaroid copies are adequate. If a presentation chart is
required, submit one Polaroid of the known and a second of the
unknown; tray to fill the frame as much as possible. If your
photographs show adequate detail, the reproduction should also
be adequate. Black and white photographs are preferred in all
cases.
All of us have a knack for doing something better than anyone
else. Here's your chance to pass that talent along and tell
everyone what you do best and how well you do it. We all know
someone who deserves recognition for doing a terrific job behind
the scenes, but who somehow never gets recognized; here's a
platform to recognize them.
When submitting anything for publication, bear in mind that
your article needs to be received by the first of the month that
the newsletter will be published. As editor, I don't like to do too
much editing: your article may be arranged to fit the space
provided, but I will try not to change the words you submit.
Provided you submit your article early enough, I will even send you
a copy of how the article will appear, prior to publication. We are
targeting newsletter to be published two weeks after the quarterly
AIC meetings to try and keep the members as up to date as possible.
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Minutes of Previous Meetings
April 21, 1990
Submitted by Rudy Zamora
Members Attending
1) Mr. Barry Jones Mesa PD
2) Mr. Clyde Tess MCSO
3) Mr. Rodolfo Zamora Mesa PD
4) Mr. James Wallace Tucson PD
5) Mr. Tim O' Sullivan Tucson PD
6) Mr. Brian Rohrman Peoria PD
7) Mr. Leonard Cummings DPS
8) Ms. Glenda Hardy DPS
9) Mrs. Annabell Alvarado-Smith MCSO
10) Mr. Robert Miller MCSO
11) Mr. Fred Carmack DPS
12) Mr. Pat Wertheim DPS
The meeting was called to order by Mr. Zamora Sec-Treas at
1:00pm and introduced Mr. Wertheim from Tucson DPS who gave an
excellent presentation on Cult Crimes. For copies of hand-out
materials, contact Mr. Wertheim at 746-4570. The minutes from the
previous meeting held on March 23, 1990 were covered.
Agenda
1) A.I.C Conference
2) I.A.I Conference
3) Recognizing individuals in our field
4) Mr. Ed Wollert benefit
5) Northland Pioneer College
1) Effective March 26, 1990, Mr. Wertheim resigned as chairman of
the AIC Conference. Mr. Mitch Small volunteered as chairman. Mrs.
Ann Quigley and Mr. Zamora will assist to coordinate the conference
in October. They will get back to the membership as soon as
possible.
2) The AIC is considering hosting the International Association
for Identification's Annual Conference. Mrs. Patty Burkeholter from
the Tucson Convention Bureau has given their full support to assist
us in making this convention a successful one. It was determined by
members present that we need to have commitments from not just a
few members, but from most members. Mr. Wallace will ask Patty to
give us a presentation on their services. He will try to arrange
this for our meeting in June. NOTE: as of this newsletter we have
received word from our members in Tucson and they are not able to
support this conference.
3) Recognizing individuals- When I was first trained in this
field I was told the job has no fame and glory. All we have is the
satisfaction that we did the very best we could at the crime scene
and when the comparisons are done. I feel that it is time to
recognize those in our field that go that extra yard. I propose
that we develop and form a committee to recognize those
individuals. I'm open for suggestions in this matter and welcome
all comments. I will try an put together some type of standards to
fit our needs and bring these to the membership for approval.
4) Ed Wollert Benefit- Mr. Zamora is trying to put together a
carport sale to benefit the Wollert family. This carport sale was
held at Glenda Hardy's home and was supported primarily by Mesa PD
members. Mrs. Wollert has sent the AIC a Thank You note in
appreciation of our efforts.
5) Northland Pioneer College- Mr. Pat Wertheim has agreed to
coordinate, for the next four years, the "Crime Scene School" held
at Northland Pioneer College. Mr. Wertheim stated that Mr. Wilson
and students were very pleased of how this school was presented.
Our sincere thanks to Mr. Wertheim for a job well done and to all
those who assisted in this school. Mr. Wertheim is preparing for
this years school and we ask all departments to again support us
with this years program. Message: Mr. Clyde Tess would like you to
notify the nominating committee or Mr. Hilderbrand (391-5278) if
you are interested in becoming a board member or know of someone
who would like to.
We would like to invite all members to our next meeting in
June. We encourage anyone who has a topic they would like to
present to the members to please contact Mr. Hilderbrand at 391-
5278 Scottsdale Police Department.
With all business discussed, Mr. Jim Wallace made a motion to
close the meeting and seconded by Mr. Clyde Tess (4:20 pm)
ÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍ
Minutes of meeting on 6/16/90; held at Glenda Hardy's home.
(Editor's note: in an effort to meet the publication deadline,
these minutes were telephoned to me and I transcribed them. I
apologize for any inaccuracies noted by members. Mitch)
Members in attendance:
1) Len Cummings DPS
2) Clyde Tess MCSO
3) Barry Jones Mesa PD
4) Dwane Hilderbrand Scottsdale PD
5) Glenda Hardy DPS
6) Carey Chapman DPS
7) Fred Carmack DPS
8) Robert Tavernaro DPS
9) Brian Rhorman Peoria PD
10) Rudy Zamora Mesa PD
The meeting was called to order at 1:00 pm.
Rudy Zamora gave a practical demonstration of Crime Scene
Processing with Red Wop in conjunction with the Luma Light. Len
Cummings offered a variation to using straight Red Wop powder: mix
about a tooth pick full of Red Wop with your standard container of
Magna Powder. Tests conducted using the metal blade of a garden
shovel showed sufficient fluorescence for detection of
fingerprints.
Mr. Zamora also reported that we have 40 paid members and an
approximate balance of $4525 in the treasury.
A point of order was raised concerning the need for Election
of Officers as provided by our Bylaws. A special meeting of the AIC
has been called for Saturday, July 21, at Mesa Police Department,
1:00 pm to 4:00 pm for the express purpose of electing new
officers. For directions and further information, contact Rudy
Zamora at 644-2341 (Mesa) or Dwane Hilderbrand at 391-5278
(Scottsdale).
It was reported that a Recognition Program is still in the
research stages and it was pointed out that California and Canada
have a program of recognizing members of their divisions
independent of the IAI's program. It was suggested that as part of
the Recognition Program the AIC could send the honoree to the IAI
Annual Convention.
There was a division of opinion between member on having non-
AIC members teaching at AIC sponsored schools.
New Business Raised
Glenda Hardy proposed publication of the AIC Newsletter every
other month to insure current topics are covered.
Anyone interested in running for office at the upcoming
elections should contact Dwane as soon as possible.
Robert Tavernaro suggested a letter to be sent to the heads of
Arizona law enforcement agencies thanking them for supporting the
AIC will be drafted. It is hoped that this will encourage more
agencies to allow their people to become involved with the AIC.
Clyde Tess suggested that instead of the usual weekend
conference, this years Annual Conference become a one day
symposium.
Dwane Hilderbrand asked for the members to put together a
questionnaire to determine what people expect from the AIC so the
AIC may better meet the needs of its members.
It was not recorded what time the meeting was adjourned.
ÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍ
SPECIAL ANNOUNCEMENT
There will be a special meeting exclusively for electing new
officers to be held July 21, 1990 at Mesa PD, 1:00 pm to 4:30 pm BE
THERE TO CAST YOUR VOTE!
The next regular AIC Quarterly Meeting will be held in Flagstaff,
at the DPS Crime Lab, September 20, 1990, between 1:00 pm and 4:30
pm. Contact Len Cummings or Dick Erffert
ÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍ
AIC MEMBERS
Dave Adkins Regular
Fingerprint Examiner
Grand Junction Police Department
Grand Junction, Co 81501-7720
Christa Anderson Regular
Evidence Technician
Phoenix Police Department
Phoenix, Az 85003
Work Phone: 261-8102
Steven Anderson Regular
Latent Print Examiner
Scottsdale Police Dept
Scottsdale, Az 85258
Work Phone: 391-5278
Joanne E Archibald Regular
Fingerprint Examiner
Tempe Police Department
Tempe, Az 85281
AIC MEMBERS
Ron Bend Regular
Identification Technician
Pima County Sheriff's Department
Tucson, Az 85702
Work Phone: (602) 740-2820
Dr. Walter Birkby Honorary
Forensic Pathologist
University of Arizona
Tucson, Az 85700
Jim Blount Regular
Fingerprint Technician
Pima County Sheriff's Department
Tucson, Az 85702
Work Phone: (602) 740-2820
Alan Bradley Retired
Dean Bradley Honorary
Mesa, Az 85207
Kathy Bright Honorary
Identification Technician
Pima County Sheriff's Department
Tucson, Az 85702
Work Phone: 740-2820
Herb Bruning Regular
Apache Junction Police Department
Apahche Juntion, Az 85210
Fred Carmack Regular
Fingerprint Examiner
Arizona Department of Public Safety
Phoenix, Az 85004-6638
Carey Chapman Regular
Latent Print Unit Supervisor
Arizona Department of Public Safety
Phoenix, Az 85004-6638
Nancy Christ Regular
Latent Print Examiner I
Phoenix Police Department
Phoenix, Az 85003
Work Phone: (602) 261-8102
W. Joseph Collier Regular
Crime Laboratory Director
Phoenix Police Department
Phoenix, Az 85003
Work Phone: (602) 261-8102 AIC MEMBERS
Herb Collins Regular
Fingerprint Examiner
Mesa Police Department
Mesa, Az 85201
Helen Jean Copeland Regular
Evidence Technician
Phoenix Police Department
Phoenix, Az 85003
Work Phone: (602) 261-8102
Mildred Copeland Regular
Evidence Technician
Phoenix Police Department
Phoenix, Az 85003
Work Phone: (602) 261-8102
Jim Cox Regular
Lieutenant
San Bernardino County Sheriff's Ofc
Redlands, Ca 92415
Leonard Cummings Regular
Fingerprint Examiner
Arizona Department of Public Safety
Flagstaff, Az 86011
Ronald Davis Regular
Latent Print Examiner II
Phoenix Police Department
Phoenix, Az 85003
Work Phone: (602) 261-8102
Linda Doyle Regular
Fingerprint Examiner
Mesa Police Department
Mesa, Az 85201
Greg Eilers Regular
Identification Technician
Tucson Police Department
Tucson, Az 85701
Richard Erfert Regular
Fingerprint Examiner
Arizona Department of Public Safety
Flagstaff, Az 86011
Doug Ferguson Regular
Latent Print Examiner III
Phoenix Police Department
Phoenix, Az 85003
Work Phone: (602) 261-8102 AIC MEMBERS
Tom Fiorenza Regular
Officer
Short Hills Police Department
Short Hills, NJ 07078
Charles Ford Regular
Latent Print Examiner
Goodyear, Az 85338
Paul Freeman Regular
Identification Technician
Pima County Sheriff's Department
Tucson, Az 85702
Work Phone: (602) 740-2820
Joe Garcia Regular
Fingerprint Examiner
Tempe Police Department
Tempe, Az 85281
Dr. Kevin Gilmartin Honorary
Psychiatrist
Pima County Sheriff's Department
Tucson, Az 85702
Glenda K Hardy Regular
Fingerprint Examiner
Arizona Department of Public Safety
Phoenix, Az 85004-6638
Bob Harr Regular
Fingerprint Examiner
Yuma Police Department
Yuma, Az 85364
Mark Hatcher Regular
Latent Print Examiner II
Phoenix Police Department
Phoenix, Az 85003
Work Phone: (602) 261-8102
Dwane Hilderbrand Regular
Latent Print Section Supervisor
Scottsdale Police Dept
Scottsdale, Az 85258
Work Phone: 391-5278
Wendy Hutchison Regular
Crime Scene Officer
Scottsdale Police Dept
Scottsdale, Az 85258
Work Phone: 391-5278 AIC MEMBERS
Wes Infiesto Regular
Crime Scene Officer
Scottsdale Police Dept
Scottsdale, Az 85258
Work Phone: 391-5278
John Jolly Regular
Fingerprint Examiner
Arizona Department of Public Safety
Phoenix, Az 85004-6638
Barry Jones Regular
Identification Section Supervisor
Mesa Police Department
Mesa, Az 85201
Karen Jones Regular
Latent Print Examiner III
Phoenix Police Department
Phoenix, Az 85003
Work Phone: (602) 261-8102
Roy Keller Regular
Identification Section Supervisor
Pima County Sheriff's Department
Tucson, Az 85702
Work Phone: (602) 740-2820
Stan Kimball Regular
Retired
Phoenix, Az 85013
Julie Larson Regular
Identification Technician
Tucson Police Department
Tucson, Az 85701
Don Levy Regular
Identification Technician
Mesa Police Department
Mesa, Az 85201
Rudy Martinez Regular
Fingerprint Examiner
Tempe Police Department
Tempe, Az 85281
Kim McCall Regular
Fingerprint Examiner
Tucson Police Department
Tucson, Az 85701
Sherrill Meisner Regular
Identification Technician
Maricopa County Sheriff's Office
Phoenix, Az 85003 AIC MEMBERS
John Neely Regular
Fingerprint Examiner
Tucson Police Department
Tucson, Az 85701
Glenn H Nichols Regular
Pinetop-Lakeside Police Department
Pinetop-Lakeside, Az 85929
Tim O'Sullivan Regular
Fingerprint Examiner
Tucson Police Department
Tucson, Az 85701
Geraldine Ortiz Regular
Identification Technician
Tucson Police Department
Tucson, Az 85701
Liz Patze Regular
Property Technician
Pima County Sheriff's Department
Tucson, Az 85702
Work Phone: (602) 740-2822
Lou Ann Quigley Regular
Latent Print Examiner III
Phoenix Police Department
Phoenix, Az 85003
Work Phone: (602) 261-8102
LeRoy Rath Regular
Latent Print Examiner II
Phoenix Police Department
Phoenix, Az 85003
Work Phone: (602) 261-8102
Fritz Renter Regular
Arizona Department of Public Safety
Phoenix, Az 85004-6638
Frank Rodgers Regular
Latent Print Section Supervisor
Phoenix Police Department
Phoenix, Az 85003
Work Phone: (602) 261-8102
Art Rogers Regular
Latent Print Examiner
Phoenix, Az 85003
Brian Rohrman Regular
Peoria Police Department
Peoria, Az 85380 AIC MEMBERS
Rubie L Ross Regular
Latent Print Examiner
Plano Police Department
Plano, Tx
Chuck Roth Regular
Fingerprint Examiner
Pima County Sheriff's Department
Tucson, Az 85702
Work Phone: (602) 740-2820
P. Glenn Rudd Regular
Intake Assistant
Yavapai County Sheriff's Office
Prescott, Az 86301
Ronald Rydman Associate
Western States Marketing
Prescott, Az 86301
Gene Scott Regular
Identification Technician
Tucson Police Department
Tucson, Az 85701
Eva Skelton Regular
Arizona Department of Public Safety
Phoenix, Az 85004-6638
Steve Skowron Regular
Identification Technician
Tucson Police Department
Tucson, Az 85701
Mitchell Small Regular
Latent Print Examiner II
Phoenix Police Department
Phoenix, Az 85003
Work Phone: 261-8102
Annabelle Alvarado - Smith Regular
Fingerprint Examiner
Maricopa County Sheriff's Office
Phoenix, Az 85003
Michael Smith Regular
Police Officer
Phoenix Police Department
Phoenix, Az 85003
Cole Sorensen Regular
Crime Scene Officer
Scottsdale Police Dept
Scottsdale, Az 85258
Work Phone: 391-5278 AIC MEMBERS
Vicki Standley Regular
Latent Print Examiner
Garland Police Department
Garland, Tx 75040
Work Phone: (214) 205-2095
Roberta Stegen Regular
Fingerprint Examiner
Maricopa County Sheriff's Office
Phoenix, Az 85003
Gary Stone Regular
Latent Print Examiner II
Phoenix Police Department
Phoenix, Az 85003
Work Phone: (602) 261-8102
Rick Sutton Regular
Fingerprint Examiner
Mesa Police Department
Mesa, Az 85201
Mike Sweedo Regular
Fingerprint Examiner
Tucson Police Department
Tucson, Az 85701
Robert Tavernaro Regular
Fingerprint Examiner
Arizona Department of Public Safety
Phoenix, Az 85004-6638
Clyde Tess Regular
Identification Section Supervisor
Maricopa County Sheriff's Office
Phoenix, Az 85003
John Wagner Associate
Universal Procurement, Inc
Tempe, Az 85281
Jim Wallace Regular
Fingerprint Examiner
Tucson Police Department
Tucson, Az 85701
Doyle Walters Regular
Fingerprint Examiner
Bill Watling Regular
IRS/CID Forensic Lab
Chicago, Il 60606 AIC MEMBERS
Pat A Wertheim Regular
Fingerprint Examiner
Arizona Department of Public Safety
Tucson, Az 85701
Kathy Wright Regular
Fingerprint Examiner
Tempe Police Department
Tempe, Az 85281
Eloy Yassi Regular
Phoenix, Az 85040
Rudy Zamora Regular
Fingerprint Examiner
Mesa Police Department
Mesa, Az 85201
In response to many requests, we are printing an AIC
Membership Roster showing your fellow members and where they work.
Please contact either Rudy Zamora or Mitch Small with any
corrections to this list. We are also compiling a specialties list
for use in future teaching seminars, etc. If you would like to be
an instructor for an AIC sponsored seminar, let us know what you
are willing to teach.
In the next issue: AIC Officer Election Results; Poroscopy;
Shoe Impressions and the Electrostatic Dust Lifting Technique; AIC
Seminar Update and more!
Deadline for submissions to the next issue of the Newsletter
will be September 30. All articles and corrections must reach me
before then to be included; scheduled publication for the next
issue will be the first week of October.
Mitch Small
law/al_lawsta.law
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Here's the Alabama Computer Crimes Law,
adopted 1985, see Al.Code. Section 13A-8. */
ALABAMA COMPUTER CRIME ACT
SECTION 13A-8-100. Short title.
This article may be cited as the Alabama Computer Crime Act.
(Acts, 1985, No. 85-383, Section 1, Page 326.)
SECTION 13A-8-101. Defintions.
When used in this chapter, the following terms shall have
the following meanings, respectively, unless a different meaning
clearly appears from the context:
(1) DATA. A representation of information, knowledge,
facts, concepts, or instructions which are being prepared or have
been prepared in a formalized manner, and is intended to be
processed, is being processed, or has been processed in a
computer system or computer network, and should be classified as
intellectual property, and may be in any form, including computer
printouts, magnetic storage media, punched cards, or stored
internatlly in the memory of the computer.
(2) INTELLECTUAL PROPERTY. Data, including computer
programs.
(3) COMPUTER PROGRAM. An ordered set of data
representing coded instructiuons or statements that, when
executed by a computer, cause the computer to process data.
(4) COMPUTER. An electornic magnetic, optical or other
high speed data processing device or system which performs
logical, artihmetic, and memory functions by manipulations of
electronic magnetic or optical impulses, and includes all input,
output, processing, storage, computer software, or communication
facilities which are connected or related to the computer in a
computer system or computer network.
(5) COMPUTER SOFTWARE. A set of computer programs,
procedures, and associated documentation concerned with the
operation of a computer, computer system or computer network.
(6) COMPUTER SYSTEM. A series of related, connected or
unconnected, computer equipment, devices or computer software.
(7) COMPUTER NETWORK. A set of related, remotely
connected devices and communication facilities, including more
than one computer system, with capability to transmit data among
them through communication facilities.
(8) COMPUTER SYSTEM SERVICES. The utilization of a
computer, computer system, or computer network to assist an
individual or entity with the performance of a particular alwful
function which that individual or entity has been given the
right, duty and power, together with the responsibility, to
perform.
(9) PROPERTY. Anything of value as defined by law, and
includes financial instruments, information, including
electronically produced data and computer software and computer
programs in either machine or human readable form, and any other
tangible or intangible item of value.
(10) FINANCIAL INSTRUMENT. Includes any check, draft,
warrant, money order, note, certificate of deposit, letter of
credit, bill of exchange, credit or debit card, transaction
authorization mechanism, marketable security, or any computer
system representation thereof.
SECTION 12A-8-102. Acts constituting offenses against
intellectual prorty; punishment.
(a) Whoever willfully, knowingly, and without authorization
or without reasonable grounds to believe that he has such
authorization, attempts or achieves access, communication,
examination, or modification of data, computer programs, or
supporting documentation residing or existing internal or
external to a computer, computer system, or computer network
commits an offense against intellectual property.
(b) Whoever willfully, knowingly, and without authorization
or without reasoanble grounds to believe that he has such
authorization, destroys data, computer programs, or supporting
documentation residing or existing internal or external or
external to a computer, computer system or computer network
commits an offense against intellectual property.
(c) Whoever willfully, knowingly, and without authorization
or without reasonable ground to believe that he has such
authorization, discloses, uses, or takes data, computer programs,
or supporting documentation residing or existing intenal or
external to a computer, computer system, or computer network
commits an offense against intellectual property.
(d) (1)Except as otherwise provided in this subsection, an
offense against intellectual property is a Class A misdemeanor,
unishable as is provided by law.
(2) If the offense is committted for the purpose of devising
or executing any scheme or artifice to defraud or to obtain any
property, then the offneder is guilty of a Class C felony,
punishable as is provided by law.
(3) if the damage to such intellectual property is $
2,500.00 or greater, or if there is an interruption or impairment
of government operation or public communication, transportation,
or supply of water, gas, or other public or utility service, then
the offender is guilty of a Class B felony, punishable as
provided by law.
(4) Whoever willfully, knowingly, and without authorization
alters or removes data causing physical injury to any person who
is not involved in said act shall be guilty of a Class A felony,
punishable as is provided by law.
SECTION 13A-8-103 Acts constituting offense against computer
equipment or supplies; punishment.
(a)(1) Whoever willfully, knowingly, and without
authorization or without reasonable grounds to believe that he
has such authorization, modifies equipment or supplies that are
used or intended to be used in a computer, computer system, or
computer network commits an offense against computer equipment or
supplies.
(2)a. Except as provided in this subsection, an offense
against computer equipment or supplies as provided in subdivision
(a)(1) is a Class A misdemeanor, punishable as provided by law.
b. If the offense is committed for the purpose of devising
or executing any scheme or artifice to defraud or to obtain any
propertyy, then the offender is guilty of a Class C felony,
punishable as provided by law.
(b)(1) Whoever willfully, knowingly, and without
authorzation or without reasonable grounds to believe that he has
such authorization, destroys, uses, takes, injures, or damages
equipment or supplies ised or intended to be used in a computer,
computer system, or computer networrk, or whoever willfully,
knwoingly, and without authorization or without reasonable
grounds to believe that he has such authorization, destroys,
injures, takes or damages any computer, computer system, or
computer network commits an offense against computer equipment
and supplies.
(2)a. Except as provided in this subsection, an offense
against computer equipment or supplies as provided in subdivision
(b)(1) is a Class A misdemeanor, punishable as provided by law.
b. If the damage to such computer equipment or supplies or
to the computer, computer system, or computer network is $
2,500.00 or greater, or if there is an interruption or impairment
of government operation or public communication, transportation,
or supply of water, gas, or other public or utility service, then
the offender is guilty of a Class B felony, punishable as
provided by law.
Downloaded From P-80 International Information Systems 304-744-2253
law/alcor-1
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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.
law/alcor-2
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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)
law/alcor-3
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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 defendants be awarded judgement for their cost of suit
incurred herein;
5. That this court grant such other and further relief as it deems
just and proper.
Dated: March 27, 1990
[boiler plate/signed Martin Stein]
[page 5]
_MEMORANDUM OF POINTS AND AUTHORITIES_
_INTRODUCTION AND STATEMENT OF RELEVANT FACTS_
Plaintiffs seek damages and injunctive relief based on the purported
acts of the named defendants herein in executing a facially valid search
warrant. The assert that in executing the search warrant, defendants
violated the provisions of the ECPA. More specifically, plaintiffs
allege that at some unspecified date prior to January 12, 1988,
defendants procured from the Riverside County Superior Court a search
warrant which authorized, in general, a search of the facilities of
Alcor. Plaintiffs assert, however, that the search warrant did not
purport to reach, nor was it intended to reach any of plaintiffs E_Mail.
Complaint [paragraph] 5.
[footnote--Plaintiffs assert that E-Mail was the facilitation, sending
and receipt of electronic mail via computerized modems. Complaint, para
4]
Plaintiffs assert that pursuant to the search warrant, on January 12,
1988, defendants searched Alcor's premises and removed a variety of items
including the electronic media containing plaintiffs E-Mail. Complaint
[paragraph] 6. Plaintiffs conclude by alleging that notwithstanding that
defendants and each of the were informed that they had taken, along with
materials described the warrant, E-Mail belonging to plaintiffs, that
defendants herein 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 said E-Mail. Plaintiffs
thus concluded that defendant's wrongful access and retention of
plaintiffs' E-Mail was intentional within the meaning of 18 U.S.C.
Section 2707, Complaint, paragraph 12.
Notwithstanding the allegations of plaintiffs' Complaint, it can be
readily determined from a review of the search warrant attach thereto
(see Attachment A) that defendants did not violate or exceed the specific
terms of the search warrant order obtained by them prior to its execution
at Alcor's premises. This court should therefore determine that, as a
matter of law, there has been no violation of the ECPA, and plaintiffs
have failed to state a claim for relief, thus requiring a dismissal of
the complaint as to all defendants. Even if it were otherwise, the named
defendants are entitled to dismissal on the basis of their good-faith
reliance on a facially valid Riverside County Superior Court search
warrant and thus, their good-faith reliance on that search warrant is a
complete defense as to the instant action, pursuant to 18 U.S.C. section
2707(d)(1).
[page 7]
_LEGAL DISCUSSION_
THE COMPLAINT SHOULD BE DISMISSED AS TO ALL NAMED DEFENDANTS
BECAUSE PLAINTIFFS HAVE FAILED TO STATE A CLAIM FOR RELIEF UNDER
THE ECPA
Plaintiffs seek to pursue the instant civil action based on a
purported violation of the ECPA of 1986. Specifically, plaintiffs seek
to pursue an action pursuant to 18 U.S.C. section 2707 which provides
that a provider of electronic communication service, subscriber or
customer of any such service aggrieved by any purported violation of this
section my recover from any person or entity who knowingly or
intentionally violates the Act. Thus, plaintiffs assert that defendants
knowingly and wilfully accessed electronic and magnetic media containing
their E-Mail and continued to deny access to plaintiffs of such E-Mail
even after a demand for return of said E-Mail had been made and that such
seizure was not authorized by the specific terms of a Riverside County
Superior Court search warrant which authorized, in general, a search of
the facilities of Alcor Life Extension Foundation, which maintained
facilities at its place of business to facilitate the sending and
receiving of electronic mail via computerized modems and which electronic
mail facility was utilized by plaintiffs in this case.
We note preliminarily that while plaintiffs seek to assert a
violation of the ECPA they make no claim that defendants violated their
Fourth Amendment rights to be free from illegal searches and seizures, in
executing the search warrant in question. Rather their claim is strictly
based on a non-constitutional violation of their rights under the Act,
based on their allegation that the search warrant did not purport to
reach, nor was it intended to reach, any of their E-Mail.
Defendants submit that while plaintiffs are not required to allege
any Fourth Amendment violation of rights in order to proceed with their
ECPA cause of action, their failure to assert a Fourth Amendment
violation is significant. Here, the failure to make an allegation of
Fourth Amendment violation is critical since it would appear that if the
search warrant was facially valid and if defendants could not be said to
have violated any of plaintiffs' Fourth amendment Rights, then this court
should according find that no violation of the ECPA occurred. It is
submitted that the ultimate review of the search warrant, in terms of
facial validity should be the same whether this court be guided by Fourth
Amendment principles or the specific terms of the Act.
Turning to the search warrant which is included as attachment A to
the complaint, it appears that it provided for a search of the premises
at 12337 [wrong address] Doherty St. in the City and County of Riverside,
apparently the address of the Alcor Life Extension Foundation. According
to the search warrant authorization, a search was authorized by a judge
of the Riverside Superior court for property and other items potentially
used to commit a felony, property possessed with intent to commit a
public offense and/or property tending to show that a felony had been
committed. The search warrant specifically authorized the search and
potential seizure of
" 1. All electronic storage devices capable of storing electronic data,
including magnetic tapes, disc, (floppy or hard), and the complete
hardware necessary to retrieve electronic data including CPU (Central
Processing Unit), CRT (viewing screen), disk or tape drive(s), printer,
software and service manuals for operation of the said computer, together
with all hand written 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 as belonging to the deceased, Dora
Kent;
3. Narcotics, controlled substances and other drugs subject to
regulation by the Drug Enforcement Administration."
From a reivew of the contents of the search warrant, and contrary to
plantiffs' allegations in the complaint, it would appear that the
purported seizure of electronic E-Mail was specifically authorized by
paragraph 1 of the search warrant set out above. That paragraph
specifically permittted the seizure of all electronic storage devices
capable of storing electronic data including magnetic tapes, discs and
hardware necessary to retrieve electronic data. As previously noted,
since electronic mail is a type of communication which is typed into a
computer terminals and potentially then stored in that computer system,
the language of the warrant clearly should be found to cover the seizure
that took place in this case.
Defendants have found no authority suggesting that a search warrant
as specific as that found in the instant case, violates the requirements
of particularly which would subject the warrant to a finding of
invalidity. Under California law, it is well settled that "The
requirement of particularly is designed to prevent general exploratory
searches which unreasonably interfere with a person's right to privacy. .
. . [T]his requirement is held to be satisfied if the warrant imposes a
meaningful restriction upon the objects to be seized." _Burrows v.
Superior Court_, 13 Cal.3d 283, 249 (1974). As the California Supreme
Court has observed in another instance, "nothing should be left to the
discretion of the officer." _People v. Dumas_, 9 Cal.3d 871, 880 (1973).
As noted by the Ninth Circuit Court of Appeals, while precise description
of the items to be seized in accordance with a search warrant is not
always possible, some specificity is required. _U.S. v. McLaughlin_, 851
F.2d 283, 285 (9th Cir. 1988). As required by the _McLaughlin_ case and
the California authority previously cited, the search warrant
specifically described the property to be seized and the specification
imposed a meaningful restriction upon what objects would be taken by the
police during the execution of the search. Thus, since it would appear
that the search warrant satisfied the particularity requirement of both
state and federal law, no violation of plaintiffs Fourth Amendment rights
could be said to have occurred and, indeed, as noted above, no such
allegation of violation of the constitutional rights is alleged.
Assuming that the search warrant satisfies Fourth Amendment standards,
there can be no legitimate polity reason asserted by plaintiffs which
would permit this court to find that the search warrant did not comply
with the specific terms of the ECPA. In sum, since the specific terms of
the search warrant may be found to have authorized the seizure of
plaintiffs' E-Mail, this court should find that no proper claim for
relief has been stated by the plaintiffs and the complaint should be
ordered dismissed.
II
_EVEN IF THIS COURT WERE TO CONCLUDE THAT THE
SEARCH WARRANT WAS TECHNICALLY DEFICIENT
STILL DEFENDANTS ARE PROTECTED FROM SUIT BY
DOCTRINE OF GOOD-FAITH RELIANCE THUS, THE
COMPLAINT SHOULD BE ORDERED DISMISSED ON THIS
ADDITIONAL GROUND._
Even if this Court were to find that a technical violation of the
ECPA had occurred due to the seizure of plaintiffs' E-Mail in the instant
case, defendants nevertheless would be entitled to dismissal of the
action pursuant to the provision of 18 U.S.C. section 2707(d)(1) which
provides a complete defense for good-faith reliance on a facially valid
court warrant or order.
[The cited section refers to warrants *for* email, and plaintiffs
arguement is that deffendants had no such warrant.]
In the instant case, as explained in section I of this memorandum,
defendants were in fact engaged in the execution of a facially valid
search warrant. Thus, under the circumstances, their conduct should be
found to fall within the rule of good-faith reliance.
It should be noted that there are as yet no decisions interpreting
the good-faith defense provided by the provisions of section 2707.
However there is a significant body of case law regarding the doctrine of
qualified immunity. Thus, the doctrine of qualified immunity has been
recognized to shield government employees from civil right suits and is
available in that context unless the officials "knew or reasonably should
have know that [his or her] action . . . would violate . . .
constitutional right . . . . " _Harlow v. Fitzgerald_, 457 U.S. 800, 815
(1982), emphasis omitted. In civil rights cases qualified immunity is
available as a defense in three circumstances: (1) If it is unclear at
the time of the challenged acts that plaintiff had a constitutionally
protected interest; (2) even if plaintiff has a constitutionally
protected interest, it was unclear at the time whether an exception would
be permitted; and (3) even if plaintiffs's rights were clearly
delineated, qualified immunity is still available if was objectively
reasonable for defendant to feel that their acts did not violate
plaintiff's constitutional rights. _Robision v. Via_, 821 F.2d 913,
920-921 (2d Cir. 1978); _Tomer v. Gates_, 811 f.2d 1240, 1242 (9th Cir.
1987). Further, the good-faith exception to the exclusionary rule has
been found to be inapplicable only when a warrant is "so facially
overbroad as to preclude reasonable reliance by the executing officers,"
_U.S. v. Michaelian_, 803 F.2d 1042, 1046 (9th Cir. 1986), or when the
officers do not act in good faith _U.S. v. Spilotro_, 800 f.2d 959,. 968
(9th Cir. 1986)
In the instant case, defendants were entitled to good-faith immunity
for a number of reasons. First, as explained in the prior section of
this memorandum, the search warrant was not so facially overbroad as to
preclude reasonable reliance on its terms by the defendants herein.
Moreover, it was not "clearly established" at the time of the events in
this case that the seizure would somehow be found to be in violation of
either the Forth Amendment or the specific terms of the ECPA of 1986.
Defendants did not have the benefit of established precedent with respect
to the doctrine of good-faith immunity as it applied to the specific
terms of the federal Act. Finally, in light of the specific language in
the search warrant, this court should determine that it was objectively
reasonable for defendants to conclude that seizure of the E-Mail was
specifically authorized. Here, there could have been at most no more
than a technical violation in the execution of the search warrant and no
prior precedent interpreting the specific terms of the statute. These
are precisely the circumstance in the good-faith immunity should be found
to shield defendants form civil liability. For this reason, too, the
complaint should be dismissed.
[There is certainly an interesting Catch 22 in this reasoning. The
condition of having no precidents is being used as a reason to dismiss
the case. If all cases are dismissed on this basis, no precedent will
ever be set!]
CONCLUSION
For the forgoing reasons, defendants respectfully submit that this
court should grant their motion to dismiss plaintiffs' action for
violation of the ECPA since they have failed to plead an appropriate
federal claim under this statue. In the alternative, this court should
find that the named defendants herein are entitled to good-faith immunity
under the statue and, thus, the complaint should be dismissed for this
reason as well.
Dated: March 27, 1990
[signed etc]
law/alcor-4
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This is what our lawyer said in response to their motion. Comments
in [] ---Keith Henson
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)
H. KEITH HENSON, et al.,
Plaintiffs,
v.
RAYMOND CARRILLO, et al.,
Defendants.
Plaintiffs oppose the motion of defendants to dismiss in the
following premises:
1. _Introduction_
Defendants motion is premised upon two discrete but interrelated
concepts: first, the defendants assert that the mere existence of a
search warrant that purports to authorize the seizure of " all electronic
storage devices [etc.] . . . " is sufficient to avoid liability under the
Electronic Communication Privacy Act (hereinafter "Act"). Second, the
defendants argue that even it there is a "technical" violation of the
Act, then the activities of the defendants are saved by their "good faith
reliance" upon the warrant.
As will be pointed out in two brief succeeding sections, both of
these premises are erroneous. In general, the " warrant issued" defense
fails because the defendants have brought forth no evidence as required
by 18 U.S.C. Section 2703(d) to defensively demonstrate the propriety of
the issuance of the warrant in the first place under the limitation
imposed by the Act. With regard to the "good faith" argument, the short
answer is that the warrant is defective upon its face.
2. _Non-compliance With The Act_
18 U.S.C. Section 2703(d) declares in material part as follows:
"(d) Requirements for court order. A court order for
disclosure . . . may be issued by any court that is a court of
competent jurisdiction . . . and shall issue only if the governmental
entity shows that there is reason to believe the contents of a wire or
electronic communication . . . are relevant to a legitimate law
enforcement inquiry . . . ."
In order to claim the protection of this section, the "governmental
entity" would have to demonstrate to _this_ court that it had supplied
the issuing court with evidentiary materials to permit the issuing court
to find "that there is reason to believe that the contents of a wire or
electronic communication . . . are relevant to a legitimate law
enforcement inquiry." The defendants here have brought forth no evidence
to show that the issuing court was favored with any evidentiary materials
which would permit it to draw the statutorily required conclusion set
forth in Section 2703(d).
The plaintiffs do not wish to leave the court dangling in suspense
wondering there was ever any evidentiary materials supplied to the
issuing court. While it is clear that it is not the plaintiffs' burden
to do so, the evidentiary materials supplied to the issuing court in
connection with the issuance of the warrant is attached hereto as Exhibit
"A". Plaintiffs' instincts in this matter are not entirely charitable.
The evidentiary material are required for the next section which scotches
the defendants "good faith" theory.
3. _The Defendants Have Failed To Make A "Good Faith" Showing._
18 U.S.C. Section 2707(d) declares as follows:
"A good faith reliance on -- (1) a court warrant or order . . .
is a complete defense to any civil or criminal action brought under this
chapter . . . ."
Defendants suggest to us that the measurement of the "good faith" of the
officers and others executing the warrant should be interpreted under the
qualified immunity doctrine. That level of sophistication need not be
reached in this case. As will be succinctly demonstrated in the
following paragraphs, the warrant was so deficient on its face as to not
give an executing officer _any_ possibility of believing that he was
authorize to seize electronic communication of any kind.
As the defendant correctly noted, the ordering paragraph of the
search warrant contained, in paragraph 1 thereof, the following property
description:
"All electronic storage devices capable of storing electronic data,
including magnetic tapes, disc, (floppy or hard), and the complete
hardware necessary to retrieve electronic data including CPU (Central
Processing Unit), CRT (viewing screen), disk or tape drive(s), printer,
software and service manuals for operation of the said computer, together
with all hand written notes or printed material describing the operation
of the computers. (See Exhibit A - Search Warrant No. 1, property to be
seized #1).
A perusal of Exhibit "A" and its translation attached as Exhibit "B" will
demonstrate to the satisfaction of anyone who can read that the issuing
court was not favored with a single scrap of testimony to the effect that
(a) the premises to be searched contained any computer or electronic
media materials and (b) that there was any reason to believe the contents
of a wire or electronic communication were relevant to a legitimate law
enforcement inquiry as required by Section 2703(d).
It is well settled that a search warrant issuing from a court is
inseparable from and must be read in connection with the underlying
affidavits which are perforce attached to it. See _Unites States vs.
Stanert, 762 f.2d 775, 778 (9th Cir. 1858). "A search warrant, to be
valid, must be supported by an affidavit establishing probable cause. In
reviewing the validity of a search warrant, a court is limited to the
information contained within the four corners of the underlying
affidavit." In our case, any executing officer reading the warrant and
attached affidavits would discover that there was no evidence presented
to the court to justify taking any electronic devices. Moreover, all
persons executing search warrant are charged with the knowledge that the
things to be seized must be described with reasonable particularly.
Here, the warrant authorized the seizure of electronic media that was
"capable of storing" certain kinds of data! The warrant did not even
require that the relevant data be in the electronic media. This is
analogous to authorizing the seizure of "all books shelves capable of
containing records relevant to the commission of a crime."
[Or all mail in a post office]
Warrants that merely describe broad classes of documents or other things
without specific descriptions of items to be seized do not provide
objective
standards by which a executing officer could determine what
could be seized and was itself sufficient to debunk any "good faith'
claim.
The Ninth Circuit has recently held that a search warrant which was
comparably overbroad to the one under consideration here (a) obliterated
the legality of the search and (b) completely scotched the possibility
that he officers had acted in good faith. See _United States vs.
Stubbs_, 873 F.2d 210 (9th Cir. 1989). The _Stubbs_ court noted that
where the description of the things to be seized was so general "the
executing officer simply could not reasonably rely on [this] facially
deficient warrant."
With or without the attached affidavits, the search warrant as issued
declared open season on all of the books and record of whoever might have
been found at 12327 Doherty Street in Riverside. Aside from some truly
unusual cases, the courts are uniform in condemning these types of
unlimited searches. See _Stubbs_, supra; _Barrows vs. Superior Court of
San Bernadino_, 13 Cal. App. 3d 238, 118 Cal. Rptr. 166, 173 (1974) and
_Aday vs. Superior Court of Alameda_, 55 Cal. App. 2d 789, 13 Cal. Rptr,.
415 (1961).
[footnote--Occasionally, all of the books and records of an entity are
subject to seizure where there is evidence before the issuing court that
the entity is engaged in comprehensive wrongdoing with relatively few
opportunities for noncriminal activities. See, e.g., _United States vs.
Accardo_, 479 f.2d 1477 (11th Cir. 1985). Even in the case just cited,
the circuit court remanded the case back to the district court for
further determination of whether the executing officer had indeed acted
in good faith.]
Whether judged in terms of its underlying affidavits (which contain
not one syllable regarding electronic storage devices) or upon the face
of the ordering paragraph (which authorizes the seizure of everything
electronic that was not nailed down) no executing officer with a
rudimentary training in law enforcement could have believe in good faith
that the warrant he was executing was valid.
4. _Conclusion_
Defendants' motion fails on both grounds urged. First, the
defendants failed to show that the conditions precedent to the issuance
of the warrant in the first instance required by Section 2703(d) were
complied with. Secondly, the defendants have failed to demonstrate --
particularly as a matter of law -- that the seizure of the electronic
storage devices at issue here were the result of good faith. The motion
should be denied and the defendants ordered to answer.
DATED : April 11, 1990
CHRISTOPHER ASHWORTH, a Member of
GARFIELD, TEPPER, ASHWORTH, & EPSTEIN
A Professional Corporation
{signed}
CHRISTOPHER ASHWORTH
Attorneys for Plaintiffs
[Actually, there was an affidavit in support of the search warrant
used to take the computers, but because it was filed much later, both
lawyers seem to have missed it. The relevant paragraph reads:
"During the service of this second search warrant, it was discovered
that there were several personal/business computer located on the
premises. It is you affiant's belief that these computers were used in
the course of the company's business affairs to record data and
information pertaining to existing preservations being maintained by
Alcor Foundation, as well as information relating to the Dora Kent death
and subsequent preservation."
It is possible to wonder why it took them well into the second search
of ALcor to notice seven computers.]
Attachment "A"
Affiant's Declaration
I, Allen E. Kunzman, presently employed as a edputy coroner
investigator with Riverside County was assigned to assists deputy coroner
Rick Bogan who was investigating the unreported death of Dora Kent.
Deputy Bogan was advised of Dora Kent's death on December 15, 1987, at
1650 hours, by a Joe Klockgether, a representative of Renaker-Klockgether
Mortuary. Mr. Klockgether had attempted to file a death certificate with
the Riverside County Health Department, and due to information that had
been listed on the death certificate, required the death of Dora Kent to
be reported to the Riverside County coroner's office. The death had
reported occurred at 0027 hours on December 11, 1987 at 12327 Doherty
Street, City and County of Riverside, a place of business identified as
Alcor Life Extension Foundation. A check of our records, in fat, confirm
that the death had not been reported. On December 16, 1987, myself and
deputy Bogan made contact with Michael G. Federowic\ aka Michael Darwyn,
President of Alcor, and a Jerry Leaf, Vice President of Alcor. Both
being present upon our arrival at the 12327 Doherty Street address.
Michael Federowicz and Jerry Leaf explained that Dora Kent had been
brought to the 12327 Doherty Street address on December 9, 1987, by
Michael Federowicz and Saul Kent, Dora Kent`s son. That she remained at
the 12327 Doherty Street address and that she expired at 0027 hours on
December 11, 1987. Federowicz and Leaf both stated, "they, nor any
other representative from the Alcor Life Extension Foundation reported
Dora Kent's death to the Riverside County coroner's office." While at
the 12327 Doherty Street address, Jerry Leaf and Michael Federowicz
reported to myself and deputy Bogan that they are currently storing the
heads of seven other decedents and one entire body at the 12327 Doherty
Street address. This body and seven heads are being stored in a frozen
state in liquid nitrogen. Federowicz and Leaf were asked for any
licenses and permits which would authorize them to maintain and store the
body and body parts that they had reported to us as being at the 12327
Doherty Street address. Federowicz nor Leaf could produce any licenses
or permits for the storage of the aforementioned body or heads. Contact
was subsequently made with Don Cavallo of the Riverside County Health
Department's Registrar`s office and determine if any permits had been
issued to the Alcor Life Extension Foundation for the purpose of storing
bodies and/or body parts. As of January 6, 1987, per Daon Cavallo of the
Riverside County Health Department, the County Registrar's office has
never issued any permits to Alcor for storing bodies or body parts.
Therefore, I request the issuance of a warrant to obtain evidence to show
that violations of Government Code Section 27491 and Health and Safety
Code Section 10377 have occurred and are currently occurring at the 12327
Doherty Street location.
law/alcor-5
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This is the final round on the motion before the judge ruled. The ruling
is attached. ---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)
REPLY TO OPPOSITION TO MOTION
TO DISMISS COMPLAINT FOR
DECLARATORY RELIEF AND
DAMAGES
Date: May 14, 1990
Time: 1:00 p.m.
Courtroom: No. 2
Trial Date: None set
MEMORANDUM OF POINTS AND AUTHORITIES
Contrary to plaintiff's assertions, the complaint must be dismissed as
to all of the named defendants because plaintiffs have failed to state a
claim for relief pursuant to the Electronic Communications Privacy Act
and, in any event, defendants are shielded from liability by the
good-faith immunity provided by the statute.
This court will recall that in their motion to dismiss the complaint,
defendants asserted that from a review of the search warrant attached
thereto (Attachment A to complaint), they did not violate or exceed the
specific terms of the search warrant order obtained by them prior to its
execution at Alcor's premises and even if it were otherwise, the named
defendants were entitled to dismissal on the basis of their good-faith
reliance on the facially valid Riverside County Superior Court search
warrant.
In seeking to oppose defendants' motion to dismiss, plaintiffs, rather
than focusing on the specific allegations of their complaint and the
specific statutory and case authority supporting their action, attempt to
establish the invalidity of defendants' conduct and their lack of good
faith in executing a search warrant, relying instead on materials not
incorporated by reference in their complaint or alleged therein. It
would appear that in order to oppose the instant motion to dismiss,
plaintiffs quite improperly attempt to convert defendants' motion to
dismiss predicataed on Federal Rules of Civil Procedure, Rule 12(b)(6),
to a motion for summary judgment pursuant to Federal Rules of Civil
Procedure, Rule 56. This they may not do.
Plaintiffs improperly attempt to shift their focus in opposition to
the otion to dismiss by arguing that defendants had a purported duty to
supply this court with evidentiary materials consisting of the affidavit
in support of search warrant and then proceed to contend that defendants
would have to demonstrate to this court that they had supplied the court
issuing the warrant with tehse materials, thus permitting that court to
find "that there is reason to believe that the contents of a wire or
electronic communication...are relevant to a legitimate law enforcement
inquiry." Opposition, pp. 2-3. Having made this baldface assertion,
plaintiffs then proceed to improperly put before this court the purported
affidavit which they claim was utilized to obtain the search warrant in
this case. However, plaintiffs have cited no authority and, indeed,
defendants are aware of no proper authority which would permit plaintiffs
to bring before this court a document purporting to be the affidavit n
support of search warrant, since, again, plaintiffs are not faced with
opposing a motion for summary judgment, but rather a motion to dismiss
complaint based on the lack of supporting allegations in their complaint
to proceed to trial.
Once this court makes a determination that the materials placed in
plaintiffs' opposition have no proper place in that document, we are left
with an opposition which is barren of any relevant authority to establish
that defendants in fact violated the specific terms of said warrant at
the time of its execution. Moreover, plaintiffs have made no proper
argument to establish that defendants failed to act in good faith in
executing what defendants contend was a facially valid warrant.
While defendants do not quarrel wilth the concept that a search
warrant issuing from a court is inseparable from and must be read in
connection with the underlying affidavits which are attached to it (see
United States v. Stanert, 762 f.2d 775,778 (9th Cir. 1985)), in the
instant case the specific terms of the search warrant affidavit having
not been alleged or incorporated by reference in plaintiffs' compalint,
cannot now be utilized by plaintiffs to suggest that the search warrant
in this case was overbroad, thus somehow negating defendants' assertion
of good-faith immunity. Contrary to plaintiffs' assertion, the search
warrant in the instant case did not declare open season on all books and
records at the property where the search and seizure occurred. Neither
the allegations of the plaintiffs' complaint, nor the search warrant
attached thereto, established that defendants were involved in a search
of unlimited scope.
In sum, based on the arguments contained in defendants' trial motion
to dismiss and this reply, this court should find that the search
involved in the instant case violated neither Fourth Amendment
requirements or the specific terms of the Electronic Communications
Privacy Act or, in the alternative, that the defendants were, in fact,
acting in good faith at the time of the search and seizure at the Alcor
premises.
CONCLUSION
For all of the foregoing reasons, defendants respectfully submit that
this court should grant their motion to dismiss plaintiffs' action for
violation of the Electronic Communications Privacy Act since it is now
obvious that they have failed to plead an appropriate federal claim under
this statute. Rather, plaintiffs' last-minute attempt to shift their
position to establish illegality by virtue of materials never put before
the court properly by way of allegation in the complaint and/or by way of
an incorporation by reference, must be summarily rejected. Since
plaintiffs do not seek leave to amend to attempt to state a proper cause
of action under the federal statute, this court should appropriately
enter a dismissal.
[signed/boilerplate]
UNITED STATES DISCTRICT COURT
MOTION TO DISMISS
H. KEITH HENSON, et al.,
Plaintiffs,
vs.
Raymond Carrillo, et al.,
Defendants.
SA CV 90-021 JSL
ORDER DENYING DEFENDANTS'
MOTION TO DISMISS
The Motion of defendants to dismiss plaintiffs' complaint for
came on for hearing regularly on May 14, 1990.
Defendants moved to dismiss on the grounds that the complaint
failed to state a claim pursuant to Federal Rule of Civil Procedure
12(b)6. Defendants asserted that, as a matter of law, no violation of
the Electronic Communication Privacy Act of 1986, 18 U.S.C section 2701,
et seq. occurred, or, alternately, that defendants are entitled to
dismissal due to their good faith reliance on a facially valid search
warrant.
Having reviewed the papers filed in connection with this matter,
having heard oral argument, and being fully apprised of the relevant
facts and law,
IT IS HEREBY ORDERED that the Motion of defendants to dismiss the
complaint is DENIED. Said denial shall be without prejudice should
defendants wish to raise these same issues later in these proceeding.
IT IS SO ORDERED.
DATED: May 18, 1990
[signed]
J. Spencer Letts
United States District Judge
law/alcor-6
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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.]
law/alcor-7
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The below is a typed-in copy of the response of Willaim F. Murphy,
Assistant United States Attorney to my suit filed last December against
the FBI and the U.S. Attorney's office for their failure to enforce (or even
investigate) what I considered to be a violation of the ECPA. The full text
of the suit was posted in misc.legal in January and is still available by
email on request from hkhenson@cup.portal.com Comments, advice,
applicable cases, etc. are most welcome. A status conference is
schedualed for March 24. The motion to dismiss is set for April 14. It
states: "Pursuant to Rules 7(b)(1) and 12(b)(6), F.R. Civ.P. defendants
hereby move to dismiss this lawsuit for failure to state a claim for which
relief can be granted. In support of this motions, defendants respectfully
fefer tha attention to the Court and parties to the memorandum of Points
and Authorities submitted herewith.
Boilerplate, case # C-88-20788
H. Keith Henson, et al.,
Plantiffs,
v.
Federal Bureau of
Investigation, et al.,
Defendants.
DEFENDENTS' MEMORANDUM OF POINT AND AUTHORITIES
IN SUPPORT OF THEIR MOTION TO DISMISS
INTRODUCTION
On December 9, 1988, H. Keith Henson and others filed a suit against the
FBI, SA Ron Heller, the United States Attorney's Office, Los Angeles, CA,
and Michael Emick (Chief of Criminal Complaints of the US Attorney's
Office, Los Angeles) alleging that the FBI and the Department of Justice
(DOJ) have refused to investigate an alleged violation of federal law or
have refused to explain why the provisions of the statute alleged to be
violated do not apply. Plaintiffs request that the court enter judment
against defendants ordering the FBI to fully investigate the circumstances
of the execution of a search warrant at 12327 Doherty Street, Riversde,
CA. In addition, the plaintiffs request that the court order the US
Attorney's office to file charges based on the results of the FBI
investigation, or provide a legal explaination as to the reasons the
provisions fo the Title 18, U.S.C., Section 2701 are not applicable.
BACKGROUND
As stated in the Declaration of William F. Murphy, the facts are as
follows:
By letter dated April 5, 1988, H. Keith Henson (hearafter "Henson")
contacted the FBI office at Riverside, CA. The letter requested that the
FBI investigate the Riverside County, CA Coroner's office for violations of
Title 18, U. S. C. Section 2701 "Unlawful Access to Stored
Communications."
Henson alleged that the Riverside County Coroners's office removes a
computer, hard disk, and a modem used for electronic mail from the Alcor
Life Extension Foundation, (address) on Jan 12, 1988. Henson alleged that
this removal wasl illegal in that it violated Title 18, Section 2701 since
the warrand did not specify that the email was to be disclosed or
sequestered.
A search warrant was executed at (Alcor address) on Jan. 12, 1988. The
warrant was issued by a judge of the Riverside County Court and was
executed by members of the Riverside, CA police and coroner departments.
the FBI was not involved in that search or investigation.
The fact involved in the violation Henson alleged were presented to
Assistant United State Attorney (AUSA) Alka Sagar, Los Angeles, CA, by
FBI Special Agent (SA) Ron Heller on April 21, 1988. AUSA Sagar declined
prosecution in the matter by advision the proper remedy for Henson would
be to challenge the validity of the warrent in the Riverside County Court.
Further, AUSA Sagar advised that the was no showing that the officials
from the Riverside County Coroner's office had not complied with the
statute.
On April 21, 1988, SA Heller advised plantiff Henson of the United
Statates Attorney's prosecutive opinion.
ARGUMENT
I. THE FBI IS NOT AN ENTITY AGAINST WHICH SUIT CAN BE BROUGHT
The Plantiffs have named the FBI as a defendant in this lawsuit.
Congress has not constituted the FBI as a corporate body nor authorized it
to sue of be sued in its individual name. *Jones v. the FBI, 139 F.Supp. 38,
41 (d. Md. 1956), citing Blackman v. Guerre, 342 U.S. 512 (1952). Hense, if
the plantiffs desire to sue the FBI and not the United States Government,
the suit should be dismissed against the FBI.
II SEPARATION OF POWERS PROVIDES FOR NO JUDICIAL REVIEW OF
PROSECUTORIAL DISCRETION
Plaintiffs seek to have the U.S. District Court order the FBI and named
Assistant United States Attorneys to prosecute alleged defendants whom
plantiffs want prosecuted. Specifically, the plantiffs seek a court order
that the FBI and Assistant Unites States Attorneys institute criminal
prosecution against individuals who plantiffs believe have violated Title
18, U.S.C. 2701.
The Constitutions vest the power to initiate a criminal prosecution
exclusively in the Executive Branch. This power is encompassed within
the Executive power to "take care that the laws be faithfully executed."
The Executive has "exclusive authority and absolute discretion to decide
whether to prosecute a case." *In re Sealed Case*, 838 F.2d 476, 488 (D.C.
Cir. 1988), citing *United States v. Nixon*, 418 U.S. 683, 94 S.Ct. 3090, 41
L.Ed. 2d 1039 (1974); *United States v. Cox*, 342 F. 2d 167 (5th Cir.) (en
banc), *cert. denied*, 381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed. 2d 700 (1965).
This "power to decide when to investigate, and when to prosecute lies at
the core of the Executive's duty to seek the faithful execution of the laws."
*In re Sealed Case supra*, at 488, citing *Community for Creative
Non-Violence v. Pierce*, 786 F.2d 1199, 1201 (D.C. Cir. 1986).
Case law is clear that the Executive Branch has authority to supervise
the investigative stages of law enforcement conduct without
interfearence from the judicial branch. *United States v. Leja*, 563 F.2d
244 (6th Cir. 1977), *cert. denied*, 434 U.S. 174, (1978); *United States v.
Wallace*, 578 F.2d 735 (5th Cir.) *cert. denied, sun nom., Mitchell v.
United States*, 439 U.S. 898 (1978).
In *Moss v. Kennedy*, 219 F.Supp. 762 (D.D.C. 1963), *aff'd. sub. nom.
Moses v. Katzenbach*, 342 F.2d 931 (D.C. Cir. 1965) plantiffs sought an
order directing the FBI as well as other defendants to arrest, imprison,
and institued criminal prosecution against those person responsible for
deprivations of plantiffs' rights. In refusing to grant the relief sought, the
court held that the actions plaintiffs sought were "clearly discretionary,
and decisions respecting such actions were committed to the Executive
Branch of the government, not to the courts." Id. at 764.
In explaining the reasons for limitations upon judicial power in this
area, the District Court noted:
Article II, Section 3 of the Constitution provides
that "(The President" shall take care that the laws (shall)
be faithfully executed." The prerogative of enforcing the
criminal law was vested by the Constitution, therefore,
not in the courts nor in private citizens, but squarely in
the executive arm of the goverment. Congress has
implemented tha power of the President by conferring the
power and the duty to institute prosecution for Federal
offenses upon the United States Attorney for each district.
28 U.S.C.A. Section 507. In exercising his power, the
United States Attorney acts in an administrative capacity
as the representive of the public.
It by no means follows, however, that the duty to
prosecute follows automatically from the presentattions of
complaint. The United States Attorney is not a rubber stamp.
His problems are not solved by the strict application of an
inflexible formula. Rather, their solution calls for the
exercise of judgment.
There are a number of elements in the equations, and all
of them must be carefully considered. Paramount among
them is a determination that a prosecution will promote
the ends of justice, instill respect for the law, and advance
the cause of ordered liberty.
Other considerations are the likelihood of conviction,
Turning on the choice of a strong case to test the uncertain
law, the degree of criminality, the weight of the
evidence, the credibility of witnesses, precident, policy,
the climate of public opinion, timing, and the relative
gravity of the offense. In wieghting these factors, the
prosecution must apply responsible standards, based not
on loose asumptions but on solid evidence balancing in a
scale demanding proof beyond a reasonable doubt to
overcome the presumption of innocence. *Plugh v.
Klein*. 193 F.Supp. 630, 634-5 (D.D.C 1961)
*Moses v. Kenedy*, 219 F. Supp. at 764-765.
The law is clear that the executive branch has broad discretion to decide
whom to prosecute. *Wayte v. United States*, 470 U.S. 598 (1985);
*United States v. Lee, 786 F.2d 951 (9th Cir. 1986). As a general
proposition, Federal courts do not involve themselves in a prosecuting
attorney's decision to prosecute, and a particular prosecution cannot be
compelled. *Nathan V. Smith*, 737 F.2d 1069 (D.C. Cir. 1984); *Littleton v.
Berbling, 468 F.2d 389 (7th Cir. 1972); *Peek v. Mitchell*, 419 F.2d 575
(6th Cir. 1970); *Fleetwood v. Thompson*, 358 F.Supp. 310 (N.D. Ill. 1972);
*Massey v. Smith*, 555 F.2d 1355 (8th Cir. 1977).
CONCLUSION
This court is without authority to enter a Declaratory Judgement
compelling the FBI to investigate and ordering Assistant United States
Attorneys, Central District of California to prosecute. Consequently,
plantiffs' Complaint fails to state a claim for which relief can be granted.
Dated: March 14, 1989
Signatures, etc.
(spelling errors above are most likely mine, case numbers were checked--
the section below was knocked out without the aid of a spell checker or
editior, please excuse HKH)
My reply arguments:
Advice by Alka Sagar that "proper remedy for Henson would be to
challenge the validity of the warrent in the Riverside County Court" was
invalid. Henson was not mentioned in the warrant, and in fact, this is the
root of plaintiffs' objections. Legal advise is that, while they could sue
Alcor for failing to protect the privacy of their email, plaintiffs have no
standing under the law to attack the validity of the warrant. (Note, I could
use help on this point)
Alka Sagar's advising "that there was no showing that the officials from
the Riverside County Coroner's office had not complied with the statute."
was, from her viewpoint, true. There was also no showing that the
officials *had* complied with the statute. In a conversation with Henson,
she acknowledged that she had no written report from the FBI, knew
nothing about the statute, and was almost unable to remember that she had
had a conversation with SA Heller on the Monday following the date of her
"decision."
Argument 1
If the FBI cannot be sued, who was the target of the class action suit
that 308 Hispanic FBI officers filed against the FBI? (cited in the
California Magazine's Oct. 1988 article, "The Gang That Couldn't Smoke,
Drink, or Shoot Straight" (subtitled--How the Morman Mafia turned the
FBI's L.A. office into the laughingstock of law enforcement.) Need to get a
ref number on this case!
Arguement 2
The characterization of the plaintiffs prayer in paragraph 1 of Argument
II is exaggerated. Plantiffs are not seeking a court order "that the FBI and
Assistant United States Attorneys institute criminal prosecution against
individualy whom plaintiffs believe have violated Title 28, U.S.C., 2701."
Plaintiffs argue that the FBI shirked its duty to investigate, that no
investigation of the plaintiffs complaints was actually done. While the
extent of an investigation is administratively determined by the Executive
branch of government, it would seem to be within the mandamas authority
of the court to find that*no* investigation at all into a citizens detailed
complaint that the law has been violated, is not an acceptable response
from a law enforcement agency. This is especially true when another law
enforcement agency is involved, given the natural tendency of law
enforcement personnel to stick together and overlook the criminal
activities of fellow agencies.
As evidence to this point, no written investigation report was supplied
to Alka Sagar prior to her "determination." Discovery may find that a
phone call or two was made by SA Heller, or it may fail to find even that
minimal an investigation. SA Heller seems to have determined from the
documents supplied by plaintiff Henson that no investigation was
warented because another law enforcement agency was involved.
With respect to the U.S. Attorney's Office, if they had the results of an
actual investigation in hand, they might file charges on their own inititive.
In the more likely case that they do not, it would seem reasonable (given
the newness of this law, and their connivance with the FBI) for this Court
to require (or perhaps strongly "request") a legal argument from them as to
the reason(s) this case should not be prosecuted. This would provide
useful feedback to Congress. For example, an interpertation by the U.S.
Attorney's office in agreement with SA Heller that a warrant to take a
computer will suffice to examine or sequester any electronic mail found
within it, would greatly clarify (i.e. eliminate) the scope of the Fourth
Amendment protection citizens could expect from this section of the law.
It might be noted that, as a result of the publicity in computer circles this
case has received, several other cases have come to the attention of the
plaintiffs. The FBI has investigated *none* of the cases known to the
plaintiffs which have been presented to its agents. Perhaps the Post
Office would be a better agency to be charged with enforcing the
Electronic Communication Privacy Act since the intent of the lawmakers
(see testimony by Senator Leahy quoted in the complaint) was to provide
protection for electronic mail similar to that enjoyed by regular First
Class mail.
Given the rising importance of electronic mail, which may catch up the
volumn of regular first class mail in the next few years, this case would
seem a golden opportunity to clarify the underlying Fourth Amendment
issues.
law/alcor-8
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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
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ANTI-HACKING
A BILL
To create offences of unauthorised access to
electronically stored data and its transmission;
to confer powers of monitoring, search, seizure
and destruction of such data; and for related
purposes
Presented by Emma Nicholson
Offences
1.(1) (a) A person who effects unauthorised access to a computer or
computer system either
(i) to his own or another's advantage; or
(ii)to another's prejudice;
or
(b) being reckless as to whether his action would result in
(i) his own or another's advantage; or
(ii) another's perjudice;
shall be guilty of an offence.
(2) A person who without lawful authority or reasonable excuse has
in his custody or under his control anything with the intention
of effecting unauthorised access to a computer or computer
system to enable some act or acts to his own or another's
advantage or to another's prejudice, shall be guilty of an
offence.
(3) A person who, without lawful authority or reasonable excuse,
transmits, receives, or causes to be transmitted or received
by means of wire, radio or television communications including
electro-magnetic waves, any writing, signals, signs, pictures
or sound
(a) with the intention of committing an act
(i) to his own or another's advantage; or
(ii)to another's prejudice;
or
(b) being reckless as to whether his action would result in
(i) his own or another's advantage; or
(ii) another's perjudice;
shall be guilty of an offence.
(4) A person commits and offence if he effects unauthorised access
to the computer of another for an unauthorised purpose.
Penalties
2.(1) A person guilty under section 1(1) above shall be liable-
(a) on conviction on indictment, to a fine, or to imprisonment
for a term not exceeding ten years or to both; or
(b) on summary conviction, to a fine not exceeding level 5 on
the standard scale.
(2) A person guilty of an offence under subsection (2) or (3) of
section 1 above shall be liable -
(a) on conviction on indictment, to a fine, or to imprisonment
for a term not exceeding five years or to both; or
(b) on summary conviction, to a fine not exceeding level 5 on
the standard scale.
(3) A person guilty of an offence under section 1(4) above shall
be liable on summsry conviction to a fine not exceeding level
5 on the standard scale.
Powers of search
and seizure
3.(1) If it appears to a Justice of Peace, from information given
on oath, that there is reasonable cause to believe that a
person has in his custody or under his control -
(a) anything which he or another has used, whether before or
after the coming into force of this act, or intends to
use, for the making of anything in contravention of
section 1(2) above or
(b) any unauthorised documentation obtained by the unauthorised
accessing of a computer of another, whether before or after
the coming into force of this act or
(c) anything, custody or control of which, an offence under
section 1(2) above; he may issue a warrant authorising a
constable to enter and search the premises.
(2) If it appears to a Judge of the Crown Court from information
given to him on oath that there is reasonable cause to believe
an electronic device is being used to unlawfully access the
computer of another, he may authorise the monitoring of such
a device, by the police, by electronic means, in order to
intercept the transmitted data and to produce evidence of
unauthorised access
(3) A constable may at any time after the seizure of anything
suspected of falling within paragraph (a) or (b) of subsection
(1) of this section (whether the seizure was effected by virtue
of a warrant under that section or otherwise) apply to a
magistrates court for an order under this subsection with
respect to the object; and the court, if it is satisfied both
that the object falls within any of those paragraphs and that
it is conducive to the public interest to do so, may make
such an order as it thinks fit for the forfeiture of the object
and its subsequent destruction or disposal.
(4) Subject to subsection (5) below the court by, or before, which
a person is convicted of an offence under this Act may order
anything shown to the satisfaction of the court to relate to
the offence to be forfeited and either destroyed or dealt with
in such other manner as the court may order.
(5) The court shall not order anything to be forfeited under
subsection (4) above where a person claiming to be the owner
of, or otherwise interested in it, applies to be heard by the
court unless an opportunity has been given to him to show cause
why the order should not be made.
Interpretation
4.(1) In this Act -
"computer" includes any device for storing and processing
information or communications facility directly relating to,
or operating in conjunction with, such device.
"wire" includes any wire, cable, printed circuit, or any means
by which communications can be transmitted.
"unauthorised access" includes access by a person who is
authorised to have access to a computer, but who exceeds the
terms of such authorisation.
"another" includes any person, body corporate, institution,
firm, association, trust, or any other body of persons.
"prejudice" is caused if, and only if, an action leads to -
(i) The temporary or permanent loss of property or
information; or
(ii) The deprivation of an opportunity to earn remuneration
or greater remuneration; or
(iii) The deprivation of an opportunity to gain financial
advantage otherwise than by way of remuneration.
(2) In this section "loss" includes not getting what one might get
as well as parting with what one has.
Jurisdiction
5. A court within England and Wales shall have jurisdiction for
an offence under this Act if at the time the offence was
committed -
(a) the accused was within England and Wales; or
(b) the computer or computer system in relation to the offence
was within England and Wales; or
(c) the communiction links through which such an offence was
committed are within England and Wales; or
(d) the proceeds of the said offences are, or deposited,
processed or transferred from within England and Wales.
6.(1) This Act may be cited as the Anti-Hacking Act 1989.
(2) This act does not extend to Scotland or Northern Ireland.
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Arkansas has one of the most
comprehensive set of regulations on computer use.... The computer
crimes law was adopted in 1987. Arkansas Code of 1987, Section 5-
41-101*/
SECTION 5-41-101. Purpose
It is found and determined that computer-related crime
poses a major problem for business and government; that losses
for each incident of computer-related crime are potentially
astronomical; that the opportunities for computer-related crime in
business and government through the introduction of fraudulent
records into a computer system, the unauthorized use of
computers, the alteration or destruction of computer information
or files, and the stealing of financial instruments, data, and
other assets are great; that computer-related crime has a direct
affect on state commerce; and that, while various forms of
computer crime might possibly be the subject of criminal charges
based on other provisions of law, it is appropriate and
desirable that a statute be enacted which deals directly with
computer crime.
SECTION 5-41-102. Definitions.
As used in this chapter, unless the context otherwise
required:
(1) "Access" means to instruct, communicate with, store
data in, or retrieve data from a computer, computer system,
or computer network;
(2) "Computer" means an electronic device that performs,
logic, arithmetic, and memory functions by manipulating
electronic or magnetic impulses and includes all input, output,
processing, storage, computer software, and communication
facilities that are connected or related to that device in a
system or a network;
(3) "Computer network" means the interconnection of
communications lines with a computer through remote terminals or
a complex consisting of two or more interconnection computers;
/* A BBS is a "computer network under this statute and is thus
protected by the statute. */
(4) "Computer program" means a set of instructions, or
statements and related data that, is capable of causing a
computer or computer system to perform specified functions;
(5) "Computer software" means one (1) or computer programs,
existing in any form, or any associated operational procedures,
manuals or other documentation;
(6) "Computer system" means a set of related, connected or
unconnected computers other devices and software;
(7) "Data" means any representation of information, knowledge,
facts, concepts or instructions which are being prepared or
have been prepared and are intended to be processed or stored,
are being processed or stored, or have been processed or stored
in a computer, computer network or computer system;
(8) "Financial instrument" includes, but is not limited to,
any check, draft, warrant, money order, note, certificate of
deposit, letter of credit, bill of exchange, credit or debit
card, transaction authorization mechanism, marketable security or
any computer system representation thereof;
(9) "Property" includes, but is not limited to, financial
instruments, computer programs, documents associated with
computer programs; or copies thereof, whether tangible or
intangible, including both human and computer readable data, and
data while in transit;
(10) "Services" includes, but is not limited to, the use of
a computer, a computer network, computer software, a computer
program, or data.
SECTION 5-41-103 Computer fraud.
(a) Any person commits computer fraud who intentionally
accesses or causes to be accessed any computer, computer system,
computer network, or any part thereof for the purpose of:
(1) Devising or executing any scheme or artifice to defraud
or to extort; or
(2) Obtaining money, property, or services with false or
fraudulent intent, representation, or promises.
(3) Computer fraud is a Class D felony.
SECTION 5-41-104 Computer trespass
(a) Any person commits computer trespass who intentionally
and without authorization accesses, alters, deletes, damages,
destroys, or disrupts any computer, computer system, computer
network, computer program or data.
/* This protects the BBS against invasion, virusing, and arguably
from use not in accordance with the rules of the system. */
(b) Computer trespass is a Class C misdemeanor if it is a
first violation which does not cause any loss or damage;
(c) Computer trespass is a Class B misdemeanor if:
(1) It is a second or subsequent violation which does not
cause any loss or damage; or
(2) It is a violation which causes loss or damages of less
than five hundred dollars ($500).
(d) Computer trespass is a Class A misdemeanor if it is a
violation which causes loss or damage of five hundred dollars ($
500) or more, but less than twenty-five hundred dollars ($
2,500.)
(e) Computer trespass is a Class D felony if it is a
violation which causes loss or damages of two thousand five
hundred dollars ($ 2,500) or more.
SECTION 5-41-105 Venue of violations
For the purposes of venue under this chapter, any violation
of this chapter shall be considered to have been committed in
any county:
(1) In which any act was performed in furtherance of any
course of conduct which violated this chapter;
(2) In which any violator had control of or possession of
any proceeds of any course of conduct which violated this
chapter.
Downloaded From P-80 International Information Systems 304-744-2253
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YOUR RIGHTS AND WHAT TO DO UPON ARREST
You've been arrested, or someone you know has been arrested. Don't
assume that it can't happen to you; the ease by which one can get
arrested is amazing. Many people believe that if they "explain the
situation" or tell their side of the story to the police, they will be
let go, or at least things will go easier on them if they "cooperate".
Nothing could be further from the truth.
Perhaps you or the person arrested feel that you were unjustly
arrested because you are innocent. Obviously, the arrest would not
have taken place if the police agreed with you. It is the job of the
police to get as much information from you in order to convict you.
Many police officers consider themselves to be a combination of
prosecutor, judge and jury, and they will do their best to confuse you,
intimidate you and to get information from you that will convict you.
And when your trial finally occurs, it is far from uncommon to see
police officers lie in court in order to convict you. You will be
stunned to find out what you supposedly told them.
About 90% of all convictions are primarily based upon evidence
elicited from the person arrested. Therefore, what you do or say upon
arrest is absolutely crucial as to whether you are convicted or not.
When you have been arrested, you will be invited to "tell your
side of the story." Don't feel that you can just because your rights
haven't been read to you. Do not be tempted to tell the police
anything. Don't try to lie. Give the police your name, address,
etc., and don't try to use an alias or some other name than your . When
you are questioned about anything else, POLITELY insist upon having an
attorney present. Ask politely for a telephone. Often, you will be
told that you will be permitted to make a telephone call "after we are
finished." Simply state politely t you will not discuss any matter
without first consulting an attorney. If you cannot afford an attorney,
it does not matter. One can be appointed for you, or a public
defender can be appointed. Again, politely ask to make phone calls.
If the police continue to try to question you, constantly, constantly,
constantly politely ask for an attorney. Insist that you will answer
no questions without an attorney.
There are several police techniques that you should know about.
One is called the "Mutt and Jeff" technique, and is the most commonly
used. In this situation, one of the police officers will act as the
"tough guy." He might put a gun to your face and tell you that he'd
like to blow you away. He may call you every name in the book, and
physically abuse you. They tell you how you are going to ja hreaten
you with deportation (if you are an immigrant), swear at you, and use
every technique you can think of to intimidate you. Then the other
police officer approaches you. He is "Mr. Nice Guy". Maybe he offers
you coffee or food, or a cigarette e tells you how bad the other guy
is, and that he wants to help you. Then he tells you that if you tell
him "what really happened", he can get that "tough guy" off of your
back. He genuinely seems to sympathize with you and seems to be
concerned about situation. Don't fall for it. Politely refuse, and
ask to see an attorney.
Yet another technique of police questioning is to tell you that
the person you were arrested with has confessed to the crime, or that
you have been identified by witnesses. Sometimes the person arrested
is placed in the same room as the person t arrested with, and that
person DOES confess. Don't let that shake you. Say nothing, and
politely refuse comment, and insist upon seeing an attorney.
If the charge is fairly serious, the arrested is often taken to an
"interrogation room". The room is intimidating and depressing.
Usually, there are no windows, and the furniture will be stark. A
wooden table, wooden chairs without arms, and the room will be painted
pea green or gray. Often there is a small bath with a mirror.
Sometimes it is a two-way mirror. An officer or detective will sit on
either side of you, and your back will be to the door. Politely
refuse to answer any questions, and ask for an attorney. They will be
persistent. Don't scream th yo ur rights haven't been read to you.
Simply politely ask for an attorney, and say NOTHING. If an assistant
state's attorney comes in, remember that he or she is a prosecutor,and
will also be there to elicit information to convict you. Politely
refus nd ask for an attorney.
People seem to believe that you are permitted only one phone call
from a police station. That comes from movies. Police may even tell
you that you have only one phone call. You may make as many phone
calls as is reasonable. Your primary objectives are: (1) to get an
attorney, and (2) to get the bail money required, i il has been set. If
bail hasn't been set, then you will be going to court fairly soon to
get bond set. REMEMBER: NEVER DISCUSS THE FACTS OF YOUR CASE OVER THE
PHONE. The police may want you to enter what is known as a "line-up",
where you and sever th ers are placed in a line for purposes of
identification by alleged witnesses. Or you might be invited for a
"show-up", where a witness is asked to identify you on a one-on-one
basis. Politely refuse, but do not attempt to physically resist.
Insist upon an attorney being present. If you are ignored, attempt to
pay attention to police conversations with the witnesses and attempt
to mentally note the physical descriptions, including clothing, of the
others in the "line- with you. Remember, make known your desire for an
attorney, but do not physically resist.
If you receive a phone call from someone who has been arrested,
tell them to: (1) Say nothing to the police, (2) object to any
questioning by the police without an attorney present, and (3) to be
polite at all times. Ask them what the bail amount is, and if they
don't know, ask to speak to someone who does. If bond hasn een set
yet, find out when bond court is, and try to get family and friends to
go. Tell the accused that you will get them all the help you can get.
Get phone numbers of relatives and friends. Tell the accused that you
will attempt to get an attorn an d do so. Don't forget, an accused
person in custody is the loneliest and most frightened person in the
world. They are surrounded by police officers, and you are the only
person who can give them moral support, and to give them resolve.
The police know that the arrested is frightened and lonely. Don't
wait until "your rights are read" before exercising them. Somehow
rights, if read at all, tend to be read after the police have elicited
the information they want. Then it's too late. At trial, the
policeman will testify that your rights were read BEFORE you the
information.
When you have been arrested, it is not wise to start yelling about
your civil rights. Lights go out, treatment becomes worse, and you
will be considered a trouble-maker. Be polite at all times, and if you
are questioned, politely ask to see an attorney. Then ask the officer
about his family, or ask about what the officer thinks about a recent
sporting event. It certainly doesn't hurt if the officer e ually gets
to like you even though you won't answer his questions. Don't forget,
you have the right to an attorney whether or not you can afford one.
If bond hasn't been set, and you or the arrested is scheduled for
bond court, get as many friends and relatives there as possible. When
the arrested comes from the lock-up area, nothing helps more than
seeing familiar faces. Even more importantly, the judge setting bond
is impressed because friends and family in the courtroom shows roots
in the community, and the bond set will be lower. If you are a le in
your community, or are a person that an arrested might call, you
should have the office and home phone numbers of at least five
criminal defense attorneys. Arrests tend to occur during the evening
and early morning hours, so having home phone numb o f criminal
attorneys is crucial.
Additionally, make sure that you don't discuss your case with your
cell-mates. It is not at all unusual that a cell-mate will tell
police what you said in order to get their own situation reduced.
Again, be polite, but tell a cell-mate nothing. And don't listen to
their advice, regardless of how experienced they s to be.
Remember, what happens in the twenty-four to forty-eight hours
after arrest is absolutely crucial. Don't discuss your case with the
police, insist upon an attorney, and be polite at all times. If you
are contacted by an arrested person, give him or her the preceding
advice. Tell the arrested that you will attempt to an attorney, and
will try to arrange bond money, or to have relatives in court at the
bond hearing. Get phone numbers of relatives and friends, and do not
discuss the case with the arrested, and tell them not to discuss the
case with anybody except a tt orney for them. Support the arrested
emotionally as much as possible.
If you need further information on this subject or other criminal
matters, please feel free to call me at 278-1144.
Michael J. Elliott
Criminal Defense Attorney
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ASMP Copyright Guide
Provided to CuD by: Don Smith <70373.1735@COMPUSERVE.COM>
This document is Copyright ASMP (American Society of Magazine
Photographers, Inc.) 1991. It is distributed electronically by the
online members of ASMP, as a service and a guide to creators, buyers
and users of intellectual property.
Reproduction and distribution of this document for non-commercial use
is encouraged. Reproduction must remain intact, as a complete whole,
and including this notice.
The original distribution (July, 1992) was via CompuServe Information
Service (CIS). To access ASMP members within CompuServe, GO
PHOTOFORUM.
Further information may be obtained from:
Dale Geffs ASMP Sysop Paul Bowling ASMP Sysop
73647.140@compuserve.com 72130.1371@compuserve.com
ASMP/American Society of Magazine Photographers
419 Park Avenue South/Suite 1407
New York, New York 10016
212.889.9144
NOTICE
This document was scanned from the original printed document and
converted to ASCII text. The copyright symbol (the letter C in a
circle) does not convert in ASCII.
In all cases where (C) is shown in this document it is meant as the C
in a circle. The use of (C) with parenthesis in copyrighted material
may be improper and invalid to mark copyrighted material.
COPYRIGHT GUIDE FOR PHOTOGRAPHERS by Richard Weisgrau &
Michael Remer, Esq.
Copyrights can be valuable intangible assets. The Copyright Act of
1976 made clear that photographers are the copyright owners of their
images, except when those images were made as an employee, or when the
photographer has conveyed the copyright to another party in a written
and signed agreement.
In an effort to enhance understanding of copyright, ASMP has developed
this mini-guide on the subject. This pamphlet is not a legal guide to
the subject. Instead it is intended to give you a fundamental
understanding of the subject of copyright and how it applies in your
profession.
COPYRIGHT BASICS
Copyright is a right, granted to you by law, to control the copying,
reproduction, distribution, derivative use, and public display of your
photographs, and to que for the unauthorized use (infringement) of
your work.
This right begins at the moment you fix your photographic expression
in a tangible form, that is, when you create the latent image on film.
Copyright ownership, bestowed automatically when you make an image,
does not depend upon registration with the copyright office or
placement of a copyright notice on the image.
Although most images are copyrightable, some are not. To be
copyrightable, images must be original. Originality is essential to
copyright. If you exactly copy a photograph, the copy can not be
copyrighted, since it has no originality. (In fact if the first
photograph is copyrighted, you would need the original photographer's
permission to copy it.)
Making a substantially similar copy of someone else's copyrighted
image without authorization constitutes copyright infringement. It is
usually necessary to show that the alleged infringer had access to the
original work-but the images may be so closely identical that no
explanation other than copying is possible.
Ideas, themes and concepts are not copyrightable, Only the original
expression of those ideas, themes and concepts in some tangible form,
like a photograph, can be copyrighted. You might have an idea for a
great photograph, but you get no copyright until you make the actual
photograph. An art director might have a great concept, but that
concept cannot be copyrighted.
Having an idea or concept does not entitle one to a share of the
copyright of the photograph. The copyright belongs to the one who
makes the tangible expression of the concept or idea.
COPYRIGHT REGISTRATION
Copyrights can be registered with the Copyright Office in Washington,
D.C. Although registration is not required to own the copyright, there
is one instance in which you must have a registration and another when
there is a definite advantage to registration.
When legal action is necessary to remedy a copyright infringement, the
image must be registered before the legal action can be started. This
registration can be made after the infringement occurs. However,
unless you register before the infringement (or within three months
after the first publication even if after infringement, you will not
be able to sue for statutory damages, which are up to $100,000 per
infringement plus your legal fees. When statutory damages are
unavailable to the copyright owner a claim can still be made for
actual damages, that is, the amount of money lost as a result of the
infringement plus the amount of profits realized by the infringer. But
actual damages can be difficult and expensive to prove, and legal fees
can be an additional burden.
A photographer should always seek legal advice from a qualified
attorney before threatening a copyright infringement action.
COPYRIGHT NOTICE
ASMP recommends that all photographs carry a copyright notice, even
though it is no longer required by law. The lack of notice could
provide an infringer with a defense of "innocent infringement". This
defense could seriously limit the recovery of damages in an
infringement claim.
Copyright notice is a way of saying: This is my work - if you want to
use it, come to me. This stance reinforces the asset value to your
work and alerts everyone that you are prepared to protect that value.
Copyright notice consists of the letter c in a circle (C) followed by
the date of first publication and the photographer's name. For
example, (C)1991 (Creator's Name). The word "Copyright" or "Copr." can
be substituted for the (C). Either form is recognized, but use of the
(C) symbol can give additional international protection. The words
"All Rights Reserved" can also give further international protection.
A word of caution is called for on the subject of notice. Some persons
when typing or wordprocessing and some computer programs use a c in
parenthesis [(c)] as a substitute for a (C) . To the best of our
knowledge this form of notice has never been rejected by a court, but
there is no guarantee that a court would uphold a (c) as proper
notice. The law calls for a (C) or the word "Copyright" or "Copr."
LICENSING THE RIGHT TO USE YOUR PHOTOGRAPHS
As the copyright owner, you have to license someone to use your image
before they can legally do so. A license is simply a permission to use
the photograph with certain limitations.
A non-exclusive license does not have to be granted in
writing-although ASMP strongly urges all photographers to grant
licenses in written form. This avoids subsequent disagreements about
the terms of the license. In the absence of a written license, the
photographer and client are in an awkward position. If a dispute over
usage arises differing recollections of rights granted can only be
resolved by negotiation or legal action. Needless to say legal
action, a last resort, is certainly costly and to be avoided if
possible. Negotiation, while suitable to resolve disagreements, is
best done before use begins, not after the fact. Negotiate the
license, then confirm the usage rights in a written copyright license.
Under the copyright law, an "exclusive" grant of rights means a
transfer of all or part of copyright. Avoid these words, unless you
intend to transfer copyright ownership to the client.
If a client insists or you wish to offer exclusive rights consider
limiting the rights as you would limit any other grant of rights. That
is, you should properly grant the exclusive rights for a certain time
period, a certain geographic area, and a certain media, such as
advertising, books, etc. By applying limitations to the exclusive
license you are narrowing the transfer of copyright. By setting a time
period you are assuring the expiration of the transfer.
More information on copyright licensing, and samples of copyright
licenses can be found in the ASMP FORMS booklet, and in the ASMP
Assignment Photography monograph.
The rights which you license should be based upon the outcome of the
negotiations which you have conducted with your client. Generally, you
will grant rights to meet the particular uses for which the client
wants the work. The fee will usually increase as the bundle of rights
granted increases.
TRANSFER OF COPYRIGHT
You can transfer copyright ownership to another party. Copyright, like
any asset, can be bought and sold. The only requirement in the law is
that a transfer of copyright ownership be in writing and signed by the
copyright
owner. Photographers should exercise care in signing client purchase orders.
ASMP has seen many examples of purchase orders which have a copyright transfer
included in the terms and conditions. Signing such a purchase order would
result in the loss of your copyright.
There is no law that says you have to transfer copyright to a client. Remember,
even though the client might be the originator of the concept or idea this does
not entitle them to the copyright of the photograph which you, the
photographer, originate.
WORK FOR HIRE
Work for hire is another way the client can become the copyright
owner. The difference between work for hire and a copyright transfer
is rather simple. In the case of a copyright transfer you own the
copyright until you transfer it. In a work for hire situation you
never own the copyright. It is owned by the client from the moment the
work is created, and the client is by law the author of the
photograph. The photographer is denied authorship and is treated as a
tool of the client.
Work for hire exist automatically in the case of an employee taking
photographs for the employer. As provided in the copyright law, no
agreements are required.
An independent contractor ("freelancer") can do a work for hire only
in certain circumstances. First, the work must be commissioned-that is
specifically ordered by someone, and if it is commissioned, it can be
a work for hire only if the photograph comes within one of the nine
specific categories enumerated in the copyright act as qualifying for
a work for hire:
Contribution to a collective work
Contribution to a motion picture or audio-visual work
Translation Supplementary work
Compilation Instructional text
Test
Answer material for a test
Atlas
The category most frequently involving photographers is a contribution
to a collective work such as a magazine or other periodical.
WORK FOR HIRE AND COPYRIGHT TRANSFER DIFFERENCES
Although many see work for hire and copyright transfer as the same
thing, they are not.
Under the law, if you transfer the copyright you can get it back after
thirty five years. This "recapture" provision of the law was designed
to allow photographers the eventual control over their body of work.
Also, when negotiating a copyright transfer you have the ownership and
can bargain for the price of the copyright.
In a work for hire situation you never have the copyright. You have no
recapture right at any time. You are simply selling your services for
a fee. That fee should reflect the present and the future value of the
copyright. If you signed a work for hire and later want the copyright
to the work, the only way you can get it is to negotiate with the
copyright owner to transfer it to you.
Finally, a work for hire will apply to all photographs taken on the
assignment, not just to those used by the client. A transfer of
copyright can be customized and apply to all the photographs or some
portion thereof, such as only those used by the client.
FAIR USE
The copyright law allows someone to copy your work without penalty in
certain cases. This is called "fair use". In order to qualify for
"fair use" the photograph would usually have to be copied for
educational, classroom, news reporting or other educational or public
interest purposes. Fair use is always subject to interpretation. There
is no simple rule to apply to determine when an unauthorized use is
"fair use".
Each case has specific facts that must be examined before such a
determination can be made. This is one reason why it is important to
consult with a knowledgeable copyright attorney before jumping to
conclusions about infringement.
COPYRIGHT AND COLLECTIONS
In recent years the trend has been to invoice the client with terms
stating that the grant of rights to use the photograph is not in force
until the invoice is paid in full. It should be understood that under
this provision nonpayment may be both a breach of the client's
contractual obligation and infringement of the copyright. This can
create a legal question about the best way to enforce your rights - a
question best answered by competent legal counsel.
BUYOUTS AND ALL RIGHTS
"Buyout" and "all rights" are confusing terms and are thought by some
to mean a transfer of copyright However, these terms have inconsistent
trade definitions, depending upon personal understanding, and
consequently are not reliable in licensing terminology.
We urge you not to use such terms In licensing clients the rights to
your photographs. It is better to clearly state whether or not the
copyright is being transferred.
An all rights agreement without a transfer of copyright is a
permission to a client to use your image as desired, while the
copyright remains with you. This gives the client the widest range of
rights for the time allowed in the license without a transfer of
copyright ownership.
DEFINITIONS FROM THE COPYRIGHT ACT OF 1976
"Audio visual works" are works that consist of a series of related
images which are intrinsically intended to be shown by the use of
machines or devices such as projectors, viewers, or electronic
equipment, together with accompanying sounds, if any, regardless of
the nature of the material objects, such as films or tapes, in which
the works are embodied.
A "collective work" is a work, such as a periodical issue, anthology,
or encyclopedia, in which a number of contributions, constituting
separate and independent works in themselves, are assembled into a
collective whole. A contribution to a collective work can itself be
copyrightable.
A "compilation" is a work formed by the collection and assembling of
preexisting materials or of data that are selected, coordinated, or
arranged in such a way that the resulting work as a whole constitutes
an original work of authorship. The term "compilation " includes
collective works.
A "derivative work" is a work based upon one or more preexisting
works, such as a translation, musical arrangement, dramatization,
fictionalization, motion picture version, sound recording, art
reproduction, abridgment, condensation, or any other form in which the
underlying work may be recast, transformed or adapted. A work
consisting of editorial revisions, annotations, elaborations, or other
modifications which, as a whole, represent an original work of
authorship, is a "derivative work."
A "joint work" is a work prepared by two or more authors with the
intention that their contributions be merged into inseparable or
interdependent parts of a unitary whole. Each joint copyright owner
can grant non-exclusive licenses to third parties subject to a duty to
account to the other joint owners for their share and profits.
"Motion pictures" are audiovisual works consisting of a series of
related images which, when shown in succession, impart an impression
of motion, together with ac-companying sounds, if any.
A "transfer of copyright ownership" is an assignment, mortgage,
exclusive license, or any other conveyance, alienation or
hypothecation of a copyright or of any of the exclusive rights
comprised in a copyright, whether or not it is limited in time or
place of effect, but not including a non-exclusive license.
FOR INFORMATION ON REGISTERING YOUR COPYRIGHT
Registration is handled through the Register of Copyrights, Library of
Congress, Washington, DC 20559. Telephone: (202)479-0700. A 24-hour
"hotline" for obtaining registration forms is (202)7079100.
Photographers are normally registered in class VA (Visual Arts),
except for bulk registration and some contributions to periodicals.
The procedure for filing is quite simple. The form is
self-explanatory; it is filled out and sent to Washington with two
copies of the photograph (except for an unpublished registration, when
only one is required) along with a $20 filing fee. For registration
purposes, every photograph should have a title, which can be a simple
descriptive caption.
Form VA is the basic form for registering all works in the visual
arts. In addition to photographs as such, it should also be used for
registering the following items when they are primarily or exclusively
photographic in nature: books, advertising materials, and most single
contributions to periodicals. When these items consist primarily of
text, they should be registered in class TX.
If first publication occurs in a separately copyrighted work, such as
a magazine, you can still register the copyright in class VA as a
contribution to a collective work, thus securing the advantages of
statutory damages and legal fees in an infringement case as mentioned
above. This procedure is safer than relying upon the registration of
the collective work itself.
PROPER FORMAT FOR DISPLAY OF COPYRIGHT NOTICE
There are three ways to display a copyright notice:
(C) 1991, (Creator's Name)
Copyright 1991, (Creator's Name)
Copr. 1991, (Creator's Name)
law/az_lawsta.law
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/* Here's the Arizona Computer Crimes Law, effective in 1978, see
section 13-2301, Arizona Revised Statutes.*/
SECTION 13-2301 Definitions
/* We are omitting sections A through D of this section as they
do not relate to computers.*/
E. For the purposes of Section 13-2316:
1. "Access" means to approach, instruct, communicate with,
store data in, retrieve data from, or otherwise make use the
resources of, a computer, computer system, or computer network.
2. "Computer" means an electronic device which performs
logic, arithmetic or memory functions by the manipulations of
electronic or magnetic impulses, and includes input, output,
processing, storage, software, or communication facilities which
are connected or related to a device in a system or network.
3. "Computer network" means the interconnection of
communications lines with a computer through remote terminals, or
a complex consisting of 2 or more interconnected computers.
4. "Computer program" means a series of instructions or
statements, in a form acceptable to a computer, which permits the
functioning of a computer system in a manner designed to provide
appropriate products from such computer system.
5. "Computer software" means a set of computer programs,
procedures, and associated documentation concerned with the
operation of a computer system.
6. "Computer system" means a set of related, connected or
unconnected equipment, devices and software.
7. "Financial instrument" means any check, draft, money
order, certificate of deposit, letter of credit, bill of
exchange, credit card or marketable security or any other written
instrument, as defined by Section 13-2001, paragraph 7, which is
transferable for value.
8. "Property" means financial instruments, information,
including electronically produced data, computer software and
programs in either machine or human readable form, and anything
of value, tangible or intangible.
9. "Services" includes computer time, data processing, and
storage functions.
SECTION 13-2316 Computer fraud; classification
A. A person commits computer fraud in the first degree by
accessing, altering, damaging or destroying without authorization
any computer, computer system, computer network, or any part of
such computer, system or network, with the intent to devise or
execute any scheme or artifice to defraud or deceive, or control
property or services, by means of a false or fraudulent
pretenses, representations, or promises.
B. A person commits computer fraud in the second degree by
intentionally and without authorization, accessing, altering,
damaging or destroying any computer, computer system, or computer
network, or or data contained in a computer, computer system, or
computer network.
C. Computer fraud in the first degree is class 3 felony.
Computer fraud in the second degree is a class 6 felony.
Downloaded From P-80 International Information Systems 304-744-2253
law/babbs001.txt
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==========================================================================
== BABBS001.TXT == ANTI-FED BBS SECURITY =================================
==========================================================================
______ _______ ______ ______ _______ __
/ __ /\ / ___ /\/ __ /\ / __ /\ / /\/ /\
/ /\/ / \/ /\ / / / / / / \/ / / / \/ _____/ / / \
/ /_/ /_ / /__/ / / /_/ /_ / /_/ /_ / /____ \/_/ /
/ ____ /\/ ___ / / ____ /\/ ____ /\/____ /\ \ \ /
/ /\ / / / /\ / / / /\ / / / /\ / / _____/ / \ \_\/
/ /___/ / / / / / / /___/ / / /___/ / / / /
/_______/ /_/ /_/ /_______/ /_______/ /______/ / OF
\ \ \ \ \ \ \ \ \ \ \ \ / MIDNIGHT
\_______\ \_\/ \_\ \_______\ \_______\ \______\/ SOCIETY
______ _______ __ __ ___
/ __ /\ / ___ /\/ /\/ /\/ /\
/ /\/ / \/ /\ / / / / / / /TM/ \
/ /_/ /_ / / / / / /_/ / /__/ /
/ ____ /\/ / / / /_ __/ \ \ /
/ /\ / / / / / / \/ /\ \ /\__\/
/ /___/ / / /__/ / / / \_\/
/_______/ /______/ /_/ /
\ \ \ \ /\ \ /
\_______\ \______\/ \_\/ Call RAISTLIN'S TOWER (815) 964-6313
-=> (C)1991 by Babbs Boy of MIDNIGHT SOCIETY <=-
Permission is granted to reproduce this file in whole or in part in any
form provided the following conditions are met:
o This and/or any pieces of information to be disclosed with said
document are not to be used in any way which may incriminate or other-
wise inconvenience the owner or operator of any computer system
not bearing the Atari logo
o The author's name and/or logo are not removed from the said document
if more than forty (40) lines of said document are to be reproduced
in any form
o The author and/or distributor of said information cannot and will not
be held responsible for any of the information contained therein. (I'm
legally insane, what's your excuse?)
o The information contained herein is not to be used for any illegal
purposes! (Wink wink, nudge nudge, fingers crossed, etc.)
==========================================================================
Now that we're past the legal BS, on with the show!
==========================================================================
Hi ho! Babbs Boy writing here on my trusty non-Atari computer! I suppose
that the title of this document (Anti-Fed BBS security) may leave you
wondering what the hell this thing is about... let's put it like this: I
dont like the feds AT ALL, and I am a proponent of anything which will make
their jobs a helluva lot harder. That is what this document happens to be
about: how to make your BBS persecution-proof.
Let's start with the log on screen: If FEDZ want anything from your board,
they are required to provide 100% accurate information. Anyone working
with the FEDZ is also required to provide 100% accurate information,
otherwise, anything that they have gathered to be used against you cannot
be used in court. What this means is that they cant even get a search-
warrant if you've used clever enough phrasing.
Let's look at a dingy which you are free to rip from this document and use
to your heart's content:
This first one is a message which should be displayed to new users:
#####
By continuing use of this system, you are agreeing that you are able to
truthfully make the following statements. If you are unable to make
the following statements, or they are not binding in your case, then
terminate connection with this system NOW. Further use of this system by
persons not able to comply with the above constitutes trespassing, and is
punishable by law.
1> I am not and have never been affiliated in ANY WAY with any law
enforcement agency. This would include Federal workers, Police,
Firemen, Politicians AND any other worker drawing ANY pay from ANY
government agency.
2> I do not report to ANY federal agency or agency personnel in any
form, directly or indirectly.
3> I agree that any information obtained through the use of said system
is for private use ONLY. I accept ALL responsibility for any data
obtained from the system which is not destroyed in its entirity
within a one (1) hour period after previewing.
4> The operator of this system cannot be held responsible for any of
the data available within the system, as the data is provided by the
users of the system, not the operator. By contributing data, the
users have agreed that the data could not be used to incriminate
ANYONE.
5> Should my status concerning the first four statements ever change, I
will take the following steps:
A> Log in to this system
B> Notify the system operator of my new status through electronic
mail
C> Log off of the system without using ANY additional system
functions
D> Destroy all records of information contained within said system
within a two (2) hour period
E> Cease to call said system
#####
What this essentially says is that everything on the board isn't yours, and
you don't know/care where it came from. It also means that any FEDZ or
wankies which report to the FEDZ cannot even continue to call the system
without you being able to sue their asses. This means that if they even
try to press any charges, charges are dropped and YOU get to sue THEM!
This should be on your log-on screen...
#####
By entering data into the name and/or password fields which follow (other
than the word NEW followed by a single carriage return), you agree to ALL
of the terms listed in the NEW USER section. If you do not know what
these terms are, please enter "NEW(carriage return)" now.
#####
That one is shorter and to the point. Now, as for files, message, etc.
sections, you might want to put this little notice in there:
#####
By continuing use of the feature which you have selected, you agree to be
bound by the following terms: <1> Any information obtained by the use of
said funtion is for personal use only. <2> Any responsibility for any of
the information lies with Steve Wozniak. <3> If you cannot comply with
terms 1 or 2, or they are not legally binding in your case, you will drop
carrier now.
#####
Steve Wozniak, by the way, is the co-founder of Apple computers. What this
means is that they CANNOT legally use your file and/or message sections, as
they cannot hold Steve Wozniak responsible for someone else's actions.
Because of the "...or they are not legally binding in your case..." phrase,
they cannot even do this WITH A WARRANT.
--===>>>> {POINTERS} >>>>===--
NEVER keep your real name in a handle OTHER than SYSOP unless you have a
handle which does ONLY LEGAL garbage. Use another handle for evil
activities, and tell people that you dont even know who that that person is.
Dont require your friends to keep their real names/phone numbers, etc. in
your system. If anything ever DID happen, you wouldnt wanna drag them down
with you.
DISABLE CONTROL C during displays of disclaimer information
DONT LEAVE ANYTHING ILLEGAL in the public message/file areas. Make sure
that nobody even MENTIONS anything illegal in the public areas.
Give general (non ELITE) users SMALL on-line time (15 to 30 minutes TOPS!)
Keep 2 levels of ELITE - one level should be a user-test level, the other
the real thing.
If you can afford or otherwise get it, get one of those neat little
system-security cards that lets you encrypt EVERYTHING ON THE HARD-
DRIVE HOPELESSLY so that the only way you can run software from your
hard drive is by entering the correct password at startup. Dont write
the password down ANYWHERE. If it is something like FEDZ$UCK, then you
can plead the 5th if they ask/demand to know what it is, based on the
fact that the password itself is evil, but nothing IN the system is.
--------------------------------------------------------------------------
Congratulations! You are now FED-IMMUNE! They CANNOT legally use your
board!
If you have ANY questions, I can be reached on RAISTLIN'S TOWER OF HIGH
SORCERY @ (815) 964-6313. --==>>]3ABBS ]3OY<<==--

law/banking.off
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Newsgroups: alt.privacy
From: privacy@well.sf.ca.us (David Johnson)
Subject: Offshore Banking & Privacy
Date: 5 Jul 1994 13:11:59 GMT
Message-ID: <2vbm6v$s40@nkosi.well.com>
Organization: The Whole Earth 'Lectronic Link, Sausalito, CA
Lines: 331
PRIVACY & OFFSHORE BANKING: What the IRS doesn't want you to know!
By David Johnson
I'll get right to the point! The purpose of this brief article is to take a
look at banking and investing overseas, using fiscal tax shelters (havens) to
reduce and eliminate taxes, and foremost, to provide confidentiality in
personal and business matters. Period.
For various reasons, offshore banking has been tagged as "unsafe", "risky",
"illegal", or "for the wealthy". All are anything but the truth! It's
time to dispell the myths! Let's seperate the fact from the bull! First
off, one must understand that it is normal for those who know little or
nothing about something (besides what they hear from others) to be afraid
and suspicious of it. Misinformed financial planners, attorneys and
accountants may know economics and law in the United States, but few know
about handling business outside of the country. Let's tackle these
misconceptions one at a time:
LEGALITY - There isn't and will never be a law restricting the sending of
funds outside the United States. How do I know? Simple. As a country
dependant on international trade (billions of dollars a year and counting),
the American economy would be destroyed. How? Since all U.S. global trade
is transacted in U.S. Dollars, there would be no imports or exports, due to
the fact that the United States would not be able to buy and sell goods.
Make sense?
If you wanted to, you could remove or transfer some (or all) of your money
our of your bank or credit union to anywhere in the world, LEGALLY.
U.S. banks and the IRS disseminate negative propaganda dealing with offshore
banking, making it seem unsafe or some type of criminal act. Why? Banks just
want to keep your money in their institutions to use for thieir own profitable
purposes. Did you know that most U.S. banks themselves accept deposits from
people overseas and often invest in foreign stocks and hold accounts with
foreign banks? It's true! As far as the IRS, they obviously want your money
in U.S. banks where they can tax every dollar you earn in interest, and keep
track of how many liquid assets you have and where they are.
The confusion with tax legalities is sometimes due to lack of knowledge. In
the U.S., tax evasion is a crime, tax avoidance is not. As you know, there
are zillions of laws on the books in every country. Without a doubt, what is
legal in one place may be against the law elsewhere. For example, income tax
evasion is not a crime in jurisdictions where there is no income tax. Thus,
in most cases (except those with significant political and/or business weight)
countries that are not allies usually don't assist other nations in enforcing
laws that are not laws in their countries. Further, a country has no legal
right to conduct an investigation in a foreign country, without consent of the
respective government. In reality, a country has every right to deny ANY
other nation permission to make examinations in their territory. Therefore,
it is difficult, if not impossible for authorities in the U.S. to obtain
financial transaction records of tax evaders in many foreign-based
institutions (outside of those located in areas that have some type of
cooperation treaties). Strict banking secrecy laws also contribute to the
difficulty. Most tax haves impose lengthy prison terms and/or hefty fines for
violations of a client's secrecy. INTER-FIPOL (The International Fiscal Police)
is the tax crime equivalent of INTERPOL (The International Police Organization),
which is a network of law enforcement authorities in numerous countries which
exchange information on criminals. Many evaders are opening accounts in
fictitious names and using mail fowarding & pick-up drops for privacy.
PRACTICALITY - Movie-makers and recent international scandals, such as BCCI and
Iran-Contra, have contributed to negative views about offshore banking.
Contrary to popular belief, rich criminals and corrupt government officials
make up a small segment of the total number of customers at any given offshore
institution. Now more than ever, the average American blue-collar worker and
businessman is using offshore banking as a way to reduce taxes (through legal
avoidance). Many accounts may be opened for the same amount required in the
U.S (about $100) or less. In some cases, there is no minimum opening deposit
at all. Further, the interest rates are usually substantially higher than in
the U.S. (since federal law sets limits on the amount of interest a bank can
pay you). But by far, the reason most people turn to offshore banks is their
confidentiality.
One might ask, "if these banks are so good, why don't they advertise in the
U.S."? The answer is simple...they are prohibited! Federal law restricts
offshore banks from advertising their services in U.S. magazines and newspapers,
unless they agree to the same restrictions that govern F.D.I.C. institutions
(such as interest limitation). Why? That's simple too...to keep competition
down. Opening an account with these banks is as simple as writing a formal
letter to the institution and requesting information about their various
services and the appropriate application forms, and returning them to the bank.
It really that easy! Most banks never have to see you in person.
SAFETY - All offshore banks are regulated in one form or another, like their
U.S. counterparts, but minus the limiting federal laws. Less restrictive
regulations abroad allow foreign banks more freedom in locating the best
investments worldwide, allowing them to pass on and share their profits with
their customers. As for insurance, forget the F.D.I.C. or other private
insurance companies! They usually only allow a liquidity factor (insurance)
of about 10% of public deposits. Many offshore banks are self-insured,
meaning they have AT LEAST one dollar in cash to coverevery dollar on deposit,
That translates to 100%+ insurance. Also, the majority of the world largest
and strongest banks (as far as assets) are overseas, not in the United States.
Call your local library's business & finance or commercial department and ask
the librarian to look it up.
INTERNAL REVENUE SERVICE (IRS) - Treasury form 90.22-1 (Report of Foreign Bank
and Financial Accounts must, by law, be completed and returned to the I.R.S. by
June 30th of each year you possess a foreign account. For a copy of the form,
call the IRS at (800) 829-1040, or check your phone directory for the number of
your nearest forms distribution center.
U.S. CUSTOMS - U.S. Department of Treasury's Currency and Foreign Transactions
Reporting Act details which monetary instruments (checks, money orders, ect.)
must, by law, be reported to the federal government. A copy of an illustrated
circular which explains the act in full is available for the cost of $5 from:
Worldwide Consultants, 2421 W. Pratt Blvd., Suite 971, Chicago, IL 60645 U.S.A.
WHAT YOU DON'T HAVE TO REPORT - Here are two categories of instruments that you
are not required to report:
If you make out a personal check or money order to an offshore bank, you don't
have to report it.
And, if you have a check or money order payable to you, you may restrictively
endorse it (i.e. pay to the order of XYZ Bank), and you do not have to report it
either.
TAX EVASION - If you deposit your paycheck in a U.S. bank, chances are you've
already paid income taxes on it (unless it is a personal check). So, you have
no further obligations, since taxes were deducted before the check even hit your
hand. With a savings or brokerage account, at the end of the year when you get
your annual statement, you simply add the total amount of interest or profit
earned to your income, and pay taxes on the grand total. The same is only
true offshore if the country the bank is located in imposes a withholding tax.
Since I'm on the subject of taxes, did you know that the United States and the
Philippines are the only two nations in the world that tax income earned
outside of their countries? Anyway...back to tax evasion. Below are a few
examples of ways some individuals have cheated the IRS:
A lawyer received payment by personal check from a client and deposited it
in his offshore account. Since the deposit didn't appear on his business
reords, the chances are it would never be found out (even if he was audited).
One couple sold a valuable antique and had the buyer send the payment directly
to their offshore bank account. Later the couple used the money to tour
Europe and the Carribean.
Another example is the S&L bank customer who enticed his "unscrupulous" banker
to electronically transfer a large sum of cash offshore without reporting the
transaction to the I.R.S.. Then the customer borrowed the money back from the
offshore bank. Since loan proceeds are not taxable, no taxes were paid.
These types of schemes are no longer used by the rich with extra money to hide,
but by average Americans who don't like to pay taxes on every single cent they
earn.
HOW HIDDEN ASSETS ARE FOUND - Having conducted investigations in the
U.S. and abroad, I am familiar with the various techniques which may
be used to locate leads to funds being kept offshore. Here are a few:
1. Checking passports (and travel agents) for evidence of visits to "high
profile" destinations such as: Switzerland, Cayman Islands, The Bahamas, Isle
of Man, Netherland Antilles, and other known banking and tax havens. Travel
to these type of areas nwill surely throw up a red flag, giving seekers a
place to start looking for your assets.
2. Examining telephone (home, business & hotel), fax and mobile (cellular)
phone records to identify undisclosed business connections and contacts.
3. Reviewing credit card statements to determine who you do business with,
where you travel (domestic & foreign), and what products and services you use.
These records leave a revealing paper trail miles long.
4. Garbage is often sifted through for information such as statements,
invoices, correspondence, and other relevant material useful in tracking your
affairs. Use a high-quality paper shredder, discard your garbage at another
location, or burn and crush it. It sounds drastic, but what you throw away
says a lot about you, and many leads can be found there.
5. Compiling a list of parties that you have a relationship with (business or
otherwise) by recording the return addresses on your incoming mail. This
technique can disclose friends, associates and partners. If you must receive
important mail at your residence or business address, be sure to have your
correspondents omit using a return address.
6. Looking into banking transactions. All withdrawals or deposits $3,000 or
more must be reported by your bank to the federal government, whether made by
cash, check or electronic transfer. Keep transactions under $3,000.
7. Checking private courier's logs (UPS, DHL, RPS, Federal Express, Airborne
Express, ect.) for delivery of special or important letters and packages.
8. Examining telex records of your company or business to locate areas of
foreign activities.
RESOURCE DIRECTORY
F.E.C., Inc.
Box 959, Centro Colon Office Building-1007
San Jose, Costa Rica
The above company is the JC Penney of financial privacy. If no one else,
contact them! Provide them with your name, mailing address, and mention
SOURCE: 91/12-0695, and they'll send you complete details about their
services by International Airmail. You'll get information on everything
you need to know about keeping your assets safe from invaders. Definately
an all-time favorite one stop shopping place for many reasons:
1. They offer damn near every confidential service imaginable. Here
are just a few: the Divorce Protection Program, the Savings Account
Program, the Client Loan Program, the Mail Service Program, and others.
2. Their Representative Program gives the average Joe an opportunity
to make money 100% tax-free, through commissions by offering their
services to other on a part-time or full-time basis.
3. They give advice and assistance in tax-reduction and setting up
domestic & foreign corporations in tax havens here and abroad.
4. All fees are quite reasonable and affordable by almost anyone.
Scope International Ltd.
62 Murray Rd., Waterlooville
Hampshire PO8 9JL, England
Tel: (44) 0705-592255
Fax: (44) 0705-591975
Publisher of numerous reports by Dr. William G. Hill, Esq., the world's most
free-thinking attorney. They also provide privacy & financial consultations.
TSB Bank Liechtensteinische Landesbank Bank of Nauru
25 New Street FL-9490 Vaduz P.O. Box 289
St. Helier Stadtle 44, Postfach 384 Nauru
Channel Islands Leichtenstein
Fax 44-53423058
Jyske Bank Banca Serfin Bank of New Zealand
Vesterbrogade 9 Padre Mier Ote 134 31-05 OCBC Centre
DK-1780 Copenhagen 64000 Monterrey 65 Chulia Street
Denmark Mexico 0104 Singapore
Fax (45) 33-787833 Tel 65-915744
All of the above six institutions provide a wide range of offshore
services including, savings & checking accounts, loans, credit cards,
traveler's checks, stocks & bonds and global investment services.
Expat World
P.O. Box 1341
Raffles City 9117, Singapore
This newsletter for international free-thinkers is packed with all types
of goodies about living a global lifestyle. Send $5 for a sample copy.
The International Harry Schultz Letter
P.O. Box 622
CH-1001 Lausanne, Switzerland
Fax: (32) 16535777 (Belgium)
This newsletter is read in 91 countries, and is published by none other than
Harry Schultz, The World's Highest-Paid Financial Consultant (according to
Guiness Book of World Records). It provides advice and covers worldwide
economic cahnges.
International Herald Tribune
(800) 882-2884 (in the U.S.)
(800) 535-8913 (from Canada)
(212) 752-3890 (outside the U.S. & Canada)
(212) 755-8785 (fax)
This newspaper is circulated to over 160 countries, and contains articles and
advertisements from financial institutions, office rental and business service
providers and entrpreneurs around the globe.
Outpost (Wyoming), (800) 331-4460
Fast Foward (Florida), (800) 321-9950
Mail, Messages & More (Nevada), (800) 722-7468
Omni Worldwide Offices (numerous locations), (800) 331-6664
Wayne Budd, Budd Bldg. #5, Eldorado, Ontario, Canada, Fax (614) 473-4460
The above companies are mail fowarding companies provide the fowarding of
mail internationally, send confidential mail to alternative addresses, and
take and relay messages.
R.L. Polk & Company
1155 Brewery Park Blvd.
Detroit, Michigan 48207 U.S.A.
Publisher of Polk's International Bank Directory ($67.50). This publication,
which is updated annually, lists every bank in the world (including its total
assets and heads of each department). You may view a copy of this publication
at your local library.
American Voice Mail, (800) 347-2861
This company can provide you with a voice mail box where you can receive
phone calls (with a recording left in your own [or someone else's] voice).
They can set up service in almost any area code and in any name (or alias).
Traceless Phone Calls (900) CALL-888
Domestic and International calls can be made through this number without
telephone records of where the call went. The charges are $1.95 per minute
(domestic), and $3.95 per minute (international). For more information about
the service, call Int'l Phone Company at (800) 823-0080 or (408) 738-3700.
ABOUT THE AUTHOR - David Johnson is an international consultant specializing
in privacy, security and investigative matters. He has lived in Asia for
close to two years, where he saw ten countries. He may be reached by E-mail
at privacy@well.sf.ca.us
YOUR FEEDBACK (QUESTIONS, COMMENTS, NEWS, GRIEVANCES, ECT.) IS ENCOURAGED.
Please feel free to distribute, post, or archive this article on any computer
system worldwide. The publication and/or distribution of this article in
paper format is prohibited without consent of the author.
law/bbs-suit.txt
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UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF INDIANA
CIVIL DIVISION
Linda Thompson, ) Civil Action No® IP-88 93C
) -----------
Petitioner, )
)
v. )
)
Bob Predaina, )
d/b/a Professional's Choice )
Bulletin Board )
)
Respondent. )
COMPLAINT
Comes now the Petitioner, Linda Thompson, and complains of the
Respondent, Bob Predaina, doing business as the Professional's Choice
Bulletin Board, and in support thereof would show the court:
1. That Petitioner Linda Thompson is a citizen of the United
States and resident of the State of Indiana, County of Marion.
2. That this action arises under U.S.C., Title 18, Chapter 119,
entitled Wire and Electronic Communications Interception of Oral
Communications, ss 2520; U.S.C., Title 18, Chapter 121 entitled
Stored Wire and Electronic Communications and Transactional Records
Access, ss 2707; U.S.C., Title 47, Chapter 5, entitled Wire or Radio
Communication, ss 605(d)(3)(a) and the laws of the State of Indiana.
The matter in controversy exceeds, exclusive of interest and costs,
the sum of ten thousand dollars.
3. That the respondent, Bob Predaina, at all times material was
the owner of a Computer Communications System, as defined in U.S.C.,
Title 18, ss 2510 (14) located in Marion County, Indiana.
4. That the Respondent, Bob Predaina, at all times material was
the owner and operator (hereinafter "System Operator") of an
electronic communication service, as defined in U.S.C., Title 18, ss
2510 (15) and or remote electronic communication service, as
applicable, operated from, attached to or part of the Respondent's
Computer Communications System.
5. That at all times material the computer service of the
Respondent was operated under the name of The Professional's Choice
Bulletin Board (hereinafter by name or "the BBS") in the county of
Marion, state of Indiana.
6. That the BBS at all times material provided electronic
communication, as defined in U.S.C., Title 18, ss 2510 (12), between
"users" as defined in U.S.C., Title 18, ss 2510 (13).
7. That at all times material, the BBS provided electronic
storage, as defined in U.S.C., Title 18, ss 2510 (17) of the
electronic communications of users.
8. That at all times material certain electronic storage and
communication on the BBS was configured so that electronic
communications designated by the user as "Receiver Only" were private
electronic communications to a designated recipient and not readily
accessible to the general public.
9. That at all times material, all electronic storage and
communication on the BBS was configured so that electronic
communications transmitted by a user could be deleted only by the
sending user, the system operator or the designated recipient of a
"Receiver Only" communication, and once deleted, said communication
could not be transmitted, read or readily accessed by anyone,
including the system operator.
10. That at all times material, the respondent was a person, as
defined in U.S.C., Title 47, ss 153 (i) engaged in receiving,
assisting in receiving, transmitting, or assisting in transmitting
interstate communication by wire, as defined in U.S.C., Title 47, ss
153 (a) and (e), by means of the electronic communications service.
11. That at all times material, the Petitioner was an authorized
user of the electronic communications service of the Respondent, and
had paid the sum of $35.00 as a subscription fee for a one year
service in October, 1987 to the Respondent.
COUNT I:
12. The Petitioner incorporates and realleges paragraphs 1
through 11 above and further alleges that on an undeterminable date in
January, 1988, without the permission or knowledge of the petitioner,
that the Respondent, Bob Predaina, through the use of an electronic,
mechanical, or other device, as defined in U.S.C., Title 18, 2510 (5),
intentionally or recklessly intercepted, caused to be restored, and
thereby altered the authorized access to a private electronic
communication to which there was no intended recipient, which
communication had been transmitted to and immediately deleted from the
electronic storage of the BBS by the Petitioner on January 2, 1988,
and that said actions of the Respondent are contrary to U.S.C., Title
18, ss 2511 (1)(a); U.S.C., Title 18, ss 2511 (1)(d); U.S.C., Title
18, ss 2511 (3)(a); U.S.C., Title 18, ss 2701 (a) and U.S.C., Title
47, ss 605 (a);
COUNT II:
13. Petitioner incorporates and realleges paragraphs 1 through
11 and further alleges that the respondent, through the use of said
device, caused said restored private electronic communication to be
converted to a publicly visible electronic communication, readily
accessible by members of the public, contrary to U.S.C., Title 18, ss
2511 (1)(c); U.S.C., Title 18, ss 2511 (1)(d); U.S.C., Title 18, ss
2511 (3)(a); U.S.C., Title 18, 2702 (a) and U.S.C., Title 47, ss 605
(a);
COUNT III:
14. Petitioner incorporates and realleges paragraphs 1 through
11 and further alleges that on an undeterminable date in December,
1987 the Respondent through use of an electronic, mechanical, or other
device, intentionally or recklessly caused to be made public a private
electronic communication addressed to the Petitioner, Linda Thompson,
without the permission or the knowledge of the sender or of the
Petitioner contrary to U.S.C., Title 18, ss 2511 (1)(a); U.S.C.,
Title 18, ss 2511 (1)(c); U.S.C., Title 18, ss 2511 (3)(a); U.S.C.,
Title 18, ss 2701 (a) and U.S.C., Title 47, ss 605 (a).
COUNT IV:
15. Petitioner incorporates and realleges paragraphs 1 through
11 and paragraph 13 and further alleges that the Respondent replied in
a public electronic communication on the BBS to a private electronic
communication addressed to the Petitioner, Linda Thompson, thereby
disclosing certain contents of said electronic communication to
members of the public, without the permission of the sender or the
recipient, contrary to U.S.C., Title 18, ss 2511 (1)(c); U.S.C.,
Title 18, 2511 (1)(d); U.S.C., Title 18, ss 2511 (3)(a); U.S.C.,
Title 18, ss 2701 (a); U.S.C., Title 18, ss 2702 (a) and U.S.C.,
Title 47, ss 605 (a).
COUNT V:
16. Petitioner incorporates and realleges paragraphs 1 through
11 and further alleges that during the month of December, the
respondent allowed a person and/or persons unknown to access and view
the contents of all electronic communications, both public and private
in portions of the electronic storage not readily accessible by
members of the general public without the knowledge or permission of
the petitioner and to this end, that the Respondent restored certain
previously deleted electronic communications of the petitioner and
allowed such other person, not the intended recipient of any of such
communications, to read such communications, contrary to U.S.C., Title
18, ss 2511 (1)(a); U.S.C., Title 18, ss 2511 (1)(c); U.S.C., Title
18, ss 2511 (1)(d); U.S.C., Title 18, ss 2511 (3)(a); U.S.C., Title
18, ss 2701 (a); U.S.C., Title 18, ss 2702 (a) and U.S.C., Title 47,
ss 605 (a).
COUNT VI:
17. Petitioner realleges and incorporates paragraphs 1 through
11 and further states that on January 3, 1988, the respondent
intentionally altered the access of the petitioner to the electronic
communication service, contrary to U.S.C., Title 18, ss 2701 (a);
COUNT VII:
18. Petitioner realleges and incorporates paragraphs 1 through
11 and further states that the respondent intentionally prevented the
petitioner from authorized access to the electronic communication
service from January 3, 1988 to January 6, 1988, contrary to U.S.C.,
Title 18, ss 2701 (a);
COUNT VIII:
19. Petitioner realleges and incorporates paragraphs 1 through
18 and further states that on January 6, 1988, the Petitioner
requested that the Respondent agree to refrain from any further such
actions contrary to law and the Respondent refused;
COUNT IX:
20. Petitioner realleges and incorporates paragraphs 1 through
11 and paragraph 19 and further alleges that on January 6, the
respondent intentionally, maliciously or with reckless disregard for
the truth, made statements which on their face are damaging to the
professional and personal reputation of the Petitioner in public and
to another person, subjecting the Petitioner to humiliation, personal
anguish and ridicule, and that said conduct of the Respondent was
contrary to Statutory and common law of the State of Indiana;
COUNT X:
21. Petitioner realleges and incorporates paragraphs 1 through
11 and paragraph 19 and further alleges that on January 8, the
Respondent intentionally, maliciously, or with reckless disregard for
the truth, made written statements in the form of electronic
communications about the Petitioner which on their face are damaging
to the professional and personal reputation of the Petitioner to
members of the legal profession, subjecting the Petitioner to
humiliation, personal anguish, and ridicule, and that said conduct of
the Respondent was contrary to Statutory and common law of the State
of Indiana;
22. Petitioner realleges and incorporates paragraphs 1 through
21 and further alleges that all of the facts alleged of the Respondent
were committed willfully, knowingly, intentionally or recklessly,
and/or for the purpose of direct or indirect commercial advantage of
the Respondent.
WHEREFORE, the Petitioner respectfully prays this Court for a
statutory award of damages pursuant to U.S.C., Title 18, ss 2520
(c)(2)(b) of ten-thousand dollars ($10,000.00) for each of counts I
through V, totaling fifty-thousand dollars ($50,000.00); for a
statutory award of damages pursuant to U.S.C. Title 18, ss 2707 (c) of
one-thousand dollars ($1,000.00) for each of counts VI and VII,
totaling two-thousand dollars ($2,000.00); for a statutory award of
damages pursuant to U.S.C., Title 47, ss 605 (d)(3)(C)(i)(II) of
$250.00 for each of Counts I through V, totaling one-thousand-two-
hundred-fifty dollars ($1,250.00); punitive damages pursuant to
U.S.C., Title 47, ss 605 (d)(3)(C)(ii), U.S.C., Title 2520, ss (b)(2)
in the amount of fifty-thousand ($50,000); for an award of nine-
thousand ($9,000.00) for the damage to Petitioner's personal and
professional reputation alleged in Counts IX and X; all to the total
amount of one-hundred-twelve-thousand-two-hundred-fifty dollars
($112,250.00) plus interest; and for attorneys fees and costs pursuant
to U.S.C. Title 18, ss 2520 (b)(3); U.S.C., Title 18 ss 2707 (b)(3);
and U.S.C., Title 47, ss 605 (d)(3)(B)(iii); and for any and all
other relief just or equitable under the circumstances.
Respectfully submitted,
Linda Thompson, pro se
Petitioner
P.O. Box 83
Beech Grove, Indiana 46107
Telephone: (317) 787-9787
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THE FOLLLOWING MATERIAL WAS DOWNLOADED FROM THE NJIT EIES CONFERENCES C866 -
Microcomputer Communications and C685 - The Future of Telecommunications I
think that you may find this disturbing as I and most of my fellow Sysops do.
Please feel free to download it and pass it around. Subject: BBS Confiscation
I think the following message retrieved from Compuserve deserves widespread
circulation; no further explanation needed:On May 16 I was served with a
search warrant and my system seized because of a message that allegedly had
been left, unknown to me, on one of the public boards. This was done by the
L.A.P.D. under direction of a complaint by Pacific telephone. All Sysop's
should be warned that under present law (or at least the present
interpetation) they are now responsible for ALL information that is left or
exchanged on their system and that ANY illegal or even questionable
activities, messages or even public outpourings are their direct legal
responsibility and that they will be held directly accountable regardless of
whether or not they knew of it, used it, and regardless of any other
circumstances! Yes, it is unjust. Yes, it is legally questionable. But it,
for the moment, seems to be enforcable and is being "actively pursued" as a
felony. I would appreciate it if this message was spread to as many systems
as possible so that the word may be spread to the greatest number of Sysops.
1984 may, indeed, be here... Jack, I'm interested in more details of
this one. Do you have any? It sounds like a crack=down on pirate boards more
than anything else. Id be interested to know whether the alleged message is
supposed to have information in it allowing others to break into someone's
computer system, like phone numbers and passwords. Or if not that, what the
nature of the complaint was. I agree that all sysops should be aware of what
their interpreted liabilities are, nontheless. And that bulletin boards,
including those not in the grey market, will be monitored closely by
industry groups in a counterattack; and that legislation pending in
several states will provide pretty scary penalties for what used to be
considered a lark. I'm not sure about the civil liberties issues here; but
as I've said before, when the game goes hardball everyone loses out...
I dunno where the BBS is (was), but Mission Hills is in area code 818.
Scary story, huh? But I'm not too surprised... I stumbled acrossa long list of credit card numbers on a BBS about a month ago. I meant to
turn it over to the telco but never got around to it, now I am glad I
didn't. The losses are starting to get really big, and the pirate BBSs
spread information faster than the telcos can keep up. It's interesting
that a pirate publication called TAP has been published on paper for years,
giving away tricks to beat Ma Bell and her children out of bucks with credit
card checksum algorithms (which used to be trivial), coin phone control tone
sequences, etc. Now that similar information is published electronically,
free speech (free bauds?) no longer applies, it would seem. This promises to
become a very interesting legal situation. The very worst scenario I can
think of unreels from the complainant, the phone company. The report sounds
like the company is monitoring all the BBS's in L.A. County (or is it Orange
County?) Conceivably, just conceivably, as the ultimate carrier the company
exercised what someone felt was a "public responsibility" not to carry
certain text. The company doesn't want to dirty its lines with ethnic
slurs (from racial epithets to Polish jokes), possible obscenity, or libel.
By analogy, an independent print shop can be sued for libel in most states
for a book that it sends through its presses, though I've never heard of
that happening. Usually both author and publisher are targets in a libel
action. That is, the phone company might be liable by the letter of the law,
but only the author and sysop would be "conventional" defendants. Since the
telephone company is not poor, however, it probably considers itself fair
game every time a new lawyer graduates from USC. And that's not all. The
phone company doesn't want to be a party to distributing a copyrighted
program over its lines in hex. Doesn't want to help distribute information
on how to break a copy-protect scheme. Principally, it doesn't want to aid
hackers in combining their prowess to raid mainframes, which is "theft of
services" or worse. (That happened.) Doesn't even want to be the vehicle by
which dozens of teenagers pile up a $150,000 long-distance tab on an
unwitting customer's monthly bill, which the company or AT&T will have to
eat. (That happened.) It doesn't want to be a party to a cocaine deal or a
prostitution ring. The least fanciful scenario is either that the FBI is
putting pressure on local phone companies to police the BBS's against
hackers raiding mainframes, or that AT&T is demanding scourge work against
hackers raiding the long-distance system (presumably to get free connect
time while raiding mainframes). And so the motives are laudable, the
officials all honorable men. But monitoring the BBS's automatically delids
a can of worms. If in the course of searching the boards a phone company
finds a popular copyrighted program in hex, which it wasn't looking for,
it becomes a witting carrier of copyright infringement unless it takes
action to terminate the infringement. What if it finds a message explaining
how to break a copy-protection scheme? What if...? Hire more lawyers to
decide what the BBS's can get away with, whether the message "RR IS A
PAINTED WHORE" is non-libelous under the Sullivan decision, whether
the content of that board endangers the morals of the minors who flock
to it. FREEZE! The strategy (or experiment) in southern California is to
beat on the heads of the sysops to do their own policing, which is a
"fair-minded" approach. It will shut down a lot of boards. Self-policing
will take off some of the heat, but phone-company monitoring of the BBS's
is a goose-step inside the door and won't go away just because it gets
results. The local companies that do it should be dragged before the public
by their heels, and it wouldn't hurt if BBS users and their sympathizers
waited until the disconnect warning before paying their bills. A lot of
high-handed, reckless stuff that occurs on the BBS's needs to be stopped,
but the lid has to be kept on the can of worms that has been hign-mindedly,
recklessly opened in southern California. A local news story some months ago
told of a woman whose monthly phone bill weighed in at $150,000, up from $45.
She got it straightened out. At dinner tonight my guest Mike, who works for
that phone company, filled in some details. Seems the victim's heavy usage
started after using her ten-digit account number and four-digit personal
number at an airport. LOOSE LIPS SINK SHIPS, as they said in World War II.
At this airport one of that infamous band of conspirators known as "hackers"
was at prey. Anyway, her numbers then popped up on certain BBS's and the
ensuing flood of calls from California and New York, some concurrent,
weren't flagged by the program that checks credit calls because
different family members are allowed to use the same numbers and therefore
so are "hackers." Apparently the billing office should have checked with some
other office on a $150,000 monthly toll, but didn't because (as I understand
it) of some provision for accelerated usage in the computer program. The
woman had made a spate of calls the previous month that disrupted her $45
norm, allowing the whopper to get into the mail. Don't know whether this
was a malicious trick on the woman or on the phone company. Reminds me of
the time in Ghana when the electric company cut my lights off on the
assumption that I couldn't pay the bill they hadn't yet sent me (it was my
first, covering four months use at a rate equal to my salary.) The "hacker"
victim got away with a funny dinner-party anecdote. I had to negotiate for
three weeks to get my lights turned on again and my account switched from
business to domestic rates. I wound up having to pay half my four-month
industrial billing, which was actually a flat rate. What's to stop the
phone hackers from running up big MCI bills, (under an account under an
assumed name, perhaps...), then just not paying the bills and switching to
SBS or CCSI? Eventually you might exhaust all the various long-distance
services, but it would take quite a while. I bet they all start to have
a large problem with non-bill-payers, particularly because they don't have
the threat of cutting off your phone service. Sysop Charlie Strom
76703,602 To: All The following message was retrieved from another system:
On Saturday, June 2, there was a meeting of Los Angeles area sysops to find
out the truth behind the confiscation of the Mog-Ur BBS. The Sysop of the
Mog-Ur BBS was there along with his lawyer. Here is a report on what I
learned at the meeting: The messages (there were two of them) containing
the AT&T calling card numbers were left on his board using an option to
leave an anonymous message. The Sysop can tell who leaves such messages,
but the general public can't. Another feature of his BBS software is that
you can specify the length of time (in days) that a message should stay up.
The messages in question were left with a very small number of days and Tom
(the sysop) never got to see them before the system automatically killed them.
During the time the messages were on, a Pacific Bell agent called in and saw
them. PacBell asked the police to get a search warrant for Tom's computer.
This is standard procedure when PacTel finds a BBS handing out phone phreak
information. No effort was made to ask Tom to delete the messages or find out
who left them. Either somehow Tom found out that PacBell was going to show up
or they allowed him t3,602 To: All Tom has retained a lawyer who thinks the
whole thing will be thrown out and is going to try to make PacBell look bad.
If it ever goes to court he says all he has to do is get a jury of normal
people (i.e. no PacBell employees) and present it as a case of John Doe vs.
the phone company. Nobody likes the phone company. The lawyer has documented
cases where this kind of information was left for weeks on UCLA computers and
on CompuServe (I assume in BULLET), and the police did nothing (its easy to
pick on a small computer sysop, but trying to confiscate UCLA or CompuServe
is harder). InfoWorld reporter Peggy Watt was on the scene and a story will
run on the front page of the next issue about it. If there is any difference
between my story and the one in InfoWorld, believe InfoWorld. I have tried to
get this correct, but Peggy talked with Tom and his lawyer a lot longer than
I did, and she took written notes (this is from memory). PacBell has refused
to talk to Peggy, and the LAPD person who conducted the raid is on vacation.
When the superior of the detective was asked about it, the reply was like
"You mean we confiscated $10,000 worth of computers? I didn't know that!".
It was reported earlier that Tom had a section on his BBS called "Underground"
where these kinds of messages were posted before. I have found out it was his
policy to delete any such messages when he saw them. The idea behind the
section was not to rip off the phone company, but to discuss "things you
wouldn't want just anybody to read" (Tom's system didn't require validation
to use, except for the underground section which you had to ask for access
to). Another idea was to provide a place to leave unpopular opinions since it
had the ability to leave anonymous messages. I hope this clears up what this
section was meant for. Thats all for now. The lawyer is pressing for
something to be decided during the next week. (Note from C.S. - see Infoworld
of 6/18/84, page 11.) Would you take Safeway to court for having a phone
number on their bulletin board in the store? I sort of suspect that Pacific
Telesis (sounds like a California cult) will get the case thrown out of
court, but NOT without a lot of heartburn for Tom! It may not be a matter
of whether or not they win the case. These days it's an unfortunate fact of
life that anyone with the money to pay a battery of lawyers can keep you in
court long enough that it doesn't matter if you're in the right or not -
either way you lose...
law/bendix.txt
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From: tsdavies@mothra.syr.EDU (T.S. Davies)
Newsgroups: rec.arts.books,rec.music.makers,rec.music.misc,rec.music.synth,rec.arts.misc,rec.arts.fine,rec.music.funky,rec.music.industrial,rec.music.compose
Subject: Crosley Bendix (Negativland) Discusses The Copyright Act
Summary: Transcript of the CD accompanying _The Letter U And The Numeral 2_
Keywords: Copyright,Negativland,U2,lawsuit,reform
Message-ID: <TSDAVIES.92Nov9233538@mothra.syr.EDU>
Date: Mon, 9 Nov 92 23:49:06 EST
Organization: Sam Hill Cabal, DS
Followup-To: misc.int-property
Lines: 385
The following is the text of the compact disc accompanying
Negativland's publication, _The Letter U And The Numeral 2_, which
discusses the lawsuit filed against Negativland and SST Records by
Island Records, Warner-Chappell Music, and Casey Kasem.
It proposes a revision of the United States Copyright Act to allow the
reuse of portions of material released for public consumption. I have
given this article a fairly wide initial posting, with followups
directed to misc.int-property, which seems to be the most appropriate
group for discussion to take place in. If you change the followup
line to something obscure, I'd appreciate it if you'd let me know by
sending me e-mail -- I do read most of these groups regularly, and I
will be checking the rest for a while after posting this.
You may also want to change the distribution to something less
all-encompassing than "world". But I felt that there may be
sufficient international interest to justify an initial worldwide
posting.
I have no connection with the band, nor with any of the other
particpants in the lawsuits, outside of an interest in Negativland's
music, and interest in the copyright revision proposal presented here.
As this is a transcription, I am wholly responsible for any
typographical or grammatical errors in the text.
This message may be reproduced in any form whatsoever, with no
restrictions imposed on it by me. All copyright rights reversed.
-------------------------------------------------------------------------
Transcript begins.
-------------------------------------------------------------------------
Negativland
_The Letter U And The Numeral 2_
"39. Crosley Bendix Discusses The Copyright Act"
(25'56" compact disc.)
ANNOUNCER: And now, Crosley Bendix, cultural reviewer and director of
stylistic premonitions for the Universal Media Netweb, with today's
Arts Review.
SAMPLE: <It's crazy; it's dangerous; it is almost stupid. It's crazy;
it's dangerous.>
CROSLEY BENDIX: Good hello, again. While browsing through an
automated cassette dispenser at a Czechoslovakian airport recently, I
suddenly noticed a name I recognized among the wares -- mine!
There it was, Crosley Bendix. The title was, ah, uh, "This Affects
You," or something to that effect. And a closer inspection showed
this to be a bootleg cassette of some of my broadcasts. I suppose
they're out there right now, huddled around a squawking international
shortwave receiver in some filthy hut on Taiwan, taping everything I'm
saying on a low-end Payless cassette for volume two.
Well, even though I'm not getting a cent for the sales of those
bootlegs, the rules of this show don't allow me to complain. Yes, for
better or worse, this radio program, _Over The Edge_, and every form
of distorted sound it contains, always has been, and always will be,
in the public domain. Copyright free. Raw material for your reuse.
Here it is, week after week, available for duplication, remixing, or
editing of any kind, by anyone, for any reason. If you can find a way
to make a buck off anything you can capture off this radio show, go
right ahead, it's all yours, or anyone else's! No permission or
clearance of any kind is necessary, to do anything you want with _Over
The Edge_ broadcasts. I hope that's clear. Of course, you just can't
beat the studio air check compilations of _Over The Edge_ that
Negativland puts out, but, go ahead and try! There's just way too
much for them to ever get to, anyway.
So, here we are, a tiny but persistent island of free noise, with
unrestricted exploitation encouraged, in a vast salt sea of culture
now so choked and inhibited by copyright protections that the very
idea of mass culture is now primarily propelled by economic gain and
the rewards of ownership.
The lawyers behind the managers behind the artists have succeeded in
mining every possible vein of opportunity when it comes to the
monetary potential of art properties. And nowhere is this American
obsession for all-encompassing private ownership more perverse in its
effect on culture than in music.
True folk music, for instance, no longer exists. The original folk
music process of actually incorporating previous melodies and lyrics
as it evolved through time is no longer possible in modern societies,
where melodies and lyrics are privately owned.
Ah, yes, return with me now to those thrilling days of yesteryear,
before the present overabundance of law school graduates began
promoting more laws to entangle more people in order to pay their
upscale consumer bills. Before the practice of sharing in the use of
our culture became bought by corporations or withheld in private
hands. Before we went off the gold standard. Before Atlantis sank
and the survivors went to Egypt... No, that's too far. That would
throw me right into the incredibility of a different cultural review
we just don't have time for now. Well, never mind. Come back to the
present and let's start over. And that would be my suggestion to
Congress, as well.
And here is another thing I would suggest to Congress: It is now time
to drastically revise the outmoded copyright laws, particularly with
regard to the content of electronic media -- meaning anything that is
experienced via reproducing equipment the public possesses.
The revision of copyright protections is now necessary, because media
artists of every variety have long since left Congressional intentions
of cultural ownership in the rearview mirror. This, I believe, is as
it should be. But, in doing so, today's artists are driving their
sporty little art illegally. They can be pulled over and sent to
debtor's prison because their only license is an artistic one.
Yet these vehicles of appropriation present no menace of any kind to
the general population. The only supposed threat is to the
unsatisfiable greed of an extreme minority of private cultural owners.
The reason for today's repressive cultural traffic laws is based
purely on economic control, and, as such, serves to keep many artists
off roads they need to be exploring. The significant urge to
incorporate found sound into contemporary music, for instance, is now
in virtual gridlock -- on the way to a drawbridge that's always up.
We should be giving our artists a wide open freeway through an
environment full of media influences, but this route is being
aggressively denied by "art cops" working for the self-serving
marketing system that has imposed itself on culture.
What am I driving at? The undeniable wisdom of letting artists -- not
business interests -- determine what art will consist of. The need
for various arts of appropriation should be obvious. Artists have
always seen the entire world around them as both inspiration to act
and as raw material to mold and remold. For most of this century,
artists, like everyone else, have been subject to a growing media
environment. Today, we are surrounded with canned ideas, images, and
sounds. My television set told me that seventy to eighty percent of
the population now gets most of their information about the world from
their television set! Large increments of our daily perceptions are
not supplied by the physical reality around us but by the media that
saturates it. Both the content and the programming techniques of
electronic media have inspired the current art trends of
appropriation, but it's nothing new.
Any serious observer of modern music can cite a multitude of examples
-- from Buchanan and Goodman's humorous collages of song fragments in
the fifties to today's canonization of James Brown samples -- wherein
artists have incorporated the actual property of others into their own
unique creations. The whole histories of folk music and the blues are
typified by creative theft. Jazz and rock are full of this, too. In
the visual arts, there is a longstanding tradition of found image
collage, from Schwitters and Braque to Rauschenberg and Warhol. This
is a twentieth century mode of artistic operation that is now nothing
short of dramatic in its proliferation, in spite of all the
marketplace laws designed to prohibit it.
It is important to note that this mode of operation has continued to
grow in artistic relevance as its major source of inspiration -- the
media environment -- has continued to grow. Appropriation isn't
limited to any medium, and it doesn't fade away as mere styles do.
Appropriation's major jump from visual work to audio work in recent
years only underlines the emotional relevance of the technique.
What's going on here? I believe it has to do with deep stuff like
media saturation and the opportunity for self-defense against media
coercion that appropriation engenders. It also has to do with the
Surrealist/Dada concept of detournement. In modern terms,
appropriation is often about culture jamming -- capturing the
corporately-controlled subjects of the one-way media barrage,
reorganizing them to be a comment upon themselves, and spitting them
back into the barrage for cultural consideration. A sometimes nasty
(but wholly appropriate) response to a society in decline and denial.
At the very least, appropriators are claiming the right to create with
mirrors.
Corporate culture is trying to reach the end of this century
maintaining their skewed view that there is something wrong with all
this. But, perceptually and philosophically, it is an uncomfortable
wrenching of common sense to deny that once something hits the
airwaves, it is literally in the public domain. The fact that the
owners of culture and its material distribution are able to claim this
isn't true is a tribute to their ability to restructure common sense
for maximum profit.
But art is what artists do, and we can only hope for laws that
recognize this. Just as the dictionary recognizes new words -- even
slang -- that come into common usage. Until then, we are stuck with
copyright laws which were designed solely by publishing interests and
cultural manufacturers who maintain virtually unopposed lobbyists in
Congress to ensure that their present stranglehold on the reuse of
culture will remain intact. These cultural representors claim to be
upholding the interests of artists in the marketplace. And Congress
-- with no exposure to an alternative point of view -- always
accommodates them.
A more generous and enlightened approach to copyright law would have
it prohibit straight-across bootlegging, provide cover version
royalties, and practically nothing else. Virtually all the volumes of
statutes which now go far beyond this are not only unnecessary, but
counterproductive to the now common practice of piecemeal
appropriation in the creation of new work.
The crucial difference between simply bootlegging entire works in
order to profit from someone else's creativity and the creation of new
work which incorporates elements of existing work for the referential
or commentary effects thus produced must be made clear to lawmakers.
The present "broad brush" of copyright law is acting to censor what
artists want to do. Not a desirable role for government.
Culture is more than commerce. The law should begin to acknowledge
the artistic domain of various creative techniques which may actually
conflict with what others claim to be their economic domain. Art
needs to acquire an equal footing with marketers in court. The
question that must rise to the surface of legal consciousness now is:
At what point in the process of found fragment appropriation does the
new creation possess its own unique identity, which supersedes the sum
of its parts, thus gaining its own right to legally exist?
The media and electronic publishing industry's argument that
appropriation equals ripoff is truly irrelevant. Unlike bootlegging,
appropriation in no way prevents an artist from profiting from his or
her own work through every form of sale which would normally occur.
Beyond that, it is only greed and opportunism which assumes that
others' partial or fragmented use of that work -- being no part of the
original artist's efforts -- should additionally profit that artist.
It is simply unearned gravy, existing only because of another's
efforts to begin with.
A revamping of copyright laws envisions a more free-wheeling and
referentially unconstricted art world. This, of course, would be a
lawyer's nightmare of lost work and layoffs. But for the culture at
large, it would be a vast improvement. For instance: if you are
making a movie and want to use a section of a song in the soundtrack,
you wouldn't need to clear it and you wouldn't need to pay the artist.
You would be free to put that fragment in your work whether it appears
to be a favorable context to the publisher or the artist or not.
However, if you wanted to use the entire song in your movie -- a
complete self-contained creation by another -- or put out a soundtrack
album with the complete song on it, then you would need to clear it
with the artist and pay royalties. The difference between referencing
a fragment of a publically available cultural artifact, and presenting
that artifact as a complete and self-contained performance should be
the defining guideline for artist profit.
In such a world, when an artist releases his or her work for public
consumption, they would not only receive the benefit of public sales;
they would also give up what now amounts to undeserved control over all
forms of public use of that material. If they want to operate in the
"public domain," those would be the consequences.
To say that artists and their companies and their companies' lawyers
would suffer some kind of devastating economic hardship by the loss of
all this second-hand, uninitiated income from outside sources is no
longer tolerable when our very process of cultural evolution is now so
straightjacketed by opportunistic claims of ownership that it amounts
to censorship.
Art is not defined as a business. Let me repeat that: Art is not
defined as a business. The reuse of culture should be encouraged, not
inhibited and litigated.
Today, our entrenched copyright, publishing, and cultural property
laws stand as a monument to private greed. They need to be brought,
kicking and screaming, into our real world of modern capturing
technology and find a comfortable accord with the artist's healthy and
inevitable impulse to incorporate public influences.
Well, by now you're probably saying, "Wait a minute, Mr. B! This
thing has turned into some kind of totally serious manifesto, grant
proposal sort of thing. I didn't pay top dollar for this bootleg in
order to get a lecture. Aren't you supposed to be funny, sort of?"
Well, <laugh> <belching noise> I am, sort of. And that's my very next
point. Appropriation, by its very nature, often results in something
funny. And funny can be just as important in life and culture and art
as all that serious stuff that will get you ideological followers or a
grant. Let's find out by putting aside all this theoretical rhetoric,
and turning to the experiential reality of what I may or may not be
describing. I have here a, ah, a demonstration tape. An example of
found sound appropriation and transformation. And here it is:
[4'48" of assorted cut-together pieces of tape deleted]
Okay, that's it. I call this a razor tape, because it's made with
only a razor blade. Quite laborious, sort of interesting. Eh, not
the greatest thing you've ever heard, maybe, but kind of funny in a
confused sort of way. Ha. Maybe it's not finished, I really can't
tell. It seems to be made out of, ah -- commercials? Yes, but they're
all mixed up and it's no longer selling anything. So what's it about
now? Anything? Of course! It's about all the things I've been
talking about. But how? What's the purpose? Well, I purposely chose
this tape because it lacks any obvious pretensions to social
significance. This tape is not going to deflect our national
obsession with the worship of consumerism, even though it's a twist on
some of the prayers; it's not going to inspire any moral revelations
among corporate policymakers, investment bankers, or politicians; it's
not going to put an enthusiasm for the democratic process back into
our population. But, maybe even this little effort at nonsense is
worthwhile in some less-definable way, and deserves to exist for less
predictable reasons. Yet, this little razor tape is entirely illegal
and is not supposed to exist at all, without the permission of the
people who made the original ads.
Do you think they would have given their permission to do this with
their material? Do you think the creators of the original ads should
be paid, again, by me, for what I did with their work? Do you think
you could have heard it today if I had to find them and wait for their
clearance before I could play it? Do you think you could hear it by
next year? The year after that?
<sigh> The answer to all these questions is: "No." There is no way to
make this humorous little tape-edit legally. And there is no way for
you to hear it legally. Yet, I did, and you did. I think no harm was
done. What do you think?
There are so many musicians and audio artists who are now actively
engaged in various degrees of found sound appropriation that it would
run me right off the end of this tape to name them all. Oh, let's
see, just one group that comes to the top of my mind is, ah,
Negativland, perhaps you've heard of them? But, ah, anyway, it's
obvious that appropriation is here to stay, as the ranks of outlaws
continues to grow. The composing of found sound materials will
continue -- outside existing law -- regardless of threats and lawsuits
and corporate attorneys' retainers, because, it is, of all things,
just plain interesting. And for artists, the power of interesting
will not be denied.
On behalf of all these creative spirits -- the pirate guardians of
what's left of public consciousness -- this is Crosley Bendix, urging
you, whether you make art, or are in the position of protecting it --
please -- ignore unreasonably restrictive copyright protections.
Because, if the owners of culture do not see the need to encourage a
creative climate in which artists are free to do whatever interests
them, America's epitaph will probably be chiseled in legalese.
SAMPLE: <drum roll>
What do you want on your Tombstone?
Man: I wrote those ads.
Another man: Mm-hmm.
Man: I wrote them.
<music -- female vocal "oo-oohs" plus piano> Yet another man: And the
picture of me was not a picture I gave them, it was a violation of
copyright laws, because they copied it on their VTR machine, with an
off-air feed, it appears...
ANNOUNCER: <over more music>
You've been listening to cultural reviewer and social critic Crosley
Bendix.
-------------------------------------------------------------------------
Transcript ends.
-------------------------------------------------------------------------
For more information:
--------------------
The United States Copyright Act is available on-line via a Gopher
server at fatty.law.cornell.edu. The following lines, added to your
~/.gopherrc file, will allows quick access via bookmarks.
Type=1
Name=Copyright Act
Path=1/lii/copyright/chapter01
Host=fatty.law.cornell.edu
Port=70
Negativland can be contacted at:
Negativland
1920 Monument Boulevard. MF-1
Concord, CA 94520
510-420-0469 FAX
_The Letter U And The Numeral 2_ should be available from various good
music and bookstores, on the current Knitting Factory Tour, and from:
Negativmailorderland
109 Minna #391
San Francisco, CA 94105
--
Sam Hill Cabal, DS tsdavies@mailbox.syr.edu
"It don't matter, Sail, ... Could be worse. The fam'ly might be donatin' the
proceeds to the Cath'lic Church, or the Mormons or somethin'. One cult's the
same as another." -- Lula Pace Ripley, in "Consuelo's Kiss".
law/blue.law
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DEATH OF THE BLUE BOX
This article is reprinted from Full Disclosure. Copyright (c) 1991 Full
Disclosure. Permission granted by publisher to reprint when subscription
information provided: Full Disclosure, Box 903-R, Libertyville, Illinois
60048, Phone: (708) 395-6200, Fax: (708) 395-6022, BBS: (708) 395-3244, Toll
free: (800) 786-6184. Subscriptions: $18 for 12 issues.
This article will provide an historical review of the problem of ``Blue Box''
telecommunications fraud. A blue box being the street name of one, of several
electronic devices designed to allow the user to place free, long distance
telephone calls. The information presented here consists of excerpts from the
1970's National Wiretap Commission Hearings. In some cases, answers that had
clarifying questions interspersed have been merged together without the
extraneous questions for clarity and space reasons.
The excerpts from the following witnesses are used here: Neil Beller,
Division Attorney, Central Telephone Company of Nevada; Michael Simon,
Special Agent, Federal Bureau of Investigation, Las Vegas; and Karl
Berolzheimer, Central Telephone Utilities and Utilities Corporation Counsel;
William Caming, Attorney, American Telephone and Telegraph. Other individuals
are members of the Commission.
Mr. Feldman: Mr. Beller, would you tell us how many investigations you were
involved in and the approximate period of time?
Mr. Beller: From April 22, 1973, to October 15 of 1973, we gave approximately
32 numbers to the FBI.
Mr. Feldman: . . . What does that indicate?
Mr. Beller: We had reason to believe individuals were using some sort of
device on their telephones.
Mr. Feldman: Would you state on what basis you had that belief?
Mr. Beller: We have a computer print out, a copy of which I have here, which
was for selected numbers. These are toll-free network numbers, and studying
these numbers and ascertaining where the called number was, we had reason to
believe that the person was using a foreign device.
The reason for that is that some of the numbers that were called were
numbers, for example, to New York information, or the information office at
TWA. And it is not logical for a person to talk to TWA for 20 minutes or a
half-hour.
Based upon that, we would put either a brush recorder or at a later date we
subsequently acquired another device, which emitted a tape such as this. And
from that we were able to ascertain that the person was, in fact, using a
foreign device on the telephone line.
Mr. Feldman: Agent Simon, how many cases ultimately resulted from the
information provided you?
Mr. Simon: The resulting investigative cases? We had five cases that were
brought to indictment and subsequent prosecution. We had seven other cases
that, because of the United States Attorney's position, prosecution was
declined. And I will give you one specific example, where an individual made
a blue box which was very unsophisticated in comparison to what Mr. Caming
showed us. This box was approximately two-and-a-half feet long by two feet
wide and about 18 inches tall.
This man made it at home from various electronic parts, and his wife used the
device to call her mother once a week in Miami, Florida.
You have to understand, of course, that we did conduct extensive
investigation to obtain all the facts we could before we presented them to
the United States Attorney.
There were other telephone numbers referred to us by Mr. Beller where we
subsequently obtained affidavits in support of a search warrant and
subsequent search warrant were executed and we had what is known as a ``dry
hole.'' The device was not there.
As we progressed with these investigations we became more sophisticated. We
learn with each one.
Mr. Feldman: If we could concentrate on the successful investigations, I
believe that information came to you as to the FBI from a number of different
sources, indicating that various defendants we using electronic toll fraud
devices. I wonder if I you can state the different ways in which this
information came to your attention.
Mr. Simon: There were three different ways. Mr. Beller would furnish us with
a computer tape printout, and after the issuance of a federal grand jury
subpoena directed to Mr. Beller or his designee, he would furnish us with the
name and address of the individual.
We would then conduct a physical surveillance to determine if that person
actually existed. It is always possible to have aliases. We did run into a
number of instances where an individual who was subscribing to the telephone
company service was not, in fact, the name that was on that card.
So once we established this, and after obtaining a search warrant, we would
notify Mr. Beller.
Mr Beller, in turn, would notify one of the technicians who would tell us
that were was, in fact, a device being utilized on that telephone.
Mr. Simon: The second thing we had was confidential sources of information.
[these were FBI informants who would provide information that electronic toll
fraud was occurring just the same as they'd advise of a gambling offense].
And Mr. Moore was first brought to our attention by a confidential source who
furnished the information to an agent of the FBI, Mr. J. Lawrence Sullivan.
Mr. Moore did not have any of these devices even though he was selling them
in Las Vegas. We were able to pick up Michael Raymond Tullis who was
subsequently tried and convicted for fraud by wire based on the confidential
source information.
Mr. Feldman: So you have computer printout information and informant
information. Was there any other?
Mr. Simon: Yes. On Frank Joseph Masterana -- he had been the subject of a
number of legal Title III wire interceptions by not only the Law Vegas
Division, but other Divisions of the FBI. He was at one time in Macon,
Georgia, for sentencing on one of the gambling cases, at which time
confidential source information was received that he was using in Macon,
Georgia, at that time, a blue box to call Las Vegas.
So bearing in mind and having additional information, two of our Las Vegas
FBI agents, in August of '73, observed Masterana in an open pay telephone
booth making a telephone call with what appeared to be a blue box. But they
couldn't get close enough because he was quite surveillance conscious.
Based up on that and subsequent investigations, we were able to assume that
he was using a blue box, but we couldn't put it all together factually.
In conjunction with advice furnished by Strike Force Attorney James Buff, who
is assigned to the Las Vegas & California, Strike Force Office, we together
with the telephone company, worked out a program whereby if we were able to
come up with the various telephones that Masterana was using to make these
alleged calls, Mr. Duff would give us authority to make an immediate arrest,
providing the telephone company could verify the fact that Masterana was
using an electronic device or a blue box.
Mr. Simon: These were pay telephone booths. What was required was to send
agents out in the field and survey Masterana on a continuous basis to find
out what telephone exchanges he was using.
After several days' work we were able to determine he was using three or four
different exchanges. He was very careful. He would use an open pay phone in a
drug store, for example, that was inside of the drug store, where he could
view the exterior entrances into the drug store, watching for agents. And
because of the size of the city of Las Vegas, it didn't take him very long to
find out who we were. So it was difficult to surveil him.
[Description of methods by phone company to verify use of toll fraud devices
ommitted]
Mr. Feldman: Mr. Beller, once you had verified to your own satisfaction,
using the electronic equipment, that, in fact, electronic toll fraud was
committed on the lines, what did you do?
Mr. Beller: Concurrent with the subpoena from the FBI, we'd typically put on
the recorder that particular individual's line. At that point in time, Mr.
Simon would hand carry over a subpoena for any and all information that we
would have relating to toll fraud. He would ask for the subscriber
information card which denotes the name of the particular person who has the
line, any other information that we might have, which would then be the paper
tape.
Mr Feldman: Agent Simon, I wonder if you could indicate what your next step
was once you had received the information Mr. Beller has described.
Mr. Simon: Once we received the information, again our investigative process
was to verify the fact and physically observe the home or apartment to see
that we had everything correct and based upon that information, I would take
the information furnished by Mr. Beller on the 800 number, the toll free
number, and I would call it that day or the next day to verify the fact that
it was a toll free number to a particular place. In some instances that
number was no longer actually working, but the person utilizing the blue box
would get into the toll free telephone line system and use that number to get
into it.
Then I would take that information and prepare an affidavit in support of a
search warrant. This affidavit was then brought before the U.S. Magistrate
who reviewed it, and through the normal process a search warrant was issued.
Then I would return to my office and contact Mr. Beller and tell him we had a
search warrant at that time.
The next step was that whomever Mr. Beller would designate -- one of their
electronic experts -- would call me and say they had information that this
particular time an electronic device was being used on this telephone.
Mr. Feldman: Was that information gathered by continued use of the TTS-176
(pen register)?
Mr. Beller: Yes.
Mr. Simon: This may have taken two days to prepare. Then there would be
agents in the field and I'd notify them by radio. They had the search
warrant, plus inventories in their possession, and they'd go in the house
with a lawful search warrant and execute it.
Mr. Feldman: And this was the same general procedure used in each of the
cases?
Mr. Simon: With the exception of the Masterana case. In the Masterana case
the Central Telephone Company was able to put on the device after we had
surveyed the phone he had used. If we could tell what exchange Masterana was
using, the telephone company would put on their TTS-176 and be able within
ten minutes to tell us whether he was using an electronic device, the
possession of which was not in violation of the law so he had to be using it.
And as a result, we arrested Masterana in a telephone booth specifically on
October 15, 1973, in a public pay telephone booth, at which time he had two
blue boxes in his possession, the one he was using, together with voluminous
gambling records, and $18,836.53 was confiscated.
Mr. Feldman: In the other four cases, when you executed the search warrant,
who did you find in the premises and did you find a blue box in each house?
Mr. Simon: Yes, in each case. In the Judith Dinah Douglas case, two blue
boxes were found when the search warrant was executed. As a result of this,
she, Douglas, was tried by stipulation of facts and found guilty. She was
sentenced to serve five years in custody of the Attorney General of the
United States on July 2, 1974, provided she'd submit to psychiatric
examination, and come back within 90 days for resentencing.
Subsequently, her case was appealed to the Ninth Circuit on two separate
occasions. The Ninth Circuit upheld the conviction. She has not to my
knowledge begun serving her sentence, nor is she though with her legal
recourse. Apparently she is going to appeal again.
On the Michael Raymond Tullis case, upon execution of the search warrants
based upon confidential source information, we did find one device in his
apartment, and this case when to jury trial.
He subsequently appeared on March 15, 1974, with counsel in Las Vegas and was
sentenced to five years in the custody of the Attorney General, with the
first 90 days to be served in custody, and the balance of the sentence was
suspended and he was placed on probation for the additional period.
In the Frank Victor Scaramuzzo case, with a valid search warrant we recovered
a blue box and went to trial. He was found guilty on March 28, 1974, by the
jury. On May 10, 1974, the United States District Judge in Las Vegas
suspended the sentence and placed him on three years' probation.
At this time, he also ordered that Moore make restitution to the Central
Telephone Company.
He filed a notice of appeal to the Ninth Circuit and the Ninth Circuit upheld
the conviction.
The last matter was David Louis Goldberg and H. Jordan Rabstein. In this
particular matter, in the fall of 1973, we had a court authorized wire
interception on Mr. Goldberg's residence phones. During that period of time,
while we were monitoring and recording, we found on a repetitive basis that
Rabstein would attempt to use the blue box or the electronic device to
circumvent the telephone toll call recording equipment. It was a
sophisticated type of blue box, slightly larger than the one Mr. Caming
presented.
We heard him on numerous occasions make mistakes and because of the slowness
with which he had to manipulate the call numbers, it apparently would not
work successfully. Once in a while he'd complete a call and be completely
elated. Mr. Goldberg, on the other hand, was much more efficient.
Subsequently, Mr. Beller came to us with computer tape printouts, and we went
through our normal process of obtaining an affidavit in support of a search
warrant and subsequently a search warrant and executing the same, at which
time we found the blue box in his residence, next to his night stand, which
he had access to -- his wife would, too, but he was the one who normally used
it. Also also we were able to seize three illegal, unregistered firearms that
he had in the apartment.
Mr. Goldberg, subsequently, together with Mr. Rabstein and with counsel, were
charged with violation of the Title 18 Sections 1084 and 1343 of the United
States Code. And they appeared and entered a plea of guilty.
They were subsequently sentenced on August 18, 1974, at which time Goldberg
was sentenced to one year in custody of the Attorney General of the United
States for violation of Section 1343, and Goldberg was placed on one year
probation for violation of Title 18, Section 1084, both sentences to run
consecutively.
Mr. Feldman: Agent Simon, you have already indicated that Section 1343 does
not specifically prohibit the possession of blue boxes.
Mr. Simon: To my knowledge, the manufacture or possession.
Mr. Feldman: And in all cases, expect the Masterana case, I assume, you
arrived there sometime after the call had been concluded?
Mr. Simon: It was circumstantial.
Mr Feldman: That is my point. The evidence on which convictions were
subsequently obtained was circumstantial.
Mr. Simon: That is right.
Mr. Feldman: I wonder if you can describe the type of circumstantial evidence
that was used in these cases?
Mr. Simon: We had the computer print out and the TTS-176 tapes -- not only
that was previously given to us but that day, of the time, the Central
Telephone Company had the TTS-176 installed on that phone or particular
phones. That became part of the evidence we presented. Plus the fact that
these people were the only ones in the apartment when the search warrant was
executed helped us, of course.
In one instance, in the Scaramuzzo case, he called his attorney in the
presence of Special Agent John Kinsinger -- and I am going to paraphrase what
Scaramuzzo said. He said, ``They caught me with one of them things,'' or
``They caught me with one of them boxes and I was using it.''
What he was saying is he had just set it down when the agents entered the
room. And he set it down to answer the door and the phone was off the hook.
We were able to introduce this and it was very strong
Mr Feldman: And that was the basis on which convictions were obtained?
Mr. Simon: That is correct.
Mr. Berolzheimer: I want to make clear that Central Telephone Company,
although it operates in nine states, has only had experience with this
problem is Las Vegas. We only have experience in one area. You will notice
from the material we have submitted to the Commission it all occurred during
a relatively short period of time in 1973. It deals with one community, Las
Vegas, which has relatively compact and flat geography with wide streets and
low buildings.
It also happens to be the center of legalized gambling which also attracts a
certain amount of illegal gambling and transmission of gambling information.
So we have in Las Vegas a combination of unique circumstances, in including
its geography, its size, the interest of both the FBI and the prosecuting
agency; I think also the existence of a grand jury and the ability of the FBI
to obtain search warrants.
We also had cooperation between the telephone company and the FBI, as has
been described by the witnesses, with surveillance and radio control, so that
they could swoop in and get the blue box.
I don't know, because we don't have the experience, but I certainly can
conceive it would be most difficult to obtain that kind of evidence in a
major metropolitan area. I just don't think you could coordinate it that
well. Your ease of movement wouldn't be the same. Your distances would be
greater; you'd have different kinds of courts.
And I'm not convinced, although we were successful -- that is the United
States Attorney was successful -- in securing convictions in these six cases,
without positive identification of the user, I don't know that the evidence
would be convincing in every court. It had not become a critical issue in the
cases tried in Las Vegas, but I can conceive of a court taking the position
that without voice identification of the user a conviction could not be
obtained.
Mr. Westin: . . . Do you believe these techniques would not be feasible in a
large metropolitan center or under conditions that vary from the Las Vegas
one?
Mr. Simon: I think all of the comments were very valid. Because of the fact
that I spent ten years in Chicago, I can only express an opinion, but I can't
conceive of this working in an apartment complex, a high rise, third floor
walk up. I think it would be almost impossible. If the technology was
available we might be able to proceed, but I do not think we could enter the
residence within from one to five minutes after the telephone company says
``The electronic device is being used right know by an unknown party in
Apartment no. so and so.''
I think it would be almost impossible to have the physical surveillance work
because of the largeness of the metropolitan area. I think it would be almost
impossible to surmount. I just don't know how it could be done.
Mr Hodson: . . . does Bell also use the system we have just heard about?
Mr. Caming: First, I might like to say, Mr. Hudson, I am in general agreement
with everything said by Mr. Simon and the gentlemen from Central Telephone.
In fact, we agree completely. And we have found in a number of cases where
we, too, have been fortunate because of proximity and circumstances in the
thousand or so cases we have been involved in in the last decade, if we could
catch them using it or in circumstances very close to that, as Mr. Simon so
ably described in one or two of the cases, then we either would obtain a plea
of guilty or they would be found guilty.
But we have found in the majority of our cases, and those that are the
greatest problem to the industry as a whole, that we have not been able to
have such a happy admixture of factual circumstances. And let me give you
three cases just as an example of what we have been through.
Problems of identification have been very great. We had one recently that we
received invaluable help from law enforcement authorities on. And I might
generally say that over the years, in many areas, not not only electronic
fraud, the cooperation of the Bureau has been consistently outstanding. And I
think it is worthy to express what is a personal feeling but a tribute to
their industry and dedication. As far as one case, it is a case that might be
denominated -- the Bremson Case -- only because he was one of the original
architects. Since time is of the essence, I will quickly synopsis it. It
involved the general cooperation of 14 Bell Telephone companies and two
General Telephone companies between December 1971 and September 1972.
I will just name the cities that were principal cities: Minneapolis,
Cleveland, Houston, Dallas, Los Angeles, Santa Monica, Atlanta, Washington,
DC, Chicago, Detroit, Des Monies, Memphis, St Paul, Miami, New York, Denver,
Knoxville, New Orleans, Milwaukee -- among others.
We finally resulted in gathering evidence -- as you can see, this was a very
widespread conspiracy of manufacturers, nationwide distributors, and users
such as businessmen. The purpose was to not only very substantially
manufacture and distribute blue boxes, but to use them in an extensive number
of businesses where you might have offices populated by a large number of
people, and where it was virtually impossible to maintain surveillance of any
intimate character.
Also, these people used them at homes scattered throughout a large area.
It finally resulted in 20 arrests, 19 indictments, at least 14 convictions --
a number of investigations are still going on.
In another case, to show you how cogent the problem is, financier Bernard
Kornfeld was involved. He apparently had a home with I understand was huge,
something like 90-odd rooms, in the California area. There was a large number
of people, both male and female, constantly in and out of there. There were
indications from various sources of some use by somebody of blue boxes in
some parts of this rather cavernous place.
Finally, it resulted in apprehension by chance of one of the secretaries
using the blue box, and she was arrested on January 28 of 1975. The question
of identification could not have been made except for the very limited voice
recording.
It ultimately resulted in the seizure of two boxes. And even with all that,
it took six months more to develop the case, to indict Mr. Kornfled on June
5, 1975, by a federal grand jury in Los Angeles, some six months later, for
making 344 calls to Europe over a period of time.
The witnesses at offered a solution to the problem. The following is the
statute they proposed:
``Fraudulent Communication Devices.<R> ``(a) Whoever willfully<R> ``(1) sends
through the mail, or sends or carries in interstate or foreign commerce,
or<R> ``(2) imports or otherwise brings into the United States or any
territory or possession under its control or jurisdiction, or<R> ``(3) makes,
assembles or possesses, or<R> ``(4) sells, gives or otherwise transfers to
another, or<R> ``(5) offers, or places in any newspaper, magazine, handbill
or other publication any advertisement, to sell, give or otherwise transfer
to another, or<R> ``(6) purchases or in any other manner obtains, receives or
conceals,<R> ``any electronic, mechanical or other device, instrument,
apparatus or equipment or plans, specifications, instructions or other
information for making, assembling or using any such device, instrument,
apparatus or other equipment, or publishing any such plans, specifications,
instructions or other information,<R> ``with intent to use it, or knowing or
having reason to know that it is intended to be used or that its design
renders it primarily useful, to obtain any communication service from a
communication common carrier,<R> ``by rearranging, tampering with, or making
any unauthorized connection, whether physically, electronically,
acoustically, inductively, or otherwise to, any telephone instrument,
equipment or facility of any such communication common carrier, to avoid the
payment, in whole or in part, of the lawful charge for such communication
service, or to from any such communication common carrier or from any lawful
authority the existence or place of origin or termination of any
communication,<R> ``or by using any communication service knowing or having
reason to know that such rearrangement, tampering or connection existed at
the time of use,<R> ``shall be fined not more than $1,000 or imprisoned not
more than five years or both.
The first amendment aspects of this statute were brought up, but due to a
lack of time were not addressed in any detail. The whole problem of this type
of fraud and statutes to deal with it became moot when industry step in and
plugged the technological holes. In a February 1990 article in SECURITY
MANAGEMENT in discussing the problem, aptly noted that ``[i]t took a series
of innovative technological developments by the Bell System to defeat them.''
Today, the attempts to solve the unauthorized access of computers and current
day telecommunication fraud parallel the blue box situation. They will be
equally ineffective.
Even a statutory change to reduce the burden on law enforcement agencies
would have still necessitated an on going investigation, prosecution and
incarceration program sufficient to deal with many thousands of individuals
using toll fraud devices. Nonetheless, there still exists today a periodical
based in blue box technology and mentality. It is called 2600.
The above is reprinted from Full Disclosure Newspaper. Subscribe today and
get interesting articles like the above, plus more... pictures, graphics,
advertisement, and more articles. Full Disclosure is your source for
information on the leading edge of surveillance technology. Print the
following form, or supply the information on a plain piece of paper:
----
Please start my subscription to Full Disclosure for:
[ ] Sample issue, $2.00
[ ] 12 issue subscription, $18.00
[ ] 24 issue subscription, $29.95
With 24 issue susbcription include free one of the following:
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[ ] Maximizing PC Performance
Also available separately:
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Illinois residences, add 6.5% sales tax on above 3 items.
Enclosed is payment in the form of:
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Downloaded From P-80 International Information Systems 304-744-2253
law/brave.yes
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This proves that you reading this are probably a motorist
traveling and not a driver driving. But your schools,
parents, and friends all told you that driving is a
privelege and not a right. But what is a driver ?????
A person who receives financial compensation from
transporting the public is a driver according to
law researchers. If you just travel about in your car
you probably are not a driver. If you are not a driver
then you have a constitutional right to travel about
in your car without being required to have a driver's
License, register your car or buy auto insurance !!!!
Take this to your lawyer !!!!!!! or upload to Special
Interest Law Bulletin Boards such as (805)273-8476,
(214)522-1963, (212)409-4194, (313)774-7258.
*
Smart Brave Lady
322730 South Mill
Tempe, Arizona
*
Accused
*
In the municipal Court of the City of Some City
In the County of You Name it, State of Your Choice
STATE OF Your Choice )
) NOTICE OF SPECIAL APPEARANCE
Plaintiff ) DEMAND TO DISMISS
) v.
) 68999990C
) No.68888890V
Smart Brave Lady ) 68777777V
)
Accused ) --------------------------
*
The accused, Smart Brave Lady, hereby gives Notice of
her continued special appearance before this tribunal, as
it is in want of subject matter jurisdiction and
jurisdiction of the person of the accused. The lack of
jurisdiction arises under the doctrine of primary
jurisdiction and the plaintiff has made finding of facts,
upon which this Court must take judicial notice to
convict, without affording an opportunity to be heard and
the plaintiff has otherwise failed to exhaust its
administrative remedies.
* Accordingly this Court should discharge the offenses
brought against the accused, or issue a stay in
proceedings pending the outcome of a proper hearing
in the agency or issue an order to show cause to the
plantiff why these offenses should not be discharged
or the proceedings stayed pending proper agency action.
* This Notice of Special Appearance is supported by
the attached statement of facts and points of authority.
*
RESPECTFULLY SUBMITTED this 5th day of July, 1989
*
*
* ______________________
* Smart Brave Lady
*
*
* STATEMENT OF FACTS AND POINTS OF AUTHORITY
*
The accused declares the following facts to be true to
the best ot her knowledge and belief.
*
1. The accused has the unalienable vested right to travel
upon the highways without submitting to regulation under
the police powers of the State of Arizona.
2. The accused's property, the car in which she is
traveling, is a household good exempt from taxation
and accorded regulation in accordance with Article
IX, &2, Clause 1 of the Constitution for the State of
Arizona.
3. Notwithstanding the fact, by this provision of
Constitution, the accused has no duty to inform
the agency that she has taken advantage of such
exemption, she has requested attempting to obtain a
hearing before the agency to determine whether her
use of her automobile is for a commercial purpose.
(See Exhibit A)
4. The hearing has not been held as of this time
and the agency has just recently responded to her
initial request. (See Exhibit B)
5. The accused has information and reason to believe
that the officer, who issued the citations, made an
administrative determination at the roadside that
the accused's property was a motor vehicle, subject
to the license tax, and that the accused was driving
said alleged motor vehicle for hire.
6. The accused contends that her car is not a motor vehicle
subject to the license tax, and that she is traveling and
not driving.
7. The accused has infromation and reason to believe that
the office has not been designated to make administrative
findings on disputes between the accused and the Motor
Vehicles Division of the Arizona Department of Revenue.

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February 1991
POLICE PRACTICES:
COMPUTER AIDED DRAFTING FOR LAW ENFORCEMENT
Today, computers are used extensively in police work.
Current computer programs accommodate practically every police
function--records management, dispatching, personnel scheduling,
and supply maintenance, to name only a few applications. But,
are departments using computers to their fullest potential? In
many instances, the answer is "No!"
One area often overlooked involves installing computer-
aided drafting (CAD) software into computers. With CAD
software, the computer is used to assist with a drawing or a
design.
Most people would ask why a police department would need a
CAD program; after all, cops don't design or draw anything.
However, the value of this software package becomes obvious
considering the reoccurring need of police officers to
reconstruct crime scenes or to diagram scenes of traffic
accidents. In these types of investigations, a drawing shows
what occurred and reinforces the narrative of the report.
USES OF CAD
In a traffic accident report, the details included are most
likely proportional to the seriousness of the incident.
Usually, a minor "fender-bender" only qualifies for a few terse
lines telling what happened and a very simple diagram. On the
other hand, a multivehicle accident involving serious injuries
or fatalities dictates a more comprehensive investigation, one
that includes a detailed narrative and a scale drawing of the
accident site.
Once filed, reports on minor traffic accidents with no
injuries are often forgotten, never to be seen again. But, this
is not the case with reports on major accident investigations.
Insurance claims adjusters, lawyers, and perhaps even a judge
and jury will scrutinize these reports should cases go to
litigation. In these instances, it is important that the
diagram of the accident scene be as detailed and precise as
possible.
The same holds true for accounts of crime scenes. In their
reports, investigators must show an entire overview of the crime
scene, as well as specific areas crucial to the case. This
usually requires more than one drawing. The position of the
victim, the location of the weapon and other pertinent evidence,
and entrances and exits to the crime scene are factors in the
investigation and prosecution that must be carefully noted.
And, in many instances, the precision and detail of the report
reflect the quality of the investigation and credibility of the
investigators.
THE WORKINGS OF A CAD PROGRAM
Reconstructing an accident or crime scene requires the
investigator to show exactly what transpired, who was involved,
and the position of the objects involved. All this is
facilitated with a CAD program, because it contains pre-drawn
intersections and roadways, or buildings and rooms, onto which
information can be entered.
For example, in figure 1 (not shown in BBS version of this
article), the investigator positioned the vehicles involved in
a traffic accident, showed the direction in which the vehicles were
traveling, and indicated tire marks, visual obstructions,
traffic signs, and the scale of the diagram in feet. For a
crime scene investigation, a CAD program can be used to draw a
general view of the area and then to "zoom in" to a specific
room.
CAD programs also offer a variety of fonts and styles of
letters to show differentiations in the diagram and to give the
finished product a professional appearance. Some CAD programs
allow for letters and numbers to be indicated at any angle and
at any scale. CAD programs normally include a library of
symbols, such as vehicles, traffic signs, etc., to be used for
reconstruction purposes. And, once familiar with the program,
users can create their own symbols and store them to be
retrieved for future application.
ADVANTAGES OF CAD PROGRAMS
Using a CAD program for accident or crime scene
reconstruction offers many benefits. First, there is the
professional appearance of the diagram. A CAD program allows
the investigator to add to the diagram at any time, and the
diagram can be enlarged and reduced at any time. Once a diagram
is created, it can be resized to fit available space on a
preprinted report form. With a plotter, the same drawing can
also be made large enough for a courtroom exhibit. The finished
product is clean and free of corrections. Sloppy drawings
oftentimes reflect poorly on the quality of the investigation.
With CAD programs, there is no mess; erasures or corrections
simply do not show up on the finished product.
CAD programs prevent duplication of effort, because only
one drawing needs to be made. Then with a few keystrokes on the
computer, sections can be shown from different angles.
Many departments contract with draftsmen or engineers to
produce scale drawings. This can be quite expensive and time
consuming, which may result in a backlog of projects. Also,
additional meetings with investigators may be required to
decipher notes or measurements.
There is also the time factor to consider. Some detailed
scale drawings consume considerable workhours before they are
completed. Then, if an error is detected, the entire project
might have to be redone. With a computer and a CAD program,
alterations are generally simple and the time required to do
them is minimal. Enlargements or reductions, which would mean
additional hours at the drawing table, are produced in a matter
of seconds.
Storing or filing scale drawings also poses problems. A
large-scale drawing on a big sheet of poster board is difficult
to store since it doesn't fit in filing cabinets. As a result,
the drawing is placed wherever there is room--behind a desk, in
a storage room, next to a filing cabinet. If it is moved for
one reason or another, it may never be found. And, the more the
drawing is used in presentations, the more "worn" it becomes.
Oftentimes, additional copies of drawings need to be made
for defense attorneys and prosecutors. Large drawings are not
photo copied easily, and photographs take too long to process
and do not show details clearly. With a CAD program, making
multiple copies is a simple matter.
CONCLUSION
There are CAD programs on the market that have been
developed specifically for accident and crime scene
reconstructions. Most of the programs are inexpensive and
cost-effective, and the funds spent for them are quickly
recouped in workhours saved. With a CAD program, police
departments, regardless of size, can increase their efficiency
and expand the potential of their computer systems.
_______________
Information for this column was submitted by Joseph E.
Badger, a retired Indiana State police sergeant.

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THE ELECTRONIC FRONTIER FOUNDATION
One Cambridge Center, Suite 300
Cambridge, MA 02142
617/577-1385
617/225-2347 fax
eff@well.sf.ca.us
Saturday, July 21, 1990
Good people,
Greetings. Some of you who read Crime and Puzzlement when it first
went digital and offered immediate help in dealing with the issues
raised therein. It's been five weeks since I promised to get back to
you "shortly." It is now clear that we are operating on political
rather than electronic time. And political time, though not so
ponderous as geologic time or, worse, legal time, is hardly swift. The
Net may be instantaneous, but people are as slow as ever.
Nevertheless, much has happened since early June. Crime and Puzzlement
rattled all over Cyberspace and has, by now, generated almost 300
unsolicited offers of help...financial, physical, and virtual. At
times during this period I responded to as many as 100 e-mail messages
a day with the average running around 50. (The voice of Peter Lorre is
heard in the background, repeating, "Toktor, ve haf created a
*monster*.")
Well, we have at least created an organization. Lotus founder Mitch
Kapor and I have founded the Electronic Frontier Foundation, an
endeavor for which we have immodest ambitions. Descending from the
Computer Liberty Foundation mentioned in Crime and Puzzlement, the EFF
has received initial (and extremely generous) funding from Mitch, Steve
Wozniak, and another Silicon Valley pioneer who wishes to remain
anonymous. We have also received many smaller offers of support.
As you will see in the accompanying press release, we formally
announced the EFF at a press conference in Washington on July 10. The
press attention was lavish but predictable...KAPOR TO AID COMPUTER
CRIMINALS. Actually, our mission is nothing less than the civilization
of Cyberspace.
We mean to achieve this through a variety of undertakings, ranging from
immediate legal action to patient, long-lasting efforts aimed at
forming, in the public consciousness, useful metaphors for life in the
Datasphere. There is much to do. Here is an abbreviated description
of what we are already doing:
* We have engaged the law firms of Rabinowitz, Boudin, Standard,
Krinsky & Lieberman and Silverglate & Good to intervene on behalf of
Craig Neidorf (the publisher of Phrack) and Steve Jackson Games. (For
a digest of the legal issues, please see the message following this
one.) We became involved in these particular cases because of their
general relevance and we remain alert to developments in a number of
other related cases.
Despite what you may have read, we are not involved in these legal
matters as a "cracker's defense fund," but rather to ensure that the
Constitution will continue to apply to digital media. Free expression
must be preserved long after the last printing press is gathering
museum dust. And we intend an unequivocal legal demonstration that
speech is speech whether it finds form in ink or in ascii.
* We have funded a significant two-year project on computing and
civil liberties to be managed by the Computer Professionals for Social
Responsibility. With it, we aim to acquaint policy makers and law
enforcement officials of the civil liberties issues which may lie
hidden in the brambles of telecommunications policy. (A full
description of this project follows.)
* During the days before and after the press conference, Mitch
and I met with Congressional staffers, legal authorities, and
journalists, as well as officials from the White House and Library of
Congress. Thus we began discussions which we expect to continue over a
period of years. These informal sessions will relate to intellectual
property, free flow of information, law enforcement training and
techniques, and telecommunications law, infrastructure, and
regulation.
Much of this promises to be boring as dirt, but we believe that it is
necessary to "re-package" the central issues in more digestible, even
entertaining, forms if the general public is to become involved in the
policies which will fundamentally determine the future of American
liberty.
* Recognizing that Cyberspace will be only as civilized as its
inhabitants, we are working with a software developer to create an
"intelligent front end" for UNIX mail systems. This will, we hope,
make Net access so easy that your mother will be able cruise around the
digital domain (if you can figure out a way to make her want to). As
many of you are keenly aware, the best way, perhaps the only way, to
understand the issues involved in digital telecommunications is to
experience them first hand.
These are audacious goals. However, the enthusiasm already shown the
Foundation indicates that they may not be unrealistic ones. The EFF
could be like a seed crystal dropped into a super-saturated solution.
(Or perhaps more appropriately, "the hundredth monkey.") Our
organization has been so far extremely self-generative as people find
in it an expression for concerns which they had felt but had not
articulated.
In any case, we are seeing a spirit of voluntary engagement which is
quite a departure from the common public interest sensation of "pushing
a rope."
You, the recipients of this first e-mailing are the pioneers in this
effort. By coming forward and offering your support, both financial
and personal, you are doing much to define the eventual structure and
flavor of the Electronic Frontier Foundation.
And much remains to be defined. We are applying for 501(c)3 status,
which means that your contributions to the Foundation will be tax
deductible at the time this status is granted. However, tax-exempt
status also places restrictions on the ability to lobby which may not
be consistent with our mission. Like many activist organizations, we
may find it necessary to maintain two organizations, one for lobbying
and the other for education.
We are in the process of setting up both a BBS in Cambridge and a Net
newsgroups. None of this is as straightforward as we would have it
be. We have also just received an offer of production and editorial
help with a newsletter.
What can you do? Well, for starters, you can spread the word about EFF
as widely as possible, both on and off the Net. Feel free, for
example, to distribute any of the materials included in this or
subsequent mailings, especially to those who may be interested but who
may not have Net access.
You can turn some of the immense processing horsepower of your
distributed Mind to the task of finding useful new metaphors for
community, expression, property, privacy and other realities of the
physical world which seem up for grabs in these less tangible regions.
And you can try to communicate to technically unsophisticated friends
the extent to which their future freedoms and well-being may depend on
understanding the broad forms of digital communication, if not
necessarily the technical details.
Finally, you can keep in touch with us at any of the above addresses.
Please pass on your thoughts, concerns, insights, contacts,
suggestions, and, and most importantly, news of relevant events. And
we will return the favor.
Forward,
John Perry Barlow
for The Electronic Frontier Foundation
P.S. The following documents were included in the press packets
distributed at our announcement in Washington last week. Please
distribute them as you see fit.
If you would like a recently amended digital version of Crime and
Puzzlement, please let us know, and we will e-mail you one. We would
prefer, of course, that you simply buy the August issue of Whole Earth
Review, in which it will appear.
Finally, we also have available an excellent paper on hackers by
Dorothy Denning, a widely respected computer security expert with DEC.
(note: "following documents" are in separate files, eff*)
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Newsgroups: misc.legal,comp.orf.eff.talk
From: mnemonic@eff.org (Mike Godwin)
Subject: Cardozo Law Forum article on the Craig Neidorf Computer-Crime
Message-ID: <1992Dec1.155823.27405@eff.org>
Organization: Electronic Frontier Foundation
Date: Tue, 1 Dec 1992 15:58:23 GMT
Lines: 339
Readers of misc.legal and comp.org.eff.talk may be interested in
the following article, which addresses the intersection of
intellectual-property law and criminal law in a computer-crime case.
The article first appeared in September in the Cardozo Law Forum at
Cardozo Law School in New York City.
----------
Some "Property" Problems in a Computer Crime Prosecution
By Mike Godwin
The spread and pervasiveness of computer technology create the
potential both for new kinds of crimes and for new variations of
traditional crimes. Law enforcement, the judiciary, and the legislature
can respond to these potentials in two ways: by seeking new laws to
address new problems, or by attempting to apply old laws (and traditional
notions of crime) in new and unforeseen situations. This article concerns
what hazards may face prosecutors and judges when law enforcement chooses
the latter tactic. In particular, it shows what can happen when
prosecutors uncritically apply intellectual property notions in
prosecuting a defendant under laws passed to protect tangible property.
The government stumbles in a "hacker" case.
In the recent case of U.S. v. Riggs, the Chicago U.S. Attorney's
office prosecuted two young men, Robert Riggs and Craig Neidorf, on counts
of wire fraud (18 U.S.C. 1343), interstate transportation of stolen
property (18 U.S.C. 2314) and computer fraud (18 U.S.C. 1030). Of these
statutes, only the last was passed specifically to address the problems of
unauthorized computer intrusion; the other two are "general purpose"
federal criminal statutes that are used by the government in a wide range
of criminal prosecutions. The wire fraud statute includes as an element
the taking (by fraudulent means) of "money or property," while the
interstate-transportation-of-stolen-property (ITSP) statute requires,
naturally enough, the element of "goods, wares, merchandise, securities or
money, of the value of $5,000 or more." (I do not address here the extent
to which the notions of "property" differ between these two federal
statutes. It is certain that they do differ to some extent, and the
interests protected by the wire-fraud statute were expanded in the 1980s
by Congress to include "the intangible right to honest services." 18
U.S.C. 1346.. Even so, the prosecution in the Riggs case relies not on
1346, but on intellectual-property notions, which are the focus of this
article.) The 18 U.S.C. 1030 counts against Neidorf were dropped in the
government's June 1990 superseding indictment, the indictment actually
used at Neidorf's trial in July 1990.
The Riggs case is based on the following facts: Robert Riggs, a
computer "hacker" in his early '20s, discovered that he could easily gain
access to an account on a computer belonging to Bell South, one of the
Regional Bell Operating Companies (RBOCs). The account was highly
insecure--access to it did not require a password (a standard, if not
always effective, security precaution). While exploring this account,
Riggs discovered a word-processing document detailing procedures and
definitions of terms relating the Emergency 911 system ("E911 system").
Like many hackers, Riggs had a deep curiosity about the workings of this
country's telephone system. (This curiosity among young hackers is a
social phenomenon that has been documented for more than 20 years. See,
e.g., Rosenbaum, "Secrets of the Little Blue Box," Esquire, October 1971;
and Barlow, "Crime and Puzzlement: In Advance of the Law on the Electronic
Frontier," Whole Earth Review, September 1990.)
Riggs knew that his discovery would be of interest to Craig Neidorf,
a Missouri college student who, while not a hacker himself, was an amateur
journalist whose electronically distributed publication, Phrack, was
devoted to articles of interest to computer hackers. Riggs sent a copy of
the E911 document to Neidorf over the telephone line--using computer and
modem--and Neidorf edited the copy to conceal its origin. Among other
things, Neidorf removed the statements that the information contained in
the document was proprietary and not for distribution. Neidorf then sent
the edited copy back to Riggs for the latter's review; following Riggs's
approval of the edited copy, Neidorf published the E911 document in the
February 24, 1989, issue of Phrack. Some months following publication of
the document in Phrack, both Riggs and Neidorf were caught and questioned
by the Secret Service, and all systems that might contain the E911
document were seized pursuant to evidentiary search warrants.
Riggs and Neidorf were indicted on the counts discussed supra; Riggs,
whose unauthorized access to the BellSouth computer was difficult to
dispute, later pled guilty to wire fraud for that conduct. Neidorf pled
innocent on all counts, arguing, inter alia, that his conduct was
protected by the First Amendment, and that he had not deprived Bell South
of property as that notion is defined for the purposes of the wire fraud
and ITSP statutes.
The two defenses are closely related. Under the First Amendment, the
presumption is that information is free, and that it can readily be
published and republished. For this reason, information gives rise to a
property interest only if it passes certain legal tests. Law enforcement
cannot simply assume that whenever information has been copied from a
private computer system a theft has taken place.
In Neidorf's case, as it turns out, this is essentially what the
Secret Service and the U.S. Attorney's office did assume. The assumption
came back to haunt the government when it was revealed during trial that
the information contained within the E911 document did not meet any of the
relevant legal tests to be established as a property interest.
How information becomes stealable property.
In order for information to be stolen property, it must first be
property. There are only a few ways that information can qualify as a
property interest, and two of these--patent law and copyright law--are
creatures of federal statute, pursuant to an express Constitutional grant
of legislative authority. (U.S. Constitution, Article I, Sec. 8, clause
8.) Patent protections were clearly inapplicable in the Neidorf case; the
E911 document, a list of definitions and procedures, did not constitute an
invention or otherwise patentable process or method. Copyright law might
have looked more promising to Neidorf's prosecutors, since it is well
established that copyrights qualify as property interests in some contexts
(e.g., the law of inheritance).
Unfortunately for the government, the Supreme Court has explicitly
stated that copyrighted material is not property for the purposes of the
ITSP statute. In Dowling v. United States, 473 U.S. 207 (1985), the Court
held that interests in copyright are outside the scope of the ITSP
statute. (Dowling involved a prosecution for interstate shipments of
pirated Elvis Presley recordings.) In reaching its decision, the Court
held, inter alia, that 18 U.S.C. $ 2314 contemplates "a physical identity
between the items unlawfully obtained and those eventually transported,
and hence some prior physical taking of the subject goods." Unauthorized
copies of copyrighted material do not meet this "physical identity"
requirement.
The Court also reasoned that intellectual property is different in
character from property protected by generic theft statutes: "The
copyright owner, however, holds no ordinary chattel. A copyright, like
other intellectual property, comprises a series of carefully defined and
carefully delimited interests to which the law affords correspondingly
exact protections." The Court went on to note that a special term of art,
"infringement," is used in reference to violations of copyright
interests--thus undercutting any easy equation between unauthorized copying
and "stealing" or "theft."
It is clear, then, that in order for the government to prosecute the
unauthorized copying of computerized information as a theft, it must rely
on other theories of information-as-property. Trade secret law is one
well-established legal theory of this sort. Another is the
breach-of-confidence theory articulated recently by the Supreme Court in
Carpenter v. United States, 108 S.Ct. 316 (1987). I will discuss each
theory in turn below.
Trade Secrets
Trade secrets are generally creatures of state law, and most
jurisdictions have laws that criminalize the violations of a trade-secret
holder's rights in the secret. There is no general federal definition of
what a trade secret is, but there have been federal cases in which
trade-secret information has been used to establish the property element
of a federal property crime. See, e.g., United States v. Bottone, 365 F.2d
389 (2d Cir.), cert denied, 385 U.S. 974 (1966), affirming ITSP
convictions in a case involving a conspiracy to steal drug-manufacturing
bacterial cultures and related documents from a pharmaceutical company and
sell them in foreign markets. (In Bottone, a pre-Dowling appellate court
expressed a willingness to interpret 18 U.S.C. $ 2314 as encompassing the
interstate transportation of copies of documents detailing the
drug-manufacturing process, i.e., it did not require the "physical
identity" element discussed supra. Recognizing possible problems with this
approach, however, the appellate court reasoned in the alternative that
the bacterial cultures themselves provided a sufficient nexus of a
tangible property interest to justify application of the ITSP statute;
this alternative analysis may render Bottone consistent with Dowling. It
should be noted that the post-Dowling judge in Riggs expressed, in his
denial of a motion to dismiss, 739 F.Supp. 414 (N.D.Ill, 1990), a similar
willingness not to require actual physical identity as a predicate for
ITSP. An appellate court later criticized this decision. U.S. v. Brown,
925 F.2d 1301 (1991).)
The problem in using a trade secret to establish the property element
of a theft crime is that, unlike traditional property, information has to
leap several hurdles in order to be established as a trade secret.
Trade secret definitions vary somewhat from state to state, but the
varying definitions typically have most elements in common. One good
definition of "trade secret" is outlined by the Supreme Court in Kewanee
Oil Co. v. Bicron Corp., 416 U.S. 470 (1974): "a trade secret may consist
of any formula, pattern, device or compilation of information which is
used in one's business, and which gives one an opportunity to obtain an
advantage over competitors who do not know or use it. It may be a formula
for a chemical compound, a process of manufacturing, treating or
preserving materials, a pattern for a machine or other device, or a list
of customers." The Court went further and listed the particular
attributes of a trade secret
* The information must, in fact, be secret--"not of public knowledge
or of general knowledge in the trade or business."
* A trade secret remains a secret if it is revealed in confidence to
someone who is under a contractual or fiduciary obligation, express or
implied, not to reveal it.
* A trade secret is protected against those who acquire via
unauthorized disclosure, violation of contractual duty of confidentiality,
or through "improper means." ("Improper means" includes such things as
theft, bribery, burglary, or trespass. The Restatement of Torts at 757
defines such means as follows: "In general they are means which fall below
the generally accepted standards of commercial morality and reasonable
conduct.")
* A court will allow a trade secret to be used by someone who
discovered or developed the trade secret independently (that is, without
taking it in some way from the holder), or if the holder does not take
adequate precautions to protect the secret.
* An employee or contractor who, while working for a company,
develops or discovers a trade secret, generally creates trade secret
rights in the company.
The holder of a trade secret may take a number of steps to meet its
obligation to keep the trade secret a secret. These may include:
a) Labelling documents containing the trade secret "proprietary" or
"confidential" or "trade secret" or "not for distribution to the public;"
b) Requiring employees and contractors to sign agreements not to
disclose whatever trade secrets they come in contact with;
c) destroying or rendering illegible discarded documents containing
parts or all of the secret, and;
d) restricting access to areas in the company where a nonemployee, or
an employee without a clear obligation to keep the information secret,
might encounter the secret. Dan Greenwood's Information Protection
Advisor, April 1992, page 5.
Breach-of-confidence
Even if information is not protected under the federal patent and
copyright schemes, or under state-law trade-secret provisions, it is
possible, according to the Supreme Court in Carpenter, for such
information to give rise to a property interest when its unauthorized
disclosure occurs via the breach of confidential or fiduciary
relationship. In Carpenter, R. Foster Winans, a Wall Street Journal
reporter who contributed to the Journal's "Heard on the Street" column,
conspired with Carpenter and others to reveal the contents of the column
before it was printed in the Journal, thus allowing the conspirators to
buy and sell stock with the foreknowledge that stock prices would be
affected by publication of the column. Winans and others were convicted
of wire fraud; they appealed the wire-fraud convictions on the grounds
that had not deprived the Journal of any money or property.
It should be noted that this is not an "insider trading" case, since
Winans was no corporate insider, nor was it alleged that he had received
illegal insider tips. The "Heard on the Street" column published
information about companies and stocks that would be available to anyone
who did the requisite research into publicly available materials. Since
the information reported in the columns did not itself belong to the
Journal, and since the Journal planned to publish the information for a
general readership, traditional trade secret notions did not apply. Where
was the property interest necessary for a wire-fraud conviction?
The Supreme Court reasoned that although the facts being reported in
the column were not exclusive to the Journal, the Journal's
right--presumably based in contract--to Winans' keeping the information
confidential gave rise to a property interest adequate to support a
wire-fraud conviction. Once the Court reached this conclusion, upholding
the convictions of the other defendants followed: even if one does not
have a direct fiduciary duty to protect a trade secret or confidential
information, one can become civilly or criminally liable if one conspires
with, solicits, or aids and abets a fiduciary to disclose such information
in violation of that person's duty. The Court's decision in Carpenter has
received significant criticism in the academic community for its expansion
of the contours of "intangible property," but it remains good law today.
How the theories didn't fit
With these two legal approaches--trade secrets and breach of
confidence--in mind, we can turn back to the facts of the Riggs case and
see how well, or how poorly, the theories applied in the case of Craig
Neidorf.
With regard to any trade-secret theory, it is worth noting first of
all that the alleged victim, BellSouth, is a Regional Bell Operating
Company--a monopoly telephone-service provider for a geographic region in
the United States. Recall the observation in Kewanee Oil, supra, that a
trade secret "gives one an opportunity to obtain an advantage over
competitors who do not know or use it." There are strong arguments
that--at least so far as the provision of Emergency 911 service
goes--BellSouth has no "competitors" within any normal meaning of the term.
And even if BellSouth did have competitors, it is likely that they would
both know and use the E911 information, since the specifications of this
particular phone service are standardized among the regional Bells.
Moreover, as became clear in the course of the Neidorf trial, the
information contained in the E911 document was available to the general
public as well, for a nominal fee. (One of the dramatic developments at
trial occurred during the cross-examination of a BellSouth witness who had
testified that the E911 document was worth nearly $80,000. Neidorf's
counsel showed her a publication containing substantially the same
information that was available from a regional Bell or from Bellcore, the
Bells' research arm, for $13 to any member of the public that ordered it
over an 800 number.) Under the circumstances, if the Bells wanted to
maintain the E911 information as a trade secret, they hadn't taken the
kind of steps one might normally think a keeper of a secret would take.
BellSouth had, however, taken the step of labelling the E911 document
as "NOT TO BE DISCLOSED OUTSIDE OF BELLSOUTH OR ITS SUBSIDIARIES" (it was
this kind of labelling that Neidorf attempted to remove as he edited the
document for publication in Phrack). This fact may have been responsible
for the federal prosecutors' oversight in not determining prior to trial
whethe E911 document met the tests of trade-secret law. It is possible
that prosecutors, unfamiliar with the nuances of trade-secret law, read
the "proprietary" warnings and, reasonining backwards, concluded that the
information thus labelled must be trade-secret information. If so, this
was a fatal error on the government's part. In the face of strong
evidence that the E911 document was neither secret nor competitively or
financially very valuable, any hope the government had of proving the
document to be a trade secret evaporated. (Alternatively, the government
may have reasoned that the E911 information could be used by malicious
hackers to damage the telephone system in some way. The trial transcript
shows instances in which the government attempted to elicit information of
this sort. It should be noted, however, that even if the information did
lend itself to abuse and vandalism, this fact alone does not bring it
within the scope of trade-secret law.)
Nor did the facts lend themselves to a Carpenter-like theory based on
breach of confidence; Neidorf had no duties to BellSouth not to disclose
its information. Neither did Riggs, from whom Neidorf acquired a copy of
the document. The Riggs case lacks the linchpin necessary for a
conviction based on Carpenter--in order for nonfiduciaries to be convicted,
there must be a breaching fiduciary involved in the scheme in some way.
There can be no breach of a duty of confidence when there is no duty to be
breached.
Thus, when its trade-secret theory of the E911 document was
demolished in mid-trial, the government had no fall-back theory to rely on
with regard to its property-crime counts, and the prosecution quickly
sought a settlement on terms favorable to Neidorf, dropping prosecution of
the case in return for Neidorf's agreement to a pre-trial diversion on one
minor count.
The lesson to be learned from Riggs is that it is no easy task to
establish the elements of a theft crime when the property in question is
information. There are good reasons, in a free society, that this should
be so--the proper functioning of free speech and a free press require that
information be presumptively protected from regulation by government or by
private entities invoking the civil or criminal law property protections.
The government in Riggs failed in its duty to recognize this presumption
by failing to make the necessary effort to understand the intellectual
property issues of the case. Had it done so, Neidorf might have been
spared an expensive and painful trial, and the government might have been
spared a black eye.*
------
*See, e.g., "Score One for the Hackers of America," NEWSWEEK, Aug. 6
1990, page 48, and "Dial 1-800 ... for BellSouth 'Secrets',"
COMPUTERWORLD, Aug. 6, 1990, page 8.
_______________________________________________
Mike Godwin, a 1990 guaduate of the University to Texas School of
Law, is staff counsel for the Electronic Frontier Foundation. EFF filed an
amicus curiae brief in the Neidorf case, arguing that Neidorf's attempted
publication of the E911 document was protected speech under the First
Amendment. Godwin received a B.A. in liberal arts from the University of
Texas at Austin in 1980. Prior to law school, Godwin worked as a
journalist and as a computer consultant.
--
Mike Godwin, |"Doubt isn't the opposite of faith; it is an
mnemonic@eff.org| element of faith."
(617) 864-0665 |
EFF, Cambridge | --Paul Tillich
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December 1990
CELLMATE INFORMANTS:
A CONSTITUTIONAL GUIDE TO THEIR USE
By
Kimberly Kingston Crawford, J.D.
Special Agent and Legal Instructor
FBI Academy
Quantico, Virginia
In recent years, legal scholars have debated the legality
and propriety of using cellmate informants. While some scholars
find the practice a "mere strategic deception [that takes]
advantage of a suspect's misplaced trust in one he supposes to be
a fellow prisoner," (1) others view the use of cellmate informants
as being "so offensive to a civilized system of justice that
[the practice] must be condemned." (2) Despite this debate, law
enforcement officers appear to have a unanimous opinion
regarding the use of cellmate informants--it is a technique that
works. Fortunately, the U.S. Supreme Court recently decided
Illinois v. Perkins, (3) which is a case that while not putting an
end to the debate, answers some questions regarding the
constitutionality of using cellmate informants and paves the way
for law enforcement officers to take advantage of this most
effective technique.
This article focuses on the decision in Perkins and examines
similar cases that deal with the constitutional issues involved
in using cellmate informants. More specifically, this article
addresses the fifth and sixth amendment considerations that must
be taken into account when placing an informant in a suspect's
cell.
FIFTH AMENDMENT--SELF-INCRIMINATION CLAUSE
While serving a 6-year sentence for burglary at the Graham
Correctional Facility in Hillsboro, Illinois, Donald Charlton met
and befriended fellow inmate Lloyd Perkins. In the course of
their friendship, Perkins confided in Charlton the details of a
murder he had committed in East St. Louis. Believing that
"people should not kill people," (4) Charlton eventually relayed
this information to law enforcement officials. Because the
information provided by Charlton tracked very closely the facts
of an unsolved case under investigation in East St. Louis,
officers found Charlton's story to be credible and decided to
pursue the matter further. Accordingly, it was decided that
undercover agent John Parisi, assuming the alias "Vito Bianco,"
would accompany Charlton to the Montgomery County Jail, where
Perkins was incarcerated on an unrelated charge of aggravated
assault.
After being booked and photographed, Parisi and Charlton
were placed in a cellblock with Perkins. Charlton introduced
Parisi to Perkins as a fellow inmate from the Graham Correctional
Facility. Parisi and Charlton led Perkins to believe that they
had escaped from a work release program at Graham and had gotten
as far as Montgomery County when their money and their luck ran
out. During the conversation that ensued, Parisi advised Perkins
that he "wasn't going to do any more time," (5) and suggested that
they attempt another escape. Perkins readily agreed and
volunteered his girlfriend to smuggle in a pistol. When asked if
he had ever "done" anyone, Perkins described at length the
details of the East St. Louis killing. The following day,
Perkins was charged with murder.
Prior to trial, Perkins moved to suppress the statements
made to Charlton and Parisi while in the Montgomery County Jail.
Because no Miranda (6) warnings had been given to Perkins prior to
his conversation with Parisi and Charlton, the trial court
granted Perkins' motion to suppress. The Appellate Court of
Illinois, holding that all undercover contacts with prisoners
that are reasonably likely to elicit incriminating responses
violate the rule in Miranda, affirmed the suppression order. (7)
The U.S. Supreme Court reviewed the decision of the Appellate
Court of Illinois and reversed. In doing so, the Court focused
on the fifth amendment protection against self-incrimination,
which is the linchpin of the Miranda rule.
The fifth amendment to the U.S. Constitution provides in
part that "no person...shall be compelled in any criminal case
to be a witness against himself...." (8) Over 2 decades ago, the
Supreme Court in Miranda v. Arizona (9) held that custodial
interrogation of an individual creates a psychologically
compelling atmosphere that works against this fifth amendment
protection. (10) In other words, the Court in Miranda believed
that an individual in custody undergoing police interrogation
would feel compelled to respond to police questioning. This
compulsion, which is a byproduct of most custodial
interrogation, directly conflicts with every individual's fifth
amendment protection against self-incrimination. Accordingly,
the Court developed the now-familiar Miranda warnings as a means
of reducing the compulsion attendant in custodial interrogation.
The Miranda rule requires that these warnings be given to
individuals in custody prior to the initiation of interrogation.
This rule, however, is not absolute. (11)
In Perkins, the Supreme Court recognized that there are
limitations to the rule announced in Miranda. The Court
expressly rejected the argument that "Miranda warnings are
required whenever a suspect is in custody in a technical sense
and converses with someone who happens to be a government
agent." (12) Rather, the Court concluded that not every
custodial interrogation creates the psychologically compelling
atmosphere that Miranda was designed to protect against. When
the compulsion is lacking, so is the need for Miranda warnings.
The Court in Perkins found the facts at issue to be a clear
example of a custodial interrogation that created no compulsion.
Pointing out that compulsion is "determined from the perspective
of the suspect," (13) the Court noted that Perkins had no reason
to believe that either Parisi or Charlton had any official power
over him, and therefore, he had no reason to feel any
compulsion. On the contrary, Perkins bragged about his role in
the murder in an effort to impress those he believed to be his
fellow inmates. Miranda was not designed to protect individuals
from themselves. Consequently, the Court held there was no need
to advise Perkins of his rights prior to his conversation with
Parisi and Charlton.
The controlling facts present in Perkins would most likely
exist in any case where statements are obtained by a cellmate
informant or an officer operating undercover in a prison.
Although there is custodial interrogation in the technical sense,
there is no compulsion if the suspect is unaware of the officer's
or informant's true identity or purpose. Therefore, there is no
need to advise jailed suspects of their Miranda rights prior to
using a cellmate informant. (14) There are, however, other fifth
and sixth amendment rights that can limit the use of cellmate
informants as an investigative technique.
FIFTH AMENDMENT--DUE PROCESS CLAUSE
In addition to the self-incrimination clause, the fifth
amendment to the U.S. Constitution also provides that "no person
shall be...deprived of life, liberty, or property, without the
due process of law." (15) This due process clause has been
interpreted by the Supreme Court as requiring that all
defendants in criminal prosecutions be treated with fundamental
fairness. (16) With respect to confessions, the Court has held
that to be fair, a confession must be voluntary. (17) To coerce a
suspect into making an involuntary statement or confession would
be unfair, and thus, the use of that statement against the
suspect would constitute a violation of due process.
On the other hand, no unfairness or due process violation
would result from the use of an uncoerced statement voluntarily
made by the suspect. To avoid due process problems, a law
enforcement officer contemplating the use of a cellmate informant
must take steps to ensure that an informant does nothing to
coerce the suspect into making an involuntary statement. The
case of State v. Fulminate (18) is illustrative of this point.
In Fulminate, defendant was serving a 2-year sentence on a
weapons violation when he met and became friends with fellow
inmate Anthony Sarivola, an FBI informant masquerading as an
organized crime figure. Following the inception of their
friendship, Sarivola heard a rumor that defendant was responsible
for the murder of a young girl in Arizona. Although defendant
denied the rumor, Sarivola relayed the information to his contact
in the FBI and was instructed to find out more. Knowing that
defendant was receiving "rough treatment" from other inmates
because of the rumor, Sarivola offered defendant his protection
in exchange for the truth. In response, defendant confessed to
shooting his 11-year-old stepdaughter in the head after first
raping her and making her beg for her life. At the defendant's
trial for first-degree murder, Sarivola was permitted, over
defense objections, to repeat to the jury the confession
defendant had previously made. (19) The jury subsequently found
defendant guilty of murder in the first degree and sentenced him
to death.
On appeal, defendant argued, among other things, (20) that
his confession to Sarivola was involuntary, and therefore, the
use of that confession against him was a violation of due
process. In support of this argument, defendant reminded the
court that his reputation in the prison as a child murderer
subjected him to a very serious threat of physical abuse at the
hands of the other inmates. Sarivola, it was argued, recognized
defendant's vulnerability and used it as a tool to extract the
confession. After reviewing the facts, the Arizona Supreme
Court agreed with defendant's due process argument and concluded
as follows:
"To be deemed free and voluntary within the meaning of the
fifth amendment, a confession must not have been obtained by
`any direct or implied promises, however slight, nor by the
exertion of any improper influence.'" (21)
Believing Sarivola's offer of protection to be "an exertion
of improper influence," the court found the resulting confession
to be involuntary and its use at trial a violation of due
process. Defendant's conviction was, therefore, reversed.
The U.S. Supreme Court has agreed to review the Fulminate
case. (22) While it is possible that the decision of the Arizona
Supreme Court will be reversed after review, the State court's
opinion still serves as a poignant reminder to law enforcement
officers of the need to keep a close rein on cellmate informants.
As is evident in Fulminate, even the most innocuous of
statements can be made to appear threatening or coercive when
dissected by the courts. To avoid fifth amendment due process
problems, careful planning must occur prior to any contact
between a cellmate informant and a suspect. In particular, law
enforcement officers should instruct cellmate informants to avoid
making any statements that may be construed as threats or
promises of leniency.
SIXTH AMENDMENT--RIGHT TO COUNSEL
The final constitutional concern confronting a law
enforcement officer contemplating the placement of a cellmate
informant is whether the use of the informant will violate the
suspect's sixth amendment right to counsel. The sixth amendment
to the U.S. Constitution guarantees that "[i]n all criminal
prosecutions, the accused shall...have the Assistance of Counsel
for his defense." (23) The U.S. Supreme Court has interpreted the
sixth amendment as guaranteeing not merely the right to counsel
but, more importantly, the right to the effective assistance of
counsel. (24) To be effective, an attorney must be permitted to
form a relationship with the accused some time prior to trial, (25)
and the government cannot needlessly interfere with that
relationship. (26) Thus, to resolve all sixth amendment concerns, a
law enforcement officer contemplating the use of a cellmate
informant must determine two things: 1) Did the suspect's right
to counsel attach? and 2) if so, what can a cellmate informant do
without interfering with that right?
Right to Counsel Attaches at Critical Stage
Determining whether a suspect's right to counsel has
attached simply requires the law enforcement officer to discover
whether the suspect has reached a critical stage in the
prosecution. As previously mentioned, the sixth amendment right
to counsel would be meaningless if the suspect and attorney were
not permitted to form a relationship some time prior to trial.
However, the Supreme Court has held that it is not necessary to
allow this relationship to form simply because an individual
becomes a suspect in a case. (27) Instead, the Court has found
that the sixth amendment guarantee of the effective assistance
of counsel is satisfied if the attorney and suspect are
permitted to form their relationship once the prosecution has
reached a critical stage. (28)
The Court has defined the critical stage as the filing of
formal charges (i.e. an indictment or an information) or the
initiation of adversarial judicial proceedings. (29) Thus, if no
formal charges have been filed against the suspect and no initial
appearance before the court has been conducted, then no critical
stage in the prosecution has been reached, and a cellmate
informant can be placed without concern for the suspect's sixth
amendment right to counsel. If, on the other hand, a critical
stage has been reached, then the suspect's sixth amendment right
to counsel has attached and extreme caution must be used to
ensure that the cellmate informant does not interfere with that
right.
Post-Critical Stage Uses for Cellmate Informants
Once it is determined that a suspect's sixth amendment
rights have attached, the law enforcement officer must realize
that there are only two functions a cellmate informant can
lawfully perform without interfering with that suspect's right to
counsel. These two functions are: 1) Gathering information
regarding an unrelated crime, (30) or 2) acting as a listening
post. (31)
Unrelated crimes
Even though the suspect's right to counsel has attached, a
cellmate informant may gather information about an unrelated
crime because the sixth amendment is crime specific. (32) Under the
sixth amendment, a suspect only has the right to the assistance
of counsel with respect to the crimes formally charged against
him. (33) If, then, a cellmate informant is used to elicit
information from a suspect that pertains to some unrelated,
uncharged crime, there is no unlawful interference with the
suspect's right to counsel. The facts in Perkins demonstrate
this point well.
As noted earlier, Perkins was in the Montgomery County Jail
pending trial on a charge of aggravated assault when Charlton and
Parisi were placed in his cellblock to gather information about
an unrelated murder. Because Perkins had been formally charged
with aggravated assault, he had a right to counsel with respect
to that particular crime and the informants could do nothing to
interfere with that right. (34) Perkins had not, however, been
formally charged with, or even arrested for, the murder that
occurred in East St. Louis. Thus, the actions of the informants
that resulted in the acquisition of information about the murder
neither interfered with nor violated Perkins' sixth amendment
right to counsel. (35)
Listening post
Unlike the situation present in Perkins, if a cellmate
informant is placed with the intent of gathering information
about a crime that is the subject of formal charges against the
suspect, the only role the cellmate informant may play is that
of a listening post. The Supreme Court has determined that
simply placing an informant in the cell of a suspect who has
been formally charged does not, in and of itself, constitute a
sixth amendment violation. (36) Rather, there must be some
deliberate attempt on the part of the informant to elicit
information regarding those charges from the suspect. (37) It
is the act of deliberate elicitation that creates the sixth
amendment violation. Consequently, a law enforcement officer
who places an informant in the cell of a formally charged
suspect in an attempt to obtain information relating to those
charges should be prepared to demonstrate that there was no
deliberate elicitation on the part of the informant. (38) While
not impossible, demonstrating the lack of deliberate elicitation
may be very difficult indeed. United States v. Henry, (39)
which was decided in 1980, is a case in point.
After being indicted on charges of bank robbery, the
defendant in Henry was fortuitously placed in a cellblock with
Nichols, a long-time FBI informant. Upon discovering this fact,
FBI Agents instructed Nichols to refrain from questioning Henry
about the bank robbery but, if by chance the robbery was
mentioned, Nichols was told to pay close attention to what was
said. Eventually, Henry revealed his part in the bank robbery
to Nichols, who was thereafter called as a witness against him
at trial. On the basis of Nichols' testimony, Henry was
convicted and sentenced to 25 years in prison. Henry
subsequently appealed his conviction on the grounds that the use
of the cellmate informant's testimony against him violated his
sixth amendment right to counsel. Ultimately, Henry's case was
reviewed by the Supreme Court and his conviction was reversed.
The reversal of Henry's conviction was based on the Supreme
Court finding that the cellmate informant deliberately elicited
the information about the bank robbery from Henry. Despite the
fact that an FBI Agent testified that he directed the informant
to neither question nor initiate any conversation with Henry
regarding the bank robbery, the Court found deliberate
elicitation on the part of the informant. This finding was a
result of the Court's belief that an informant, who is paid on a
contingent-fee basis, would naturally be inclined to take
affirmative steps to secure information. Moreover, the Court
held that the government should have realized the likelihood of
such actions on the part of the informant, and merely
instructing him to the contrary was insufficient to negate the
presumption of deliberate elicitation.
In the wake of Henry, it appeared virtually impossible for
a law enforcement officer to convince the Court that there was
no deliberate elicitation on the part of a cellmate informant.
After all, every cellmate informant that is either paid or
promised special consideration works on a "contingent-fee" basis
and would be subject to the natural inclination to deliberately
elicit information referred to by the Court in Henry. However,
6 years after the decision in Henry, the Supreme Court gave law
enforcement officers new hope when it decided Kuhlmann v.
Wilson, (40) and shifted the burden of proving deliberate
elicitation clearly to the defendant.
The facts in Kuhlmann are substantially similar to those in
Henry in that a cellmate informant was used to gather
incriminating information from an indicted suspect who was
subsequently convicted on the strength of that informant's
testimony. Unlike Henry, however, the Supreme Court in Kuhlmann
found no deliberate elicitation on the part of the informant and
upheld the defendant's conviction. In doing so, the Court made
the following statement:
" `Since the Sixth Amendment is not violated whenever--by
luck or happenstance--the State obtains incriminating
statements from the accused after the right to counsel has
attached,' a defendant does not make out a violation of that
right simply by showing that an informant, either through
prior arrangement or voluntarily, reported his incriminating
statements to the police. Rather, the defendant must
demonstrate that the police and their informant took some
action, beyond merely listening, that was designed
deliberately to elicit incriminating remarks." (41)
(emphasis added)
Even though the Court in Kuhlmann clearly placed the burden
of proving deliberate elicitation on the defense, lower courts
are undoubtedly going to look very closely at the actions and
motivations of the informant. (42) Obviously, many cellmate
informants are going to be less than completely credible on the
witness stand. Consequently, the law enforcement officer
should, if possible, be prepared to meet the defense claim of
deliberate elicitation with evidence other than the informant's
own testimony to the contrary. In Perkins, for example, the
case did not rest solely on the word of the informant because an
undercover agent was also placed in the cellblock with the
suspect. Other strategies could include using more than one
informant so there is corroborating testimony or planting a
listening device in the suspect's cell. If none of these options
are viable in a particular case, the law enforcement officer has
no other choice than to carefully select and instruct the
informant to ensure compliance with sixth amendment
requirements.
CONCLUSION
Apparently, confined suspects often have an overwhelming
desire to talk about their criminal activities with those they
consider their peers. Clearly, in light of the Supreme Court's
decision in Perkins, a law enforcement officer can take
advantage of this phenomenon by placing an informant in the
prison population. When doing so, however, the officer must be
ever mindful of the boundaries set by the fifth and sixth
amendments. Through thoughtful selection, careful planning, and
detailed instruction, the officer can ensure that an informant
operates within those boundaries and conforms to fifth and sixth
amendment standards.
FOOTNOTES
(1) Illinois v. Perkins, 110 S.Ct. 2394, 2397 (1990)
[hereinafter cited as Perkins].
(2) Perkins, supra note 1, at 2400 (Brennan, J., concurring).
(3) Perkins, supra note 1.
(4) People v. Perkins, 531 N.E.2d 141, 142 (Ill. App. 1988).
Charlton received no compensation for his cooperation with the
police.
(5) Perkins, supra note 1, at 2396.
(6) Miranda v. Arizona, 384 U.S. 436 (1966).
(7) People v. Perkins, supra note 4.
(8) U.S. Const. amend. V.
(9) 384 U.S. 436 (1966).
(10) Id. at 467.
(11) See, e.g., Berkemer v. McCarthy, 468 U.S. 420 (1984)
wherein the Supreme Court held Miranda inapplicable to traffic
stops. See also, New York v. Quarles, 467 U.S. 649 (1984)
recognizing a public safety exception to Miranda.
(12) Perkins, supra note 1, at 2397.
(13) Id. In Perkins, the Supreme Court used the words
"coercion" and "compulsion" interchangeably.
(14) In his concurring opinion, Justice Brennan suggested that
the use of a cellmate informant would violate Miranda, if the
suspect had previously invoked his fifth amendment right to
silence or right to counsel. Id., at 2399 n. ** (Brennan, J.,
concurring). It should be noted that no other members of the
Court voiced agreement with Justice Brennan on this point. In
fact, the reasoning of the majority in Perkins appears to
contradict Justice Brennan's statement. If the use of a cellmate
informant does not constitute custodial interrogation, then it
should not matter, for purposes of Miranda, whether incarcerated
suspects have previously invoked their rights or not. The
Miranda standard does not change when individuals invoke their
rights--only custodial interrogation is prohibited.
(15) U.S. Const. amend. V, supra note 8.
(16) Brown v. Mississippi, 297 U.S. 278 (1938).
(17) Id.
(18) 778 P.2d 602 (Ariz. 1988), cert. denied, 110 S.Ct. 1522
(1990) [hereinafter cited as Fulminate].
(19) The informant was also permitted to repeat a statement
defendant made almost a year after his initial confession. The
second statement was made when the informant, already released
from prison, and his girlfriend picked defendant up at a bus
station following defendant's release. The Arizona Supreme Court
suppressed the second statement, finding it a fruit of the
earlier due process violaton.
(20) Defendant also raised a Miranda objection. However, the
Arizona Supreme Court rejected that argument.
(21) Fulminate, supra note 18, at 609.
(22) 110 S.Ct. 1522 (1990).
(23) U.S. Const. amend. VI.
(24) Cuyler v. Sullivan, 100 S. Ct. 1708 (1980).
(25) United States v. Wade, 338 U.S. 218 (1967).
(26) In Weatherford v. Bursey, 429 U.S. 545 (1977), the
Supreme Court held that some interference with the right to
counsel may be justified.
(27) United States v. Gouveia, 104 S.Ct. 2292 (1984).
(28) Massiah v. United States, 377 U.S. 201 (1964).
(29) Id.
(30) Hoffa v. United States, 385 U.S. 293 1966) [hereinafter
cited as Hoffa].
(31) Kuhlmann v. Wilson, 106 S.Ct. 2616 (1986) [hereinafter
cited as Kuhlmann].
(32) Hoffa, supra note 30.
(33) Id.
(34) In Maine v. Moulton, 106 S.Ct. 477 (1985), the Supreme
Court held that the government could not use statements made by a
defendant to an informant about pending charges, even if acquired
during investigation of separate offenses.
(35) Perkins, supra note 1.
(36) Kuhlmann, supra note 31.
(37) Id.
(38) Although the burden of proof rests with the defendant on
this issue, the government should be prepared to counteract
claims of deliberate elicitation.
(39) 447 U.S. 264 (1980).
(40) Kuhlmann, supra note 36.
(41) Id. at 2630.
(42) See, e.g., United States v. Watson, 894 F.2d 1345 (D.C.
App. 1990); Endress v. Dugger, 880 F.2d 1244 (11th Cir. 1989);
State v. Fain, 774 P.2d 252 (Idaho 1989); State v. Robinson, 448
N.W.2d 386 (Neb. 1989); State v. Bruneau, 552 A.2d 585 (N.H.
1988); and State v. Mastrofine, 551 A.2d 1174 (R.I. 1988).
_______________
Law enforcement officers of other than Federal jurisdiction
who are interested in this article should consult their legal
adviser. Some police procedures ruled permissible under Federal
constitutional law are of questionable legality under State law
or are not permitted at all.

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CELLMATE INFORMANTS:
A CONSTITUTIONAL GUIDE TO THEIR USE
By
Kimberly Kingston Crawford, J.D.
Special Agent and Legal Instructor
FBI Academy
Quantico, Virginia
In recent years, legal scholars have debated the legality
and propriety of using cellmate informants. While some scholars
find the practice a "mere strategic deception [that takes]
advantage of a suspect's misplaced trust in one he supposes to be
a fellow prisoner," (1) others view the use of cellmate informants
as being "so offensive to a civilized system of justice that
[the practice] must be condemned." (2) Despite this debate, law
enforcement officers appear to have a unanimous opinion
regarding the use of cellmate informants--it is a technique that
works. Fortunately, the U.S. Supreme Court recently decided
Illinois v. Perkins, (3) which is a case that while not putting an
end to the debate, answers some questions regarding the
constitutionality of using cellmate informants and paves the way
for law enforcement officers to take advantage of this most
effective technique.
This article focuses on the decision in Perkins and examines
similar cases that deal with the constitutional issues involved
in using cellmate informants. More specifically, this article
addresses the fifth and sixth amendment considerations that must
be taken into account when placing an informant in a suspect's
cell.
FIFTH AMENDMENT--SELF-INCRIMINATION CLAUSE
While serving a 6-year sentence for burglary at the Graham
Correctional Facility in Hillsboro, Illinois, Donald Charlton met
and befriended fellow inmate Lloyd Perkins. In the course of
their friendship, Perkins confided in Charlton the details of a
murder he had committed in East St. Louis. Believing that
"people should not kill people," (4) Charlton eventually relayed
this information to law enforcement officials. Because the
information provided by Charlton tracked very closely the facts
of an unsolved case under investigation in East St. Louis,
officers found Charlton's story to be credible and decided to
pursue the matter further. Accordingly, it was decided that
undercover agent John Parisi, assuming the alias "Vito Bianco,"
would accompany Charlton to the Montgomery County Jail, where
Perkins was incarcerated on an unrelated charge of aggravated
assault.
After being booked and photographed, Parisi and Charlton
were placed in a cellblock with Perkins. Charlton introduced
Parisi to Perkins as a fellow inmate from the Graham Correctional
Facility. Parisi and Charlton led Perkins to believe that they
had escaped from a work release program at Graham and had gotten
as far as Montgomery County when their money and their luck ran
out. During the conversation that ensued, Parisi advised Perkins
that he "wasn't going to do any more time," (5) and suggested that
they attempt another escape. Perkins readily agreed and
volunteered his girlfriend to smuggle in a pistol. When asked if
he had ever "done" anyone, Perkins described at length the
details of the East St. Louis killing. The following day,
Perkins was charged with murder.
Prior to trial, Perkins moved to suppress the statements
made to Charlton and Parisi while in the Montgomery County Jail.
Because no Miranda (6) warnings had been given to Perkins prior to
his conversation with Parisi and Charlton, the trial court
granted Perkins' motion to suppress. The Appellate Court of
Illinois, holding that all undercover contacts with prisoners
that are reasonably likely to elicit incriminating responses
violate the rule in Miranda, affirmed the suppression order. (7)
The U.S. Supreme Court reviewed the decision of the Appellate
Court of Illinois and reversed. In doing so, the Court focused
on the fifth amendment protection against self-incrimination,
which is the linchpin of the Miranda rule.
The fifth amendment to the U.S. Constitution provides in
part that "no person...shall be compelled in any criminal case
to be a witness against himself...." (8) Over 2 decades ago, the
Supreme Court in Miranda v. Arizona (9) held that custodial
interrogation of an individual creates a psychologically
compelling atmosphere that works against this fifth amendment
protection. (10) In other words, the Court in Miranda believed
that an individual in custody undergoing police interrogation
would feel compelled to respond to police questioning. This
compulsion, which is a byproduct of most custodial
interrogation, directly conflicts with every individual's fifth
amendment protection against self-incrimination. Accordingly,
the Court developed the now-familiar Miranda warnings as a means
of reducing the compulsion attendant in custodial interrogation.
The Miranda rule requires that these warnings be given to
individuals in custody prior to the initiation of interrogation.
This rule, however, is not absolute. (11)
In Perkins, the Supreme Court recognized that there are
limitations to the rule announced in Miranda. The Court
expressly rejected the argument that "Miranda warnings are
required whenever a suspect is in custody in a technical sense
and converses with someone who happens to be a government
agent." (12) Rather, the Court concluded that not every
custodial interrogation creates the psychologically compelling
atmosphere that Miranda was designed to protect against. When
the compulsion is lacking, so is the need for Miranda warnings.
The Court in Perkins found the facts at issue to be a clear
example of a custodial interrogation that created no compulsion.
Pointing out that compulsion is "determined from the perspective
of the suspect," (13) the Court noted that Perkins had no reason
to believe that either Parisi or Charlton had any official power
over him, and therefore, he had no reason to feel any
compulsion. On the contrary, Perkins bragged about his role in
the murder in an effort to impress those he believed to be his
fellow inmates. Miranda was not designed to protect individuals
from themselves. Consequently, the Court held there was no need
to advise Perkins of his rights prior to his conversation with
Parisi and Charlton.
The controlling facts present in Perkins would most likely
exist in any case where statements are obtained by a cellmate
informant or an officer operating undercover in a prison.
Although there is custodial interrogation in the technical sense,
there is no compulsion if the suspect is unaware of the officer's
or informant's true identity or purpose. Therefore, there is no
need to advise jailed suspects of their Miranda rights prior to
using a cellmate informant. (14) There are, however, other fifth
and sixth amendment rights that can limit the use of cellmate
informants as an investigative technique.
FIFTH AMENDMENT--DUE PROCESS CLAUSE
In addition to the self-incrimination clause, the fifth
amendment to the U.S. Constitution also provides that "no person
shall be...deprived of life, liberty, or property, without the
due process of law." (15) This due process clause has been
interpreted by the Supreme Court as requiring that all
defendants in criminal prosecutions be treated with fundamental
fairness. (16) With respect to confessions, the Court has held
that to be fair, a confession must be voluntary. (17) To coerce a
suspect into making an involuntary statement or confession would
be unfair, and thus, the use of that statement against the
suspect would constitute a violation of due process.
On the other hand, no unfairness or due process violation
would result from the use of an uncoerced statement voluntarily
made by the suspect. To avoid due process problems, a law
enforcement officer contemplating the use of a cellmate informant
must take steps to ensure that an informant does nothing to
coerce the suspect into making an involuntary statement. The
case of State v. Fulminate (18) is illustrative of this point.
In Fulminate, defendant was serving a 2-year sentence on a
weapons violation when he met and became friends with fellow
inmate Anthony Sarivola, an FBI informant masquerading as an
organized crime figure. Following the inception of their
friendship, Sarivola heard a rumor that defendant was responsible
for the murder of a young girl in Arizona. Although defendant
denied the rumor, Sarivola relayed the information to his contact
in the FBI and was instructed to find out more. Knowing that
defendant was receiving "rough treatment" from other inmates
because of the rumor, Sarivola offered defendant his protection
in exchange for the truth. In response, defendant confessed to
shooting his 11-year-old stepdaughter in the head after first
raping her and making her beg for her life. At the defendant's
trial for first-degree murder, Sarivola was permitted, over
defense objections, to repeat to the jury the confession
defendant had previously made. (19) The jury subsequently found
defendant guilty of murder in the first degree and sentenced him
to death.
On appeal, defendant argued, among other things, (20) that
his confession to Sarivola was involuntary, and therefore, the
use of that confession against him was a violation of due
process. In support of this argument, defendant reminded the
court that his reputation in the prison as a child murderer
subjected him to a very serious threat of physical abuse at the
hands of the other inmates. Sarivola, it was argued, recognized
defendant's vulnerability and used it as a tool to extract the
confession. After reviewing the facts, the Arizona Supreme
Court agreed with defendant's due process argument and concluded
as follows:
"To be deemed free and voluntary within the meaning of the
fifth amendment, a confession must not have been obtained by
`any direct or implied promises, however slight, nor by the
exertion of any improper influence.'" (21)
Believing Sarivola's offer of protection to be "an exertion
of improper influence," the court found the resulting confession
to be involuntary and its use at trial a violation of due
process. Defendant's conviction was, therefore, reversed.
The U.S. Supreme Court has agreed to review the Fulminate
case. (22) While it is possible that the decision of the Arizona
Supreme Court will be reversed after review, the State court's
opinion still serves as a poignant reminder to law enforcement
officers of the need to keep a close rein on cellmate informants.
As is evident in Fulminate, even the most innocuous of
statements can be made to appear threatening or coercive when
dissected by the courts. To avoid fifth amendment due process
problems, careful planning must occur prior to any contact
between a cellmate informant and a suspect. In particular, law
enforcement officers should instruct cellmate informants to avoid
making any statements that may be construed as threats or
promises of leniency.
SIXTH AMENDMENT--RIGHT TO COUNSEL
The final constitutional concern confronting a law
enforcement officer contemplating the placement of a cellmate
informant is whether the use of the informant will violate the
suspect's sixth amendment right to counsel. The sixth amendment
to the U.S. Constitution guarantees that "[i]n all criminal
prosecutions, the accused shall...have the Assistance of Counsel
for his defense." (23) The U.S. Supreme Court has interpreted the
sixth amendment as guaranteeing not merely the right to counsel
but, more importantly, the right to the effective assistance of
counsel. (24) To be effective, an attorney must be permitted to
form a relationship with the accused some time prior to trial, (25)
and the government cannot needlessly interfere with that
relationship. (26) Thus, to resolve all sixth amendment concerns, a
law enforcement officer contemplating the use of a cellmate
informant must determine two things: 1) Did the suspect's right
to counsel attach? and 2) if so, what can a cellmate informant do
without interfering with that right?
Right to Counsel Attaches at Critical Stage
Determining whether a suspect's right to counsel has
attached simply requires the law enforcement officer to discover
whether the suspect has reached a critical stage in the
prosecution. As previously mentioned, the sixth amendment right
to counsel would be meaningless if the suspect and attorney were
not permitted to form a relationship some time prior to trial.
However, the Supreme Court has held that it is not necessary to
allow this relationship to form simply because an individual
becomes a suspect in a case. (27) Instead, the Court has found
that the sixth amendment guarantee of the effective assistance
of counsel is satisfied if the attorney and suspect are
permitted to form their relationship once the prosecution has
reached a critical stage. (28)
The Court has defined the critical stage as the filing of
formal charges (i.e. an indictment or an information) or the
initiation of adversarial judicial proceedings. (29) Thus, if no
formal charges have been filed against the suspect and no initial
appearance before the court has been conducted, then no critical
stage in the prosecution has been reached, and a cellmate
informant can be placed without concern for the suspect's sixth
amendment right to counsel. If, on the other hand, a critical
stage has been reached, then the suspect's sixth amendment right
to counsel has attached and extreme caution must be used to
ensure that the cellmate informant does not interfere with that
right.
Post-Critical Stage Uses for Cellmate Informants
Once it is determined that a suspect's sixth amendment
rights have attached, the law enforcement officer must realize
that there are only two functions a cellmate informant can
lawfully perform without interfering with that suspect's right to
counsel. These two functions are: 1) Gathering information
regarding an unrelated crime, (30) or 2) acting as a listening
post. (31)
Unrelated crimes
Even though the suspect's right to counsel has attached, a
cellmate informant may gather information about an unrelated
crime because the sixth amendment is crime specific. (32) Under the
sixth amendment, a suspect only has the right to the assistance
of counsel with respect to the crimes formally charged against
him. (33) If, then, a cellmate informant is used to elicit
information from a suspect that pertains to some unrelated,
uncharged crime, there is no unlawful interference with the
suspect's right to counsel. The facts in Perkins demonstrate
this point well.
As noted earlier, Perkins was in the Montgomery County Jail
pending trial on a charge of aggravated assault when Charlton and
Parisi were placed in his cellblock to gather information about
an unrelated murder. Because Perkins had been formally charged
with aggravated assault, he had a right to counsel with respect
to that particular crime and the informants could do nothing to
interfere with that right. (34) Perkins had not, however, been
formally charged with, or even arrested for, the murder that
occurred in East St. Louis. Thus, the actions of the informants
that resulted in the acquisition of information about the murder
neither interfered with nor violated Perkins' sixth amendment
right to counsel. (35)
Listening post
Unlike the situation present in Perkins, if a cellmate
informant is placed with the intent of gathering information
about a crime that is the subject of formal charges against the
suspect, the only role the cellmate informant may play is that
of a listening post. The Supreme Court has determined that
simply placing an informant in the cell of a suspect who has
been formally charged does not, in and of itself, constitute a
sixth amendment violation. (36) Rather, there must be some
deliberate attempt on the part of the informant to elicit
information regarding those charges from the suspect. (37) It
is the act of deliberate elicitation that creates the sixth
amendment violation. Consequently, a law enforcement officer
who places an informant in the cell of a formally charged
suspect in an attempt to obtain information relating to those
charges should be prepared to demonstrate that there was no
deliberate elicitation on the part of the informant. (38) While
not impossible, demonstrating the lack of deliberate elicitation
may be very difficult indeed. United States v. Henry, (39)
which was decided in 1980, is a case in point.
After being indicted on charges of bank robbery, the
defendant in Henry was fortuitously placed in a cellblock with
Nichols, a long-time FBI informant. Upon discovering this fact,
FBI Agents instructed Nichols to refrain from questioning Henry
about the bank robbery but, if by chance the robbery was
mentioned, Nichols was told to pay close attention to what was
said. Eventually, Henry revealed his part in the bank robbery
to Nichols, who was thereafter called as a witness against him
at trial. On the basis of Nichols' testimony, Henry was
convicted and sentenced to 25 years in prison. Henry
subsequently appealed his conviction on the grounds that the use
of the cellmate informant's testimony against him violated his
sixth amendment right to counsel. Ultimately, Henry's case was
reviewed by the Supreme Court and his conviction was reversed.
The reversal of Henry's conviction was based on the Supreme
Court finding that the cellmate informant deliberately elicited
the information about the bank robbery from Henry. Despite the
fact that an FBI Agent testified that he directed the informant
to neither question nor initiate any conversation with Henry
regarding the bank robbery, the Court found deliberate
elicitation on the part of the informant. This finding was a
result of the Court's belief that an informant, who is paid on a
contingent-fee basis, would naturally be inclined to take
affirmative steps to secure information. Moreover, the Court
held that the government should have realized the likelihood of
such actions on the part of the informant, and merely
instructing him to the contrary was insufficient to negate the
presumption of deliberate elicitation.
In the wake of Henry, it appeared virtually impossible for
a law enforcement officer to convince the Court that there was
no deliberate elicitation on the part of a cellmate informant.
After all, every cellmate informant that is either paid or
promised special consideration works on a "contingent-fee" basis
and would be subject to the natural inclination to deliberately
elicit information referred to by the Court in Henry. However,
6 years after the decision in Henry, the Supreme Court gave law
enforcement officers new hope when it decided Kuhlmann v.
Wilson, (40) and shifted the burden of proving deliberate
elicitation clearly to the defendant.
The facts in Kuhlmann are substantially similar to those in
Henry in that a cellmate informant was used to gather
incriminating information from an indicted suspect who was
subsequently convicted on the strength of that informant's
testimony. Unlike Henry, however, the Supreme Court in Kuhlmann
found no deliberate elicitation on the part of the informant and
upheld the defendant's conviction. In doing so, the Court made
the following statement:
" `Since the Sixth Amendment is not violated whenever--by
luck or happenstance--the State obtains incriminating
statements from the accused after the right to counsel has
attached,' a defendant does not make out a violation of that
right simply by showing that an informant, either through
prior arrangement or voluntarily, reported his incriminating
statements to the police. Rather, the defendant must
demonstrate that the police and their informant took some
action, beyond merely listening, that was designed
deliberately to elicit incriminating remarks." (41)
(emphasis added)
Even though the Court in Kuhlmann clearly placed the burden
of proving deliberate elicitation on the defense, lower courts
are undoubtedly going to look very closely at the actions and
motivations of the informant. (42) Obviously, many cellmate
informants are going to be less than completely credible on the
witness stand. Consequently, the law enforcement officer
should, if possible, be prepared to meet the defense claim of
deliberate elicitation with evidence other than the informant's
own testimony to the contrary. In Perkins, for example, the
case did not rest solely on the word of the informant because an
undercover agent was also placed in the cellblock with the
suspect. Other strategies could include using more than one
informant so there is corroborating testimony or planting a
listening device in the suspect's cell. If none of these options
are viable in a particular case, the law enforcement officer has
no other choice than to carefully select and instruct the
informant to ensure compliance with sixth amendment
requirements.
CONCLUSION
Apparently, confined suspects often have an overwhelming
desire to talk about their criminal activities with those they
consider their peers. Clearly, in light of the Supreme Court's
decision in Perkins, a law enforcement officer can take
advantage of this phenomenon by placing an informant in the
prison population. When doing so, however, the officer must be
ever mindful of the boundaries set by the fifth and sixth
amendments. Through thoughtful selection, careful planning, and
detailed instruction, the officer can ensure that an informant
operates within those boundaries and conforms to fifth and sixth
amendment standards.
FOOTNOTES
(1) Illinois v. Perkins, 110 S.Ct. 2394, 2397 (1990)
[hereinafter cited as Perkins].
(2) Perkins, supra note 1, at 2400 (Brennan, J., concurring).
(3) Perkins, supra note 1.
(4) People v. Perkins, 531 N.E.2d 141, 142 (Ill. App. 1988).
Charlton received no compensation for his cooperation with the
police.
(5) Perkins, supra note 1, at 2396.
(6) Miranda v. Arizona, 384 U.S. 436 (1966).
(7) People v. Perkins, supra note 4.
(8) U.S. Const. amend. V.
(9) 384 U.S. 436 (1966).
(10) Id. at 467.
(11) See, e.g., Berkemer v. McCarthy, 468 U.S. 420 (1984)
wherein the Supreme Court held Miranda inapplicable to traffic
stops. See also, New York v. Quarles, 467 U.S. 649 (1984)
recognizing a public safety exception to Miranda.
(12) Perkins, supra note 1, at 2397.
(13) Id. In Perkins, the Supreme Court used the words
"coercion" and "compulsion" interchangeably.
(14) In his concurring opinion, Justice Brennan suggested that
the use of a cellmate informant would violate Miranda, if the
suspect had previously invoked his fifth amendment right to
silence or right to counsel. Id., at 2399 n. ** (Brennan, J.,
concurring). It should be noted that no other members of the
Court voiced agreement with Justice Brennan on this point. In
fact, the reasoning of the majority in Perkins appears to
contradict Justice Brennan's statement. If the use of a cellmate
informant does not constitute custodial interrogation, then it
should not matter, for purposes of Miranda, whether incarcerated
suspects have previously invoked their rights or not. The
Miranda standard does not change when individuals invoke their
rights--only custodial interrogation is prohibited.
(15) U.S. Const. amend. V, supra note 8.
(16) Brown v. Mississippi, 297 U.S. 278 (1938).
(17) Id.
(18) 778 P.2d 602 (Ariz. 1988), cert. denied, 110 S.Ct. 1522
(1990) [hereinafter cited as Fulminate].
(19) The informant was also permitted to repeat a statement
defendant made almost a year after his initial confession. The
second statement was made when the informant, already released
from prison, and his girlfriend picked defendant up at a bus
station following defendant's release. The Arizona Supreme Court
suppressed the second statement, finding it a fruit of the
earlier due process violaton.
(20) Defendant also raised a Miranda objection. However, the
Arizona Supreme Court rejected that argument.
(21) Fulminate, supra note 18, at 609.
(22) 110 S.Ct. 1522 (1990).
(23) U.S. Const. amend. VI.
(24) Cuyler v. Sullivan, 100 S. Ct. 1708 (1980).
(25) United States v. Wade, 338 U.S. 218 (1967).
(26) In Weatherford v. Bursey, 429 U.S. 545 (1977), the
Supreme Court held that some interference with the right to
counsel may be justified.
(27) United States v. Gouveia, 104 S.Ct. 2292 (1984).
(28) Massiah v. United States, 377 U.S. 201 (1964).
(29) Id.
(30) Hoffa v. United States, 385 U.S. 293 1966) [hereinafter
cited as Hoffa].
(31) Kuhlmann v. Wilson, 106 S.Ct. 2616 (1986) [hereinafter
cited as Kuhlmann].
(32) Hoffa, supra note 30.
(33) Id.
(34) In Maine v. Moulton, 106 S.Ct. 477 (1985), the Supreme
Court held that the government could not use statements made by a
defendant to an informant about pending charges, even if acquired
during investigation of separate offenses.
(35) Perkins, supra note 1.
(36) Kuhlmann, supra note 31.
(37) Id.
(38) Although the burden of proof rests with the defendant on
this issue, the government should be prepared to counteract
claims of deliberate elicitation.
(39) 447 U.S. 264 (1980).
(40) Kuhlmann, supra note 36.
(41) Id. at 2630.
(42) See, e.g., United States v. Watson, 894 F.2d 1345 (D.C.
App. 1990); Endress v. Dugger, 880 F.2d 1244 (11th Cir. 1989);
State v. Fain, 774 P.2d 252 (Idaho 1989); State v. Robinson, 448
N.W.2d 386 (Neb. 1989); State v. Bruneau, 552 A.2d 585 (N.H.
1988); and State v. Mastrofine, 551 A.2d 1174 (R.I. 1988).
_______________
Law enforcement officers of other than Federal jurisdiction
who are interested in this article should consult their legal
adviser. Some police procedures ruled permissible under Federal
constitutional law are of questionable legality under State law
or are not permitted at all.

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Article 934 of misc.activism.progressive:
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From: notes@igc.org
Newsgroups: misc.activism.progressive
Subject: Chomsky: LOOT 5/91
Message-ID: <1991Oct5.081804.27095@pencil.cs.missouri.edu>
Date: 5 Oct 91 08:18:04 GMT
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The following piece by Noam Chomsky was published in:
Lies of Our Times (LOOT), May 1991
and it's reprinted here with their permission.
_Lies of Our Times_ is a magazine of media criticism. "Our Times"
are the times we live in but they are also the words of the _New
York Times_, the most cited news medium in the United States,
our paper of record. Our "Lies" are more than just literal
falsehoods; they encompass subjects that have been ignored,
hypocrisies, misleading emphases, and hidden premises - all of
the biases which systematically shape reporting.
Published by Sheridan Square Press, Inc. Produced and distributed
by Institute for Media Analysis, Inc. Subscription rate: $24
(US); $32 (Canada, Mexico, W. Europe); $36 (Other). Payable to
the order of Sheridan Square Press. 11 issues a year (combined
July-August issue) of 24 pages each, except December issue is 28
pages -- includes yearly index. Lies Of Our Times, 145 West 4th
Street, New York, NY 10012, (212) 254-1061, Fax: (212) 254-9598
=================================================================
Letter from Lexington
April 12, 1991
Dear LOOT,
"When this war is over," George Bush announced in January, "the
United States, its credibility and its reliability restored, will
have a key leadership role in helping to bring peace to the rest
of the Middle East" (Andrew Rosenthal, "Bush Vows to Tackle
Middle East Issues," _NYT_, Jan. 29, A13). With the war over,
James Baker flew at once to the region, meeting with Israel and
the Arab allies: the six family dictatorships that manage Gulf
oil production, the bloody tyrant who rules Syria, and Egypt. In
a "watershed event," they "endorsed President Bush's broad
framework for dealing with the Middle East," Thomas Friedman
reported (_NYT_, March 11).
Even critics were impressed. Anthony Lewis wrote that the
President is "at the height of his powers" and "has made very
clear that he wants to breathe light into that hypothetical
creature, the Middle East peace process" (_NYT_, March 15).
Helena Cobban found "great inspiration" in Bush's statement that
"The time has come to put an end to the Arab-Israeli conflict,"
words "spoken with commitment by an American president at the
height of his powers" and forming part of his "broad vision of
Middle East peace-building" (_Christian Science Monitor_, March
12, p. 18). John Judis praised James Baker as the hope for
peace, a dove who "has stood for multilateral and diplomatic
solutions" and has "emphasized that the U.S. would have to work
on resolving the conflict between Israel and the Palestinians"
(_In These Times_, Feb. 27).
The _New York Times_ editors saw "a rare window for peace."
"The P.L.O's Iraqi debacle...could bring forward acceptable
negotiating partners" among the Palestinians, permitting "direct
bargaining between Israel and representative Palestinians" (March
11) -- "representative" being a code word for "acceptable to us."
The _Washington Post_ agreed that talks between Israel and the
Arab states were preferable to an "unprepared and unwieldy
international conference," and offer "the best way to make sure
that the Palestinians, once they locate representative and
plausible spokesmen, will receive their regional due" (editorial,
_WP weekly_, March 11-17). The _Wall Street Journal_
announced that although "Bush Hopes for a Solution," "the PLO's
Leaders Must Want One as Well" (headline, p. 1, March 6). The
editors of the _Los Angeles Times_ admonished the Palestinians
that they "will have to do better than" Arafat, even if he is
"their sincere choice." They must abandon the "leadership that
has habitually opted for no-compromise dogmatism at the expense
of conciliation, frequently using assassination to silence
moderate opposition voices within Palestinian ranks" (Feb. 26).
The next day, Israel arrested yet another leading Arab advocate
of Palestinian-Arab dialogue, Dr. Mamdouh al-Aker, subjecting him
to torture as usual and keeping him from his attorney for a month
(_Mideast Mirror_, 27 March) -- the real story about "moderate
opposition voices" for many years, regularly suppressed in favor
of convenient fictions, such as the "no-compromise dogmatism" of
those who have been far closer to the international consensus on
a political settlement than Washington-media rejectionists for 15
years.
It did not pass without notice that a few problems remain. After
hailing the "watershed event," Thomas Friedman added that "The
Arab ministers clearly differed with Mr. Baker on one very
important detail: how to make peace with Israel." They called for
"an international conference under the auspices of the United
Nations" while "Mr. Baker, by contrast, said an international
conference would not be appropriate at this time." "On secondary
issues, such as the Palestinian-Israeli dispute, [the Arab
states] still prefer the safety of the Arab lowest common
denominator -- at least for now."
The official Arab statement after the "watershed event" reveals
another "detail," recorded without comment (Excerpts, _NYT_,
March 12): the Arab allies "demand the full and unconditional
implementation of Security Council Resolution 425" of March 1978,
the first of several calling for Israel's immediate withdrawal
from Lebanon. The plea was renewed by the government of Lebanon
in February 1991, ignored as usual while Israel and its clients
terrorize the region and bomb elsewhere at will (see my "Letter
from Lexington," August 1990).
In the real world, the Arab allies have some company in calling
for an international conference. The matter arises regularly at
the UN, most recently in December 1990, when the call for such a
conference passed 144-2 (US, Israel). In the preceding session,
the Assembly had voted 151-3 (US, Israel, Dominica) for an
international conference to realize the terms of UN Resolution
242, along with "the right to self-determination" for the
Palestinians (UN Draft A/44/L.51, 6 Dec. 1989). A Security
Council resolution in similar terms had been offered by Syria,
Jordan, and Egypt as far back as January 1976 with the support of
the PLO and indeed initiated by it according to Israel. It was
vetoed by the US. Europe, the USSR, the Arab states, and the
world generally have been united for years on such a political
settlement, but the US will not permit it. The facts are
unacceptable, thus eliminated from history.
For twenty years, the US has backed Israeli rejectionism. For
that clear but inexpressible reason, the peace process remains a
"hypothetical creature." There is one simple reason why an
international conference is "unwieldy": participants will support
"the right to self-determination" for the indigenous population.
Friedman observed further that Washington is exploring the idea
event'" hosted by the
US and USSR. Israeli Prime Minister Yitzhak Shamir would find
this preferable to an "open-ended, gang-up-on-Israel
international conference" (_NYT_, March 28, A6). Judis
detected Baker's benign hand in this move towards peace.
In the real world, Washington is willing to allow the Soviet
Union to co-host a ceremonial "event" on the assumption that in
its current straits, it will follow orders. But as Kissinger
warned years ago, Europe and Japan must be kept out of the
diplomacy; they are too independent. The President of the
European Community and its official in charge of Middle East
affairs recently reiterated the EC position expressed in the UN
Resolutions, declaring that "The outside powers should not let
Israel get off the hook once again"; Israel should withdraw from
Lebanon and the occupied territories, and reach a settlement with
Syria on the Syrian Golan Heights (annexed in defiance of a
Security Council resolution and a General Assembly vote of
149-1). But, they added, the EC would have no major role in the
diplomatic process, a US monopoly (Jacques Poos, Eberhard Rhein,
_Mideast Mirror_, 28 March).
In their own quaint way, the media acknowledge these realities.
The _New York Times_ has mentioned that the US is alone in the
world in endorsing Israel's Shamir plan. But "the Soviet Union
has moved away from a policy of confrontation with the United
States and now indicates that it prefers partnership with
Washington in the diplomacy of the region," the _Times_ later
added hopefully under the headline "Soviets Trying to Become Team
Player in Mideast." This "shift away from confrontation" brings
the Soviet Union "closer to the mainstream of Mideast diplomacy"
(Joel Brinkley, _NYT_, Sept. 8, 1989; Alan Cowell, _NYT_,
Dec. 12, 1989). To translate from Newspeak: The Soviet Union may
join Washington off the spectrum of world opinion, becoming a
"team player" in "the mainstream." "The team" is the United
States, "the mainstream" is the position occupied by "the team,"
and the "peace process" is whatever "the team" is doing.
Since 1989, the official "peace process" has been the Baker plan,
which, as Baker announced loud and clear, is identical to the
Shamir plan, more accurately, the coalition plan of Israel's two
major political blocs, Labor and Likud. Palestinians will be
limited to discussing its modalities, with the PLO excluded. The
current pretense is that when "The Palestinians supported Iraq
during the gulf war and endorsed its missile attacks on Israel,
Mr. Baker's response was to freeze the Palestine Liberation
Organization out of his talks" (Friedman, _NYT_, April 14,
"Week in Review," 1). All of Baker's conditions were explicit
long before the gulf war.
The Baker-Shamir-Peres plan had three "Basic Premises." First,
there can be no "additional Palestinian state," Jordan already
being one; there is no issue of Palestinian self-determination,
whatever the foolish and irresponsible world may think. Second,
no PLO; Palestinians may not choose their own representatives.
Third, "There will be no change in the status of Judea, Samaria
and Gaza other than in accordance with the basic guidelines of
the Government" of Israel. The plan then calls for "free
elections" under Israeli military occupation with much of the
Palestinian leadership in prison. The outcome, as Israeli
officials have made clear, is that Palestinians may be allowed to
set local tax rates in Nablus and collect garbage in Ramallah.
Unlike US commentators, the semi-official Egyptian press finds
little "inspiration" in the Bush-Baker rhetoric. Any hopes
evaporated after Baker's March visit, when he underscored
traditional US rejectionism (_al-Ahram_, cited in _Mideast
Mirror_, 27 March). There were no grounds for optimism in the
first place, given that the great power that has long barred any
meaningful peace process has now established that "what we say
goes," as the President put it a few days after "staking out the
high ground."
A central task of the educated classes is to fix clearly the
bounds of opinion. At one extreme, we have Yitzhak Shamir, who
holds that the "land for peace" formula of UN 242 has already
been satisfied. At the other, we have the opposition Labor
Party, which sees advantages for Israel in "territorial
compromise" along the lines of Labor's Allon plan, leaving Israel
in control of the useful land and resources but without
responsibility for most of the Arab population. The US is an
honest broker, merely seeking peace and justice, trying to steer
a path between "the conditions the Arab nations and Israel have
put on their possible participation in any peace conference"
(Friedman, _NYT_, April 13). The world is off the spectrum
entirely.
One technique is to attribute to "good Arabs" positions held by
the Washington-media alliance. Thus in Friedman's version of
history, in Jerusalem in 1977 President Sadat "offered the
Israeli people full peace in return for a full withdrawal from
the Sinai desert" (_NYT_, April 14, "Week in Review"). This
was Menahem Begin's position, while Sadat reiterated the
international consensus. And now, Friedman writes, "The Arab
countries have been demanding that Israel commit itself to an
interpretation of 242 that leaves open the possibility of trading
land for peace" (_NYT_, April 10, 1991). As he knows, they
reject this US-Israeli formula, joining the world in an
interpretation of 242 that calls for political settlement on the
internationally recognized (pre-June 1967) border. Palestinians
and authentic Israeli doves have commonly regarded the Labor-US
"territorial compromise" variety of rejectionism as "much worse
than the Likud's autonomy plan" (Shmuel Toledano, endorsing the
observation of Palestinian moderate Attorney Aziz Shehadah,
_Ha'aretz_, March 8, 1991). The reasons are well-known, but
must remain as deeply buried as the true history.
Washington's rejectionist stance must be adopted as the basis for
reporting and discussion, while its advocates are lauded as doves
who intend to breathe light on the problems of suffering
humanity. The US and Israel can then proceed with the policy
articulated in February 1989 by Defense Secretary Yitzhak Rabin
of the Labor Party, when he informed Peace Now leaders that the
US-PLO dialogue was only a means to divert attention while Israel
suppresses the Intifada by force. The Palestinians "will be
broken," he assured them, reiterating the prediction of Israeli
Arabists 40 years earlier: the Palestinians will "be crushed,"
will die or "turn into human dust and the waste of society, and
join the most impoverished classes in the Arab countries." Or
they will leave, while Russian Jews, now barred from the US by
policies designed to deny them a free choice, flock to an
expanded Israel, leaving the diplomatic issues moot, as the
Baker-Shamir-Peres plan envisions.
New excuses will be devised for old policies, which will be
hailed as generous and forthcoming. Failure will be attributed
to the "no-compromise dogmatism" of the extremists who fail to
adapt to Washington's "broad framework for dealing with the
Middle East," which is by definition right and just.
Sincerely,
Noam Chomsky
Article 947 of misc.activism.progressive:
Path: bilver!tous!peora!masscomp!usenet.coe.montana.edu!rpi!zaphod.mps.ohio-state.edu!wupost!mont!rich
From: notes@igc.org
Newsgroups: misc.activism.progressive
Subject: Chomsky: LOOT 9/91
Message-ID: <1991Oct7.225657.29939@pencil.cs.missouri.edu>
Date: 7 Oct 91 22:56:57 GMT
Sender: rich@pencil.cs.missouri.edu (Rich Winkel)
Followup-To: alt.activism.d
Organization: PACH
Lines: 269
Approved: map@pencil.cs.missouri.edu
The following piece bt Noam Chomsky was published in:
Lies of Our Times (LOOT), September 1991
and it's reprinted here with their permission.
_Lies of Our Times_ is a magazine of media criticism. "Our Times"
are the times we live in but they are also the words of the _New
York Times_, the most cited news medium in the United States,
our paper of record. Our "Lies" are more than just literal
falsehoods; they encompass subjects that have been ignored,
hypocrisies, misleading emphases, and hidden premises - all of
the biases which systematically shape reporting.
Published by Sheridan Square Press, Inc. Produced and distributed
by Institute for Media Analysis, Inc. Subscription rate: $24
(US); $32 (Canada, Mexico, W. Europe); $36 (Other). Payable to
the order of Sheridan Square Press. 11 issues a year (combined
July-August issue) of 24 pages each, except December issue is 28
pages -- includes yearly index. Lies Of Our Times, 145 West 4th
Street, New York, NY 10012, (212) 254-1061, Fax: (212) 254-9598
=================================================================
Letter from Lexington
Aug. 12, 1991
Dear LOOT,
Honest journalism is a demanding craft, but the respectable
variety, a very different genre, has its burdens as well. The
aftermath of the Gulf war provides many illustrations. Here is a
small sample.
One essential talent is a tolerance for contradiction. Thus
Patrick Tyler observes that "gaps remain in the Administration's
goal of stemming the Middle East arms race, even as Washington
has become the dominant arms supplier in the region" (July 28,
1991, p. A12). Here we see the familiar conflict between facts
and Truth, facts being what happens in the world, while Truth has
a more august status, emanating from power itself. That the
Administration's goal is to stem the Middle East arms race is
Truth, established by assertion from on high. Washington's
exploitation of the opportunity to sell high tech weapons is mere
fact, too insignificant to undermine Truth.
Washington's inspiring benevolence is another Truth that totters
uneasily alongside recalcitrant fact. Confronting the problem
head on, Tyler writes: "Though Mr. Bush has made it plain that he
will not tolerate needless suffering among Iraqi women and
children, widespread disease and malnutrition have been
documented in the country, but have not yet been addressed." The
last phrase is a euphemism. The translation into English reads:
"but the U.S. and its British puppy dog are blocking efforts to
deal with the civilian catastrophe.
The contradiction between fact and Truth would be overcome if Mr.
Bush were just unaware of the vast and growing civilian
suffering. Pursuing that heroic option, Tyler reports that the
embargo is "hurting the Iraqi people far more than is perceived
in Washington" (_NYT_, June 24, 1991, p. A1). True, "severe
malnutrition and spiraling disease" may have a "devastating
effect on the civilian population," but Mr. Bush hasn't been
told. The dilemma is now resolved: when he learns about the
effects of his sanctions, he will move resolutely to help "Iraqi
women and children," in accord with the principles that he has
"made plain."
The astute reader will have noticed that the contradiction can be
overcome in a different way. It is only _needless_ suffering
that Our Leader will not tolerate. Utilitarian suffering is
quite another thing. In th case in question, the suffering
serves a useful function: to hold the population hostage for
political ends (what is called "terrorism" when done on a far
lesser scale by some official enemy). The suffering is therefore
justified on realistic, pragmatic grounds.
The reasoning is explained by _Times_ chief diplomatic
correspondent Thomas Friedman: Iraqi generals will be induced to
topple Mr. Hussein, "and then Washington would have the best of
all worlds: an iron-fisted Iraqi junta without Saddam Hussein."
In short, by punishing Iraqi women and children, Washington will
be able to restore the happy days when Saddam's "iron fist...held
Iraq together, much to the satisfaction of the American allies
Turkey and Saudi Arabia," not to speak of the boss in Washington,
who had no problem with the means employed (_NYT_, July 7,
1991, "News of the Week in Review", p. 1).
It wil be quite proper, then, to "have sat by and watched a
country starve for political reasons" (UNICEF's director of
public affairs Richard Reid. That is what will happen, Reid
predicts, unless Iraq is permitted to purchase "massive
quantities of food" -- though it is already far too late for the
children under two, who have stopped growing for six or seven
months because of severe malnutrition, he reports (Kathy Blair,
_Toronto Globe & Mail_, June 17, 1991, p. A1). It is also too
late for the 55,000 children who had died by May (Patrick Tyler,
_NYT_, May 22, 1991, reporting the Harvard medical team study
that predicted another 170,000 child deaths by the end of the
year), and for countless others in a country facing "widespread
starvation," a critical shortage of drugs and a collapsing
medical system, quadrupling of diarrhoeal diseases, outbreaks of
typhoid and cholera in cities with raw sewage flowing in streets
and into rivers, and the other forms of utilitarian suffering
reported by the recent UN Secretary-General's mission
(_Guardian Weekly_ (London), Aug. 4, 1991, p. 9).
If we are lucky, Bush's ex-pal may lend a helpful hand. The
_Wall Street Journal_ observes that Iraq's "clumsy attempt to
hide nuclear-bomb-making equipment from the U.N. may be a
blessing in disguise, U.S. officials say. It assures that the
allies [read: U.S. and U.K.] can keep economic sanctions in place
to squeeze Saddam Hussein without mounting calls to end the
penalties for humanitarian reasons" (_WSJ_, July 5, 1991, p.
1). No annoying noises, then, from the P.C. crowd as we
cheerfully "watch the country starve for political reasons."
The Bush-_Times_ conception of "the best of all worlds" is not
universally shared. London banker Ahmad Chalabi, a spokesman for
the Iraqi democratic opposition, describes the outcome of the war
as "the worst of all possible worlds" for the Iraqi people
(_Wall Street Journal_, April 8, 1991). This apparently
contradiction is also readily resolved. The worst of all
possible worlds for the Iraqi people may well be the best of all
worlds from the perspective of offices in Washington and New
York. Right-thinking people may agree with Chalabi that "the
tragedy in Iraq is awesome," meanwhile recognizing that the
important concerns are those spelled out by the State Department
spokesman at the _Times_. "Before Mr. Hussein invaded Kuwait,"
Friedman writes, "he was a pillar of the gulf balance of power
and status quo preferred by Washington," employing his "iron
fist" with our approval and generous assistance. He made a false
move on August 2, 1990, "but as soon as Mr. Hussein was forced
back into his shell, Washington felt he had become useful
again... That is why Mr. Bush never supported the Kurdish and
Shiite rebellions against Mr. Hussein, or for that matter any
democracy movement in Iraq" (_op. cit._).
That is also why the _Times_ -- in fact, the media generally --
have scrupulously avoided the Iraqi democratic forces (though the
_Wall Street Journal_ deserves credit for allowing them a few
openings well after the splendid triumph). These silly folk had
the bad taste to oppose Washington's plans throughout; much like
the Palestinians, they fail to recognize "the hard realities of
the region" (Serge Schmemann, _NYT_, Aug. 3, 1991, p. A1), and
thus deserve their fate. They were calling for democracy in Iraq
when Saddam's "iron fist" was providing Washington with "the best
of all worlds." They opposed the ruinous U.S.-U.K. war and urged
pursuit of the diplomatic track that was barred by Washington and
virtually suppressed by the media. And finally, compounding
their sins, they are again calling for democracy in Iraq while
Washington seeks to install some clone of Saddam Hussein, but one
who understands that "what we say goes," in the President's fine
words.
Speaking abroad, Chalabi observed in mid-March that Washington
"is waiting for Saddam to butcher the insurgents in the hope that
he can be overthrown later by a suitable officer," an attitude
rooted in the US policy of "supporting dictatorships to maintain
stability." The Bush administration announced that it would
continue to refuse any contact with Iraqi democratic leaders: "We
felt that political meetings with them...would not be appropriate
for our policy at this time," State Department spokesman Richard
Boucher stated on March 14 (_Mideast Mirror_ (London), March
15, 1991). The Department is true to its word. Alan Cowell
reports that Iraqi exiles in Syria say "there has been no reply"
to their letter requesting a meeting with James Baker, "and the
embassy's doors remain closed to them," as in Washington, London,
and elsewhere (_NYT_, April 11, 1991, A11).
The traditional U.S. opposition to democratic forces poses a
constant challenge for the vigilant defenders of Truth. In the
present case, the respectable commentator must play down the U.S.
military tactics: to create maximum long-lasting damage to the
civilian society for the political end of restoring the "iron
fist"; and to massacre defenseless conscripts (mostly Shi'ite and
Kurdish peasants, apparently) hiding in holes in the sand or
fleeing for their lives while elite units were released to do
their necessary work and U.S. forces were spared any danger of
combat. Reporting from northern Iraq, American correspondent
Charles Glass described how journalists watched as "Republican
Guards, supported by regular army brigades, mercilessly shelled
Kurdish-held areas with Katyusha multiple rocket launchers,
helicopter gunships and heavy artillery," while they tuned in to
listen to Stormin' Norman puffing on about how "We had destroyed
the Republican Guard as a militarily effective force" and
eliminated the military use of helicopters (_Spectator_,
London, April 13, 1991) -- not the stuff of which heroes are
manufactured, therefore finessed, though the story could not be
totally ignored at home.
Striving manfully to reconcile fact with Truth, _Times_ Middle
East correspondent Alan Cowell attributes the failure of the
rebels to the fact that "very few people outside Iraq wanted them
to win." Here the concept "people" has its standard meaning in
respectable journalism: "people who count." The "allied campaign
against President Hussein brought the United States and its Arab
coalition partners to a strikingly unanimous view," Cowell
continues: "whatever the sins of the Iraqi leader, he offered the
West and the region a better hope for his country's stability
than did those who have suffered his repression" (_op. cit._).
These "Arab coalition partners" are a merry crew: six family
dictatorships, Syria's Hafez el-Assad (indistinguishable from
President Hussein), and Egypt, the sole Arab ally with a degree
of internal freedom. We therefore look to the semi-official
press in Egypt to verify Cowell's report of the "strikingly
unanimous view." His article is datelined Damascus, April 10.
The day before, Deputy Editor Salaheddin Hafez of Egypt's leading
daily, _al-Ahram_, commented on Saddam's demolition of the
rebels "under the umbrella of the Western alliance's forces." The
U.S. stance proved what Egypt had been saying all along, Hafez
wrote. American rhetoric about "the savage beast, Saddam
Hussein," was merely a cover for the true goals: to cut Iraq down
to size and establish US hegemony in the region. The West turned
out to be in total agreement with the beast on the need to "block
any progress and abort all hopes, however dim, for freedom or
equality and for progress towards democracy," working in
"collusion with Saddam himself" if necessary (_al-Ahram_, April
9, 1991; quoted in _Mideast Mirror_ (London), April 10).
There was, indeed, some regional support for the U.S. stance. In
Israel, many commentators (including leading doves) agreed with
retiring Chief-of-Staff Dan Shomron that it is preferable for
Saddam Hussein to remain in power in Iraq (Ron Ben-Yishai,
interview with Shomron, _Ha'aretz_, March 29; Shalom
Yerushalmi, "We are all with Saddam," _Kol Ha'ir_, April 4,
1991). Others welcomed the suppression of the Kurds because of
"the latent ambition of Iran and Syria to exploit the Kurds and
create a territorial, military, contiguity between Teheran and
Damascus -- a contiguity which embodies danger for Israel" (Moshe
Zak, senior editor of _Ma'ariv_, _Jerusalem Post_. April 4,
1991). But all this was unhelpful, therefore suppressed.]
Another task is to show that despite the outcome, it was indeed a
Grand Victory. Tacit U.S. support for the slaughter of the Kurds
posed some difficulties, which would have been even more severe
had the media deigned to report the testimony of Western doctors
and other observers on Turkish bombing of hundreds of Kurdish
villages and the hundreds of thousands of Kurds in flight, trying
to surve the cold winter while aid was barred by the government
and Mr. Bush hailed the Turkish leader Turgut Ozal as "a
protector of peace," joining those who "stand up for civilized
values around the world." But the tragedy of the Shi'ites, who
appear to have suffered much worse destruction and terror under
the gaze of the heroic Schwartzkopf, was readily put to the side;
they are, after all, mere Arabs.
This task too was accomplished. In its anniversary editorial,
the _Times_ editors dismissed the qualms of "the doubters,"
concluding that Mr. Bush had acted wisely: he "avoided the
quagmire and preserved his two triumphs: the extraordinary
cooperation among coalition members and the revived
self-confidence of Americans," who "greeted the Feb. 28
cease-fire with relief and pride -- relief at miraculously few
U.S. casualties and pride in the brilliant performance of the
allied forces" (_NYT_, Aug. 2, 1991). Surely these "triumphs"
far outweigh the "awesome tragedies" in the region.
One can appreciate the mood of the nonpeople of the world, rarely
reported here. It is captured by Cardinal Paulo Evaristo Arns of
Sao Paolo, Brazil, who writes that in the Arab countries "the
rich sided with the U.S. government while the _millions_ of
poor condemned this military aggression," and throughout the
Third World, "there is hatred and fear: When will they decide to
invade us," and on what pretext?
Sincerely,
Noam Chomsky
Article 944 of misc.activism.progressive:
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Subject: Chomsky: LOOT 10/91
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Date: 8 Oct 91 09:23:06 GMT
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The following piece by Noam Chomsky was published in:
Lies of Our Times (LOOT), October 1991
and it's reprinted here with their permission.
_Lies of Our Times_ is a magazine of media criticism. "Our Times"
are the times we live in but they are also the words of the _New
York Times_, the most cited news medium in the United States,
our paper of record. Our "Lies" are more than just literal
falsehoods; they encompass subjects that have been ignored,
hypocrisies, misleading emphases, and hidden premises - all of
the biases which systematically shape reporting.
Published by Sheridan Square Press, Inc. Produced and distributed
by Institute for Media Analysis, Inc. Subscription rate: $24
(US); $32 (Canada, Mexico, W. Europe); $36 (Other). Payable to
the order of Sheridan Square Press. 11 issues a year (combined
July-August issue) of 24 pages each, except December issue is 28
pages -- includes yearly index. Lies Of Our Times, 145 West 4th
Street, New York, NY 10012, (212) 254-1061, Fax: (212) 254-9598
=================================================================
Letter from Lexington
Sept. 8, 1991
Dear LOOT,
The important events of late August in the Soviet Union have
elicited some curious coverage and commentary. The U.S. was a
distant and passive observer, and Washington basically had no
policy, simply watching events run their course. That picture,
however, is not acceptable.
The required version is that the U.S. is a benign if sometimes
stern guardian of international order and morality, guiding
errant elements along a constructive path. George Bush, in
particular, has been assigned the image of Great Statesman, with
extraordinary talent for diplomacy and global management. The
picture is about as plausible as the tales of Ronald Reagan, the
Great Communicator, who initiated a modern revolution -- a
construction quickly put to rest when this pathetic figure was no
longer useful, and it could be conceded that he hadn't a thought
in his head and was scarcely able to read his lines. With regard
to Reagan's successor, the evidence for his consummate skills, to
date, reduces to his unquestioned ability to follow the
prescriptions of an early National Security Policy Review of his
administration, which advised that failure to defeat "much weaker
enemies...decisively and rapidly" would be "embarrassing" and
might "undercut political support," understood to be thin
(Maureen Dowd, _NYT_, Feb. 23, 1991).
To reconcile reality with preferred image, there were some
gestures towards Bush's allegedly critical role in bringing the
August crisis to a successful conclusion. But the efforts were
pretty feeble, and lacked spirit. Some, however, deserve credit
for trying. Take regular _Boston Globe_ columnist John Silber,
the president of Boston University and a likely aspirant to high
political office ("Democrats' disarray boosts Bush's apparent
invulnerability," _BG_, Sept 1, 1991). Silber repeats the
standard doctrine that "the president's skill in dealing with the
demise of communism heightens the disarray of the Democratic
Party." In particular, "President Bush's handling of the failed
coup in the USSR has been masterly. His well-publicized
telephone calls to Boris Yeltsin put the United States firmly on
the side of the democratic resistance, a position cemented by the
shrewd decision to send Ambassador Strauss to Moscow immediately,
with instructions to ignore the junta."
In the face of such brilliant and imaginative moves on the
diplomatic chess board, what can the opposition do but wring its
hands in despair?
The lack of policy was evident from James Baker's briefing after
the coup had collapsed ("Baker's Remarks: Policy on Soviets,"
_NYT_, Sept. 5, 1991). The Secretary of State presented a
"four-part agenda." Three parts were the kind of pieties that
speech writers produce while dozing: we want democracy, the rule
of law, economic reform, settlement of security problems, etc.
One part of the agenda did, however, have a modicum of substance,
the third item, on "Soviet foreign policy." Here, Baker focused
on his "efforts to convene a peace conference to launch direct
negotiations and thereby to facilitate a viable peacemaking
process in the Middle East." As _Times_ diplomatic
correspondent Thomas Friedman explains in an accompanying gloss,
the Soviet Union should "work together with the United States on
foreign policy initiatives like Middle East peace."
What is of interest here is what was missing. "Soviet foreign
policy" does indeed have a role in the Bush-Baker Middle East
endeavor. The Soviet role is to provide a (very thin) cover for
a unilateral U.S. initiative that may at last realize the U.S.
demand, stressed by Kissinger years ago, that Europe and Japan be
kept out of the diplomacy of the region. Baker's phrase "direct
negotiations" is the conventional Orwellian term for the leading
principle of U.S.-Israeli rejectionism: the framework of the
"peace process" must be restricted to state-to-state
negotiations, effectively excluding the indigenous population and
any consideration of their national rights and concerns. They
offer no services to U.S. and, accordingly, have no meaningful
rights. That is the core principle of the rigid rejectionism
that the U.S. has upheld for 20 years in virtual international
isolation (apart from both major political groupings in Israel),
and now feels that it may be in a position to impose.
These matters, however, fail the test of political correctness,
and therefore are given no expression in the mainstream. As
noted earlier in these columns, even the basic terms of the
Baker-Shamir-Peres plan, to which negotiations are restricted,
have fallen under this ban.
With the USSR gone from the scene, another foreign policy goal
may be within reach: "replacement of the Castro regime with one
more devoted to the true interests of the Cuban people and more
acceptable to the U.S.," a goal that we must achieve "in such a
manner as to avoid any appearance of U.S. intervention." These
are the words of the March 1960 planning document of the
Eisenhower administration that set in motion the subversion and
economic warfare sharply escalated by John F. Kennedy and
continued by his successors (Jules R. Benjamin, _The United
States and the Origins of the Cuban Revolution_, Princeton, 1990,
207).
If Washington is to achieve its longstanding goals in the
required manner -- avoiding "any appearance of U.S. intervention"
-- the ideological institutions must play their part. Crucially,
they must suppress the record of aggression, vast campaigns of
terror, economic strangulation, cultural quarantine, intimidation
of anyone who might seek to disrupt the ban, and the other
devices available to the superpower overseer dedicated to "the
true interests of the Cuban people." Cuba's plight must be
attributed to the demon Castro and "Cuban socialism" alone. They
bear full responsibility for the "poverty, isolation and humbling
dependence" on the USSR, the _New York Times_ editors inform
us (Sept. 8, 1991), concluding triumphantly that "the Cuban
dictator has painted himself into his own corner," without any
help from us. That being the case, by doctrinal necessity, we
should not intervene directly as some "U.S. cold warriors"
propose: "Fidel Castro's reign deserves to end in home-grown
failure, not martyrdom." Staking their position at the dovish
extreme, the editors advise that we should continue to stand
aside, doing nothing, watching in silence, as we have been doing
for 30 years, so the naive reader would learn from this (quite
typical) version of history.
The enhanced ability of the U.S. to achieve its goals without
deterrence or interference is not exactly welcome news in most of
the world. But we are unlikely to hear very much about the
trepidations of the Third World over "the breakdown of
international military equilibrium which somehow served to
contain U.S. yearnings for domination" (Mario Benedetti, _La
Epoca_, Chile, May 4, 1991). Nor were we informed of Third World
reactions when Dimitri Simes, senior associate at the Carnegie
Endowment for International Peace, observed in the _New York
Times_ that the "apparent decline in the Soviet threat...makes
military power more useful as a United States foreign policy
instrument...against those who contemplate challenging important
American interests" -- the "threat" being the deterrent to U.S.
military power and the support afforded targets of U.S.
subversion and violence ("If the Cold War Is Over, Then What?,"
_NYT_, Dec. 27, 1988). The fears, however, are very real,
particularly after the U.S.-U.K. operations in the Gulf. They
will be readily understood by anyone who can escape the doctrinal
straightjacket.
The improved conditions for U.S. subversion and violence do not,
however, offer the right note to sound on the occasion of the
demise of the official enemy. For reflections on more exalted
themes, we may turn to _New York Times_ correspondent Richard
Bernstein, who muses on the "New Issues Born From Communism's
Death Knell" (_NYT_, Aug. 31, 1991, p. 1).
For more than 70 years, Bernstein explains, "the fiercest
arguments and the sharpest conflicts among intellectuals" have
been "about Marxism-Leninism and social revolution, about the
nature of the Soviet Union and about the existence of Communism
as a major ideological force in a bipolar world." "The most
obvious power exercised by the Soviet Union over the Western
mind," he continues, "was its extraordinary power of attraction,
its capacity to instill idealistic visions of a new world in
which exploitation would be swept away by a tide of revolution."
After the appeal of the USSR itself faded, "the debate took on
new forms": "from the 1960's to the 1980's, an argument
raged...about...countries like China, Ethiopia, Cuba and
Nicaragua, which seemed to many on the left to embody the
revolutionary virtues admittedly tarnished in the Soviet Union
itself." Throughout, the Cold War conflict "had the effect of
polarizing the domestic debate" in the U.S. between these two
ideological extremes, Harvard Professor Joseph Nye observes. But
with "the debate about Communism" losing "its force and
centrality," Bernstein asks, "what issues will consume left and
right, liberals and conservatives, in the future?" Perhaps the
newspapers and journals of opinion will expire, now that the
all-consuming issues are dying away, no longer "raging" in their
pages.
Let us put aside the accuracy of this account of "the left"; and,
for the sake of argument, let us also accept the picture of
"the arguments and conflicts" that have "polarized the domestic
debate" for over 70 years. We now ask a simple question. How
has this central debate of the modern era been reflected in the
_New York Times_, the Newspaper of Record, dedicated to the
highest standards of journalistic integrity, free and open to all
shades of thought and opinion?
The question has, in fact, been investigated, beginning with the
classic 1920 study of _Times_ coverage of the Bolshevik
revolution by Walter Lippmann and Charles Merz, who demonstrated
that it was "nothing short of a disaster...from the point of view
of professional journalism," merely vulgar jingoism and
subservience to the state both in editorial policy and in the
news columns that this policy "profoundly and crassly
influenced." Moving to the present, there has been extensive
study of _Times_ coverage of the "raging" issue of Nicaragua,
demonstrating that the Lippmann-Merz critique remains quite
accurate. News coverage was, as usual, "profoundly and crassly
influenced" by the doctrine of service to state power that
defines the editorial stance. Even columns and op-eds were
restricted, with startling uniformity, to the politically correct
doctrine that the Sandinista curse must be expunged and Nicaragua
restored to the "regional standards" of such more acceptable
models as El Salvador and Guatemala. In the years between, the
record is much the same as in these two extraordinary cases.
Not every topic has been investigated. Thus, I do not know of
studies of _Times_ coverage of the "raging debate" over the
revolutionary virtues of Ethiopia or of _Times_ expositions of
the "extraordinary power of attraction" of Marxism-Leninism and
its "capacity to instill idealistic visions" of revolution and
utopia. Even if we translate these rhetorical flights to
something resembling reality, however, we know exactly what we
will discover about just how open the Newspaper of Record has
been to debate, discussion, even inconvenient fact.
In brief, for more than 70 years the _New York Times_ (hardly
alone, of course) and state-corporate power have marched in
impressive unison. Now, hearing "Communism's Death Knell," it is
permissible to concede that there were some burning issues,
though not to present them in a sane and meaningful form. And it
must pass entirely without notice, not even a faint flicker of
recognition, that the real issues have been virtually excluded
from the doctrinal system. It's an intriguing performance.
The "death knell" of Soviet tyranny has indeed sounded, though
what takes its place may also not be too pleasant to behold. But
Stalinist values remain alive and well, and the cultural
commissars have no end of work ahead of them.
Sincerely,
Noam Chomsky
law/ciabwash.law
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SEE NOTES AT END FOR INFO ON SOURCES OF THESE DOCUMENTS
CENTRAL INTELLIGENCE AGENCY
WASHINGTON 25, D. C.
OFFICE OF THE DIRECTOR 25 APR 1956
-------------------------------------------------------------------------------
MEMORANDUM FOR: The Honorable J. Edgar Hoover
Director, Federal Bureau of Investigation
SUBJECT : Brainwashing
The attached study on brainwashing was prepared by my
staff in response to the increasing acute interest in the
subject throughout the intelligence and security components
of the Government. I feel you will find it well worth your
personal attention. It represents the thinking of leading psy-
chologists, psychiatrists and intelligence specialists, based
in turn on interviews with many individuals who have had
personal experience with Communist brainwashing, and on
extensive research and testing. While individuals specialists
hold divergent views on various aspects of this most complex
subject, I believe the study reflects a synthesis of majority
expert opinion. I will, of course, appreciate any comments
on it that you or your staff may have.
(signed)
Allen W. Dulles
Director
ENCLOSURE
OA 53-37
-------------------------------------------------------------------------------
A REPORT ON COMMUNIST BRAINWASHING
The report that follows is a condensation of a study by train-
ing experts of the important classified and unclassified information
available on this subject.
BACKGROUND
Brainwashing, as a technique, has been used for centuries and
is no mystery to psychologists. In this sense, brainwashing means
involuntary re-education of basic beliefs and values. All people
are being re-educated continually. New information changes one's
beliefs. Everyone has experienced to some degree the conflict that
ensues when new information is not consistent with prior belief.
The experience of the brainwashed individual differs in that the in-
consistent information is forced upon the individual under controlled
conditions after the possibility of critical judgment has been re-
moved by a variety of methods.
There is no question that an individual can be broken psycholog-
ically by captors with knowledge and willingness to persist in tech-
niques aimed at deliberately destroying the integration of a personal-
ity. Although it is probable that everyone reduced to such a confused,
disoriented state will respond to the introduction of new beliefs, this
cannot be stated dogmatically.
PRINCIPLES OF HUMAN CONTROL AND REACTION TO CONTROL
There are progressive steps in exercising control over an individ-
ual and changing his behaviour and personality integration. The fol-
lowing five steps are typical of behaviour changes in any controlled
individual:
1. Making the individual aware of control is the first stage in
changing his behaviour. A small child is made aware of the physical
and psychological control of his parents and quickly recognizes that
an overwhelming force must be reckoned with. So, a controlled adult
comes to recognize the overwhelming powers of the state and the im-
personal, "incarcerative" machinery in which he is enmeshed. The in
-dividual recognizes that definite limits have been put upon the ways
he can respond.
(Approved for Release) (62-80750-2712X)
(Date: 8 FEB 1984)
OA 53-37
2. Realization of his complete dependence upon the controll-
ing system is a major factor in the controlling of his behavior.The con-
trolled adult is forced to accept the fact that food, tobacco,praise,
and the only social contact that he will get come from the very in-
terrogator who exercises control over him.
-------------------------------------------------------------------------------
3. The awareness of control and recognition of dependence re-
sult in causing internal conflict and breakdown of previous patterns
of behaviour. Although this transition can be relatively mild in
the case of a child, it is almost invariably severe for the adult
undergoing brainwashing. Only an individual who holds his values
lightly can change them easily. Since the brainwasher-interrogators
aim to have the individuals undergo profound emotional change, they
force their victims to seek out painfully what is desired by the
controlling individual. During this period the victim is likely to
have a mental breakdown characterized by delusions and hallucinat-
ions.
4. Discovery that there is an acceptable solution to his prob-
lem is the first stage of reducing the individual's conflict. It
is characteristically reported by victims of brainwashing that this
discovery led to an overwhelming feeling of relief that the horror
of internal conflict would cease and that perhaps they would not,
after all, be driven insane. It is at this point that they are pre-
pared to make major changes in their value-system. This is an
automatic rather than voluntary choice. They have lost their a-
bility to be critical.
5. Reintergration of values and identification with the cont-
rolling system is the final stage in changing the behaviour of the
controlled individual. A child who has learned a new, socially de-
sirable behaviour demonstrates its importance by attempting to as-
apt the new behaviour to a variety of other situations. Similar
states in the brainwashed adult are
(SECTION DELETED BY CIA)
2
OA 53-37
pitiful. His new value-system, his manner of perceiving,organizing,and
-------------------------------------------------------------------------------
giving meaning to events, is virtually independent of his former value-
system.He is no longer capable of thinking or speaking in concepts other
than those he has adopted. He tends to identify by expressing thanks to
his captors for helping him see the light.Brainwashing can be achieved
without using illegal means.Anyone willing to use known principles of
control and reactions to control and capable of demonstrating the patience
needed in raising a child can probably achieve successful brainwashing.
COMMUNIST CONTROL TECHNIQUES AND THEIR EFFECTS
A description of usual communist control techniques follows.
1. Interrogation. There are at least two ways in which "interro-
gation" is used:
a. Elicitation, which is designed to get the individual to
surrender protected information, is a form of interrogation. One major
difference between elicitation and interrogation used to achieve
brainwashing is that the mind of the individual must be kept clear to
permit coherent, undistorted disclosure of protected information.
b. Elicitation for the purpose of brainwashing consists of
questioning,argument,indoctrination,threats,cajolery,praise,hos-
tility, and a variety of other pressures. The aim of this interrogation
is to hasten the breakdown of the individual's value system and to encourage
the substitution of a different value-system. The procurement of protected
information is secondary and is used as a device to increase pressure upon
the individual. The term "interrogation" in this paper will refer, in
general, to this type. The "interrogator" is the individual who conducts
this type of interrogation and who controls the administration of the other
pressures. He is the protagonist against whom the victim develops his con-
flict, and upon whom the victim develops a state of dependency as he seeks
some solution to his conflict.
2. Physical Torture and Threats of Torture. Two types of physical
torture are distinguishable more by their psychological effect in induc-
ing conflict than by the degree of painfulness:
a. The first type is one in which the victim has a passive role
in the pain inflicted on him (e.g.,beatings). His conflict involves the
decision of whether or not to give in to demands in order to avoid further
pain. Generally, brutality of this type was not found to achieve the
desired results. Threats of torture were found more effective, as fear
of pain causes greater conflict within the individual than does pain it-
self.
3
OA 53-37
b. The second type of torture is represented by requiring the
individual to stand in one spot for several hours or assume some other
pain-inducing position. Such a requirement often engenders in the indi-
vidual a determination to "stick it out." This internal act of resistance
-------------------------------------------------------------------------------
provide a feeling of moral superiority at first. As time passes and his
pain mounts,however, the individual becomes aware that it is his own
original determination to resist that is causing the continuance of pain.
A conflict develops within the individual between his moral determination
and his desire to collapse and discontinue the pain. It is this extra
internal conflict, in addition to the conflict over whether or not to give
in to the demands made of him, that tends to make this method of torture
more effective in the breakdown of the individual personality.
3. Isolation. Individual differences in reaction to isolation are
probably greater than to any other method. Some individuals appear to
be able to withstand prolonged periods of isolation without deleterious
effects, while a relatively short period of isolation reduces others to
the verge of psychosis. Reaction varies with the conditions of the iso-
lation cell. Some sources have indicated a strong reaction to filth and
vermin, although they had negligible reactions to the isolation. Others
reacted violently to isolation in relatively clean cells. The predominant
cause of breakdown in such situations is a lack of sensory stimulation
(i.e.,grayness of walls,lack of sound,absence of social contact,etc.).
Experimental subjects exposed to this condition have reported vivid hal-
licinations and overwhelming fears of losing their sanity.
4. Control of Communication. This is one of the most effective
methods for creating a sense of helplessness and despair. This measure
might well be considered the cornerstone of the communist system of con-
trol. It consists of strict regulation of the mail,reading materials,
broadcast materials, and social contact available to the individual. The
need to communicate is so great that when the usual channels are blocked,
the individual will resort to any open channel, almost regardless of the
implications of using that particular channel. Many POWs in Korea, whose
only act of "collaboration" was to sign petitions and "peace appeals,"
defended their actions on the ground that this was the only method of
letting the outside world know they were still alive. May stated that
their morale and fortitude would have been increased immeasurably had
leaflets of encouragement been dropped to them. When the only contact
with the outside world is via the interrogator, the prisoner comes to
develop extreme dependency on his interrogator and hence loses another
prop to his morale.
Another wrinkle in communication control is the informer system.
The recruitment of informers in POW camps discouraged communication
4
OA 53-37
between inmates.POWs who feared that every act or thought of resistance
-------------------------------------------------------------------------------
would be communicated to the camp administrators, lost faith in their
fellow man and were forced to "untrusting individualism." Informers are
also under several stages of brainwashing and elicitation to develop
and maintain control over the victims.
5. Induction of Fatigue. This is a well-known device for breaking
will power and critical powers of judgment. Deprivation of sleep results
in more intense psychological debilitation than does any other method of
engendering fatigue. The communists vary their methods. "Conveyor belt"
interrogation that last 50-60 hours will make almost any individual com-
promise, but there is danger that this will kill the victim. It is safer
to conduct interrogations of 8-10 hours at night while forcing the prisoner
to remain awake during the day. Additional interruptions in the remaining
2-3 hours of allotted sleep quickly reduce the most resilient individual .
Alternate administration of drug stimulants and depressants hastens the
process of fatigue and sharpens the psychological reactions of excitement
and depression.
Fatigue, in addition to reducing the will to resist,also produces
irritation and fear that arise from increased "slips of the tongue." for-
getfulness, and decreased ability to maintain orderly thought processes.
6. Control of Food,Water and Tobacco. The controlled individual
is made intensely aware of his dependence upon his interrogator for the
quality and quantity of his food and tobacco. The exercise of this con-
trol usually follows a pattern. No food and little or no water is per-
mitted the individual for several days prior to interrogation.When the
prisoner first complains of this to the interrogator, the latter expresses
surprise at such inhumane treatment. He makes a demand of the prisoner.
If the latter complies,he receives a good meal. If he does not, he gets
a diet of unappetizing food containing limited vitamins,minerals, and
calories. This diet is supplemented occasionally by the interrogator if
the prisoner "cooperates." Studies of controlled starvation indicate
that the whole value-system of the subjects underwent a change. Their
irritation increased as their ability to think clearly decreased. The
control of tobacco presented an even greater source of conflict for heavy
smokers. Because tobacco is not necessary to life, being manipulated by
his craving for it can in the individual a strong sense of guilt.
7. Criticism and Self-Criticism. There are mechanisms of communist
thought control. Self-criticism gains its effectiveness from the fact
that although it is not a crime for a man to be wrong, it is a major crime
to be stubborn and to refuse to learn. Many individuals feel intensely re-
lieved in being able to share their sense of guilt. Those individuals
5
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however, who have adjusted to handling their guilt internally have dif-
ficulty adapting to criticism and self-criticism. In brainwashing ,after
a sufficient sense of guilt has been created in the individual, sharing
and self-criticism permit relief. The price paid for this relief, how-
-------------------------------------------------------------------------------
ever, is loss of individuality and increased dependency.
8. Hypnosis and Drugs as Controls. There is no reliable evidence
that the communists are making widespread use of drugs or hypnosis in
brainwashing or elicitation. The exception to this is the use of common
stimulants or depressants in inducing fatigue and "mood swings."
9. Other methods of control, which when used in conjunction with the
basic processes, hasten the deterioration of prisoners' sense of values
and resistance are:
a. Requiring a case history or autobiography of the prisoner
provides a mine of information for the interrogator in establishing and
"documenting" accusations.
b. Friendliness of the interrogator , when least expected, up-
sets the prisoner's ability to maintain a critical attitude.
c. Petty demands, such as severely limiting the allotted time
for use of toilet facilities or requiring the POW to kill hundreds of
flies, are harassment methods.
d. Prisoners are often humiliated by refusing them the use of
toilet facilities during interrogator until they soil themselves. often
prisoners were not permitted to bathe for weeks until they felt contempti-
ble.
e. Conviction as a war criminal appears to be a potent factor
in creating despair in the individual. One official analysis of the pres-
sures exerted by the ChiComs on "confessors" and "non-confessors" to
participation in bacteriological warfare in Korea showed that actual trial
and conviction of "war crimes" was overwhelmingly associated with breakdown
and confession.
f. Attempted elicitation of protected information at various
times during the brainwashing process diverted the individual from aware-
ness of the deterioration of his value-system. The fact that, in most
cases, the ChiComs did not want or need such intelligence was not known
to the prisoner. His attempts to protect such information was made at
the expense of hastening his own breakdown.
6
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THE EXERCISE OF CONTROL: A "SCHEDULE" FOR BRAINWASHING
-------------------------------------------------------------------------------
From the many fragmentary accounts reviewed, the following appears
to be the most likely description of what occurs during brainwashing .
In the period immediately following capture, the captors are faced
with the problem of deciding on best ways of exploitation of the prisoners.
Therefore, early treatment is similar both for those who are to be exploited
through elicitation and those who are to undergo brainwashing. concurrently
with being interrogated and required to write a detailed personal history,
the prisoner undergoes a physical and psychological "softening-up" which
includes: limited unpalatable food rations,withholding of tobacco,possi-
ble work details,severely inadequate use of toilet facilities, no use of
facilities for personal cleanliness,limitation of sleep such as requiring
a subject to sleep with a bright light in his eyes. Apparently the inter-
rogation and autobiographical ,material, the reports of the prisoner's be-
haviour in confinement, and tentative "personality typing" by the interro-
gators, provide the basis upon which exploitation plans are made.
There is a major difference between preparation for elicitation and
for brainwashing .Prisoners exploited through elicitation must retain suffi-
cient clarity of thought to be able to give coherent,factual accounts. In
brainwashing , on the other hand, the first thing attacked is clarity of
thought. To develop a strategy of defense, the controlled individual must
determine what plans have been made for his exploitation. Perhaps the best
cues he can get are internal reactions to the pressures he undergoes.
The most important aspect of the brainwashing process is the interro-
gation. The other pressures are designed primarily to help the interrogator
achieve his goals. The following states are created systematically within
the individual . These may vary in order, but all are necessary to the
brainwashing process:
1. A feeling of helplessness in attempting to deal with the impersonal
machinery of control.
2. An initial reaction of "surprise."
3. A feeling of uncertainty about what is required of him.
4. A developing feeling of dependence upon the interrogator .
5. A sense of doubt and loss of objectivity.
6. Feelings of guilt.
7
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7. A questioning attitude toward his own value-system.
8. A feeling of potential "breakdown," i.e.,that he might go crazy.
-------------------------------------------------------------------------------
9. A need to defend his acquired principles.
10. A final sense of "belonging" (identification).
A feeling of helplessness in the face of the impersonal machinery
of control is carefully engendered within the prisoner. The individual
who receives the preliminary treatment described above not only begins
to feel like an "animal" but also feels that nothing can be done about
it. No one pays any personal attention to him. His complaints fall on
deaf ears. His loss of communication, if he has been isolated, creates
a feeling that he has been "forgotten." Everything that happens to him
occurs according to an impersonal; time schedule that has nothing to do
with his needs. The voices and footsteps of the guards are muted. He
notes many contrasts,e.g.,his greasy,unpalatable food may be served
on battered tin dishes by guards immaculately dressed in white. The
first steps in "depersonalization" of the prisoner have begun. He has
no idea what to expect. Ample opportunity is allotted for him to ruminate
upon all the unpleasant or painful things that could happen to him. He
approaches the main interrogator with mixed feelings of relief and
fright.
Surprise is commonly used in the brainwashing process. The prisoner
is rarely prepared for the fact that the interrogators are usually friendly
and considerate at first. They make every effort to demonstrate that
they are reasonable human beings. Often they apologize for bad treatment
received by the prisoner and promise to improve his lot if he, too, is
reasonable. This behaviour is not what he has steeled himself for. He
lets down some of his defenses and tries to take a reasonable attitude.
The first occasion he balks at satisfying a request of the interrogator ,
however, he is in for another surprise. The formerly reasonable inter-
rogator unexpectedly turns into a furious maniac. The interrogator is
likely to slap the prisoner or draw his pistol and threaten to shoot him.
Usually this storm of emotion ceases as suddenly as it began and the in-
terrogator stalks from the room. These surprising changes create doubt
in the prisoner as to his very ability to perceive another person's moti-
vations correctly. His next interrogation probably will be marked by im-
passivity in the interrogator 's mien.
A feeling of uncertainty about what is required of him is likewise
carefully engendered within the individual . Pleas of the prisoner to
learn specifically of what he is accused and by whom are side-stepped by
8
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the interrogator. Instead, the prisoner is asked to tell why he thinks
-------------------------------------------------------------------------------
he is held and what he feels he is guilty of. If the prisoner fails to
come up with anything, he is accused in terms of broad generalities (e.g.,
espionage, sabotage,acts of treason against the "people"). This us-
ually provokes the prisoner to make some statement about his activities.
If this take the form of a denial, he is usually sent to isolation on
further decreased food rations to "think over" his crimes. This process
can be repeated again and again. As soon as the prisoner can think of
something that might be considered self-incriminating, the interrogator
appears momentarily satisfied. The prisoner is asked to write down his
statement in his own words and sign it.
Meanwhile a strong sense of dependence upon the interrogator is
developed. It does not take long for the prisoner to realize that the
interrogator is the source of all punishment , all gratification,and all
communication. The interrogator , meanwhile,demonstrates his unpredict-
bility. He is perceived by the prisoner as a creature of whim. At
times, the interrogator can be pleased very easily and at other times
no effort on the part of the prisoner will placate him. The prisoner
may begin to channel so much energy into trying to predict the behaviour
of the unpredictable interrogator that he loses track of what is happen-
ing inside himself.
After the prisoner has developed the above psychological and emotional
reactions to a sufficient degree, the brainwashing begins in earnest.
First, the prisoner's remaining critical faculties must be destroyed.
He undergoes long, fatiguing interrogations while looking at a bright
light. He is called back again and again for interrogations after min-
imal sleep. He may undergo torture that tends to create internal con-
flict. Drugs may be used to accentuate his "mood swings." He develops
depression when the interrogator is being kind and becomes euphoric when
the interrogator is threatening the direst penalties. Then the cycle is
reversed. The prisoner finds himself in a constant state of anxiety
which prevents him from relaxing even when he is permitted to sleep.
Short periods of isolation now bring on visual and auditory hallucinations.
The prisoner feels himself losing his objectivity. It is in this state
that the prisoner must keep up an endless argument with the interrogator .
He may be faced with the confessions of other individuals who "collabo-
rated" with him in his crimes. The prisoner seriously begins to doubts
his own memory. This feeling is heightened by his inability to recall
little things like the names of the people he knows very well or the date
of his birth. The interrogator patiently sharpens this feeling of doubt
by more questioning. This tends to create a serious state of uncertainty
when the individual has lost most of his critical faculties.
9
OA 53-37
The prisoner must undergo additional internal conflict when strong
feelings of guilt are aroused within him. As any clinical psychologist
is aware, it is not at all difficult to create such feelings. Military
servicemen are particularly vulnerable. No one can morally justify kill-
-------------------------------------------------------------------------------
ing even in wartime. The usual justification is on the grounds of neces-
sity or self-defense. The interrogator is careful to circumvent such
justification. He keeps the interrogation directed toward the prisoner's
moral code. Every moral vulnerability is exploited by incessant question-
ing along this line until the prisoner begins to question the very fun-
damentals of his own value-system. The prisoner must constantly fight a
potential breakdown. He finds that his mind is "going blank" for longer
and longer periods of time. He can not think constructively. If he is
to maintain any semblance of psychological integrity, he must bring to
an end this state of interminable internal conflict. He signifies a
willingness to write a confession.
If this were truly the end, no brainwashing would have occurred.
The individual would simply have given in to intolerable pressure. Ac-
tually, the final stage of the brainwashing process has just begun. No
matter what the prisoner writes in his confession the interrogator is
not satisfied. The interrogator questions every sentence of the confes-
sion. He begins to edit it with the prisoner. The prisoner is forced
to argue against every change. This is the essence of brainwashing.
Every time that he gives in on a point to the interrogator, he must re-
write his whole confession. Still the interrogator is not satisfied.
In a desperate attempt to maintain some semblance of integrity and to
avoid further brainwashing, the prisoner must begin to argue that what
he has already confessed to is true. He begins to accept as his own the
statements he has written. He uses many of the interrogator's earlier
arguments to buttress his position. By this process,identification
with the interrogator's value-system becomes complete. It is extremely
important to recognize that a qualitative change has taken place within
the prisoner. The brainwashed victim does not consciously change his
value-system; rather the change occurs despite his efforts. He is no
more responsible for this change than is an individual who "snaps" and
becomes psychotic. And like the psychotic, the prisoner is not even
aware of the transition.
DEFENSIVE MEASURES OTHER THAN ON THE POLICY AND PLANNING LEVEL
1. Training of Individuals potentially subject to communist control.
Training should provide for the trainee a realistic appraisal
of what control pressures the communists are likely to exert and what
the usual human reactions are to such pressures. The trainee must learn
10
OA 53-37
the most effective ways of combatting his own reactions to such pressures
-------------------------------------------------------------------------------
and he must learn reasonable expectations as to what his behaviour should
be. Training has two decidedly positive effects; first, it provides the
trainee with ways of combatting control; second, it provides the basis
for developing an immeasurable boost in morale. Any positive action that
the individual can take, even if it is only slightly effective, gives him
a sense of control over a situation that is otherwise controlling him.
2. Training must provide the individual with the means of
recognizing realistic goals for himself.
a. Delay in yielding may be the only achievement that can be
hoped for. In any particular operation, the agent needs the support of
knowing specifically how long he must hold out to save an operation, pro-
tect his cohorts, or gain some other goal.
b. The individual should be taught how to achieve the most favor-
able treatment and how to behave and make necessary concessions to
obtain minimum penalties.
c. Individual behavioural responses to the various communist
control pressures differ markedly. Therefore, each trainee should know
his own particular assets and limitations in resisting specific pressures.
He can learn these only under laboratory conditions simulating the actual
pressures he may have to face.
d. Training must provide knowledge of the goals and the restric-
tions placed upon his communist interrogator. The trainee should know
what controls are on his interrogator and to what extent he can manipulate
the interrogator. For example, the interrogator is not permitted to fail
to gain "something" from the controlled individual. The knowledge that,
after the victim has proved that he is a "tough nut to crack" he can some-
times indicate that he might compromise on some little point to help the
interrogator in return for more favorable treatment, may be useful in-
deed. Above all, the potential victim of communist control can gain a
great deal of psychological support from the knowledge that the communist
interrogator is not a completely free agent who can do whatever he wills
with his victim.
e. The trainee must learn what practical cues might aid him in
recognizing the specific goals of his interrogator. The strategy of defense
against elicitation may differ markedly from the strategy to prevent
brainwashing. To prevent elicitation, the individual may hasten his own
state of mental confusion; whereas, to prevent brainwashing, maintaining
clarity of thought processes is imperative.
11
OA 53-37
f. The trainee should obtain knowledge about communist "carrots"
as well as "sticks." The communists keep certain of their promises and al-
ways renege on others. For example, the demonstrable fact that "informers"
receive no better treatment than other prisoners should do much to prevent
-------------------------------------------------------------------------------
this particular evil. On the other hand, certain meaningless concessions
will often get a prisoner a good meal.
g. In particular, it should be emphasized to the trainee that,
although little can be done to control the pressures exerted upon him, he
can learn something about controlling his personal reactions to specific
pressures. The trainee can gain much from learning something about in-
ternal conflict and conflict-producing mechanisms. He should learn to
recognize when someone is trying to arouse guilt feelings and what be-
havioural reactions can occur as a response to guilt.
h. Finally, the training must teach some methods that can be utilized
in thwarting particular communist control techniques:
Elicitation. In general, individuals who are the hardest to inter-
rogate for information are those who have experienced previous interroga-
tions. Practice in being the victim of interrogation is a sound train-
ing device.
Torture. The trainee should learn something about the principles of
pain and shock. There is a maximum to the amount of pain that can actually
be felt. Any amount of pain can be tolerated for a limited period of
time. In addition, the trainee can be fortified by the knowledge that there
are legal limitations upon the amount of torture that can be inflicted
by communist jailors.
Isolation. The psychological effects of isolation can probably be
thwarted best by mental gymnastics and systematic efforts on the part of
the isolate to obtain stimulation for his neural end organs.
Controls on Food and Tobacco. Foods given by the communists will
always be enough to maintain survival. Sometimes the victim gets unex-
pected opportunities to supplement his diet with special minerals,vitamins
and other nutrients (e.g.,"iron" from the rust of prison bars). In some
instances, experience has shown that individuals could exploit refusal to
eat. Such refusal usually resulted in the transfer of the individual to
a hospital where he received vitamin injections and nutritious food. Evi-
dently attempts of this kind to commit suicide arouse the greatest concern
in communist officials. If deprivation of tobacco is the control being
exerted. the victim can gain moral satisfaction from "giving up" tobacco.
He can't lose since he is not likely to get any anyway.
12
OA 53-37
Fatigue. The trainee should learn reactions to fatigue and how to
-------------------------------------------------------------------------------
overcome them insofar as possible. For example, mild physical exercise
"clears the head" in a fatigue state.
Writing Personal Accounts and Self-Criticism. Experience has in-
dicated that one of the most effective ways of combatting these pressures
is to enter into the spirit with an overabundance of enthusiasm. Endless
written accounts of inconsequential material have virtually "smothered"
some eager interrogators. In the same spirit, sober, detailed self-
criticisms of the most minute "sins" has sometimes brought good results.
Guidance as to the priority of positions he should defend. Perfectly
compatible responsibilities in the normal execution of an individual's
duties may become mutually incompatible in this situation. Take the ex-
ample of a senior grade military officer. He has the knowledge of sensitive
strategic intelligence which it is his duty to protect. He has the respon-
sibility of maintaining the physical fitness of his men and serving as
a model example for their behaviour. The officer may go to the camp
commandant to protest the treatment of the POWs and the commandant as-
sures him that treatment could be improved if he will swap something for
it. Thus to satisfy one responsibility he must compromise another. The
officer, in short, is in a constant state of internal conflict. But if
the officer is given the relative priority of his different responsibilities,
he is supported by the knowledge that he won't be held accountable for
any other behaviour if he does his utmost to carry out his highest priority
responsibility. There is considerable evidence that many individuals
tried to evaluate the priority of their responsibilities on their own,
but were in conflict over whether others would subsequently accept their
evaluations. More than one individual was probably brainwashed while he
was trying to protect himself against elicitation.
CONCLUSIONS
The application of known psychological principles can lead to an
understanding of brainwashing.
1. There is nothing mysterious about personality changes resulting
from the brainwashing process.
2. Brainwashing is a complex process. Principles of motivation,
perception, learning, and physiological deprivation are needed to account
for the results achieved in brainwashing.
3. Brainwashing is an involuntary re-education of the fundamental
beliefs of the individual. To attack the problem successfully, the brain-
washing process must be differentiated clearly from general education
methods for thought-control or mass indoctrination, and elicitation.
13
OA 53-37
4. It appears possible for the individual,through training,to
develop limited defensive techniques against brainwashing. Such defensive
measures are likely to be most effective if directed toward thwarting in-
dividual emotional reactions to brainwashing techniques rather than to-
-------------------------------------------------------------------------------
ward thwarting the techniques themselves.
15 August 1955
14
=====================================================================
(note Declassified)
SECRET
CENTRAL INTELLIGENCE AGENCY
WASHINGTON 25, D. C.
19 JUN 1964
(Commission No. 1131)
MEMORANDUM FOR: Mr. J. Lee Rankin
General Counsel
President's Commission on the
Assassination of President Kennedy
SUBJECT : Soviet Brainwashing Techniques
1. Reference is made to your memorandum of 19 May 1964,
requesting that materials relative to Soviet techniques in mind
conditioning and brainwashing be made available to the Commission.
2. At my request, experts on these subjects within the CIA
have prepared a brief survey of Soviet research in the direction
and control of human behavior, a copy of which is attached. The
Commission may retain this document. Please note that the use
of certain sensitive materials requires that a sensitivity indicator
be affixed.
3. In the immediate future, this Agency will make available
to you a collection of overt and classified materials on these subjects,
which the Commission may retain.
4. I hope that these documents will be responsive to the
Commission's needs.
(SIGNED)
(DECLASSIFIED) Richard Helms
(By C.I.A.) Deputy Director for Plans
(letter of ___________)
(---------------------)
Attachment
CD 1131 SECRET
MEMORANDUM
SUBJECT: Soviet Research and Development in the Field of
Direction and Control of Human Behavior.
1. There are two major methods of altering or controlling
human behavior, and the Soviets are interested in both. The first
is psychological; the second, pharmacological. The two may be
used as individual methods or for mutual reinforcement. For
long-term control of large numbers of people, the former method
is more promising than the latter. In dealing with individuals,
the U.S. experience suggests the pharmacological approach (assisted
by psychological techniques) would be the only effective method.
Neither method would be very effective for single individuals on
a long term basis.
2. Soviet research on the pharmacological agents producing
behavioral effects has consistently lagged about five years behind
Western research. They have been interested in such research,
however, and are now pursuing research on such chemicals as
LSD-25, amphetamines, tranquillizers, hypnotics, and similar
materials. There is no present evidence that the Soviets have
any singular, new, potent drugs to force a course of action on
an individual. They are aware, however, of the tremendous drive
produced by drug addiction, and PERHAPS could couple this with
psychological direction to achieve control of an individual.
3. The psychological aspects of behavior control would include
not only conditioning by repetition and training, but such things as
hypnosis, deprivation, isolation, manipulation of guilt feelings,
subtle or overt threats, social pressure, and so on. Some of the
newer trends in the USSR are as follows:
SECRET CD 1131
PAGE 1
a. The adoption of a multidisciplinary approach integrating
biological,social and physical-mathematical research in attempts
better to understand, and eventually, to control human behavior in a
manner consonant with national plans.
b. The outstanding feature, in addition to the inter-
disciplinary approach, is a new concern for mathematical approaches to
an understanding of behavior. Particularly notable are attempts to use
modern information theory, automata theory, and feedback concepts in
interpreting the mechanisms by which the "second signal system," i.e.,
speech and associated phenomena, affect human behavior. Implied by this
"second signal system," using INFORMATION inputs as causative agents
rather than chemical agents, electrodes or other more exotic techniques
applicable, perhaps, to individuals rather than groups.
c. This new trend, observed in the early Post-Stalin Period,
continues. By 1960 the word "cybernetics" was used by the Soviets to
designate this new trend. This new science is considered by some as
the key to understanding the human brain and the product of its
functioning--psychic activity and personality--to the development of
means for controlling it and to ways for molding the character of the
"New Communist Man". As one Soviet author puts it: Cybernetics can be
used in "molding of a child's character, the inculcation of knowledge
and techniques, the amassing of experience, the establishment of social
behavior patterns...all functions which can be summarized as 'control'
of the growth process of the individual." 1/Students of particular
disciplines in the USSR, such as psychologist and social scientists,
also support the general cybernetic trend. 2/ (Blanked by CIA)
4. In summary, therefore, there is no evidence that the Soviets
have any techniques or agents capable of producing particular behavioral
patterns which are not available in the West. Current research indi-
cates that the Soviets are attempting to develop a technology for
controlling the development of behavioral patterns among the citizenry
of the USSR in accordance with politically determined requirements of
the system. Furthermore, the same technology can be applied to more
sophisticated approaches to the "coding" of information for transmittal
to population targets in the "battle for the minds of men." Some of the
more esoteric techniques such as ESP or, as the Soviets call it,
"biological radio-communication", and psychogenic agents such as LSD,
SECRET CD 1131
PAGE 2
are receiving some overt attention with, possibly, applications in mind
for individual behavior control under clandestine conditions. However,
we require more information than is currently available in order to
establish or disprove planned or actual applications of various
methodologies by Soviet scientists to the control of actions of
articular individuals.
References
1. Itelson, Lev, "Pedagogy: An Exact Science?" USSR October 1963,
p. 10.
2. Borzek, Joseph, "Recent Developments in Soviet Psychology,"
Annual Review of Psychology, Vol. 15, 1964, p. 493-594.
SECRET CD 1131
PAGE 3
The first letter and attachment are from DECLASSIFIED
DOCUMENTS 1984 microfilms under MKULTRA (84) 002258, published
by Research Publication Woodbridge, CT 06525. Some original
markings were not retyped, but the content is the same.
The second letter and attachment are from the Warren
Commission documents. Notice should be paid to the different
tone Helms gives to his letter, keeping in mind he was found
guilty of lying to Congress. He places greater emphasis on
"Soviet" practices and tries to diminish breakthroughs gained
by Americans. Some thought should be given as to WHY the
Warren Commission sought such documents (remembering that
ALLEN DULLES was a member of that Commission). They were
exploring the Manchurian candidate theory. It was revealed
during the Church Committee hearings of 1975 that Helms had
been in charge of Project AMLASH, a program to assassinate
Castro (Cuba),Trujillo (Dominican Republic), Diem (RVN),
Schneider (Chile) using MAFIA figures John Roselli and Santos
Trafficante to do the job.
Care was used to insure lines appear in same length and order.
Page length will have to be adjusted if you desire to print
this. Look for other specials soon. David John Moses.
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CHAPTER II.
HOW AMERICAN CITIZENSHIP MAY BE ACQUIRED
A. IN THE NATION
By Birth
PURSUANT to the provisions of the XIV Amendment to the Constitution
of the United States, the Federal statutes provide as follows: "All
persons born in the United States and not subject to any foreign power,
excluding Indians not taxed, are declared to be citizens of the United
States." (1)
This language has been held to include a person born in the United
States of parents of Chinese descent and subjects of the Emperor of
China, they being at the time of his birth domiciled residents, engaged
in business in the United States. It has also been held to embrace the
half-breed children of a white father and an Indian mother living apart
from her tribe, born within the United States, reared and educated as
other children of citizens; (3) and even under the XIII Amendment
colored persons were held to be citizens.(4) But an Indian born a member
of one of the Indian tribes within the United States(5) does not, merely
by reason of his birth in the United States and his separation from his
tribe and residence among white citizens, become a citizen. A negro born
in slavery and afterwards becoming a citizen of the Cherokee Nation has
been held to be not an Indian.(6)
By special enactment, all persons born in the country formerly known
as the Territory of Oregon and subject to the jurisdiction of the United
States on the 18th day of May, 1872, are declared citizens of the United
States.(7)
By Naturalization.
We have already seen that the power to enact a uniform system of
naturalization laws was among the first bestowed upon Congress by the
Constitution.
Naturalization is defined to be the act of adopting a foreigner and
clothing him with the privileges of a native citizen.(8) The power of
naturalization is vested exclusively in Congress by the Constitution,
and cannot be exercised by the State.(9) Although the power to enact
naturalization laws existed from the time the Constitution went into
effect in 1789, the earliest Act of Congress on the subject of
naturalization was passed April 14, 1802, thirteen years after the
Constitution went into effect. Under the last named Act and sundry
amendments, admission to citizenship of three principal classes of
persons was provided for, to wit:
First, aliens who had resided for a certain time within the limits and
under the jurisdiction of the United States, to be naturalized
individually by proceedings in a court of record.(10)
Second, the children of persons so naturalized dwelling within the
United States and being under the age of twenty-one at the time of such
naturalization.(11)
Third, foreign-born children of American citizens coming within the
definitions prescribed by Congress.(12)
Length of Residence Necessary.
As early as 1813 Congress enacted that an alien, to be entitled to
admission as a citizen, must have resided within the United States for
a continuous term of five years.(13) This general provision is modified
by several special enactments, as follows:
An alien who has enlisted and has been honorably discharged from the
regular volunteer forces of the Army of the United States is not
required to prove more than one year's residence.(14)
A seaman being a foreigner who declares his intention of becoming a
citizen and then serves three years aboard a merchant vessel of the
United States is entitled to be admitted.(15)
An alien may be admitted to become a citizen of the United States in
the following manner, and not otherwise:(16)
First, a preliminary declaration of intention must be made. It must
be made at least two years prior to his admission to citizenship. It
must be made under oath before a circuit or district court of the United
States or a district or supreme court of the Territories, or a court of
record of any of the States having common-law jurisdiction,(17) and a
seal and a clerk.(18) The declaration must state that it is the bona
fide intention of the applicant to become a citizen of the United
states, and to renounce forever all allegiance and fidelity to any
foreign prince, potentate, state, or sovereignty, particularly by name
to the prince, potentate, state, or sovereignty of which the alien may
be at the time a citizen or subject.(19) By an amendment enacted
February 1, 1876,(20) the preliminary declaration of intention may be
made before the clerk of any of the courts named above.(21)
A preliminary declaration, however, is not required in the following
cases:
1. The widow and children of an alien who has made his preliminary
declaration and died before he was actually naturalized, are declared
to be citizens upon taking the oaths prescribed by law.(22)
2. By an act passed May 26, 1824, (23) an alien being under twenty-one
years of age who has resided in the United States three years next
preceding his arrival at age, and who has continued to reside therein
to the time he makes application to be admitted a citizen, may, after
he attains the age of twenty-one and after he has resided five years
within the United States, including the three years of his minority, be
admitted without preliminary declaration.(24)
3. By an Act passed July 17, 1862,(25) an alien of the age of
twenty-one years and upwards, who has enlisted or may enlist in the
armies of the United States, (26)and has been honorably discharged,
shall be admitted to become a citizen of the United states upon his
petition, without any previous declaration of his intention. (27)
4. By an Act passed July 26, 1894,(28) aliens over twenty-one years
of age, honorably discharged from the navy or marine corps after five
consecutive years' service in the navy, or one enlistment in the marine
corps, may be admitted without any previous declaration.
Second, he shall, at the time of his application to be admitted,
declare on oath before some one of the courts specified;
a. That he will support the Constitution of the United States.
b. That he renounces and abjures all allegiance and fidelity to any
foreign prince, etc.
c. Particularly, by name, the prince or potentate of whom he was
subject.
d. The proceedings shall be recorded by the clerk.
Third, it shall be made to appear to the court:
a. That he has resided in the United States five years at least.
b. Within State or Territory one year at least.
c. That during that time he has behaved as a man of good
character.(29)
d. That he is attached to the principles of the Constitution of the
United States, and well disposed to the good order and happiness of
the same.(30)
e. But the oath of the applicant does not prove his residence.(31)
Fourth, in case the alien applying to be admitted to citizenship has
borne any hereditary title or been of any of the orders of nobility in
the kingdom or state from which he came, he shall, in addition to the
above requisites make an express renunciation of his title or order of
nobility in the Court to which his application is made, and his
renunciation shall be recorded in the court.
The fifth and sixth clauses of the Naturalization Law may be omitted,
as they simply declared certain persons residing in the United grates
prior to the 29th of January, 1795, and between June 18, 1798, and June
18, 1812, to be citizens, and are no longer of any practical importance.
The Naturalization Law further provides concerning children, as
follows:
1. Children under age when their parents were duly naturalized under
any law of the United States; or,
2. Children whose parents previous to the passing of the United States
naturalization laws became citizens of any State; or,
3. Children born out of the limits and jurisdiction of the United
States, of persons who are or have been citizens of the United States
-
All the above are declared to be citizens of the United States.
b. IN A STATE
By Birth.
Every State in the Union has enacted, either in its constitution or
in its statutes, that all persons born in the State shall be deemed
citizens of the State. The language is not identical, but it will be
found substantially the same by reference to the constitutions and
statutes of the several States.
By State Enactments.
All the States have, in one form or another, provided that all persons
born in any other State of the Union who may be or become residents of
the State enacting the law, and all aliens naturalized under the laws
of the United States who may be or become residents of the State, shall
be citizens of the State. A particular inspection of the laws of each
State will be necessary to ascertain the precise language in which this
general principle is declared, and the length of residence requisite in
any particular state to require citizenship therein.
By Federal Enactments
The XIV Amendment to the Constitution of United States declares that
all persons born or naturalized in the United States and subject to the
jurisdiction thereof are citizens of the State wherein they reside. The
question what residence entitles a native or a naturalized citizen to
all the privileges of citizenship in a particular State is generally
determined by some State enactment prescribing the length of residence
necessary to entitle a person to all the privileges of State
citizenship. Until the enactment of the XIV Amendment, no attempt was
ever made by the Federal government to define or limit the rights of
citizenship in any State.
c. OUTSIDE THE NATION OR STATES.
We have already seen that under certain Federal statutes the widow and
children of an alien who has made his preliminary declaration, and died
without being actually naturalized, have certain inchoate rights of
citizenship which they may make perfect upon taking the oaths prescribed
by law, even though they have not been within the limits of the nation,
or of the State. So, too, children born out of the limits and
jurisdiction of the United States, of persons who are citizens of the
United States, are deemed citizens of the United States; and by the
statutes of many of the States they are also deemed citizens of the
State whereof their parents are citizens. For example, the author of
this volume was born in Rio de Janeiro, Brazil, in 1846, of parents who
were citizens of the United States and of the state of Virginia. By the
terms of the Federal statutes he is a citizen of the United States; and
by the terms of the statutes of Virginia, all children, wherever born,
whose fathers or if he be dead whose mother, was a citizen of Virginia
at the time of the birth of such children, were to be deemed citizens
of that State. A notable instance of such foreign birth is George B.
McClellan, the present mayor of New York city, who was born in Dresden,
Saxony. At the time of his birth his parents were citizens of New
Jersey, his father, Capt. George B. McClellan, being in the service of
the United States abroad. He is as much a citizen of the United States
and of the State of New Jersey as if he had been born in Trenton, the
capital of the State of New Jersey.
But the citizenship of children whose fathers were citizens is
qualified to this extent: the rights of citizenship of the parent do not
descend to the children if the parents have never resided in the United
States. Thus, if Mayor George B. McClellan had never resided in the
United States, his son, George B. McClellan, third, would not inherit
his father's right of citizenship in the United States.
d. OF THE PERSONS WHO MAY BE CITIZENS.
As a matter of course, Men may be citizens, and we will not discuss
that further.
Women may be citizens as well as men.(32) The statutes of the United
States expressly provide that any woman who is now or may hereafter be
married to a citizen of the United States, and who might herself be
lawfully naturalized, shall be deemed a citizen. The naturalization laws
themselves provide (33) that the widow of an alien who has complied with
the first condition of naturalization, and died without being actually
naturalized, shall be considered a citizen.
The political status of the wife follows that of the husband, with the
modification that there must be withdrawal from her native country, or
equivalent act expressive of her election to renounce her citizenship
as a consequence of her marriage.(34)
The citizenship acquired by the wife by marriage to a citizen of the
United States is not a qualified or contingent one, but is as enduring
and unqualified as if she had been naturalized upon her own formal
application.(35) It may therefore happen that an alien may come to this
country and become a citizen, whereby his wife, who might herself be
lawfully naturalized, shall be deemed a citizen, although she did not
come to the United States until after his death. His citizenship, in
such case, confers citizenship upon her.(36) An alien woman whose
husband became a naturalized citizen of the United States, thereby
herself became a citizen, although she may have been living at a
distance from her husband for years and may never have come into the
United States until after his death.(37) And a woman married to a
citizen of the United States is, by reason of her marriage, to be
deemed a citizen, irrespective of the time or place of marriage, and
although she may never have resided in the United States.(38) An alien
widow of a naturalized citizen of the United States, although she never
resided within the United States during the lifetime of her husband, is
a citizen of the United States and is entitled to dower in his real
estate.(39) A woman born in France, whose father was a citizen of the
United States, and who married a French citizen and continued after the
death of her husband to reside in France, is a citizen of France but not
of the United States.(40)
Children may be citizens. They are citizens by birth, and, as seen
above, become citizens through the naturalization of their parents. By
the express terms of the statute, however, the children born abroad of
American citizens, whether the parents be citizens by birth or by
naturalization, do not transmit their right of citizenship to their
children unless they have themselves resided in the United States.
e. NATIONAL AND STATE CITIZENSHIP NOT NECESSARILY COEXISTENT.
A citizen of the United States does not thereby necessarily become a
citizen of any particular State. This distinction is clearly pointed out
in the Slaughter-house Cases cited above. The XIV Amendment declares
that all persons born or naturalized in the United States and subject
to the jurisdiction thereof are citizens of the United States and of the
State wherein they reside, but the amendment does not attempt to define
what constitutes residence in the States. It might very well happen, for
example, that a person had been naturalized in one State and lost his
residence in that State by removing from it, without having acquired a
residence in another State to which he had removed. The XIV Amendment
cannot be so read as to make him a resident of any State except on the
terms prescribed generally by the laws of that State for the acquisition
of citizenship therein.(41)
A curious anomaly resulting from the last-named condition in our
complex system of national and State governments is found in the
following state of facts;
The Constitution of the United States provides (Art. I, Sec. 2) that
the House of Representatives shall be composed of members chosen every
second year by the people of the several States, and electors in each
State shall have the qualifications requisite for electors of the most
numerous branch of the State legislature. The naturalization laws give
an alien no political rights as a citizen of the United States until he
has been admitted to citizenship. In many of the States the
qualifications for electors of the most numerous branch of the State
legislature are bestowed upon aliens who have made their preliminary
declarations; consequently, it happens that in many instances the
persons who vote for members of the Congress of the United States are
not even citizens of the United States. Under this condition, it is
conceivable that in the different States the votes of aliens to the
United States might elect sufficient members of the House of
Representatives of the United States to control action of the Congress
of the United States.
(1) Rev. Stat. U.S., Sec. 1992, 1 Fed. Stat. Annot. 785; The
Slaughter-House Cases, (1872) 83 U.S. 36; In re Rodriguez, (1897) 81
Fed. Rep. 353.
"While this amendment.... was intended primarily for the benefit of the
negro race, It also confers the right of citizenship upon persons of all
other races, white, yellow, or red, born or naturalized in the United
States, and `subject to the jurisdiction thereof.' The language has been
held to embrace even Chinese, to whom the laws of naturalization do not
extend." In re Rodriguez (1897) 81 Fed. Rep. 353.
(2) U.S. v. Wong Kim Ark. (1898) 169 U.S. 649; Citizenship etc., (1884)
21 Fed. Rep. 905; Lee Sing Far 9. U.S., (C.C.A. 1899) 94 Fed. Rep. 834;
In re Yung Sing Hee, (1888) 36 Fed. Rep. 437; In re Giovanna, (1899) 93
Fed. Rep. 659; In re Wy Shing, (1898) 36 Fed. Rep. 553; Ex p. Chin King,
(1888) 35 Fed. Rep. 354.
(3) U.S. v. Hadley, (1900) 99 Fed. Rep. 437; U.S. v. Ward(1890) 42 Fed.
Rep. 320; U.S. v. Higgins, (1901)110 Fed. Rep. 609, distinguishing U.S.
v. Higgins, (1900) 103 Fed. Rep. 348. See also Farrell v. U.S., (C.C.A.
1901) 110 Fed. Rep. 942; Ex. p. Reynolds, (1879) 5 Dill. U.S. 394
(4) Hall v. De Cuir, (1877) 95 U.S. 509. See also U.S. v. Rhodes, (1866)
1 Ab. U.S. 28, 27 Fed. Cas. No. 16,151.
(5) Elk v. Wilkins, (1884) 112 U.S. 94; U.S. v. Osborne, (1880)6 Sawy.
U.S. 406; U.S. v. Boyd, (C.C.A. 1897) 82 Fed. Rep. 547.
"Indians born within the territorial limits of the United States.
members of, and owing immediate allegiance to, one of the Indian tribes
(an alien, though dependent, power), although in a geographical sense
born in the United States, are no more , born in the United States and
subject to the jurisdiction thereof,, within the meaning of the first
section of the Fourteenth Amendment, than the children of subjects of
any foreign government born within the domain of that government, or the
children born within the United States, of ambassadors or other public
ministers of foreign nations.... Such Indians, then, not being citizens
by birth, can only become citizens in the second way mentioned in the
Fourteenth Amendment, by being `naturalized in the United States,' by
or tinder home treaty or statute." Elk v. Wilkins, (1884) 112 U. S. 94.
By Act of Congress, of Feb. 8, 1887. every Indian born within the
territorial limits of the United States to whom allotments of land shall
have been made under the provisions of the act, or under any law or
treaty, and every indian born within the territorial limits of the
United States who has voluntarily taken up, within said limits. his
residence separate and apart from any tribe of Indians therein, and has
adopted the habits of civilized life. is declared to be a citizen of the
United States and entitled to all the rights, privileges, and immunities
of such citizens. U. S. v. Kopp, (1901) 110 Fed. Rep. 160; In re
Celestine, (1902) 114 Fed. Rep. 553; State v. Denoyer, (1897) 6 N. Dak.
586. See also U.S. v. Boyd, (C.C.A. 1897) 83 Fed. Rep. 547.
(6) Alberly v. U. S., (1896) 162 U. S. 499.
The term "Indian" is one descriptive of race, and therefore men of
other races who are adopted into an Indian tribe do not thereby become
Indians. They may by such adoption become entitled to certain privileges
In the tribe, and make themselves amenable to its laws and usages. Yet
they are not Indians. Responsibility to the laws of the United States
cannot thus be thrown off and a right acquired to be treated by the
government and its officers as if they were Indians born. U.S. v.
Rogers, (1846) 4 How. U.S. 567. See also Westmoreland v. U.S., (1895)
155 U.S. 545; Roff v. Burney, (1897) 168 U. S. 218; Raymond v. Raymond,
(C. C. A. 1897) 83 Fed. Rep. 721.
(7) Rev. Stat. U.S., Sec. 1995, 1 Fed. Stat. Annot.788.
(8) Bouvier's Law Dictionary. Osborn v. U.S. Bank, (1824) 9 Wheat. U.S.
827; Boyd v. Thayer, (1892) 143 U.S. 162; Postmaster at New Orleans,
(1858) 9 OP. Atty. Gen., 259; Minneapolis v. Reum, (1893)12 U.S. App.
446; Am. & Engl. Encyc. of Law(2d ed.) Vol. 6, p. 19.
(9) U. S. v. Villato, (1797) 2 Dall. (Pa.) 373; Thurlow v.
Massachusetts, (1847) 5 How. U.S. 504; Smith v. Turner,. (1849) 7 How.
U.S. 283; Chirse v. Chirse, (1817) 2 Wheat. U.S. 269; Collet w. Collet,
(1792) 2 Dall. U.S. 294; U.S. v. Wong Kim Ark. (1898) 169 U.S. 640.
That the exercise of the power to pass naturalization laws by the
State governments is incompatible with the grant of a power to Congress
to pass uniform laws on that subject, is obvious, from the consideration
that the former would be dissimilar and frequently contradictory;
whereas the system is directed to be uniform, which can only be rendered
so by the exclusive power in one body to form them. Golden v. Prince,
(1814) 3 Wash. cU. S.) 313.
Our foreign intercourse being exclusively committed to the general
government, it is peculiarly their province to determine who are
entitled to the privileges of American citizens, and the protection of
American government. And the citizens of any one State being entitled
by the Constitution to enjoy tho rights of citizenship in every other
State, that fact creates an interest in this particular in each other's
acts, which does not exist with regard to their bankrupt laws; since
State acts of naturalization would thus be extra-territorial in their
operation, and have an influence on the most vital interests of other
States. Ogden v. Saunders, (1827) 12 Wheat (U.S.) 277.
(10) See U.S. Rev. Stat., Title XXX, Sec. 2165, 5Fed. Stat. Annot.?00.
(11) See U.S. Rev. Stat., Title XXX, Sec. 2172, 5 Fed. Stat. Annot. 209.
(12) U.S. Rev. Stat., Title XXX, Sec. 1993, 1 Fed. Stat. Annot. 786.
(13) U.S. Rev. Stat., Title XXX, Sec. 2170, 5 Fed. Stat. Annot. 208.
(14) U.S. Rev. Stat., Sec. 2166,5 Fed. Stat. Annot. 205.
(15) U.S. Rev. Stat., Sec. 2174, 5 Fed. Stat. Annot.210.
(16) U.S. Rev. Stat., Sec. 2165, 5 Fed. Stat. Annot. 200.
(17) Congress has power to confer and the State courts authority to
accept and exercise the power to nationalize aliens. Levin v. U. S.. (C.
C. A. 1904) 128 Fed. Rep. 826; Croesue Min, etc., Co. v. Colorado Land,
etc., Co.. (1884) 19 Fed. Rep. 78. A State court is the judicial agency
of the Federal Government in such proceedings. People v. Sweetman,
(Supm. Ct. Gen. T. 1857, 3 Park.Crim. N.Y. 374; In the Matter of
Christern. (1978) 43 N. Y. Super. Ct. 523.
Congress cannot constrain a State court to exercise this jurisdiction,
and the State legislatures may, if they see fit, limit or restrain the
exercise of this jurisdiction by the State courts. Rushworth v. Judges.
(1895) 58 N.J.L. 97. Ex p. Knowles, (1855) 5 Cal. 300; Matter of
Ramsden, (N.Y. Super. Ct. Spec. T.1857) 13 How. Pr. (n.Y.) 429
Concerning the meaning of "having common-law jurisdiction" see Levin
v. U.S. (C.C.A. 1904) 128 Fed. REp. 826; U.S. v. Power (1877) 14
Blatchf. U.S. 223; Gladhill, Petitioner, (1844) 8 Met. (Mass.) 168;
Citizenship- Levy's Case, (1874) 14 Op. Atty. Gen. 509; Morgan v.
Dudley, (1857) 18 B. Mon. (Ky.) 693; U.S. v. Lehman, (1899) 39 Fed.Rep.
49; Ex p. Tweedy, (1884) 22 Fed. Rep. 34 Matter of Conner, (1870) 39
Cal. 98; People v. McGowan. (1875) 77 Ill. 649; People v. Sweetmen,
(Supm. Ct. Gen. T. 1857) ? Park. Crim. (N.Y.) 358; Ex p. McKenzie,
(1897) 51 S. Car. 244.
"If the court may exercise any part of that jurisdiction it is within
the language of the statute and within its meaning as well." U.S. v.
Power, (1877) 14 Blatchf. U.S. 223.
(18) As to a court without a clerk, see Dean, Petitioner, (1891) ?3 Me.
489; Ex p. Cregg, (1854) 2 Curt. U.S. 98; State v. Whittemore, (1870)
50N.H. 245; State v. Webster, (1878) 7 Web. 471; Gladhill, Petitioner,
(1844) 8 Met. (Mass.) 171.
The court must have a clerk distinct from the judge; not necessarily
an officer denominated clerk, but a permanent recording officer, charged
with the duty of keeping a true record of the doings of the court and
afterwards of authenticating them. Dean, Petitioner, (1891) 83 Me. 489.
(19) Omission of name not fatal. ex p. Smith. (1647) 8 Blackf. (Ind.)
395.
"An applicant for naturalization is a suitor, who, by his petition,
institutes a proceeding in a court of justice for the judicial
determination of an asserted right. Every such petition must, of course,
allege the existence of all facts, and the fulfillment of all
conditions. upon the existence and fulfillment of which the statutes
which confer the right asserted have made it dependent." In re Bodek,
(1894) 63 Fed. Rep. 813, 3 Pa. Dist. 725.
(20) 19 Stat. L., c. 5. p. 2, 5 Fed. Stat. Annot. 205.
(21) In re Langtry, (1887) 31 Fed. Rep. 879; Andres v. Arnold (1889) 77
Mich. 87.
The last named case discusses the location of the place at which the
clerk may take the declaration. See also Butterwortb, Applicant, (1846)
1 Woodb. & M. U.S. 323.
Proof of declaration Is made by production of the record or by due
certification thereof. In re Fronascone, (1900) 99 Fed. Rep. 48; State
v. Barrett, (1889) 40 Minn. 65; Berry v. Hull, (1892) 6 N. Mex. 643.
(22) Rev. Stat. U. S. Sec. 2168, 5 Fed. Stat. Annot. 205.
(23) Rev. Stat. U. S. Sec. 2167, 5 Fed. Stat. Annot. 206.
(24) Contzen v. U.S. (1900) 179 U.S. 195.
If he has lived in the United States five years when he attains the
age of twenty-one years, he may be admitted to citizenship the next day.
Schutz's Petition, (1886) 64 N.H. 241.
(25) U.S. Stat. L., Vol. 12, p. 597. This is now Sec.2166 of the Revised
Statutes. See 5 Fed. Stat. annot. 205.
(26) In re Bailey, (1872) 2 Sawy. U.S. 200; Berry v. Hull, (1892) 6 N.
Mex. 643.
(27) In re Bailey, (1872) 2 Sawy. U.S. 200; Berry v. Hull, (1892) 6 N.
Mex. 643.
(28) U.S. Stat. L., Vol. 28, p. 124, 5 Fed. Stat. Annot. 206.
(29) The fact t hat he cannot read or write does not make him
ineligible, if he is shown to be of good moral character. In re
Rodriquez, (1897) 81 Fed. Rep. 355. But a perjurer is ineligible. In re
Spenser, (1878) 5Sawy. U.S. 195; and a Socialist was rejected. Ex p.
Sauer, (1891) 81 Fed. REp. 355, note.
"Upon general principles it would seem that whatever is forbidden by
the law of the land ought to be considered, for the time being, immoral,
within the purview of this statute." In re Spenser4, (1878) 5 Sawy. U.S.
195.
(30) But a foreigner ignorant of the English language and who did not
know the name of the President, but thought that Washington was
President, was held ineligible. In re Kanska Nian, (1889) 6 Utah 259.
(31) See 5 Fed. Stat. Annot., p. 202, and the following cases cited: In
re Bodek, (1894) 63 Fed. Rep. 814; Lanz v. Randall, (1876) 4 Dill. U.S.
425; Baird v. Byrne, (1854) 3 Wall. Jr. (C. C.) 1; Johnson v. U.S.,
(1893) 29 Ct. Cl. 1; State v. Barrett, (1889) 40 Minn. 65; Matter of -,
(1845) 7 Hill (N. Y.) 137; In ew Spenser, (1878) 5 Sawy. U.S. 195; Ex
p. Sauer, (1891) 81 Fed. Rep. 355, note; Matter of Clark, (1854) 18
Barb. (N.Y.) 446; Citizenship- -Levy's Case, (1874) 14 Op. Atty. Gen.
509; Matter of Christern, (1878) 43 N. Y. Super. Ct. 623; McCarthy v.
Marsh. (l85l) 5 N.Y. 263; State v. Macdonald, (1877) 24 Minn. 48; Banks
v. Walker, (1848) 3 Barb. Ch. (N.Y.) 438; Sprat v. Spratt, (1830) 4 Pet.
U.S. 406; Green v. Salas (1887) 31 Fed. Rep. 106; Stark 9. Chesapeake
Ins. Co., (1813) 7 Cranch U.S. 420; The Acorn, (1870) 2 Abb.U.S.
434;People v. McGowan, (1875) 77 Ill. 644; Ritchie v. Putnam, (1835) 13
Wend. (N.Y.) 524; Com. v. Towles, (1835) 5 Leigh (Va.) 743; McDaniel v.
Richards, (1821) 1 McCord L. (S. Car.) 187; State v. Hoeflinger, (1874)
35 Wis. 393; Vaux v. Nesbit, (1826) 1 McCord Eq. (S. Car.) 352; In re
McCoppin, (1869) 5 Sawy. U.S. 630; Contzen v. U.S. (1900) 179U.S. 191;
Boyd v. Thayer, (1892) 143 U.S. 178; Blight v. Rochester, (1822) 7
Wheat. U.S. 546; Strickley v. HIll, (1900) 22 Utah 268; Hogan v. Kurtz,
(1876) 94 U.S. 773; Kreitz v. Behrensmeyer, (1888) 125 Ill. 141; People
v. McNally, (Supm. Ct. Spec. T. 1880) ?9 How. Pr. (N.Y.) 500; Sasportas
v. De la Motta, (1858) 10 RichEq. (S. Car.) 38; Nalle v. Fenwick, (1826)
4 Rand. (Va.) 585; Miller v. Reinhart, (1855) 18 Ga. 239; Belcer v.
Farren, (1891) ?9 Cal. 78; Matter of Desty, (N.Y. Super. Ct. Spec. T.
1880) 8 Abb. ". Cas. (N.Y.) 250; Prentice v. MIller, (1890) 82 Cal. 570;
Slade v. Minor, (1817) 2 Cranch (C.C.) 139; Gagnon v. U.S. (1902) ?8 Ct.
Cl. 10; Dryden v. Swinburne, (1882) 20 W. Va. 89; Navigation Laws,
(1883) 17 Op. Atty. Gen. 534; In re An Alien, (1842) 1?ed. Cas. No.
201a; Anonymous, (1846) 4 N.Y. Leg. Obs. 98, 1 "ed. Cas. No. 465; U.S.
v. Norsch, (1890) 42 Fed. REp. 417; U.S. v. Grottkau, (1887) 30 Fed.
REp. 672.
(32) Minor w. Hoppersett, (1874) 21 Wall. U.S. 142; U.S. Stat. L., Sec.
1994, 1 Fed. Stat. Annot. 786; Dorsey v. Brigham, (1898) 177 Ill. 250;
Kane v. McCarthy, (1869) 63 N. Car. 299.
Since the extension of the naturalization laws to persons of African
descent, this statutory provision is applicable to negro as well as
white women. Broadis v. Broadis, (1898) 66 Fed. Rep. 951.
(33) Rev. Stat. U.S. Sec. 2168, 5 Fed. Stat. Annot. 207.
(34) Ruckgaber v. Moore, (1900)104 Fed. Rep. 948.
(35) Leonard v. Grant, (1880)5 Fed. REp. 11; U.S. v. Kellar, (1882) 13
Fed. Rep. 82, (1882) 11 Biss. U.S. 314.
"No law expressly providing for a temporary or contingent citizenship
is known to the legislation of the United States, and so unusual and
singular a purpose ought not to be attributed to Congress without an
explicit provision to that effect." Leonard v. Grant (1880) 5 Fed.
Rep.11.
(36) Kelly v. Owen. (1868) 7 Wall. U.S. 496.
Notwithstanding the letter of the statute "might herself be lawfully
naturalized," it is only necessary that the woman should be a person of
the class or race permitted to be naturalized by existing laws. It is
not required that she should have the statutory qualifications as to
residence, conduct, and opinions. Being the wife of a citizen, she is
regarded as qualified for citizenship, and therefore is considered a
citizen. Leonard v. Grant, (1880) 5 Fed. Rep. 11.
(37) Headman v. Rose, (1879) 63Ga. 458.
(38) See (1874) 14Op. Atty.-Gen. 402; but see Ruckgaber v. Moore, (1900)
104 Fed. REp. 948.
(39) Burton v. Burton, (1864) 1 Keyes (N.Y.) 359; approved in Kelly v.
Owen, (1868) 7Wall. U.S. 496; Kane v. McCarthy, (1869) 63 N. Car. 299.
(40) Berthemy's Case, (1866) 12 Op. Atty.-Gen. 7.
(41) "Not only may a man be a citizen of the United Sates without being
a citizen of a State,but an important element is necessary to convert
the former into the latter. He must reside within the State to make him
a citizen of it, but it is only necessary that he should be born or
naturalized in the United States to be a citizen of the Union."
Slaughter-House Cases, (1872) 16 Wall. U.S. 36.

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CHAPTER III
OF THE OBLIGATION AND DUTIES OF THE CITIZEN
TO THE NATION AND THE STATES.
Allegiance.
The word allegiance is employed to express the obligation of fidelity
and obedience due by the individual, as a citizen, to his government,
in return for the protection he receives from it. Fidelity is evidenced
not only by obedience to the laws of one's country, and lip-service, but
by faithful disclosure to the government of the property owned by the
citizen, which, with that of other citizens, is subject to the burdens
necessary to sustain the government; by the payment of the citizen's
just share of taxation, and by responding with cheerfulness and alacrity
to all calls lawfully made by the government to bear arms or render
other personal service for the common defense and for the security of
the liberties and the general welfare of his State.
Obedience consists of respect for, observance of, and aid in
maintaining, the laws of the government.
The Different Kinds of Allegiance.
The books describe allegiance as arising in four ways:
1. Natural allegiance - that which arises by nature and birth.
2. Acquired allegiance - that arising by denization or
naturalization.
3. Local allegiance - that arising from temporary residence, however
short, in a country.(2)
4. Legal allegiance - that arising from oath.
Formal Compact Not Necessary to Create Allegiance.
It is by no means essential that a formal compact between a citizen
and his government shall exist in order to create the duty of
allegiance.(3) If a de facto government is established, overthrowing and
supplanting a de jure government and the citizen remains under the newly
established government, he assumes the duty of allegiance to it, which
always exists between the governing and the governed.(4) When a
government is changed, those disaffected do not owe immediate allegiance
to the changed authority, but should be allowed a reasonable time to
depart, and the court and jury should determine what is such reasonable
time(5)
Of Dual Allegiance.
The peculiar nature and constitution of our government has created a
dual allegiance on the part of our citizens; an allegiance due to the
national government and to the State government. In theory these two
have been, from the outset, entirely compatible with each other. In
practice, however, they gave rise to a great debate, which lasted over
seventy years, and culminated in one of the bloodiest civil wars in
history.
This controversy was primarily due to the following facts:
1. That the States which formed the Union were independent sovereign
States, entitled to the unqualified allegiance of their citizens,
before the Union existed.
2. That, whatever may have been the quality and priority of the
allegiance due to the Federal government by the citizens of the
States which formed the Union, that Federal allegiance was junior
in time to the allegiance which they owed to their States.
3. That by Amendment X to the Federal Constitution, adopted almost
simultaneously with the Constitution, all powers - not delegated
to the United States by the Constitution or prohibited by it to
the States were reserved to the States respectively, or to the
people; and
4. That although the question of the right of a State to withdraw
from the Union, if dissatisfied with its operations, was fully
considered and debated in the convention which framed the
Constitution, there was no expression in the instrument, as it
was finally adopted, definitely settling the existence or
nonexistence of that right, and it was left an open and debatable
question.
As a consequence, much confusion existed for many years, in the minds
of any citizens, upon the question whether, in an issue between the
State and the Nation, what was known in the debates of the period as
their paramount allegiance was due primarily to the State or to the
Nation by citizens of both. Without going further into that protracted
and bloody argument, it is sufficient to say that the views of citizens
upon the right of a State to withdraw from the Union and upon the
question whether, in such a crisis, the paramount allegiance of the
citizen was due to his State or to the Nation, differed so
irreconcilably in different sections of the Union that, when certain
States and their citizens attempted to withdraw or secede from the
Union, the attempt was resisted by the other States and their citizens
who still adhered to the United States, and a bloody civil war followed,
waged by the States which adhered to the Union, and in the name of the
United States, the outcome of which was that those who claimed that the
Union was an "an indissoluble Union of indestructible States," and that
paramount allegiance was due to the United States by every citizen,
completely triumphed, and that doctrine is now established beyond
question.
Since the great Civil War the oath of allegiance to the nation
administered to persons entering its military and naval service pledges
the party taking it that he will thenceforth bear true faith and
allegiance to the United States, and will support, protect, and defend
it against all enemies whatsoever, "foreign or domestic." For the peace
of the nation it would have been better if such an unqualified oath of
paramount allegiance had been exacted from all public servants from the
foundation of the government; for it is a historic fact that at the
outbreak of the great Civil War many persons who had for years been in
the military and naval service of the United States, a large proportion
of whom had been educated by the Federal government, had never been
called upon to take an oath of paramount allegiance to the United
States, and consequently felt at liberty to resign their position in the
Federal Service, and tender their services to their native States, under
the firm and conscientious conviction that the latter were entitled to
their paramount allegiance. Among them were men whose exalted lives and
spotless characters exclude all questions of purity of their motives,
and whose action only emphasizes the difficulty of discovering
conclusively and deciding where paramount allegiance was due under all
the circumstances.
Fortunately, this question, in the light of the arbitrament of war,
can never recur. Henceforth it must be conceded that, whenever the two
allegiances, Federal and State, of an American citizen, are in apparent
-conflict, the latter must yield to the former. There can be no such
thing, under our system, as allegiance to a State, in conflict with
allegiance to the Federal government.
Of Patriotism.
The spirit in the citizen that, originating in love of country,
results in obedience to its laws, the support and defense of its
existence, rights, and institutions, and the promotion of its welfare,
is called patriotism. The more unselfish and self-sacrificing is the
spirit displayed by the citizen the higher and more exalted his
patriotism. Such a citizen is called a patriot.
In the experience of governments, the citizens who evade bearing their
personal burdens of citizenship, or, when tested, lack courage to
discharge those burdens, are not so numerous as, and are much more
readily discovered than, those who evade the lawful burdens upon their
property, and who, by eloining it or concealing it where it cannot be
reached for taxation, cast the burden of taxation unduly upon their
fellow-citizens, while reaping a full share of benefits. Such citizens
are not a whit less faithless or detestable than the physical skulkers
or cowards. It is the citizen who yields the legitimate share of his
property, as well as the proper services of his person, to the lawful
demands of his country for support, who is the real patriot. Yet, partly
because the crime is not so apparent, and partly because of the power
of wealth to buy condonement of crime, the scorn of mankind has never
been visited as relentlessly upon the tax-dodger as upon the coward.
Of Treason.
The antithesis of allegiance and patriotism is treason. Treason is
defined as "a breach of allegiance to a government committed by one
under its protection."(6) Under the English law there were two kinds of
treason, high and petit. High treason embraced the crime which we
generally know as treason. Petit treason embraced sundry acts now
treated as distinct crimes, and when a servant killed his master, a wife
her husband, or an ecclesiastical person his superior.(7) In America we
have only simple treason.
By the Federal Constitution, treason is defined as follows: "Treason
against the United States shall consist only in levying war against
them, or in adhering to their enemies, giving them aid and comfort."(8)
The same instrument provides that the President and Vice-President and
all civil officers of the United Stated may be removed from office for
treason;(9) and it likewise rendered senators and representatives liable
to arrest for treason.10) But the Constitution expressly requires, for
conviction of treason, the testimony of two witnesses to the same overt
act, or a confession in open court. Our country has been singularly
blessed in the small number of prosecutions for treason. The decisions
have been correspondingly few.(11)
A whole chapter of the Revised Statutes, consisting of eight sections,
is devoted to "crimes against the existence of the government." The
crimes defined are treason, misprision of treason, inciting or engaging
in rebellion or insurrection, criminal correspondence with foreign
government, seditious conspiracy, recruiting soldiers or sailors to
serve against the United States, and enlistment to serve against the
United States. Of these crimes the punishment for treason and misprision
of treason were enacted in 1790, and the punishment for criminal
correspondence with foreign governments was enacted in 1799; all the
other offenses mentioned in the chapter and the punishments therefor
were declared by statutes enacted in 1861 and 1862 after the outbreak
of the great Civil War.(12) The federal decisions on the constitutional
and statutory offense of treason are very few,(13) and show within what
narrow limits the crime of treason is con&ed under our system.
Of misprision of treason, which consists in concealing, or in failing
to disclose and make known, the commission of the crime of treason, as
soon as may be, it is sufficient to say that but three cases are known
to the author in which the discussion of this crime has occurred.(14)
And as the other acts in the chapter on crimes against the existence
of the government were passed after the Civil War was flagrant, the
attempt to enforce them would have been in effect to make them ex post
facto laws, so that they were not vigorously enforced.(15)
Treason is often described in the books as the greatest crime known
to the law.(16) The individual guilty of treason is known as a
traitor.(17) Every citizen owes to his government support and loyalty
until he openly renounces his country and becomes a citizen or subject
of another country, or his government is supplanted by another in a
manner beyond his control. Thus if a de facto government is established
over him in a manner beyond his control, by which the de jure government
theretofore existing is entirely supplanted, that entitles the de facto
government to his allegiance, and to obey it is not treason to the de
jure government, even if that rightful or de jure government shall be
afterwards restored.(18) But the doctrine of the English law has not
always admitted the above rule, for in the celebrated case of General
Vane, who took no part in the execution of Charles I but subsequently
commanded the Parliamentary Army, it was held that his plea that the
Parliamentary government was de facto did not justify obedience to its
commands and Vune was executed.(19)
The law of treason in England is based on the English statute 25 Edw.
111, stat. 5, c. 5. The definition of treason in our Constitution,
Article III, Section 3, Clause 1, is taken from the third and fourth
sections of the English act.(20) The American courts have followed the
construction put upon the language by the English courts.(21)
The Constitution having defined the crime of treason, it is beyond the
power of Congress either to broaden or contract the definition of
treason, or
to punish as treason what is not defined to be treason in the
Constitution, or to fail to punish as treason what the Constitution
declares to be such.(22)
In some of the States the State constitution defines the crime of
treason against the States; in others it is left to the regulation of
statutes.(23) For example, in a former constitution of Alabama the
definition of treason was similar to that in the Constitution of the
United States. In a case arising in that State for aiding a rebellion
of Slaves, it was said that while the crime contained several, but not
all, of the elements of treason, it might be indicted as a separate
crime, since it did not fall within the constitutional definition of
treason.
In the State of Virginia, one of the oldest of the States, the
constitutions of the State have not attempted to define the crime of
treason against the State, but have left it to statutory enactment.
It has been held that the crime of constructive treason is not
recognized in the United States.(24)
Of Dual Treason.
A citizen may commit a dual act of treason, by reason of his act being
equally treasonable again at the distinct sovereignties of the Nation
and the State. The act may be a single act, yet the offenses against the
Nation and the State be distinct and punishable by both.
Treason against the United States is committed by invasion of national
sovereignty.(25) Treason against a State is committed by acts directed
against the sovereignty of the State, as an attempt to over throw the
State government.(26) It was said in U. S. v. Bollman,(27) that the
intention with which treason is committed determines the species of
treason, and that no injury, even if it extend to an attempt to oppose
and destroy the laws and government of any one of the States, will
amount to treason against the United States.
In the case of Ex p. Quarrier(28) it was said that if, by the act,
treason is committed against both State and Federal governments, the
traitor is liable to punishment by each sovereignty.
But in the case cited, a citizen of West Virginia, in the great
rebellion, waged war, as a Confederate soldier, against the United
Staten, and it was held that although West Virginia was a component part
of the Union his act was not treason against her, for treason against
her could only be committed by acts done directly against her State
government.
Perhaps the most widely known act of treason against both
sovereignties, in our country, is the celebrated but unreported case of
Virginia v. John Brown and others. In the year 1859, in a time of
profound peace, John Brown and a party of armed followers suddenly
appeared in the night time at Harper's Ferry, Virginia, seized the
United States arsenal and arms, and from that position, in which they
fortified themselves, sent forth small parties to seize Sundry citizens
of Virginia and to incite Virginia slaves to insurrection. While in
possession of the United States arsenal they fired upon citizens and
killed and wounded fifteen persons. It subsequently developed that they
were proceeding under a plan of government formulated in Canada, which
contemplated the liberation of the slaves and the installation of a
government wholly inconsistent with the existing government, Federal and
State. Both Federal and State authorities employed their military forces
to suppress this violent outbreak. The stronghold in which Brown and a
few companions had entrenched themselves, an engine house on the
Harper's Ferry arsenal reservation of the United States, was carried by
assault by a party of United States marines, under a heavy fire from
Brown and his party, and a marine wan killed before the insurgents were
captured.
The acts committed by Brown and his party fell clearly within all the
definitions of what constitutes the actual levying of war against the
United States. They had formed themselves into a body and marched with
weapons, offensive and defensive, with a public design that was
unmistakable. This had been held to constitute levying war.(29) They had
by force of arms seized, occupied, and appropriated an arsenal of the
United States, and turned its guns upon Federal authority, which was an
unequivocal act of war.(30) They had held it against the government.(31)
They had refused to surrender, and resisted, with murder, the attempt
of the government to re-possess itself of its property. All these
constituted treason against the United States.
Their offenses were equally treason against the State of Virginia,
whose laws denounced as treason, with the penalty of death, and without.
pardoning power in the executive, the acts of -
1. Establishing, without authority of the legislature, any government
in the State, or holding or executing in such usurped government any
office, or professing allegiance or fidelity to it;
2. Or resisting the execution of the laws, under color of its
authority.
3. Advising or conspiring with slaves to rebel or make insurrection,
or with any person to induce a slave to rebel or make insurrection,
whether such rebellion or insurrection be made or not.
The above laws had been on the statute-books of Virginia for many
years before this outbreak.
The prisoners were delivered over by the military forces of the United
States to the State authorities of Virginia, and were promptly tried for
treason against the State, convicted, condemned, and hanged; so that the
United States had no opportunity to prosecute them for the offense of
treason against itself. The excitement of the times upon the subject of
slavery was Ouch that, although the acts of John Brown and his
associates were plainly treason against the United States and the State
of Virginia, indefensible on any plea but that of insanity, and although
Brown himself refused to allow that plea to be interposed in his behalf,
and declared that he had a fair trial, his execution was denounced as
an act of murder by many anti-slavery people, and he is still canonized
in "John Brown the Martyr."
The Elements of the Offense.
All the book's concur that an act of treason is composed of two
elements, to wit: the intention, and the overt act.(32) The intent alone
is not sufficient to constitute treason. Nor are mere words, whether
spoken, written, or printed, of themselves treason.(33) Words spoken are
admissible to establish treasonable intent, but little weight is to be
attached to the mere declaration of a party.(34)
What constitutes an overt act has been the subject of much discussion.
An overt act is undoubtedly essential to the levy of war. To that there
must be a combination or association of people united by a common
purpose in a conspiracy directed against the government.(35)
The time of the formation of a treasonable design is immaterial. The
preconcerted action to which a number of people are privy is a necessary
element of an intention to levy war. The conspiracy may be proven either
by the declarations of the individuals or by proof of the proceedings
at the meetings. After proof of the conspiracy to effect a treasonable
design the deed of one, in pursuance of that design, is the act of
all.(36)
The overt act contemplated by the language of the Constitution is
generally the actual employment of force by a collection of men; but,
all preparatory arrangements having been completed, the assembling of
a number of men to execute the treasonable design is an overt act of
levying war. Not so, however, unless they are in condition to carry out
their treasonable design. (37)
The quantum of the force employed is immaterial. This is generally
displayed by the use of employment of arms and military array, but these
are not indispensably requisite.(38) There must, however, be in all
cases some unequivocal act of resistance, which, in its nature, shows
a purpose to resort, if necessary, to conflict with the government.(39)
The seizure of a fort or arsenal by a body of men;(40) holding the
same;(41) the mere cruising of an armed vessel, though no ships are
encountered;(42) the marching of a body of men immediately to perform
their treasonable design; the moving from a particular to a general
place of rendezvous, are all unequivocal acts of levying war. The design
need just be to overthrow the entire government. It is sufficient if it
contemplates the overthrow of government or the suppression of laws in
a particular locality, or even the coercion of the government in state
matters or acts of sovereignty.(43) If the demonstration be only to
subserve some private purpose, such as individual profit, the removal
of a particular nuisance, a private quarrel, or a demonstration of the
strength and number of a political party to procure the liberation or
mitigation of punishment of political prisoners, the offense is not
treason.(44)
While rioting and the levying of war against the government are
closely allied, there is a distinction. In riots the object of the
disturbances is to satisfy a particular grievance; in treason the
intention is to overthrow the government.(45) The question is always one
of intention, to be gathered from the particular transaction. The
English doctrine of constructive levying of war, which holds various
forms of rioting to be in effect levying war against the government, has
not been favorably regarded by the American judiciary. It was thought
to be too great a stretch of the constitutional definition of treason,
and in the case of United States v. Hanway (supra) Mr. Justice Grier
said: "The better opinion there [in England] at present seems to be that
the term "Levying war" should be confined to insurrections and
rebellions for the purpose of overturning the government by force and
arms. Many of the cases of constructive treason quoted by Foster, Hale,
and other writers would perhaps now be treated merely as aggravated
riots or felonies."
The words "adhering to enemies" have received frequent
construction.(46) The term "enemies, of as used in the Constitution,
applies only to the subjects of a foreign power in a state of open
hostility to this country. The inhabitants of a neutral country may, by
participation in acts of hostility, become enemies, but they are so
regarded only while so engaged. Even upon capture neutrals cease to be
enemies, and become entitled to the rights of subjects of a neutral
country.(47)
The words "adhering," "giving aid and Comfort," have also been
construed. Joining the enemy during time of war is a most emphatic way
of giving aid and comfort to the enemy.(48) Nothing can excuse that
offense except compulsion under fear of immediate death.(49) The burden
of proof in such case is on the accused. He must prove not only
coercion, but that he quitted the enemy's service as soon as possible.
Giving aid and comfort to the enemy, such as supplying to the enemy
arms, ammunition, provisions, etc., is evidence of lack of loyalty. Any
material assistance to enemies or rebels is treason.(50)
Communicating with or advising the enemy, or furnishing him with
valuable information, even where the letters are intercepted, is an act
of treason.(51) And delivering a fort by bribery or other sympathy with
the enemy is direct assistance to the enemy.(52) It is otherwise when
such an act is the result of cowardice or imprudence. Even that act is,
however, punishable by martial law. Cruising on an armed vessel which
belongs to the hostile country is an overt act of aid and comfort to the
enemy. All of the above instances being necessarily direct attacks on
his government by the citizen, his motive is immaterial.(53)
Treason being a crime peculiar in its nature, to which there is not
attached the odium or disrepute connected with other felonies,, evidence
tending to show former good reputation has not the same weight as it may
have in ordinary crimes, like burglary or arson, as tending to show the
improbability of the prisoner's commission of the offense, since the
purest motives indulged in by the most honorable men are not
inconsistent with the offense of treason. This was said in Dammaree's
Case.(54) But it is not a satisfactory reason. For more odium and
disrepute are attached to the crime of treason than to any other known
to the law. It is true that it is a peculiar crime and has sometimes
manifested itself in men who, prior to its commission, had seemed above
such baseness; whereas the commission of burglary or arson is generally
the culmination of a previously bad record. And this is about all that
can be said of the reason for the distinction.
Consideration of the evidence required to prove treason, and of the
defense, is omitted as beyond the scope of this treatise, and the
subject may be concluded with the remark that treason is a crime of so
high a nature that it does not admit of accessories but all who are in
any way connected with it are principals.(55)
FOOTNOTES
(1) Funk & Wagnall's Standard Dictionary; Carlisle v. U.S. (1872) 16
Wall. U.S. 147; U.S. Greiner, (1861) 4 Phila. (Pa.) 306, 18 Leg. Int.
(Pa.) 149, 26 Fed. Cas. No. 15,262; Calvin's Case, 7 Coke 1; State v.
Hunt. (1834) 2 Hill L (S. Car.) 1; U.S. v. Greathouse, (1862) 2 Abb.U.S.
364; Chargeto Grand Jury, (1861) 1Sprague U.S. 602; Bouvier's Law
Dictionary, tit. Treason; Foster's Crown Law, 183.
(2) Am. & Eng. Encyc. of Law, p. 148, (2d Ed.) . Brown's Law Dictionary
(Sprague's Ed.) ; Powers of Congress, (1855) 8 Op. Atty.-Gen. 139;
Rights of Expatriation, (1859) 9 Op. Atty.-Gen. 356; Carlisle v. U.S.,
(1872) 16 Wall. U.S. 147; Inglis v. Sailor's Snug Harbor, (1830) 3 Pet
U.S. 155; Jackson v. Goodell. (1822) 20 Johns (N.Y.) 188; 1 Blackstones
Com. 366. Allegiance is often spoken of as fealty. Wallace v. Harmstad,
(1863) 44 Pa. St. 501. Nature of alien's allegiance to country of his
residence. 1 East p. C. c. 2, Sec. 4; 1 Hale P. C. 10; Foster's Crown
Law Discourse, Sec. 2; 2 Kent's Com. 63-64; Carlisle v. U.S., (1872) 16
Wall. U.S. 147; Homestead Case, (1892) I Pa. Dist. 785; The Schooner
Exchange v. M'Faddon, (1812) 7 Cranch U.S. 116; Ex p. Rey-nolds, (1879)
5 Dill. U.S. 394; Ex p. Thompson, (1824) 3 Hawks (N. Car.) 362.
(3) Respublica v. Chapman, (1781) 1 Dall. (Pa.) 53.
(4) Thorington v. Smith, (1868) 8 Wall. U.S. 1; Respublica v. Chapman,
(1781) 1 D&IL 4Pa.) 53. The Confederate government never a true de facto
government, Keppel w. Petersburg R. Co., (1868) Chase U.S. 167, 14 Fed.
Cas. No. 7,722; Sprott v. U.S., (1874) 20 Wall. U.S. 459; Shortridge v.
Macon, (1867) Chase U.S. 136. The vanquished owe allegiance to the
victor, Hanauer v. Woodruff. (1872) 15 Wall U.S. 439; U.S. v. Rice,
(1819) 4 Wheat. U.S. 246; Thorington v. Smith, (1868) 8 Wall. U.S. 1.
Duration of victor's sovereignty coextensive with bis absolute control,
Fleming v. Page, (1850) 9 How. U.S. 603.
In such a cases the inhabitants pass under a temporary allegiance to
the de facto government, and are bound by such laws, and such only, as
it chooses to recognize and impose. From the nature of the case, no
other laws can be obligatory upon them, for where there is no protection
or allegiance or sovereignty, there can be no claim to obedience. Per
Story, J., in U. S. v. Rice. (1819) 4 Wheat U.S. 246.
(5) Respublica v. Chapman, (1781) 1 Dall. (Pa.)53.
(6) 28 Ain. & Eng. Encyc. of Law, 457; Rex w. Cranburne. (1696) 13 How.
St. Tr. 227; Rex v. Vaughan, (1696), 13 How. St. Tr. 526; U. S. v.
Wiltberger, (1820) 5 Wheat. U.S. 76; Respublica v. Chapman, (1781) 1
Dall. (Pa.) 53; 1 Hales' Pleas of Crown, 48; U.S. v. Greiner, (1861) 4
Phila.(Pa.) 396; 18 Leg.Int.(Pa.) 149; 26Fed. Cases No. 15,262.
(7) 28 Am. & Eng. Encyc. of Law p. 458; State W. Bilansky, 3 Minn. 246.
(8) U. S. Const. Art.. III, See. 3, Cl. 1.
(9) U. S. Const. Art. II, Sec. 4. Cl. 1.
(10) U. S. Const.. Art I. Sec. 6, Cl. 1.
(11) U.S. v. Insurgents, (1796) 2 Dall. U.S. 336; U.S. v. Mitchell,
(1795) 2 Dall. U.S. 348; Ex p. Bollman, (1807) 4 Cranch U.S. 76; Burr's
Trial, 4 Cranch U.S. 469.
(12) Rev. Stat. U.S., Title LXX, Ch. 2, Secs. 5331-5338.
(13) U.S. v. Insurgents, (1795) 2 Dall. U.S. 335; U.S. v. Mitchell,
(1795) 2 Dall. U.S. 348; U.S. v. Villato. (1797) 2 Dall. U.S. 370; Ex
p. Bollman.(1887) 4 Cranch U.S. 75; U.S. v. Pryor, (1814) 3 Wash. U.B.
234; U.S. v. Hanway, (1851) 2 Wall. Jr. (C. C.) 139; 1 Burr's Trial,
14-16; 2 Burr's trial, 402, 405, 417; U.S. v. Hoxie, (1808) 1 Paine U.S.
265; U.S. v. Greathouse, (1863) 2 Abb. U.S. 384; Confiscation Cases,
(1873) 20 Wall. U.S. 92; Wallach v. Van Riswick, (1876) 93 U.S. 274;
(14) U.S. v Wiltberger, (1820) 5 Wheat. U.S. 97; Confiscation
Cases,(1872) 1 Woods U.S.221; U.S. v. Tract of Land.(1871)1 Woods U.S.
475.
"Since the adoption of the Constitution but few Cases of indictment
for treason have occurred, and most of them not many years afterwards."
U.S. v. Hanaway, (1851) 2 Wall. Jr. (C. C.) 201.
(15) Ex p. Lange, (1873) 18 Wall. U.S. 163.
(16) U.S. v. Hoxie, (1808) I Paine U.S. 265; Charge to Grand Jury,
(1851) 2 Curt U.S. 630. 30 Fed. Cases No. 18,269; Charge to Grand Jury,
(1861) I Bond U.S. 600; Charge to Grand Jury, (1861) 4 Baltchf. U.S.
518, 30Fed. Cases No. 18,720.
"Under the laws of the United States, the highest of all crimes is
treason. It must be so in every civilized state; not only because the
first dutyr ofa state is self-preservation, but because this
crimenaturally leads to and involves many others destructiveof the
safety of individualsand of the peace and welfare of society." Charge
to Grand Jury, (1851) 2Curt. U.S. 633.
(17) U.S. v. Burr, (1807) 25 Fed. Cases No. 14,693.
(18) Thorington v. Smith, (1868) 8 Wall. U.S. 1; Respublica v. Chapman,
(1781) 1Dall. (Pa.) 53; Keppel v. Petersburg R. Co., (1868) Chase U.S.
167, 14 Fed. Cases No. 70,722.
(19) (1662) J. Kel. 14, 6 How. St. Tr. 119.
(20) U.S. v. Burr, (1807) 25 Fed. Cases No. 14,693.
"The clause was borrowed from an ancient English statute, enacted in
the year 1352, in the reign of Edward the Third, commonly known as the
Statute of Treasons. Previous to the passage of that statute, there was
great uncertainty as to what constituted treason. Numerous offences were
raised to its grade by arbitrary construction of the law. The statute
was passed to remove this uncertainty, and to restrain the power of the
crown to oppress the subject by constructions of this character. It
comprehends all treason under seven distinct branches. The framers of
our constitution selected one of these branches, and declared that
treason against the United states should be restricted to the acts which
it designates." U.S. v. Greathouse, (1863) 2 Abb. U.S. 371.
(21) U.S. v. Hoxie, (1808) 1 Paine U.S. 265; Charge to Grand Jury,
(1851) 2 Curt.U.S. 630, 30 Fed Cases No. 18,269; U.S. v. Greiner, (1861)
4 Phila. (Pa.) 515; U.S. v. Greathouse, (1863) 2 Abb. U.S. 364; U.S.
v.Hanaway, (1851) 2 Wall. Jr. (C.C.) 200.
"The term [levying war] is not for the first time applied to treason
by the Constitution of the United States. It is a technical term. It is
used in a very old statute of that country whose language is our
language, and whose laws form the substratum of our laws. It is scarcely
conceivable that the term was not employed by the framers of our
Constitution in the sense which had been affixed to it by those from
whom we borrowed it." Per Marshall, C.J.in U.S. v. Burr, (1807) 25 Fed.
Cases No. 14,693.
"These terms, `levying war,'` adhering to enemies,' `giving them aid
and comfort,' were not new. They had been well known in English
jurisprudence at least as far back as the reign of Edward III. They had
been frequently the subject of judicial exposition, and their meaning
was to a great extent well settled." Charge to Grand Jury, (1861) 1
Sprague U.S. 603.
(22) U.S. v. Greathouse, (1863) 2 Abb. U.S. 371; U.S. v. Fries, (1799)
3 Dall. (Pa.) 515, 9 Fed. Cases No. 5,126; Homestead Case, (1892) 1 Pa.
Dist. 785.
(23) State v. McDonald, (1837) 4 Port. (Ala.) 449.
(24) Ex p. Bollman, (1807) 4CranchU.S. 75.
"The framers of our Constitution, who not only defined and limited the
crime, but with jealous circumspection attempted to protect their
limitation by providing that no person should be convicted of it, unless
on the testimony of two witnesses to the same overt act, or on
confession in open court, must have conceived it more safe that
punishment in such cases should be ordained by general laws, formed upon
deliberation, under the influence of no resentments, and without knowing
on whom they were to operate, than that itshould be inflicted under the
influence of those passions which the occasion seldom fails to
excite,and which a flexible definition of the crime, or a construction
which would render it flexible, might bring into operation. It is,
therefore, more safe as well as more consonant to the principles of our
Constitution, that the crime of treason should not be extendedby
construction to doubtful cases; and that crimes not clearly within the
constitutional definition, should receive such punishment as the
legislature in its wisdom may provide." Per Chief Justice Marshall, in
Ex p. Bollman,(1807) 4 Cranch U.S. 127.
(25) U.S. v. Hoxie, (1808) 1 Paine U.S. 265.
(26) charge to GrandJury, (1842) 1 Story U.S. 614; People v. Lynch,
(1814) 11 Johns. (N.Y.) 550; Ex p. Quarrier, (1866) 2 W. Va. 569.
(27) (1807) 4 Cranch U.S. 127.
(28) (1866) 2 W. Va. 569.
(29) Rexv. Vaughn, (1696) 13How. St. Tr.531.
(30) Charge to Grand Jury, (1861) 1 Sprague U.S. 602; Charge to Grand
Jury, (1861) 4 Blatchf. U.S. 518, 30 Fed. Cases No. 18,720.
(31) Foster's Crown Law, 208.
(32) U.S. v. Hanway, (1851) 2 Wall. Jr. (C.C.) 169; U.S. v. Pryor,
(1814) 3 Wash. U.S. 234; Law of Treason, (1842) 1 Story U.S. 614; Reg.
v. Gallagher. (1883) 15 Cox (C. C.) 291; Rex v. Stone, (1796) 6 T. R.
527; Case of Armes, (1596) Popham 121, Foster 208; Reg. v. Frost, (1939)
9 C. & P. 129, 38 E.C.L. 70.
"The plain meaning of the words 'overt act' as used in the
Constitution and the statute, is an act of a character susceptible of
clear proof, and not resting in mere inference or conjecture. They were
intended to exclude the possibility of a conviction of the odious crime
of treason, upon proof of facts which were only treasonable by
construction or inference, or which have no better foundation than mere
suspicion." Charge to Grand Jury, (1861) I Bond U.S. 611, 30 Fed. Cases
No. 18,272.
(33) Law of Treason, (1861) 6 Blattchf. U.S. 649; Charge to Grand Jury,
(1861) I Bond U.S. 609; State v. M'Donald. (1837) 4 port. (Ala.) 449;
Chichester v. Philips, (1680) T. Raym. 404.
"The intention, being the chief constituent of the offense, must be
proved by some developmout of less equivocal import" Stato v. M'Donaid.
(1837) 4 Port. (Ala.) 449.
(34) Rex v. Cook, (1696) 13 How. St. Tr. 391.
(35) Reg. v. Frost. (1839) 9 C. & P. 129, 38 E.C.L. 70.
(36) Rex v. Regicides, (1660) 5 How. St. Tr. 1224; Reg. V. McCafferty.
(1867) 10 Cox C. C. 603; Rex v. Dammaree, (1710) 15 How. St. Tr. 609.
(37) U. S. v. Burr, (1807) 25 Fed. Cases No. 14,693.
(38) Messenger's Trial, J. Kel. 70, and cases above cited.
(39) Hawk. P. C. 55, and cases of U.S. v. Burr and others above cited.
(40) Charge to Grand Jury. (1881) I Sprague U.S. 602; Charge to Grand
Jury, (1861) 4 Blatchf. U.S. 518 , 30 Fed. Cases No. 18,270.
(41) Foater'p Crown Law 208.
(42) U.S. v. Greiner, (1861) 4 Phila. (Pa.) 396, 18 Leg. Int. (Pa.)149;
Rex v. Vaughn, (1696) 13 How. St. Tr. 486.
(43) U.S. v. Greathouse, (1863) 2 Abb. U.S. 364; Charge to Grand Jury,
(1842) 1 Story U.S. 614; Homestead Case, (1892) 1 Pa. Dist. 785; U.S.
v. Vigol, (1795) 2 Dall. U.S. 346; Ex p. Bollman, (1807) 4 Cranch U.S.
75.
" In respect to the treasonable desigu, it is not necessary that it
should be a direct and positive intention entirely to subvert or
overtthrow the government. It will be equally treason, if the intention
is by force to prevent the execution of any one or more general and
public laws of the government, or to resist the exercise of any
legitimate authority of the government in its sovereign capacity."
Charge to Grand Jury. (1942) 1 Story U.S. 616.
(44) U.S. v. Hanway, (1851( 2Wall. Jr.(C.C.) 205, and cases above cited.
(45) 1 Hale P.C. 145.
"When the object of an insurrection is of a local or private nature,
not having a direct tendency todestroy all property and all government
by numbers and armed forces, itwill not amount to treason;and in these
and other cases that occur, the true criterion is the intention with
which the parties assembled." U.S. v. Hoxie, (1808) 1 Paine U.S. 271.
(46) Rex v. Vaughn, (1696) 13How. St. Tr. 525; Charge to Grand Jury,
(1861) 1 Sprague U.S. 607.
(47) Sparenburgh v. Bannatyne, (1797) 1 B.&P. 163.
The character of alien enemy arises from the party being under the
allegiance of the state at war with us; the allegiance being permanent,
the character is permanent, and on that ground he is alien enemy,
whether in or out of prison. But a neutral, whether in or out of prison,
cannot, for that reason, be an alien enemy; he can be alien enemy only
with respect to what he is doing under a local or temporary allegiance
to a power at war with us. When the allegiance determines, the character
determines. Sp[arenburgh v. Bannatyne, (1797) 1 B. & P. 163.
"The term `enemies' as used in the second clause, according to its
settled meaning at the time the Constitution was adopted, applies only
to the subjects of the foreign power in a state of open hostility with
us. It does not embrace rebels in insurrection against their own
government. An enemy is always the subject of a foreign power who owes
no allegiance to our government or country." U.S. v. Greathouse, (1863)
2 Abb. U.S. 372, per Field, J.
The duty of allegiance to the United States owed by a citizen of one
of the southern States, at a time when its revolutionary secession was
threatened buthad not been consummated, could not be affected by any
convicted or forced allegiance to the State. He could not then, as a
citizen of the State, pretend to be a public enemy of the United States,
in any sense of the word "enemy" which distinguishes its legal meaning
from that of traitor. U.S. V.Greiner, (1861) 4 Phila. (Pa.) 396, 18 Leg.
Int. (Pa.) 149.
(48) Gordon's Case, (1746) 1East P.C. 71; M'Growther's Case(1746)1East
P.C. 71, Foster's Crown Law 13; U.S. v. Greiner, (1861) 4 Phila.
(Pa.)396, 18 Leg. Int. (Pa.) 149.
"The words in the definition, `adhering to their enemies,' seem to
have no special significance, as the substance is found in the words
which follow - `giving them aid and comfort.'" Charge toGrand Jury,
(1861) 1 Bond U.S. 609.
"In general, when war exists, any act clearly indicating a want of
loyalty to the government, and sympathy with its enemies, and which, by
fair construction, is directly in furtherance of their hostile designs,
gives them aid and comfort. Or, if this be the natural effect of the
Act, though prompted solely by the expectation of pecuniary gain, it is
treasonable in character." Charge to Grand Jury, (1861) 1Bond U.S. 611,
30 Fed. Cases No. 18,272.
(49) Hawk, P.C. 54; Respublica v. M'Carthy, (1781) 2 Dall. (Pa.) 86;
U.S. v. Vigol, (1796) 2 Dall. U.S. 346; Trial of Regicides, J. Kel.13.
"In the eye of the law, nothing will excuse the act of joining an
enemy but the fear of immediate death; not the fear of any inferior
personal injury, nor the apprehension of any outrage upon property."
Respublica, v. M'Carty, (1781) 2Dall. (Pa.) 88.
(50) Fosters' Crown Law, 217; U.S. v. Pryor, (1814) 3 Wash. U.S. 234;
U.S. v. Burr, (1807) 25Fed. Cases No. 14,693; Charge to Grand Jury,
(1861) 1 Bond U.S. 696, 30 Fed. Cases No. 18,272; Hanauer v. Doane,
(1870) 12 Wall. U.S. 347; Carlisle v. U.S., (1872) 16Wall. U.S. 147.
"He who, being bound by his allegiance to a government, sells goods
to the agent of an armedcombination to overthrow that government,
knowing that the purchaser buys them for that treasonable purpose, is
himself guilty of treason or a misprision thereof. He voluntarily aids
the treason. He cannot be permitted to stand on the nice metaphysical
distinction that, although he knows that the purchaser buys the goods
for the purpose of aiding the rebellion, he does not sell them for that
purpose. The consequence of his acts are too serious and enormous to
admit of such a plea. He must be taken to intend the consequences of his
own voluntary act." Hanauer v. Doane, (1870) 12 Wall. U.S. 342; see also
Crlisle v. U.S. (1872) 16 Wall. U.S. 147.
(51)Foster's CrownLaw, 217; Rex v. Gregg,(1708) 14How. St.Tr.1376.
(52) 1 Hale P.C.168.
(53) Charge to Grand Jury,(1861) 1 Bond U.S.609, 30 Fed. Cases No.
18,272; Hanauer v.Doane, (1870) 12 Wall. U.S. 342; Sprott v. U.S. (1874)
20 Wall. U.S. 450; Carlisle v. U.S.(1872) 3 Wash. U.S. 147.
The motives by which a prisoner in the hands of the enemy, seeking
means of escape, was induced to attempt the commission of an act
constituting the crime of treason, and by which there are the strongest
reasons to believe that he was most sincerely actuated, would certainly
palliate the enormity of the crime. U.S. v. Pryor, (1814) 3 Wash. U.S.
234.
(54) Rex v. Dammaree, (1710)15 How. St. Tr.604.
(55) As respects the order of trial, however, the whole reason of the
law, relative to the principal and the accessory, seems to apply in full
force to a case of treason committed by one body of men in conspiracy
with others who are absent. Whether the adviser of an assemblage be
punishable with death as a principal oras an accessory, his liability
to punishment depends upon the degree of guilt attached to an act which
has been perpetrated by others; and which, if it be a criminal act,
renders them guilty also. His guilt, therefore, depends on theirs; and
their guilt cannot be legally established in a prosecution against him.
Per Marshall, C.J., in U.S. v. Burr, (1807) 25 Fed. Cases No. 14,693.
For a valuable citation of authorities concerning the elements
conditioning treason, the proofs necessary to establish it, and the
defenses thereto, see Vol. 28, Am. & Eng. Encyc. of Law (2d Ed.)
457-471.

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Civil Liberties in Cyberspace:
When does hacking turn from an exercise
of civil liberties into crime?
by Mitchell Kapor
published in Scientific American,
September, 1991.
On March 1, 1990, the U.S. Secret Service raided the offices of Steve
Jackson, an entrepreneurial publisher in Austin, Tex. Carrying a
search warrant, the authorities confiscated computer hardware and
software, the drafts of his about-to-be-released book and many business
records of his company, Steve Jackson Games. They also seized the
electronic bulletin-board system used by the publisher to communicate
with customers and writers, thereby seizing all the private electronic
mail on the system.
The Secret Service held some of the equipment and material for months,
refusing to discuss their reasons for the raid. The publisher was forced
to reconstruct his book from old manuscripts, to delay filling orders
for it and to lay off half his staff. When the warrant application was
finally unsealed months later, it confirmed that the publisher was
never suspected of any crime.
Steve Jackson's legal difficulties are symptomatic of a widespread
problem. During the past several years, dozens of individuals have been
the subject of similar searches and seizures. In any other context, this
warrant might never have been issued. By many interpretations, it
disregarded the First and Fourth Amendments to the U. S. Constitution,
as well as several existing privacy laws. But the government proceeded
as if civil liberties did not apply. In this case, the government was
investigating a new kind of crime -- computer crime.
The circumstances vary, but a disproportionate number of cases share a
common thread: the serious misunderstanding of computer-based communi-
cation and its implications for civil liberties. We now face the task
of adapting our legal institutions and societal expectations to the
cultural phenomena that even now are springing up from communications
technology.
Our society has made a commitment to openness and to free
communication. But if our legal and social institutions fail to adapt
to new technology, basic access to the global electronic media could be
seen as a privilege, granted to those who play by the strictest rules,
rather than as a right held by anyone who needs to communicate. To
assure that these freedoms are not compromised, a group of computer
experts, including myself, founded the Electronic Frontier Foundation
(EFF) in 1990.
In many respects, it was odd that Steve Jackson Games got caught up in a
computer crime investigation at all. The company publishes a popular,
award-winning series of fantasy roleplaying games, produced in the
form of elaborate rule books. The raid took place only because law
enforcement officials misunderstood the technologies -- computer
bulletin-board systems (BBSs) and on-line forums -- and misread the
cultural phenomena that those technologies engender.
Like a growing number of businesses, Steve Jackson Games operated an
electronic bulletin board to facilitate contact between players of its
games and their authors. Users of this bulletin-board system dialed in
via modem from their personal computers to swap strategy tips, learn
about game upgrades, exchange electronic mail and discuss games and
other topics.
Law enforcement officers apparently became suspicious when a Steve
Jackson Games employee -- on his own time and on a BBS he ran from his
house -- made an innocuous comment about a public domain protocol for
transferring computer files called Kermit. In addition, officials
claimed that at one time the employee had had on an electronic
bulletin board a copy of Phrack, a widely disseminated electronic publi-
cation, that included information they believed to have been stolen from
a BellSouth computer.
The law enforcement officials interpreted these facts as unusual
enough to justify not only a search and seizure at the employee's
residence but also the search of Steve Jackson Games and the seizure of
enough equipment to disrupt the business seriously. Among the items
confiscated were all the hard copies and electronically stored copies of
the manuscript of a rule book for a role-playing game called GURPS
Cyberpunk, in which inhabitants of so-called cyberspace invade
corporate and government computer systems and steal sensitive data.
Law enforcement agents regarded the book, in the words of one, as "a
handbook for computer crime."
A basic knowledge of the kinds of computer intrusion that are
technically possible would have enabled the agents to see that GURPS
Cyberpunk was nothing more than a science fiction creation and that
Kermit was simply a legal, frequently used computer program.
Unfortunately, the agents assigned to investigate computer crime did not
know what -- if anything -- was evidence of criminal activity.
Therefore, they intruded on a small business without a reasonable
basis for believing that a crime had been committed and conducted a
search and seizure without looking for "particular" evidence, in vi-
olation of the Fourth Amendment of the Constitution.
Searches and seizures of such computer systems affect the rights of
not only their owners and operators but also the users of those systems.
Although most BBS users have never been in the same room with the
actual computer that carries their postings, they legitimately expect
their electronic mail to be private and their lawful associations to
be protected.
The community of bulletin-board users and computer networkers may be
small, but precedents must be understood in a greater context. As
forums for debate and information exchange, computer-based bulletin
boards and conferencing systems support some of the most vigorous
exercise of the First Amendment freedoms of expression and association
that this country has ever seen. Moreover, they are evolving rapidly
into large-scale public information and communications utilities.
These utilities will probably converge into a digital national public
network that will connect nearly all homes and businesses in the U.S.
This network will serve as a main conduit for commerce, learning,
education and entertainment in our society, distributing images and
video signals as well as text and voice. Much of the content of this
network will be private messages serving as "virtual" town halls,
village greens and coffeehouses, where people post their ideas in public
or semipublic forums.
Yet there is a common perception that a defense of electronic civil
liberties is somehow opposed to legitimate concerns about the
prevention of computer crime. The conflict arises, in part, because
the popular hysteria about the technically sophisticated youths known as
hackers has drowned out reasonable discussion.
Perhaps inspired by the popular movie _WarGames_, the general public
began in the 1980s to perceive computer hackers as threats to the
safety of this country's vital computer systems. But the image of
hackers as malevolent is purchased at the price of ignoring the
underlying reality -- the typical teenage hacker is simply tempted by
the prospect of exploring forbidden territory. Some are among our best
and brightest technological talents: hackers of the 1960s and 1970s,
for example, were so driven by their desire to master, understand and
produce new hardware and software that they went on to start companies
called Apple, Microsoft and Lotus.
How do we resolve this conflict? One solution is ensure that our scheme
of civil and criminal laws provides sanctions in proportion to the
offenses. A system in which an exploratory hacker receives more time in
jail than a defendant convicted of assault violates our sense of
justice. Our legal tradition historically has shown itself capable of
making subtle and not-so-subtle distinctions among criminal offenses.
There are, of course, real threats to network and system security. The
qualities that make the ideal network valuableQits popularity, its
uniform commands, its ability to handle financial transactions and its
international access -- also make it vulnerable to a variety of
abuses and accidents. It is certainly proper to hold hackers
accountable for their offenses, but that accountability should never
entail denying defendants the safeguards of the Bill of Rights,
including the rights to free expression and association and to free-
dom from unreasonable searches and seizures.
We need statutory schemes that address the acts of true computer crim-
inals (such as those who have created the growing problem of toll and
credit-card fraud) while distinguishing between those criminals and
hackers whose acts are most analogous to noncriminal trespass. And we
need educated law enforcement officials who will be able to recognize
and focus their efforts on the real threats.
The question then arises: How do we help our institutions, and
perceptions, adapt? The first step is to articulate the kinds of values
we want to see protected in the electronic society we are now shaping
and to make an agenda for preserving the civil liberties that are
central to that society. Then we can draw on the appropriate legal
traditions that guide other media. The late Ithiel de Sola Pool argued
in his influential book Technologies of Freedom that the medium of
digital communications is heir to several traditions of control: the
press, the common carrier and the broadcast media.
The freedom of the press to print and distribute is explicitly
guaranteed by the First Amendment. This freedom is somewhat limited,
particularly by laws governing obscenity and defamation, but the thrust
of First Amendment law, especially in this century, prevents the
government from imposing "prior restraint" on publications.
Like the railroad networks, the telephone networks follow common-car-
rier principles -- they do not impose content restrictions on the
"cargo" they carry. It would be unthinkable for the telephone company to
monitor our calls routinely or cut off conversations because the
subject matter was deemed offensive.
Meanwhile the highly regulated broadcast media are grounded in the
idea, arguably mistaken, that spectrum scarcity and the pervasiveness
of the broadcast media warrant government allocation and control of
access to broadcast frequencies (and some control of content). Access
to this technology is open to any consumer who can purchase a radio or
television set, but it is nowhere near as open for information
producers.
Networks as they now operate contain elements of publishers,
broadcasters, bookstores and telephones, but no one model fits. This
hybrid demands new thinking or at least a new application of the old
legal principles. As hybrids, computer networks also have some features
that are unique among the communications media. For example, most
conversations on bulletin boards, chat lines and conferencing systems
are both public and private at once. The electronic communicator speaks
to a group of individuals, only some of whom are known personally, in a
discussion that may last for days or months.
But the dissemination is controlled, because the membership is limited
to the handful of people who are in the virtual room, paying attention.
Yet the result may also be "published" -- an archival textual or voice
record can be automatically preserved, and newcomers can read the
backlog. Some people tend to equate on-line discussions with party (or
party-line) conversations, whereas others compare them to newspapers
and still others think of citizens band radio.
In this ambiguous context, freespeech controversies are likely to
erupt. Last year an outcry went up against the popular Prodigy comput-
er service, a joint venture of IBM and Sears, Roebuck and Co. The
problem arose because Prodigy management regarded their service as
essentially a newspaper" or "magazine," for which a hierarchy of
editorial control is appropriate. Some of Prodigy's customers, in
contrast, regarded the service as more of a forum or meeting place.
When users of the system tried to protest Prodigy's policy, its editors
responded by removing the discussion. then the protestors tried to
use electronic mail as a substitute for electron- assembly,
communicating through huge mailing lists. Prodigy placed a limit on the
number of messages each individual could send.
The Prodigy controversy illustrates important principle that belongs on
civil liberties agenda for the future: freedom-of-speech issues will not
disappear simply because a service provider has tried to impose a
metaphor on its service. Subscribers sense, I believe, that freedom of
speech on the networks is central for individuals to use electronic
communications. Science fiction writer William Gibson once remarked
that "the street finds its own uses for things." Network service pro-
viders will continue to discover that their customers will always find
their own best uses for new media.
Freedom of speech on networks will be promoted by limiting content-based
regulations and by promoting competition among providers of network
services. The first is necessary because governments will be tempted
to restrict the content of any information service they subsidize or
regulate. The second is necessary because market competition is the
most efficient means of ensuring that needs of network users will be
met.
The underlying network should essentially be a "carrier" -- it should
operate under a content-neutral regime in which access is available to
any entity that can pay for it. The information and forum services would
be "nodes" on this network. (Prodigy, like GEnie and CompuServe,
currently maintains its own proprietary infrastructure, but a future
version of Prodigy might share the same network with services like
CompuServe.)
Each service would have its own unique character and charge its own
rates. If a Prodigy-like entity correctly perceives a need for an
electronic "newspaper" with strong editorial control, it will draw an
audience. Other less hierarchical services will share the network with
that "newspaper" yet find their own market niches, varying by format and
content.
The prerequisite for this kind of competition is a carrier capable of
highbandwidth traffic that is accessible to individuals in every
community. Like common carriers, these network carriers should be seen
as conduits for the distribution of electronic transmissions. They
should not be allowed to change the content of a message or to discrim-
inate among messages.
This kind of restriction will require shielding the carriers from legal
liabilities for libel, obscenity and plagiarism. Today the ambiguous
state of liability law has tempted some computer network carriers to
reduce their risk by imposing content restrictions. This could be
avoided by appropriate legislation. Our agenda requires both that the
law shield carriers from liability based on content and that carriers
not be allowed to discriminate.
All electronic "publishers" should be allowed equal access to networks.
Ultimately, there could be hundreds of thousands of these information
providers, as there are hundreds of thousands of print publishers
today. As "nodes," they will be considered the conveners of the
environments within which on-line assembly takes place.
None of the old definitions will suffice for this role. For example,
to safeguard the potential of free and open inquiry, it is desirable
to preserve each electronic publisher's control over the general flow
and direction of material under his or her imprimaturQin effect, to give
the "sysop," or system operator, the prerogatives and protections of a
publisher.
But it is unreasonable to expect the sysop of a node to review every
message or to hold the sysop to a publish er's standard of libel.
Message traffic on many individually owned services is already too
great for the sysop to review. We can only expect the trend to grow.
Nor is it appropriate to compare nodes to broadcasters (an analogy
likely to lead to licensing and content-based regulation). Unlike the
broadcast media, nodes do not dominate the shared resource of a public
community, and they are not a pervasive medium. To take part in a
controversial discussion, a user must actively seek entry into the
appropriate node, usually with a subscription and a password.
Anyone who objects to the content of a node can find hundreds of other
systems where they might articulate their ideas more freely. The danger
is if choice is somehow restricted: if all computer networks in the
country are restrained from allowing discussion on particular subjects
or if a publicly sponsored computer network limits discussion.
This is not to say that freedom-of-speech principles ought to protect
all electronic communications. Exceptional cases, such as the BBS used
primarily to traffic in stolen long-distance access codes or credit-card
numbers, will always arise and pose problems of civil and criminal
liability. We know that electronic freedom of speech, whether in public
or private systems, cannot be absolute. In face-to-face conversation and
printed matter today, it is commonly agreed that freedom of speech
does not cover the communications inherent in criminal conspiracy,
fraud, libel, incitement to lawless action and copyright infringement.
If there are to be limits on electronic freedom of speech, what
precisely should those limits be? One answer to this question is the
U.S. Supreme Court's 1969 decision in Brandenburg v. Ohio. The court
ruled that no speech should be subject to prior restraint or criminal
prosecution unless it is intended to incite and is likely to cause
imminent lawless action.
In general, little speech or publication falls outside of the
protections of the Brandenburg case, since most people are able to
reflect before acting on a written or spoken suggestion. As in
traditional media, any on-line messages should not be the basis of
criminal prosecution unless the Brandenburg standard is met.
Other helpful precedents include cases relating to defamation and
copyright infringement. Free speech does not mean one can damage a
reputation or appropriate a copyrighted work without being called to
account for it. And it probably does not mean that one can release a
virus across the network in order to "send a message" to network
subscribers. Although the distinction is trickier than it may first
appear, the release of a destructive program, such as a virus, may be
better analyzed as an act rather than as speech.
Following freedom of speech on our action agenda is freedom from unrea-
sonable searches and seizures. The Steve Jackson case was one of many
cases in which computer equipment and disks were seized and held some-
times for months -often without a specific charge being filed. Even when
only a few files were relevant to an investigation, entire computer
systems, including printers, have been removed with their hundreds of
files intact.
Such nonspecific seizures and searches of computer data allow "rummag-
ing," in which officials browse through private files in search of
incriminating evidence. In addition to violating the Fourth Amendment
requirement that searches and seizures be "particular," these searches
often run afoul of the Electronic Communications Privacy Act of 1986.
This act prohibits the government from seizing or intercepting elec-
tronic communications without proper authorization. They also contravene
the Privacy Protection Act of 1980, which prohibits the government from
searching the offices of Dublishers for documents, including
materials that are electronically stored.
We can expect that law enforcement agencies and civil libertarians
will agree over time about the need to establish procedures for
searches and seizures of "particular" computer data and hardware. Law
enforcement officials will have to adhere to guidelines in the above
statutes to achieve Fourth Amendment "particularity" while maximizing
the efficiency of their searches. They also will have to be trained to
make use of software tools that allow searches for particular files or
particular information within files on even the most capacious hard
disk or optical storage device.
Still another part of the solution will be law enforcement's abandonment
of the myth of the clever criminal hobbyist. Once law enforcement no
longer assumes worst-case behavior but looks instead for real evidence
of criminal activity, its agents will learn to search and seize only
what they need.
Developing and implementing a civil liberties agenda for computer net-
works will require increasing participation by technically trained
people. Fortunately, there are signs that this is begining to happen.
The Computers, Freedom and Privacy Conference, held last spring in San
Francisco, along with electronic conferences on the WELL (Whole Earth
'Lectronic Link) and other computer networks, have brought law
enforcement officials, supposed hackers and interested members of the
computer community together in a spirit of free and frank discussion.
Such gatherings are beginning to work out the civil liberties guidelines
for a networked society.
There is general agreement, for example, that a policy on electronic
crime should offer protection for security and privacy on both
individual and institutional systems. Defining a measure of damages
and setting proportional punishment will require further goodfaith
deliberations by the community involved with electronic freedoms, in-
cluding the Federal Bureau of Investigation, the Secret Service, the
bar associations, technology groups, telephone companies and civil
libertarians. It will be especially important to represent the damage
caused by electronic crime accurately and to leave room for the valuable
side of the hacker spirit: the interest in increasing legitimate under-
standing through exploration.
We hope to see a similar emerging consensus on security issues. Network
systems should be designed not only to provide technical solutions to
security problems but also to allow system operators to use them
without infringing unduly on the rights of users. A security system
that depends on wholesale monitoring of traffic, for example, would
create more problems than it would solve.
Those parts of a system where damage would do the greatest harm --
financial records, electronic mail, military data -- should be
protected. This involves installing more effective computer security
measures, but it also means redefining the legal interpretations of
copyright, intellectual property, computer crime and privacy so that
system users are protected against individual criminals and abuses by
large institutions. These policies should balance the need for civil
liberties against the need for a secure, orderly, protected electronic
society.
As we pursue that balance, of course, confrontations will continue to
take place. In May of this year, Steve Jackson Games, with the support
of the EFF, filed suit against the Secret Service, two individual Secret
Service agents, an assistant U.S. attorney and others.
The EFF is not seeking confrontation for its own sake. One of the
realities of our legal system is that one often has to fight for a legal
or constitutional right in the courts in order to get it recognized
outside the courts. One goal of the lawsuit is to establish clear
grounds under which search and seizure of electronic media is
"unreasonable" and unjust. Another is to establish the clear
applicability of First Amendment principles to the new medium.
But the EFF's agenda extends far beyond liagation. Our larger agenda
includes sponsoring a range of educational initiatives aimed at the
public's general lack of familiarity with the technology and its
potential. That is why there is an urgent need for technologically
knowledgeable people to take part in the public debate over communica-
tions policy and to help spread their understanding of these issues.
Fortunately, the very technology at stake -- electronic conferencing
-- makes it easier than ever before to get involved in the debate.
Downloaded From P-80 International Information Systems 304-744-2253
law/civlrght.txt
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CIVIL RIGHTS CASES AND POLICE MISCONDUCT
By
John Epke, M.A.
Special Agent
Supervisor, Civil Rights Unit
Criminal Investigative Division
Federal Bureau of Investigation
Washington, DC
and
Linda Davis, J.D.
Chief, Criminal Section
Civil Rights Division
U.S. Department of Justice
Washington, DC
On January 11, 1982, a 24-year-old female was found shot to
death just off an interstate highway near Barstow, California.
A California Highway patrolman reported the discovery of her
body. Based on evidence observed at the crime scene, homicide
investigators from the San Bernardino County Sheriff's Office
concluded that the victim had been stopped either by a law
enforcement officer or someone impersonating an officer.
The homicide investigators decided to examine all duty
weapons of officers who had been in the area around the time of
the shooting. When the officer who had discovered the body was
contacted, he advised that his home had been burglarized and
that his service revolver was missing. A subsequent search
located the service revolver, which was missing its barrel and
cylinder, in his locked pick-up truck. On January 18, 1982,
formal charges were filed in San Bernardino Superior Court,
charging the officer with homicide. Two efforts by the State of
California to prosecute the officer resulted in hung juries.
At the conclusion of the second trial, the FBI initiated a
civil rights investigation of the officer. He was subsequently
indicted by a Federal grand jury, and on May 10, 1984, he was
found guilty for violation of Title 18, U.S. Code, Section 242,
Deprivation of Rights Under Color of Law. The officer was later
sentenced to 90 years in prison, with a minimum of 30 years to
be served before he would be considered for parole.
This particular civil rights case raises many questions.
For example, why was this case, and similar cases, not
immediately investigated by the FBI and prosecuted federally?
Why are some cases of this nature never prosecuted federally?
These questions and others concerning civil rights
investigations will be examined.
This article explains the general steps taken to
investigate the three priority areas of civil rights cases.
However, it places particular attention to the investigation and
prosecution of violations involving police misconduct.
INVESTIGATION OF CIVIL RIGHTS CASES
The two major entities involved in civil rights cases are
the Civil Rights Division (CRD) of the U.S. Department of
Justice (DOJ) and the FBI's Civil Rights Unit (CRU). The Civil
Rights Division's mission within the Department of Justice is to
enforce Federal criminal civil rights statutes and to make
prosecutive decisions about civil rights cases. The FBI's
mission in civil rights is to investigate these cases and to
present them to the Department of Justice for review.
In late 1988, working in concert with the Department of
Justice, the FBI established three civil rights program
priorities--racial violence, misconduct of law enforcement
officers, and involuntary servitude and slavery. While all
three areas are deemed priorities, it should be noted that
approximately 85% of the complaints received and reviewed by DOJ
concern police misconduct allegations.
Civil Rights Complaints
The criminal section of the CRD reviews a large volume of
criminal civil rights complaints received by DOJ each year. In
fact, DOJ records indicate that there are as many as 8,000
complaints and inquiries annually in the form of citizen
correspondence, phone calls, or personal visits to DOJ, the
local U.S. Attorney's Office, or most commonly, to the FBI.
However, only about one-third of these complaints are of
sufficient substance to warrant investigation. These
investigations are conducted by the FBI.
After FBI Agents gather relevant information, they present
the facts for review to a CRD attorney and a local Assistant
U.S. Attorney, who decide either to close the investigation or
to recommend a grand jury presentation. There are at least two
levels of review--first by the Deputy Chief of the Criminal
Section and then by the Section Chief--before any particular
case is approved for grand jury presentation. The Department of
Justice is very selective about the cases it pursues. Of the
approximately 3,000 investigations conducted each year, it
authorizes only about 50 cases for grand jury presentation and
possible indictment.
Grand Jury Presentation
There are several reasons why the Department of Justice
insists on grand jury presentation. Because criminal civil
rights prosecutions are generally so sensitive, it is important
to establish the credibility of each witness under oath. To
test the believability of the alleged victim's allegations
before the grand jury is, thus, important to assess the strength
of the evidence.
In addition, it is much preferred to have members of the
community assess the government's evidence before the accused
stands trial. This provides the Justice Department with a
better understanding of community attitudes that so frequently
play a significant role in the ultimate resolution of such
cases. Indeed, grand jury presentations are not merely
one-sided summaries of the incident at issue. Not only the
victim, but all other significant witnesses, are subpoenaed to
testify. The subject of the investigation is also invited to
appear.
At the conclusion of the grand jury proceedings, the
Justice Department decides whether to request an indictment.
Here again, the Department proceeds with caution. While a
criminal indictment can be returned on a showing of probable
cause, requests for indictments by a grand jury are not made
unless there is sufficient evidence to establish the defendant's
guilt beyond a reasonable doubt.
POLICE MISCONDUCT STATUTE
As mentioned, most of the complaints received and reviewed
by the DOJ's Civil Rights Division and the FBI's Civil Rights
Unit involve allegations of police misconduct, generally
allegations of physical abuse. Title 18, U.S.C., Section 242
makes it a crime for any person acting under color of law,
statute, ordinance, regulation, or custom to willfully deprive
any inhabitant of those rights, privileges, or immunities
secured or protected by the Constitution and laws of the United
States.
Section 242 of Title 18 of the U.S.C. dates from the
post-Civil War era; the rights protected, as amplified by court
decisions in the ensuing years, have been held to include, among
others, the right to be free from unwarranted assaults, to be
free from illegal arrests and illegal searches, and to be free
from deprivation of property without due process of law. This
statute applies to persons regardless of their race, color, or
national origin.
Section 242 can also apply to the misconduct of public
officials other than police officers. For example, prosecutions
of judges, bail bondsmen, public defenders, and even prosecutors
are possible under the statute and have occurred.
Police Misconduct Prosecutive Decisions
Criminal civil rights prosecutions for police misconduct
are among the most difficult under Federal law. Community
biases understandably tend to credit (rather than discredit) the
law enforcement representative. Therefore, the Justice
Department proceeds whenever possible against police misconduct
that is clearly offensive and unmistakably violates the rights
of the individual victim. Thus, on occasion, after a full and
complete grand jury presentation, the Department has decided not
to present any indictment to the grand jury.
Prosecutive decisions are also strongly influenced by how
local authorities have responded to the alleged misconduct of
the subject officers. Local actions can include administrative
proceedings by the law enforcement agency, as well as State
prosecutions. The Justice Department often monitors the local
response before deciding on a final course of action. What
might fall short of "adequate" local action will depend,
obviously, on the facts of each particular case. To illustrate,
a suspension of a few days for a brutal beating could well be
considered insufficient to vindicate the Federal interest under
the criminal civil rights laws.
At the other extreme, where it appears that the local law
enforcement agency is moving quickly and decisively to punish
misconduct, the Justice Department generally defers to that
process and does not seek to impose duplicate Federal measures.
Experience teaches that swift and commensurate discipline,
imposed on aberrant police officers by their supervisors, is
generally a more effective deterrent to misconduct than Federal
prosecution.
Misconduct Case Factors
In addition to considering the local administrative and
prosecutive response to a particular allegation of misconduct,
great weight is attached to the willfulness of the misconduct.
The Supreme Court has ruled that in any prosecution under Title
18, U.S.C., Section 242, the Government must prove the
defendant's specific intent to engage in misconduct that
violates the victim's constitutional rights; thus, the
willfulness of the officer's action is critically important in
such cases.
When the misconduct is deliberate and willful--for example,
a suspect is beaten to coerce a confession, or an arrestee who
initially resisted police efforts to be apprehended is
subsequently beaten in retaliation--the Justice Department will
not hesitate to prosecute. Another factor that can influence a
decision to prosecute is the severity of injuries.
Finally, prosecutorial decisions are necessarily guided by
the evidentiary strength of the case. The extent of
independent corroboration significantly influences the victim's
claim. The department does not undertake to prosecute police
officers on the strength of the victim's statement alone.
Corroboration may consist of physical evidence, but more likely
than not, witnesses provide corroboration by their testimony.
However, the testimony of all witnesses is not equal, and the
Department places greater weight on corroboration provided by
the testimony of a fellow officer than on testimony provided by
the victim's mother or friends.
False Misconduct Charges
An issue frequently raised in police misconduct cases is
the past inability to prosecute persons who make false
complaints to the FBI. Until a few years ago, such prosecutions
were extremely difficult from a legal standpoint, because there
was conflict in the Federal Circuit Courts of Appeals as to
whether Section 1001 of Title 18 applied to false statements
made to FBI Agents. In United States v. Rodgers, decided on
April 30, 1984, the Supreme Court held that Title 18, U.S.C.,
Section 1001 does cover false statements to FBI Agents, thus
paving the way to prosecute such statements.
There is, however, difficulty in prosecuting these
cases--they are hard to prove beyond a reasonable doubt.
Frequently, the evidence in these cases constitutes a
disagreement between the declarant and the FBI Agent taking the
statement, with the declarant insisting the false statement was
not made, or if made, was the result of having been
misunderstood by the Agent. Nonetheless, where compelling
corroboration exists that a false statement was intentionally
made, criminal prosecution has been authorized by the Department
of Justice.
One such case was tried in 1986 in the Western District of
Louisiana. A jail inmate was convicted of a Section 1001
violation when he falsely reported to the FBI that he had been
assaulted and kicked by a deputy sheriff, when in fact, he had
received his injuries during a fight with another inmate. In
this case, there was clear and convincing evidence that his
report to the FBI was false, and accordingly, authorization for
the Section 1001 prosecution was provided. He was convicted and
sentenced to 3 years' additional imprisonment. Because of the
difficulty and sensitivity of these prosecutions, the Department
of Justice's Civil Rights Division must review and authorize each
prosecution.
SUMMARY
As seen in this review of investigative and prosecutive
steps, civil rights cases are taken seriously. Throughout its
56 field divisions, the FBI has a total of 117 Agents dedicated
to investigating civil rights complaints. Moreover, a
complement of 27 Department of Justice attorneys prosecute such
civil rights cases. Despite the minimal amount of investigative
and prosecutorial resources used in these investigations, a
steady increase in civil rights convictions has occurred in the
last 3 years. In 1987, 69 convictions were obtained; in 1988,
101 convictions; and in 1989, 128 convictions.
While the statistical accomplishments appear to be low when
compared to the number of cases opened, as discussed earlier,
the aggressive investigation and prosecution of civil rights
matters is absolutely necessary, regardless of cost. Residents
of the United States must have access to competent Federal
investigative and prosecutive agencies to redress U.S.
Constitutional grievances when local mechanisms do not provide
adequate relief. The obligations of the FBI and DOJ in this
regard cannot be ignored or delegated if public confidence in
this Nation's system of government by law is to be maintained.
Emerging from this aggressive presence is a deterrent
factor far more effective than merely discouraging individual
violators. While deterrence is admittedly very difficult to
measure, a strong Federal presence provides the proper impetus
for local and State agencies and courts to address civil rights
complaints effectively. It encourages these agencies to
maintain an institutional environment in which civil rights
violations are not tolerated. Law enforcement agencies must
remain committed to the vigorous upholding of the Federal civil
rights statutes and remain proud of the responsibility of
ensuring the constitutional rights of all people in the United
States.

law/civlrght14.law
+296
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@@ -0,0 +1,296 @@
August 1991
CIVIL RIGHTS CASES AND POLICE MISCONDUCT
By
John Epke, M.A.
Special Agent
Supervisor, Civil Rights Unit
Criminal Investigative Division
Federal Bureau of Investigation
Washington, DC
and
Linda Davis, J.D.
Chief, Criminal Section
Civil Rights Division
U.S. Department of Justice
Washington, DC
On January 11, 1982, a 24-year-old female was found shot to
death just off an interstate highway near Barstow, California.
A California Highway patrolman reported the discovery of her
body. Based on evidence observed at the crime scene, homicide
investigators from the San Bernardino County Sheriff's Office
concluded that the victim had been stopped either by a law
enforcement officer or someone impersonating an officer.
The homicide investigators decided to examine all duty
weapons of officers who had been in the area around the time of
the shooting. When the officer who had discovered the body was
contacted, he advised that his home had been burglarized and
that his service revolver was missing. A subsequent search
located the service revolver, which was missing its barrel and
cylinder, in his locked pick-up truck. On January 18, 1982,
formal charges were filed in San Bernardino Superior Court,
charging the officer with homicide. Two efforts by the State of
California to prosecute the officer resulted in hung juries.
At the conclusion of the second trial, the FBI initiated a
civil rights investigation of the officer. He was subsequently
indicted by a Federal grand jury, and on May 10, 1984, he was
found guilty for violation of Title 18, U.S. Code, Section 242,
Deprivation of Rights Under Color of Law. The officer was later
sentenced to 90 years in prison, with a minimum of 30 years to
be served before he would be considered for parole.
This particular civil rights case raises many questions.
For example, why was this case, and similar cases, not
immediately investigated by the FBI and prosecuted federally?
Why are some cases of this nature never prosecuted federally?
These questions and others concerning civil rights
investigations will be examined.
This article explains the general steps taken to
investigate the three priority areas of civil rights cases.
However, it places particular attention to the investigation and
prosecution of violations involving police misconduct.
INVESTIGATION OF CIVIL RIGHTS CASES
The two major entities involved in civil rights cases are
the Civil Rights Division (CRD) of the U.S. Department of
Justice (DOJ) and the FBI's Civil Rights Unit (CRU). The Civil
Rights Division's mission within the Department of Justice is to
enforce Federal criminal civil rights statutes and to make
prosecutive decisions about civil rights cases. The FBI's
mission in civil rights is to investigate these cases and to
present them to the Department of Justice for review.
In late 1988, working in concert with the Department of
Justice, the FBI established three civil rights program
priorities--racial violence, misconduct of law enforcement
officers, and involuntary servitude and slavery. While all
three areas are deemed priorities, it should be noted that
approximately 85% of the complaints received and reviewed by DOJ
concern police misconduct allegations.
Civil Rights Complaints
The criminal section of the CRD reviews a large volume of
criminal civil rights complaints received by DOJ each year. In
fact, DOJ records indicate that there are as many as 8,000
complaints and inquiries annually in the form of citizen
correspondence, phone calls, or personal visits to DOJ, the
local U.S. Attorney's Office, or most commonly, to the FBI.
However, only about one-third of these complaints are of
sufficient substance to warrant investigation. These
investigations are conducted by the FBI.
After FBI Agents gather relevant information, they present
the facts for review to a CRD attorney and a local Assistant
U.S. Attorney, who decide either to close the investigation or
to recommend a grand jury presentation. There are at least two
levels of review--first by the Deputy Chief of the Criminal
Section and then by the Section Chief--before any particular
case is approved for grand jury presentation. The Department of
Justice is very selective about the cases it pursues. Of the
approximately 3,000 investigations conducted each year, it
authorizes only about 50 cases for grand jury presentation and
possible indictment.
Grand Jury Presentation
There are several reasons why the Department of Justice
insists on grand jury presentation. Because criminal civil
rights prosecutions are generally so sensitive, it is important
to establish the credibility of each witness under oath. To
test the believability of the alleged victim's allegations
before the grand jury is, thus, important to assess the strength
of the evidence.
In addition, it is much preferred to have members of the
community assess the government's evidence before the accused
stands trial. This provides the Justice Department with a
better understanding of community attitudes that so frequently
play a significant role in the ultimate resolution of such
cases. Indeed, grand jury presentations are not merely
one-sided summaries of the incident at issue. Not only the
victim, but all other significant witnesses, are subpoenaed to
testify. The subject of the investigation is also invited to
appear.
At the conclusion of the grand jury proceedings, the
Justice Department decides whether to request an indictment.
Here again, the Department proceeds with caution. While a
criminal indictment can be returned on a showing of probable
cause, requests for indictments by a grand jury are not made
unless there is sufficient evidence to establish the defendant's
guilt beyond a reasonable doubt.
POLICE MISCONDUCT STATUTE
As mentioned, most of the complaints received and reviewed
by the DOJ's Civil Rights Division and the FBI's Civil Rights
Unit involve allegations of police misconduct, generally
allegations of physical abuse. Title 18, U.S.C., Section 242
makes it a crime for any person acting under color of law,
statute, ordinance, regulation, or custom to willfully deprive
any inhabitant of those rights, privileges, or immunities
secured or protected by the Constitution and laws of the United
States.
Section 242 of Title 18 of the U.S.C. dates from the
post-Civil War era; the rights protected, as amplified by court
decisions in the ensuing years, have been held to include, among
others, the right to be free from unwarranted assaults, to be
free from illegal arrests and illegal searches, and to be free
from deprivation of property without due process of law. This
statute applies to persons regardless of their race, color, or
national origin.
Section 242 can also apply to the misconduct of public
officials other than police officers. For example, prosecutions
of judges, bail bondsmen, public defenders, and even prosecutors
are possible under the statute and have occurred.
Police Misconduct Prosecutive Decisions
Criminal civil rights prosecutions for police misconduct
are among the most difficult under Federal law. Community
biases understandably tend to credit (rather than discredit) the
law enforcement representative. Therefore, the Justice
Department proceeds whenever possible against police misconduct
that is clearly offensive and unmistakably violates the rights
of the individual victim. Thus, on occasion, after a full and
complete grand jury presentation, the Department has decided not
to present any indictment to the grand jury.
Prosecutive decisions are also strongly influenced by how
local authorities have responded to the alleged misconduct of
the subject officers. Local actions can include administrative
proceedings by the law enforcement agency, as well as State
prosecutions. The Justice Department often monitors the local
response before deciding on a final course of action. What
might fall short of "adequate" local action will depend,
obviously, on the facts of each particular case. To illustrate,
a suspension of a few days for a brutal beating could well be
considered insufficient to vindicate the Federal interest under
the criminal civil rights laws.
At the other extreme, where it appears that the local law
enforcement agency is moving quickly and decisively to punish
misconduct, the Justice Department generally defers to that
process and does not seek to impose duplicate Federal measures.
Experience teaches that swift and commensurate discipline,
imposed on aberrant police officers by their supervisors, is
generally a more effective deterrent to misconduct than Federal
prosecution.
Misconduct Case Factors
In addition to considering the local administrative and
prosecutive response to a particular allegation of misconduct,
great weight is attached to the willfulness of the misconduct.
The Supreme Court has ruled that in any prosecution under Title
18, U.S.C., Section 242, the Government must prove the
defendant's specific intent to engage in misconduct that
violates the victim's constitutional rights; thus, the
willfulness of the officer's action is critically important in
such cases.
When the misconduct is deliberate and willful--for example,
a suspect is beaten to coerce a confession, or an arrestee who
initially resisted police efforts to be apprehended is
subsequently beaten in retaliation--the Justice Department will
not hesitate to prosecute. Another factor that can influence a
decision to prosecute is the severity of injuries.
Finally, prosecutorial decisions are necessarily guided by
the evidentiary strength of the case. The extent of
independent corroboration significantly influences the victim's
claim. The department does not undertake to prosecute police
officers on the strength of the victim's statement alone.
Corroboration may consist of physical evidence, but more likely
than not, witnesses provide corroboration by their testimony.
However, the testimony of all witnesses is not equal, and the
Department places greater weight on corroboration provided by
the testimony of a fellow officer than on testimony provided by
the victim's mother or friends.
False Misconduct Charges
An issue frequently raised in police misconduct cases is
the past inability to prosecute persons who make false
complaints to the FBI. Until a few years ago, such prosecutions
were extremely difficult from a legal standpoint, because there
was conflict in the Federal Circuit Courts of Appeals as to
whether Section 1001 of Title 18 applied to false statements
made to FBI Agents. In United States v. Rodgers, decided on
April 30, 1984, the Supreme Court held that Title 18, U.S.C.,
Section 1001 does cover false statements to FBI Agents, thus
paving the way to prosecute such statements.
There is, however, difficulty in prosecuting these
cases--they are hard to prove beyond a reasonable doubt.
Frequently, the evidence in these cases constitutes a
disagreement between the declarant and the FBI Agent taking the
statement, with the declarant insisting the false statement was
not made, or if made, was the result of having been
misunderstood by the Agent. Nonetheless, where compelling
corroboration exists that a false statement was intentionally
made, criminal prosecution has been authorized by the Department
of Justice.
One such case was tried in 1986 in the Western District of
Louisiana. A jail inmate was convicted of a Section 1001
violation when he falsely reported to the FBI that he had been
assaulted and kicked by a deputy sheriff, when in fact, he had
received his injuries during a fight with another inmate. In
this case, there was clear and convincing evidence that his
report to the FBI was false, and accordingly, authorization for
the Section 1001 prosecution was provided. He was convicted and
sentenced to 3 years' additional imprisonment. Because of the
difficulty and sensitivity of these prosecutions, the Department
of Justice's Civil Rights Division must review and authorize each
prosecution.
SUMMARY
As seen in this review of investigative and prosecutive
steps, civil rights cases are taken seriously. Throughout its
56 field divisions, the FBI has a total of 117 Agents dedicated
to investigating civil rights complaints. Moreover, a
complement of 27 Department of Justice attorneys prosecute such
civil rights cases. Despite the minimal amount of investigative
and prosecutorial resources used in these investigations, a
steady increase in civil rights convictions has occurred in the
last 3 years. In 1987, 69 convictions were obtained; in 1988,
101 convictions; and in 1989, 128 convictions.
While the statistical accomplishments appear to be low when
compared to the number of cases opened, as discussed earlier,
the aggressive investigation and prosecution of civil rights
matters is absolutely necessary, regardless of cost. Residents
of the United States must have access to competent Federal
investigative and prosecutive agencies to redress U.S.
Constitutional grievances when local mechanisms do not provide
adequate relief. The obligations of the FBI and DOJ in this
regard cannot be ignored or delegated if public confidence in
this Nation's system of government by law is to be maintained.
Emerging from this aggressive presence is a deterrent
factor far more effective than merely discouraging individual
violators. While deterrence is admittedly very difficult to
measure, a strong Federal presence provides the proper impetus
for local and State agencies and courts to address civil rights
complaints effectively. It encourages these agencies to
maintain an institutional environment in which civil rights
violations are not tolerated. Law enforcement agencies must
remain committed to the vigorous upholding of the Federal civil
rights statutes and remain proud of the responsibility of
ensuring the constitutional rights of all people in the United
States.

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@@ -0,0 +1,237 @@
So, people, we have a fight on our hands.
In remarks made at the fourth annual conference on Computers, Freedom,
and Privacy on March 26, Bruce Sterling deconstructs the NSA's
position on Clipper. His later additions are in italics.
By Bruce Sterling
_________________________________________________________________
Since I'm the last guy to officially speak at CFP '94, I want to seize
the chance to grandstand and do a kind of pontifical summation of the
event. And get some irrepressible feelings off my chest.
What am I going to remember from CFP '94? I'm going to remember the
chief counsel of the NSA and his impassioned insistence that key
escrow cryptography represents normality and the status quo and that
unlicensed hard cryptography is a rash and radical leap into unplumbed
depths of lawlessness. He made a literary reference to "Brave New
World". What he said in so many words was, "We're not the Brave New
World, Clipper's opponents are the Brave New World."
And I believe he meant that. As a professional science fiction writer
I remember being immediately struck by the deep conviction that there
was plenty of Brave New World to go around.
I've been to all four CFPs, and in my opinion this is the darkest one
by far. I hear ancestral voices prophesying war. All previous CFPs had
a weird kind of camaraderie about them. People from the most disparate
groups found something useful to tell each other. But now that
America's premiere spookocracy has arrived on stage and spoken up, I
think the CFP community has finally found a group of outsiders that it
cannot metabolize. The trenchworks are going up and I see nothing but
confrontation ahead.
Senator Patrick Leahy (D-Vermont) at least had the elementary good
sense to backpedal and temporize, as any politician would upon seeing
the white-hot volcano of technological advance in the direct path of a
Cold War glacier that has crushed everything in its way.
But that unlucky flak-catcher the White House sent down here -- that
guy was mousetrapped, basically. That was a debacle! The White House
sent a representative to CFP who, in a fatal error of judgment, asked
the audience whom they feared would abuse cryptography more: the
American government or criminals? About three quarters of the audience
voted against the government. He was later quoted as saying that he
had demanded an extra year of retirement for every minute he stayed in
the ring at CFP getting pummeled on Clipper. Who was briefing that
guy? Are they utterly unaware? How on earth could they miss the fact
that the Clipper Chip and Digital Telephony are violently detested by
every element in this community -- with the possible exception of one
brave computer science professor? Dorothy Denning of Georgetown
University is a noted Clipper proponent -- noted not so much for her
preeminence in debate as for her being one of the rare figures
associated with this initiative who is actually willing to address the
issue publicly at all. Don't they get it that everybody from Rush
Limbaugh to Timothy Leary despises this initiative? Don't they read
newspapers? The Wall Street Journal, The New York Times? I won't even
ask if they read their e-mail.
That was bad politics. But that was nothing compared to the
presentation by the gentleman from the National Security Agency. If I
can do it without losing my temper, I want to talk to you a little bit
about how radically unsatisfactory that was. (For a recap of the NSA
position, see Stewart Baker's "Don't Worry, Be Happy," Wired 2.06,
page 100 -Eds.).
I've been waiting a long time for somebody from Fort Meade -- the
legendary Maryland home of the NSA -- to come to the aid of Dorothy
Denning in her heroic and heartbreaking solo struggle against the 12
million other people with e-mail addresses. And I listened very
carefully and I took notes and -- I swear to God -- I even applauded
at the end.
He had seven points: four were disingenuous, two were half-truths, and
the other was the actual core of the problem.
Let me blow away some of the smoke and mirrors first, more for my own
satisfaction than for the purpose of enlightening you people any. With
your indulgence.
First, the kidporn thing. I am sick and tired of hearing this specious
blackwash. Are American citizens really so neurotically uptight about
deviant sexual behavior that we will allow our entire information
infrastructure to be dictated by the existence of pedophiles? Are
pedophiles that precious and important to us? Do the NSA and the FBI
really believe that they can hide the structure of a telephone switch
under a layer of camouflage called "child pornography"? Are we
supposed to flinch so violently at the specter of child abuse that we
somehow miss the fact that they're installing a Sony Walkman jack in
our phones?
Look, there were pedophiles before the National Information
Infrastructure and there will be pedophiles long after NII is just
another dead acronym. Pedophiles don't jump out of BBSes like
jack-in-the-boxes. You want to impress me with your deep concern for
children? This is Chicago! Go down to the projects and rescue some
children from being terrorized and recruited by crack gangs who
wouldn't know a modem if it bit them on the ass! Stop pornkidding us
around! Just knock it off with that crap, you're embarrassing
yourselves.
But back to the speech by Mr. Baker of the NSA. Was it just me, ladies
and gentlemen, or did anyone else catch that tone of truly intolerable
arrogance? Did the guy have to make the remark about our having missed
Woodstock because we were busy with our trigonometry? Do spook
mathematicians -- permanently cooped up inside Fort Meade -- consider
that a funny remark? I'd like to make an even more amusing observation
-- that I've seen scarier secret police agencies than his completely
destroyed by one Czech hippie playwright with a manual typewriter.
Are people within the NSA unaware that the current President of the US
once had a big bushel-basketful of hair? If they are, perhaps I can
sell them my lapel button featuring a spectacularly hirsute Bill
Clinton circa 1969 with the legend "My President." What does he expect
from the computer community? Normality? Sorry, pal -- we're fresh out!
Who is it, exactly, that the NSA considers a level-headed, sober sort,
someone to sit down with and talk to seriously? Jobs? Wozniak? Gates?
Sculley? Perot? I hope to God it's not Perot. Bob Allen? OK, maybe Bob
Allen, that brownshoe guy from AT&T. Bob Allen seems to think that
Clipper is a swell idea, at least he's somehow willing to merchandise
it. Even though AT&T has, mysteriously, signed off on the Electronic
Frontier Foundation's industrywide petition against Clipper. But
Christ, Bob Allen just gave eight zillion dollars to a guy whose idea
of a good time is Microsoft Windows for Spaceships also known as
Teledesic, funded by Bill Gates and Craig McCaw.
When is the NSA going to realize that Kapor and his people (Electronic
Frontier Foundation) and Rotenberg and his people (Computer
Professionals for Social Responsibility) and the rest of the people
here are as good as they get in this milieu? CFP includes people from
just about every interest group in the world that knows and cares what
a modem is. Yes, they are weird, and yes, they have weird friends (I'm
one of them), but there isn't any normality left in this society, and
when it comes to computers, when the going got weird the weird turned
pro! The status quo is over! Wake up to it! Get used to it!
Where in hell does a crowd of spooks from Fort Meade get off playing
"responsible adults" in this situation? This is a laugh and a half!
Bobby Ray Inman, the legendary NSA leader, made a stab at computer
entrepreneurism and rapidly sank with all hands. Then he got out of
the shadows of espionage and into the bright lights of actual public
service and immediately started gabbling like a daylight-stricken
vampire. Is this the kind of responsive public official we're expected
to trust blindly with the insides of our phones and computers? Who
made him God? Harry Truman, apparently. By executive order. In the
frenzy of McCarthyism that created the NSA.
You know, it's a difficult confession for a practiced cynic like me to
make, but I actually trust EFF people. I do; I trust them. There, I've
said it. But I wouldn't trust Bobby Ray Inman to go down to the corner
store for a pack of cigarettes.
You know, I like FBI people. I even kind of trust them, sort of, kind
of, a little bit. I'm sorry that they didn't catch Kevin Mitnick here.
Rumors flew at CFP that Mitnick, a legendary computer intruder and
phone phreak, was in attendance. A young attendee who reportedly
resembled Mitnick was detained in handcuffs and fingerprinted at
Chicago FBI headquarters. I'm even sorry that they didn't apprehend
Robert Steele, who is about 100 times as smart as Mitnick and 10,000
times as dangerous.
Intelligence expert and underground hacker devotee Robert Steele was
mistaken by FBI agents for sometime Mitnick accomplice, "Agent Steal."
Steele was rousted from his CFP hotel bed by three FBI agents
unsuccessfully pretending to be room service. When the agents saw
that, unlike the actual "Agent Steal," Robert Steele does not possess
an artificial leg, Steele was left in peace. Yet a third CFP attendee
was accused by FBI agents, reportedly, of some nebulous involvement
with the World Trade Center bombing. One would think that any
connection, however tenuous, between Islamic zealot truck bombers and
American hackers would be a cause for grave national alarm, but there
has not been another peep from the FBI about this subject. CFP '94 was
quite a busy event for the FBI.
But FBI people, I think your idea of Digital Telephony is a scarcely
mitigated disaster, and I'll tell you why: because you're going to be
filling out your paperwork in quintuplicate to get a tap, just like
you always do, because you don't have your own pet court like the NSA
does. And for you, it probably is going to seem pretty much like the
status quo. But in the meantime, you will have armed the enemies of
the United States around the world with a terrible weapon. Not your
court-ordered, civilized Digital Telephony -- their raw and tyrannical
Digital Telephony.
You're gonna be using it to round up wise guys in street gangs, and
people like Saddam Hussein are gonna be using it to round up
democratic activists and national minorities. You're going to
strengthen the hand of despotism around the world, and then you're
going to have to deal with the hordes of state-supported truck bombers
these rogue governments are sending our way after annihilating their
own internal opposition by using your tools. You want us to put an ax
in your hand and you're promising to hit us with only the flat side of
it. But the Chinese don't see it that way; they're already licensing
fax machines and they're gonna need a lot of new hardware to gear up
for Tiananmen II.
I've talked a long time, but I want to finish by saying something
about the NSA guy're
NSA and I do somehow convince you, by some fluke, then I urge you to
look at your conscience -- I know you have one -- and take the word to
your superiors, and if they don't agree with you -- resign. Leave the
agency. If I'm right about what's coming down the line, you'll be glad
you didn't wait.
But even though I have a good line of gab, I don't expect to argue
people out of their livelihood. That's notoriously difficult.
So CFP people, you have a fight on your hands. I'm sorry that a
community this young should have to face a fight this savage, for such
terribly high stakes, so soon. But what the heck; you're always
bragging about how clever you are; here's your chance to prove to your
fellow citizens that you're more than a crowd of Net-nattering Mensa
dilettantes. In cyberspace one year is like seven dog years, and on
the Internet nobody can tell you're a dog, so I figure that makes you
CFP people 28 years old. And people, for the sake of our society and
our children you had better learn to act your age.
_________________________________________________________________
Bruce Sterling (bruce @well.sf.ca.us) is a Wired contributor and
author of four science fiction novels and the nonfiction "The Hacker
Crackdown."
_________________________________________________________________
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"Closing the Net"
by
Greg Costikyan
[Reproduced with permission from the January 1991 issue of _Reason_
magazine. A one-year subscription (11 issues) is $19.95. Copyright
1991 by the Reason Foundation, 2716 Ocean Park Blvd., Suite 1062,
Santa Monica, CA 90405. Please do not remove this header.]
Back in early February, newspapers across the country reported that
computer hackers were interfering with emergency calls over the 911
communications network. The reports said the hackers had penetrated the
system using information from a secret computer document.
The scare grew out of an indictment by a grand jury in Lockport,
Illinois. On February 7, Craig Neidorf and Robert Riggs were indicted on
seven counts of wire fraud, violation of the Computer Fraud and Abuse Act
of 1986, and interstate transportation of stolen goods.
Prosecutors alleged that Neidorf and Riggs had conspired to steal,
using fraudulent methods, a confidential and proprietary document from the
Bell South telephone company. This document, it was claimed, could allow
computer hackers to disrupt the 911 emergency network.
The arrest of Neidorf and Riggs was only the beginning. The Secret
Service, which has authority over crimes involving government computers,
had embarked on a vast, nationwide investigation of hacker activity:
Operation Sun Devil.
Imagine the night face of North America, shining not with cities but
with lines of light showing the transmission of data. Brightest are New
York City, the financial capital, and California, the technological
capital, with Washington, D.C., a close third. The lines that crisscross
the country are telephone wires and cables, microwave transmissions, and
packet-switching networks designed for computer communication. Here and
there, beams dart into space to reflect off satellites and back to earth.
The computer networks in this country are huge. The largest are
entities like UseNet and InterNet, which link every academic computing
center of any size and are accessible to every scientist, university
student, and faculty member in the nation. The networks also include
government-operated systems, such as MilNet, which links military computers
that do not carry confidential information. And there are the commercial
services, such as Dow Jones News/Retrieval, SportsNet, CompuServe, GEnie,
and Prodigy. CompuServe is the largest of these, with half a million
subscribers.
In addition to these massive entities are thousands of tiny bulletin
board services, or BBSes. Anyone with a computer and a modem can start a
BBS; others can then call it up and use it. BBSes offer, in miniature,
essentially the same services that the commercial nets offer: the ability
to chat with others by posting messages to an electronic bulletin board and
the ability to upload and download software and text files. There are more
than 5,000 BBSes in the United States, most of them operated for fun. Few
charge their users. In my local calling area alone, I know of BBSes for
writers, gamers, Macintosh enthusiasts, gays, and the disabled -- and I'm
sure there are others.
The vast majority of BBSes deal with unexceptional topics. But some
boards deal with questions of computer security. These attract hackers.
Naturally, hackers discuss their hobby: breaking into computers.
Usually, however, bulletin board discussions are general in nature.
Hackers are not stupid, and they know that posting credit card numbers or
the like is evidence of criminal activity. By and large, BBS discussions
rarely, if ever, contain information that would be illegal if published in
print form. It's not illegal, after all, to tell your readers how to
commit illegal acts. If it were, books like _The_Anarchist's_Cookbook_ and
_Scarne_on_Cards_ (and half the murder mysteries in print) would be banned.
The laws dealing with electronic transmissions, however, are far
from clear. And the methods used to enforce these vague laws set a
dangerous precedent for abridging freedom of speech.
In the future, the Net -- the combination of all the computer
networks -- will be the primary means of information transmission, with
print publication merely its adjunct. The Net will replace the press, and
users of the Net must enjoy precisely the freedoms enjoyed by the press.
If users of the Net have to worry about police surveillance, if censorship
is rife, if the state forbids mere discussion of certain topics -- then the
liberty for which the Founders fought will have been destroyed, not by war
or tyranny, but by mere technological change.
From the government's point of view, the arrest of Neidorf and Riggs
did not end the threat to the 911 network. The document they had stolen
was not a single piece of paper that could be returned to its rightful
owner. It was an electronic document that Riggs had downloaded from a Bell
South computer.
Riggs belonged to a hacker group called the Legion of Doom, whose
members shared information. It was likely that others in the group had
copies of the 911 document. Worse, Riggs had uploaded the 911 document to
a bulletin board service in Lockport, Illinois. Neidorf had downloaded the
file from the Lockport BBS. Anyone else who used the same BBS could have
downloaded it, too, meaning that dozens of people might have this dangerous
information. Worse yet, Neidorf had published an edited version of the
Bell South document in an issue of his underground computer magazine,
_Phrack_.
Unlike conventional magazines, _Phrack_ never saw a printing press;
it was distributed electronically. After preparing an issue, Neidorf would
dispatch it, via various computer networks, to his address list of 1,300
names. Any recipient could then upload the magazine to a bulletin board or
to one of the academic or commercial nets. That meant thousands, perhaps
millions, of people had access to the information in the Bell South
document.
We may imagine that the Secret Service was gravely concerned about
the potential threat to emergency services. If not, then their subsequent
actions are hard to fathom.
On March 1, 1990, employees of Steve Jackson Games, a small game
company in Austin, Texas, arrived at their place of business to find that
they were barred from the premises. The Secret Service had a warrant, and
the agents conducting the search wouldn't let anyone in until they were
done.
The agents ransacked the company's offices, broke a few locks, and
damaged some filing cabinets. They searched the warehouse so thoroughly,
says company founder Steve Jackson, that afterward it "looked like a
snowstorm," with papers strewn randomly. The agents confiscated three
computers, a laser printer, several pieces of electronic equipment
(including some broken equipment from a storeroom), several hard drives,
and many floppy disks. They told Jackson they were seizing the equipment
"as evidence" in connection with a national investigation.
Among the equipment seized was the computer through which S.J. Games
ran a BBS to communicate with customers and freelancers. It had never been
a congregating point for hackers and was about as much a threat to the
public order as a Nintendo game.
The loss of the equipment was bad enough. Worse, the Secret Service
seized all existing copies -- on hard drives, floppy disks, and paper -- of
S.J. Games' next product, a game supplement called GURPS Cyberpunk. The
loss of that data shot Jackson's publication schedule to hell. Like many
small publishers, S.J. Games runs on tight cash flow. No new products, no
income. No income, no way to pay the bills.
Over the next several weeks, Jackson was forced to lay off about
half of his 17 employees. By dint of hard work, he and his staff managed
to reproduce the data they'd lost, mostly from memory. S.J. Games finally
published GURPS Cyberpunk as "The Book Seized by the Secret Service." It
has sold well by the (low) standards of the field.
Jackson estimates the raid has cost him more than $125,000, a sum a
small company like his can ill afford. (The company's annual revenue is
less than $2 million.) He was nearly put out of business by the Secret
Service.
What justified the raid and the seizures? Apparently, this: The
managing editor of Steve Jackson Games is Loyd Blankenship. Blankenship
ran The Phoenix Project, a BBS of his own in the Austin area. Blankenship
consorted with hackers. He was fascinated by the computer underground and
planned to write a book about it. He may or may not have once been a
hacker himself. He certainly knew and corresponded electronically with
admitted members of the Legion of Doom.
But perhaps Blankenship's worst luck was this: An issue of
Neidorf's _Phrack_ magazine included an article titled "The Phoenix
Project." As it happens, that article had nothing to do with Blankenship's
BBS of the same name. But the Secret Service was well aware of the
contents of _Phrack_. Indeed, the revised indictment of Neidorf and Riggs,
issued in July, cited the article by title. The same morning that the
Secret Service raided Steve Jackson Games, agents awakened Blankenship and
held him at gunpoint as they searched his house. They seized his computer
and laser printer as "evidence."
Consider the chain of logic here. Robert Riggs is accused of a
crime. Riggs belongs to a group. Loyd Blankenship is friends with other
members of the group, though not with Riggs himself. Steve Jackson Games
employs Blankenship. Therefore, the Secret Service does grievous financial
injury to Steve Jackson Games. This is guilt by association taken to an
extreme.
Neither Blankenship, nor Steve Jackson Games, nor any company
employee, has ever been charged with so much as spitting in a public place.
The Secret Service refuses to comment, saying only that S.J. Games was not
a target of the investigation.
The company is now receiving legal help from the Electronic Frontier
Foundation, an organization devoted to promoting civil liberties in
electronic media. The Secret Service has returned most -- but not all --
of the company's seized equipment. Some of it is broken and irreparable.
The government has made no offer of restitution or replacement.
On May 8, 1990, the Secret Service executed 28 or more search
warrants in at least 14 cities across the country. The raids involved more
than 150 agents, plus state and local law enforcement personnel.
According to a press release from the U.S. Attorney's office in
Phoenix, the operation targeted "computer hackers who were alleged to have
trafficked in and abused stolen credit card numbers [and] unauthorized
long-distance dialing codes, and who conduct unauthorized access and damage
to computers." The agency claimed the losses might amount to millions of
dollars. In later releases and news reports, that figure was inflated to
tens of millions of dollars.
Nationwide, the government seized at least 40 computers and 23,000
disks of computer information. In most cases, the subjects of these
searches have remained anonymous. Presumably, they have either been
advised by counsel to remain silent or have been so intimidated that they
wish to attract no further attention.
John Perry Barlow reports in _Whole_Earth_Review_ that the Secret
Service held families at gunpoint while agents charged into the bedrooms of
teenage hacker suspects. He adds that some equipment seizures deprived
self-employed mothers of their means of support. These reports remain
unconfirmed. It's clear, however, that the Secret Service closed down a
number of BBSes by the simple expedient of seizing "as evidence" the
computers on which those BBSes operated.
Bulletin board services are venues for speech. They are used mainly
to exchange information and ideas. Nothing in the nature of the technology
prevents the exchange of illegal ideas. But in a free society, the
presumption must be that, in absence of proof to the contrary, the use of a
medium is legitimate. The Secret Service has not indicted, let alone
convicted, the operators of any of the BBSes closed down on May 8.
If law enforcement officials suspect that a magazine, newspaper, or
book publisher may be transmitting illegal information, they get a warrant
to search its files and perhaps a restraining order to prevent publication.
They don't, however, seize its printing presses to prevent it from
operating. A clearer violation of freedom of the press could hardly be
imagined. Yet that is precisely what the Secret Service has done to these
BBSes.
One of the BBSes closed down was the JolNet BBS in Lockport,
Illinois, which Neidorf and Riggs had used to exchange the 911 document.
Ironically, JolNet's owner, Richard Andrews, had triggered the
investigation by noticing the document, deciding it was suspicious, and
notifying the authorities. He had cooperated fully with the investigators,
and they rewarded him by seizing his equipment.
The Ripco BBS in Chicago was among those raided by the Secret
Service. Operated by Bruce Esquibel under the handle of "Dr. Ripco," it
was a freewheeling, wide-ranging board, one of the best known BBSes in the
Chicago area. Speech was extraordinarily free on the Ripco board.
"I felt that any specific information that could lead to direct
fraud was not welcome and would be removed, and persons who repeated
violating this themselves would be removed from the system also," Esquibel
writes. But just about anything else was open for discussion. Hackers did
indeed discuss ways of breaking into computers. And the Ripco board
contained extensive text files, available for downloading, on a variety of
subjects to which some might take exception. For instance, there was a
series of articles on bomb construction -- material publicly available from
books such as _The_Anarchist's_Cookbook_.
Along with the computer on which Ripco operated, the Secret Service
seized two other computers, a laser printer, and a 940-megabyte WORM drive,
an expensive piece of equipment. The additional seizures mystify Esquibel.
"My guess is that after examining the rat's nest of wires around the three
computers, they figured anything plugged into the power strip must have
been tied in with [the rest] in some way," he says.
The Secret Service has yet to return any of Esquibel's equipment.
He has yet to be charged with any crime, other than failure to register a
firearm. (He had three unlicensed guns at his office; he informed the
Secret Service agents of this before they began their search.) Says
Esquibel, "The government came in, took my personal property to determine
if there was any wrongdoing somewhere. It seems like a case of being
guilty until proven innocent...It's just not right...I am not a hacker; [I
don't] have anything to do with credit cards or manufactured explosives.
Until the weapons charge I never had been arrested, and even my driving
record has been clean since 1978."
It appears that the Secret Service has already achieved its goal.
The Ripco board was a place where "dangerous" speech took place, and the
agency closed it down. Why bother charging Esquibel with a crime?
Especially since he might be acquitted.
Secret Service agents searched the home of Len Rose, a computer
consultant from Baltimore, on May 8. The agents not only seized his
computers but confiscated every piece of electronic equipment in the house,
including his fax machine, along with some family pictures, several boxes
of technical books, and a box containing his U.S. Army medals.
On May 15, Rose was indicted on four counts of wire fraud, aiding
and abetting wire fraud, and interstate transportation of stolen goods.
Among other things, the indictment alleged that Rose is a member of the
Legion of Doom, a claim both he and admitted Doomsters vociferously deny.
The interstate-transportation charge is based on the fact that Rose
was in possession of source code for Unix, an operating system used by a
wide variety of minicomputers and computer workstations. (Source code is
the original text of a program.) In theory, Unix is the property of AT&T,
which developed the system. AT&T maintains that Unix is protected as a
confidential, unpublished work. In fact, AT&T has sold thousands of copies
across the country, and every systems programmer who works with Unix is
likely to have some of the source code lying around.
The wire-fraud counts are based on the fact that Rose sent a copy of
a "Trojan horse" program by electronic mail. Trojan horse programs are
sometimes used by hackers to break into computers; they are also sometimes
used by systems managers to monitor hackers who try to break in. In other
words, a Trojan horse program is like a crowbar: You can use it to break
into someone's house, or you can use it to help renovate your own house.
It has both legitimate and illegitimate uses.
Rose is a computer consultant and has dealt with security issues
from time to time. He maintains that his Trojan horse program was used
solely for legitimate purposes -- and, in any case, would no longer work,
because of changes AT&T has made to Unix since Rose wrote the program.
Rose is not charged with actually attempting to break into computers,
merely with possessing a tool that someone could use to break in. In
essence, the Secret Service found Len Rose in possession of a crowbar and
is accusing him of burglary.
By seizing Rose's equipment, the Secret Service has effectively
denied him his livelihood. Without his equipment, he cannot work. Rose
says he has lost his home, his credit rating and credit cards, his
business, and some of his friends. He can no longer afford to retain his
original attorney and is now represented by a public defender.
Rose's difficulties are compounded by a theft conviction arising
from a dispute with a former client regarding the ownership of computer
equipment. Nevertheless, it seems brutal for the Secret Service to deny
him the means to support his family and to pay for an effective defense.
Investigators must long ago have gleaned whatever evidence his equipment
may have contained.
Ultimately, the case against Neidorf and Riggs fell apart. In June,
the grand jury issued a revised indictment. It dropped the charges of
violating the Computer Fraud and Abuse Act and added seven new counts of
wire fraud, some involving electronic mail between Neidorf and Riggs.
Neidorf was charges with two counts of wire fraud for uploading issues of
_Phrack_ to JolNet. In other words, mere distribution of his publication
was deemed to be "fraud" because _Phrack_ contained material the Secret
Service claimed had been obtained by fraudulent means. The new indictment
also reduced the "value" of the document Riggs allegedly stole from more
than $70,000 to $20,000.
On July 9, Riggs pleaded guilty in a separate indictment to one
count of conspiracy in breaking into Bell South's computer. Sentencing was
set for September 14 -- after Neidorf's trial was to begin. Riggs agreed
to be a witness for the prosecution of Neidorf.
On July 28, Neidorf's trial began in Chicago. Within four days, it
was over. The prosecution's case had collapsed.
Under cross-examination, a Bell South employee admitted that the
stolen document was far from confidential. Indeed, any member of the
public could purchase a copy by calling an 800 number, requesting the
document, and paying $13 -- far less than the $20,000 claimed value or the
$5,000 minimum required to support a charge of transporting stolen goods
across state lines.
Testimony also revealed that the contents of the document could not
possibly allow someone to enter and disrupt the 911 network. The document
merely defined a set of terms used in telecommunications and described the
procedures used by Bell personnel in setting up a 911 system.
Riggs, testifying for the prosecution, admitted that he had no
direct knowledge that Neidorf ever gained illegal access to anything; that
Neidorf was not himself a member of the Legion of Doom; and that Neidorf
had not been involved in the initial downloading of the document in any
way.
In short, Neidorf and Riggs had not conspired; therefore, Neidorf
should not have been charged with the fraud counts. The only value of
which Bell South was "deprived" by Riggs's downloading was $13; therefore,
he was, at worst, guilty of petty theft. The interstate-transportation
counts were moot, since the "stolen goods" in question were worth less than
the $5,000 minimum.
Not only was there no case against Neidorf -- there also was no case
against Riggs. The government dropped the case against Neidorf. Riggs,
however, had already pleaded guilty.
The computer nets do need policing. Computer crooks can steal and
have stolen millions of dollars. But a balance must be struck between
civil liberties and the legitimate needs of law enforcement. The laws as
currently constituted are inadequate from both perspectives, and the Secret
Service seems determined to interpret them with a callous disregard for
civil liberties.
To attack computer crime, prosecutors primarily use the statutes
dealing with wire fraud and interstate transportation of stolen goods, the
Computer Fraud and Abuse Act of 1986, and the Electronic Communication
Privacy Act of 1986. The wire fraud statute prohibits the use of the
telephone, wire services, radio, and television in the commission of fraud.
The courts have, logically, interpreted it to apply to electronic
communications as well.
The interstate transportation statute prohibits transportation of
stolen goods valued at $5,000 or more across state lines. Neidorf's lawyer
moved to dismiss those counts, claiming that nothing tangible is
transported when a document is uploaded or downloaded. The judge ruled
that tangibility was not a requirement and that electronic transmission
could constitute transportation. The Computer Fraud and Abuse Act
prohibits knowingly, and with intent to defraud, trafficking in information
that can be used to gain unauthorized access to a computer.
The Electronic Communications Privacy Act makes it a crime to
examine private communications transmitted electronically. Among other
things, it requires law enforcement agencies to obtain search warrants
before opening electronic mail. It is unclear whether electronic mail
files on a BBS's hard drive are covered by a warrant that permits seizure
of the hard drive, or whether separate warrants are needed for each
recipient's mail.
The reliance on fraud statutes to fight computer crime presents
problems. Fraud is the use of chicanery, tricks, or other forms of
deception in a scheme to deprive the victim of property. Most attempts by
hackers to gain illegal access to a computer do involve chicanery or
tricks, in some sense -- the use of other people's passwords, the use of
known bugs in systems software, and so on. Much of the time, however, a
hacker does not deprive anyone of property.
If the hacker merely signs on and looks around, he deprives the
computer operators of a few dollars of computer time at worst. If he
downloads a file, the owner still has access to the original file. If the
file's confidentiality has value in itself -- as with a trade secret --
downloading it does deprive the owner of something of value, but this is
rarely the case.
We need a "computer trespass" statute, with a sliding scale of
punishments corresponding to the severity of the violation. Just as
burglary is punished more severely than trespass, so a hacker who steals
and uses credit card numbers ought to be punished more severely than one
who does nothing more than break into a computer and examine a few public
files. In the absence of such a scheme, law enforcement personnel
naturally try to cram all computer violations into the category of fraud,
since the fraud statutes are the only laws that currently permit
prosecution of computer crimes. As a result, petty crimes are charged as
felonies -- as with Neidorf and Riggs.
Legitimate users and operators of computer networks need to be
protected from arbitrary seizures and guilt by electronic association. The
criminal code permits law enforcement personnel to seize equipment used in
a crime or that might provide criminal evidence, even when the owner has no
knowledge of the crime. But the purpose of such seizures is to allow the
authorities access to evidence of criminal activity, not to shut down
businesses. Searchers need not remove computer equipment to inspect the
files it contains. They can sit down and make copies of whatever files
they want on the spot. Even if they expect some piece of incriminating
material to be hidden particularly well -- for example, in a specially
protected file or in a ROM chip -- it is unreasonable to hold onto the
seized equipment indefinitely.
And it's clearly wrong to seize equipment that cannot, by any
stretch of the imagination, contain incriminating data. In both the Steve
Jackson and Ripco cases, the Secret Service seized laser printers along
with other equipment. Laser printers have no permanent memory (other than
the factory-supplied ROM chips that tell them how to operate). They print
words on paper, that's all. They cannot contain incriminating information.
Even computers themselves cannot possibly constitute evidence. When
you turn off a computer, its memory dies. Permanent data exist only on
storage media -- hard drives, floppy disks, tape drives, and the like.
Even if law enforcement personnel have some compelling reason to take
storage media away to complete a search, they have no reason to take the
computers that use those media.
Just as a computer is not evidence because it once carried
incriminating information, a network is not a criminal enterprise because
it once carried data used in or derived from fraudulent activity. Yet
under current law, it seems that the operator of a bulletin board is liable
if someone posts an illegal message on it. Say I run a BBS called Mojo.
You dial Mojo up and leave Mario Cuomo's MasterCard number on the board,
inviting anyone to use it. Six people sign on, read the message, and fly
to Rio courtesy of the governor before I notice the message and purge it.
Apparently, I'm liable -- even though I had nothing to do with obtaining
Cuomo's credit card number, never used it, and strenuously object to this
misuse of my board.
Such an interpretation threatens the very existence of the academic
and commercial nets. A user of UseNet, for instance, can send a message to
any other user of UseNet. The network routes messages in a complex fashion
-- from Computer A to Computer B to Computer C, and so on, depending on
what computers are currently live, the volume of data transmitted among
them, and the topography of the net itself. The message could pass through
dozens of computers before reaching its destination. If someone uses the
message to commit fraud, the system operators of every computer along its
path may be criminally liable, even though they would have no way of
knowing the contents of the message.
Computer networks and BBSes need the same kind of "common carrier"
protection that applies to the mails, telephone companies, and wire
services. Posting an illegal message ought to be illegal for the person
who posts it -- but not for the operator of the board on which the message
appears.
The main function of the Net is to promote communication. People
use it to buy goods, research topics, download software, and a myriad of
other things as well, but most of their computing time is spent
communicating: by posting messages to bulletin boards, by "chatting" in
real time, by sending electronic mail, by uploading and downloading files.
It makes no sense to say that discussion of a topic in print is OK, but
discussion of the same topic via an electronic network is a crime.
Yet as currently interpreted, the law says that mere transmission of
information that someone _could_ use to gain access to computers for
fraudulent purposes is itself fraud -- even if no fraudulent access takes
place. The Secret Service, for instance, was willing to indict Neidorf for
publishing information it thought could be used to disrupt the 911 network
-- even though neither Neidorf nor anyone else actually disrupted it. We
must clearly establish that electronic communications are speech, and enjoy
the same protections as other forms of speech.
The prospects for such legal reform are not bright. Three times in
this century, technological developments have created new venues for
speech: with radio, with television, and with cable. On the grounds of
scarcity, government restricts freedom of speech on radio and television;
on the grounds of natural monopoly, government regulates speech on cable.
Recent events, such as the conviction of former Cornell graduate student
Robert T. Morris for introducing a virus into the nationwide ARPANet, have
aroused worry about hacker crimes. But concern for the rights of
legitimate users of computer nets has not received that same level of
publicity. If anything, recent trends lean toward the adoption of more
draconian laws -- like the Computer Fraud and Abuse Act, which may make it
illegal even for computer security professionals to transmit information
about breaches of security.
The Net is vast -- and growing fast. It has already changed the
lives of thousands, from scientists who learn of new breakthroughs far more
quickly than if they had to wait for journal publication, to stay-at-home
writers who find in computer networks the personal contact they miss
without office jobs. But the technology is still in its infancy. The Net
has the capacity to improve all our lives.
A user of the Net can already find a wide variety of information,
from encyclopedia entries to restaurant reviews. Someday the Net will be
the first place citizens turn to when they need information. The morning
paper will be a printout, tailored to our interests and specifications, of
articles posted worldwide; job hunters will look first to the Net; millions
will use it to telecommute to work; and serious discussion will be given to
the abolition of representative government and the adoption of direct
democracy via network voting.
Today, we are farmers standing by our country lanes and marveling as
the first primitive automobiles backfire down the road. The shape of the
future is murky. We cannot know what the Net will bring, just as a farmer
seeing a car for the first time couldn't possibly have predicted six-lane
highways, urban sprawl, the sexual revolution, and photochemical smog.
Nonetheless, we can see that something remarkable is happening, something
that will change the world, something that has the potential to transform
our lives. To ensure that our lives are enriched and not diminished, we
must ensure that the Net is free.
-- Greg Costikyan is a writer of fiction and nonfiction who has designed 23
commercially published games.
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/* R FRINGE COMMENTARY: Here's the Colorado Computer Crimes Law,
Colorado Revised Statutes, Criminal Code, Section 18-5.5-101*.
SECTION 18-5.5-101. Definitions
As used in this article, unless the context otherwise
requires:
(1) "Authorization" means the express consent of a person
which may include an employee's job description to use said
person's computer, computer network, computer program, computer
software, computer system, property, or services as those terms
are defined in this section.
(2) "Computer" means an electronic device which performs
logical, arithmetic, or memory functions by the manipulations of
electronic or magnetic impulses, and includes all input, output,
processing, storage, software, or communication facilities which
are connected or related to such a device in a system or network.
(3) "Computer network" means the interconnection of
communications lines (including microwave or other means of
electronic communication) with a computer through remote
terminals, or a complex consisting of two or more interconnected
computers.
(4) "Computer program" means an series of instructions or
statements, in a form acceptable to a computer, which permits the
functioning of a computer system in a manner designed to provide
appropriate products from such computer system.
(5) "Computer software" a set of computer programs,
procedures and associated documentation concerned with the
operation of a computer system.
(6) "Computer system" means a set of related, connected or
unconnected computer equipment, devices and software.
(7) "Financial instrument" means any check, draft, money
order, certificate of deposit, letter of credit, bill of
exchange, credit card, debit card, or marketable security.
(8) "Property" includes but is not limited to, financial
instruments, information, including electronically produced data,
and computer software and programs, in either machine human
readable form, and any other tangible or intangible item of
value.
(9) "Services" includes, but is not limited to, computer
time, data processing and storage functions.
(10) To "use" means to instruct, communicated with, store
data in, retrieve data from, or otherwise make use of any of the
resources of a computer, computer system, or computer network.
SECTION 18-5.5-102. Computer crime
(1) Any person who knowingly uses any computer, computer
system, computer network, or any part thereof for the purpose of
devising or executing any scheme or artifice to defraud;
obtaining property or services, by means of false or
fraudulent pretenses, representations or promises; using the
property or services of another without authorization; or
committing theft commits computer crime.
(2) Any person who knowingly and without authorization, uses
alters, damages, destroys any computer, computer system, computer
network, described in section 18-5.5-101, or any computer
software, program or data contained in such computer, computer
system or computer network commits computer crime.
(3) If the loss, damage, or thing of value taken in
violation of this section is less than fifty dollars, computer
crime is a class 3 misdemeanor; if fifty dollars or more but less
than three hundred dollars, computer crime is a class 2
misdemeanor; if three hundred dollars or more but less than ten
thousand dollars, computer crime is a class 4 felony; if ten
thousand dollars or more, computer crime is a class 3 felony.
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March 1991
COGNITIVE INTERVIEWING
By
Margo Bennett, M.Ed.
and
John E. Hess, M.Ed.
Special Agents and Instructors
FBI Academy
Quantico, Virginia
When interviewing crime victims, few investigators begin
with questions such as: How tall was the subject? What color
was his hair? Did he have any scars? Common sense, experience,
and fundamental training lead investigators to the conclusion
that such specific questions give witnesses little opportunity
to tell what they know. Instead, open-ended questions tend to
produce the best results. A question like, "What did he look
like?" eliminates the need for investigators to anticipate every
detail of description victims may have noted. Investigators can
always follow up the witness' statements with specific, direct
questions to fill in gaps. At least, that is what many
interview textbooks suggest. But what happens when even these
direct questions fail to produce the details needed from
witnesses? The cognitive interview method is a proven
technique, effective because it provides interviewers with a
structured approach to help retrieve such details from the
memories of witnesses.
Consider the following scenario: At a robbery scene, a
uniformed officer briefs the investigating detective. Hoping to
obtain additional information, the detective approaches the
clerk, introduces himself, and sensing her anxiety, takes some
time to assure her that she has nothing to worry about. He
tells her he understands the trauma she has just undergone, gets
her a cup of coffee, and delays asking any questions until she
has regained her composure. He then tells her that he needs her
help and asks that she start at the beginning and tell him
exactly what happened. She replies:
"I was behind the counter when all of a sudden, I heard a
voice telling me to give him all the money, and I would not
get hurt. I looked up and saw a man wearing a ski mask
pointing a gun right at me. I just froze and stared at the
gun. He told me to get a move on or there would be trouble.
I opened the cash register and handed him all of the bills.
There was just under a hundred dollars in the register. He
then told me to lie on the floor and not move. I did as he
told me and waited until I was sure he was gone. I yelled to
Joe, the manager, who was in the office, who asked me if I
was okay. He then ran to the phone and called the police.
The next thing I knew, the police officer arrived, and I told
him the same thing I just told you. I don't know what the
guy looked like, where he came from, or how he got away. I'm
sorry I can't be more help."
The detective tells her that she has been very helpful and
that now he would like to go over the story again, and this
time, if she doesn't mind, he will interrupt her with questions
as she goes along. As she retells her story, he constantly
probes for additional details, such as the possibility of
additional witnesses, more descriptive data regarding the
subject and his weapon, words he may have used, noticeable
accent, and the means of his escape. However, except for a bit
more descriptive data, the victim was correct; she had told the
responding officer everything she could remember.
THE PROBLEM: INABILITY TO REMEMBER
The above scenario illustrates a problem encountered by
many investigators. That problem results not from investigators
being unable to ask good questions but simply from witnesses who
are unable to provide the answers. Responses such as, "I don't
remember," "That's all I saw," or "I can't recall" frustrate
many interviewers on a regular basis. In the past, this led
investigators to try hypnosis as a means of enhancing witness
recall. Improved results verified what many investigators
suspected--an inability of witnesses to remember, not a lack of
observations, was the main problem. (1) Although investigators
achieved some success through hypnosis, those successes did not
last long. Courts, on a regular basis, began ruling in favor of
defense attorneys who alleged that hypnotically elicited
information may contain flaws and that hypnosis as a means of
refreshing recall lacks scientific acceptance. (2) Therefore,
investigators now primarily reserve hypnosis for situations
where the need for lead information supersedes all other
considerations. They know full well that using hypnosis will
probably disqualify a witness from testifying.
SOLVING THE PROBLEM: THE COGNITIVE INTERVIEW
To enhance witness recall without the stigma attached to
hypnosis, Ronald P. Fisher and Edward Geiselman, professors at
Florida International University and UCLA respectively, have
developed a system they call the cognitive interview. Although
their process contains few, if any, new ideas, they have
systematized some techniques which have, for the most part, been
used by investigators only in a sporadic, piecemeal fashion.
Research indicates that the cognitive approach to interviewing
witnesses increases the quantity of information obtained (3) and
does not jeopardize the witness' credibility in court, as
hypnosis does.
This article compares the traditional interview with the
cognitive interview. Specifically, this article deals with the
cognitive interview technique as it assists witness memory
retrieval by: 1) Reinstating the context of the event, 2)
recalling the event in a different sequence, and 3) looking at
the event from different perspectives. It also deals with
specific retrieval techniques and time factors that affect the
interview.
Reinstate the Context
Traditional interviews of victims and witnesses, similar to
the one described above, usually begin with interviewers first
taking the time to make introductions and putting witnesses at
ease before asking, "What happened?" or "What can you tell me
about...?" Then, specific questions follow that are geared to
fill in the gaps inadvertently left by witnesses. Proponents of
the cognitive interview suggest this will not usually produce
optimum results. Asking people to isolate an event in their
minds and then to verbalize that event requires them to operate
in a vacuum. Even without the trauma that often results from
involvement in a crime, common sense says that human memory
functions better in context. The cognitive interview process
takes this into account.
What is meant by context and how do interviewers establish
it? Simply put, interviewers make efforts to reestablish the
environment, mood, setting, and experiences by asking witnesses
to relive mentally the events prior to, during, and after the
crime.
Let's return to the robbery scene described above with the
detective who had already introduced himself to the victim and
asked for her help. Instead of asking her what happened during
the crime, using the cognitive interview approach, he proceeds
as follows: "It's only about 10:00, and it's already been a
pretty full day for you. How about telling me how your day
started. Tell me what time you got up, the chores you did, the
errands you ran and anything else that happened before you came
to work."
As she recounts her activities, he joins the conversation,
discussing events with her, including the problems of a working
mother, what she fixed for breakfast, and any other details that
she mentions. Only when they have developed a clear picture of
those events does the detective next suggest that the victim
describe her travel to work. He handles this portion of the
conversation in the same way. He does not ask perfunctory
questions geared to getting her quickly to the crime scene, but
rather, he discusses her commute to work in depth. They discuss
the route she took, weather and traffic conditions she
encountered, events she may have noticed, and finally, where she
parked her car and what she noticed at that time. He wants her
not only to just describe her day in general but also to relive
it.
He uses the same interview technique regarding her arrival
at work. By the time they finally get to the discussion of the
robbery, they have put the event into context. In many
instances, this process enhances measurably a person's retrieval
of stored information. Thus, witnesses can see details of the
robbery in their proper sequence and context. Concentration is
more focused than during any previous interviews, which may have
only consisted of isolated questions and answers. The response,
"I can't remember," will occur less frequently.
Change Sequence
To continue the interview and further develop the witness'
recall, another phase of the cognitive interview follows next in
sequence. Initially, retrieving information from witnesses
occurs in a normal, chronological flow of events. However, when
recounting from memory, people tend to edit as memory playback
occurs. This results in a summary based upon what witnesses
regard as important. Therefore, interviewers should address
this problem by prompting witnesses not to hold back even the
most insignificant detail. Even so, most interviewers can cite
experiences where valuable information went unmentioned because
witnesses chose to omit it.
By changing the sequence of recall, witnesses can look at
each stage of the event as a separate entity much akin to
looking at individual frames from a film. Reverse or
out-of-order recall also encourages an overly zealous witness to
stick to the facts. Witnesses find it more difficult to
embellish the event when they separate themselves from the
natural flow of events and independently deal with each
activity.
Returning to the eye-witness interview in the opening
scenario, the detective might continue using the cognitive
interview technique. Accordingly, he would discuss the
conversation the victim had with the responding officer and ask
where she was when the officer arrived. He wants to know
exactly what she was doing at that time. What did she do
immediately before that? Through this line of questioning, he
gradually arrives back at the time of the robbery and before
hand. Thus, he leads her through a second recounting of the
crime, only in reverse sequence. This time, her information is
a collection of pieces, each viewed independently. Just as
looking at a portion of the landscape may reveal details missed
while taking in the panoramic view, looking at stages of an
event may enable witnesses to "see" previously unnoticed items.
Change Perspective
To further stimulate witness memory recovery, Fisher and
Geiselman also suggest changing the perspective. (4) Witnesses
experience an event one time; however, they may perceive it from
various views. During initial recollection, witnesses
articulate from their personal perspectives and rarely vary from
their point of view. By prompting witnesses to physically
change the positioning in their memories, interviewers give them
the opportunity to recall more of their experiences. (5)
Interviewers can change perspective by asking witnesses to
consider the view of another witness, victim, or an invisible
eye on the wall.
Using the technique of changing the perspective of
witnesses, the detective in the opening scenario might say: "You
know those surveillance cameras they have in banks and some
stores? Too bad there wasn't one on the wall over there. I
wonder just what it would have recorded; it certainly would have
had a different vantage point than you did." Through this
opening statement, he can draw the victim into a discussion of
what might have been recorded on the nonexistent camera. This
technique not only provides her with an opportunity to "replay"
the event from a different perspective but it also serves to
further detraumatize the situation. Reviewing a film is much
less traumatic than reliving an armed robbery.
SPECIFIC RETRIEVAL
Interviewers can use additional techniques to promote
memory retrieval, depending on the facts of the crime and
witness information. After witnesses have recounted an event in
its natural sequence, reverse sequence, and from different
perspectives, the interviewer can induce specific retrieval by
asking direct questions. One technique of specific retrieval
includes associating witness recollection of physical
appearance, clothing, and sound with something or someone
familiar to them. Other areas of recall, such as remembering
names and numbers, may be enhanced by dealing with individual
components of the item, such as the first letter or number.
Once established, interviewers direct concentration to the next
letter or number and build the response.
Using this technique, the detective in the robbery scenario
might have first reviewed the details obtained thus far. At
certain points, he might have stopped to ask questions such as:
"You say he had a scary voice. How so? Does it remind you of
anybody you know, or perhaps somebody you've seen in a movie?"
"The coveralls he was wearing--ever seen that type before?
Where? Were they like a pilot's suit, or more like a
carpenter's?"
This context-enhancing technique stems from realizing that
the victim did not experience this event as a clean slate. She
had a lifetime of experiences that preceded this activity.
Therefore, when getting a description of the subject, a
detective's questions, "Does this person remind you of anyone
you know? In what way?" likewise provide a context from which
the victim can make comparisons. This removes her need to
create, thus enabling her to draw on information with which she
is comfortable.
TIME FACTORS
The cognitive interview encourages a witness' in-depth
retrieval of memory. Success with this technique, although a
time-consuming process, forces interviewers to avoid some traps
normally associated with police interviews, specifically,
rushing the recall of witnesses and interrupting their
narratives.
Witnesses must feel confident that they have time to think,
speak, reflect, and speak again as often as they need.
Interviewers can instill this confidence by allowing sufficient
time for the interview and by refraining from interrupting
witnesses. (6) All too often, interviewers say, "Tell me what
happened," but before witnesses speak for 30 seconds,
interviewers begin interrupting with specific questions. Those
specific questions should be asked after witnesses have had the
opportunity to recount the event fully. Allowing time to
respond also applies when witnesses answer specific retrieval
questions. Rushing witnesses sends a message to them that their
information is trivial. This results in witness retrieval
shutdown. If interviewers don't give them the time, witnesses
cannot concentrate or remember.
The cognitive interview technique not only enhances witness
recall but also addresses another common problem among
interviewers--their inability to sustain the interview.
Interviewers, particularly inexperienced ones, are often reduced
to saying, "I can't think of anything else to ask. Is there
anything you're leaving out?" If a witness responds in the
negative, the interview is over. Using the cognitive technique
can help interviewers avoid prematurely reaching this point.
Experience demonstrates that the cognitive interview technique
allows interviewers to continue discussing events without
sounding redundant. Indeed, continued conversation in a
constructive, helpful direction often prompts additional
information.
CONCLUSION
Despite significant advances in various forensic fields,
most crimes are solved by information furnished by people. The
interview remains the foremost investigative tool for gaining
information.
Although most victims and witnesses try to cooperate, their
inability to recall vital details can be discouraging, and they
need help in remembering. This help must come from
investigators. Merely asking the right questions does not
suffice; enhancing someone's memory requires active involvement.
The cognitive approach to interviewing has proven more effective
than the traditional one by increasing the quality and quantity
of information obtained from witnesses and victims.
Footnotes
(1) John C. Yuille and N. Hope McEwan, "Use of Hypnosis as
an Aid to Eyewitness Memory," Journal of Applied Psychology,
1985, vol. 70, No. 2, p. 389.
(2) Martin T. Orne, David F. Dinges, and Emily C. Orne,
"The Forensic Use of Hypnosis," National Institute of Justice,
December 1984, p. 1.
(3) R. Edward Geiselman, Ronald P. Fisher, David P.
MacKinnon, and Heidi L. Holland, "Eyewitness Memory Enhancement
in the Police Interview: Cognitive Retrieval Mnemonics Versus
Hypnosis," Journal of Applied Psychology, 1985, vol. 70, No. 2,
p. 403.
(4) R. Edward Geiselman, and Michael Nielsen, "Cognitive
Memory Retrieval Techniques," The Police Chief, March 1986, p.
70.
(5) Ibid.
(6) R. Edward Geiselman, Ronald P. Fisher, David S.
Raymond, Lynn M. Jurkevich, and Monica L. Warhaftig, "Enhancing
Eyewitness Memory: Refining the Cognitive Interview," Journal
of Police Science and Administration, December 1987, vol. 15,
No. 4, p. 292.

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February 1991
COMPUTER CRIMES:
AN ESCALATING CRIME TREND
By
William S. Sessions
Director
Federal Bureau of Investigation
Editor's note: This article is based on a speech given by
FBI Director William S. Sessions.
Artificial intelligence, laptops, PCs, vaxclusters, local
area networks, cobol, bits, bytes, viruses, and worms. Most
people recognize these words as computer terms. As computers
have become a vital part of the American way of life, computer
terminology has crept into the vernacular. There is no doubt
that computers touch every aspect of our lives. Well over 80
percent of daily financial transactions nationwide take place
via electronic funds transfers. However, many computer systems
are highly vulnerable to criminal attack. In fact, computer-
related crime costs American companies as much as $5 billion
per year.
When Clifford Stoll, an astrophysicist with an interest in
computers, described computer crime, he likened computer
networks to neighborhoods and small communities. He said cities
and towns are tied together by streets, roads, highways, and
interstates. Likewise, communities of computers are linked
through local, regional, and national networks. Rather than
transport food and equipment like highways do, computer networks
move ideas and information.
Unfortunately, just as American communities are threatened
with drugs and violent crime, this Nation's computer networks
are threatened as well. They are threatened by thieves robbing
banks electronically; they are threatened by vandals spreading
computer viruses; and they are even threatened by spies breaking
into U.S. military systems.
White-collar crimes in general--and computer crime in
particular--are often difficult to detect and even more
difficult to prosecute because many times they leave no
witnesses to question and no physical evidence to analyze. And,
because computer technology is such a rapidly evolving field,
law enforcement has not yet developed a clear-cut definition of
computer crime. Nevertheless, two manifestations of computer
crime are obvious: The first is crime in which the computer is
the vehicle or tool of the criminal, and second, crime in which
the computer and the information stored in it are the targets of
the criminal.
COMPUTERS AS CRIME TOOLS
When criminals use computers as their tools, the crimes
they engineer are essentially traditional crimes, such as
embezzlement, fraud, and theft, perpetrated by non-traditional
means. The criminal uses a computer as an instrument, like the
forger's pen or the terrorist's bomb.
The vast majority of computer-related crimes that the FBI
investigates falls into the category of using the computer as a
tool. For instance, if a team of FBI Agents in one of its 56
field offices uncovers information that a disgruntled employee
is tapping into a bank's computer to transfer funds illegally,
those Agents will probably open up a bank fraud and embezzlement
case and proceed from there.
COMPUTERS AS CRIME TARGETS
But what about the emerging crime trend that is unique to
computers--in which the computer is the target? This type of
crime occurs when a computer and the information it stores are
the targets of a criminal act committed either internally by
employees or externally by criminals. The external threat
usually involves the use of telecommunications to gain
unauthorized access to the computer system.
In its investigations, the FBI has determined three groups
of individuals involved in the external threat. The first, and
the largest, group consists of individuals who break into a
computer just to see if they can do it--without stealing or
destroying data. The next group breaks into computer systems to
destroy, disrupt, alter, or interrupt the system. Their actions
amount to malicious mischief because they do not attack the
system for financial gain, which is the motive of the last
group. This group constitutes a serious threat to businesses
and national security for these individuals are professionals
who use specialized skills to steal information, manipulate
data, or cause loss of service to the computer system.
MEASURES TAKEN AGAINST COMPUTER CRIME
Offenses committed through the use of computers include
thefts, destruction of property, embezzlement, larceny, and
malicious mischief, to name a few. For the most part, offenders
have been prosecuted under Federal statutes (1) to address those
particular crimes. However, to investigate and prosecute
computer crimes not adequately covered by existing U.S. Federal
laws, the Computer Fraud and Abuse Act was passed. One aspect of
that act made it a crime for an unauthorized person--the
hacker--to access a computer system.
In 1986, this law was amended and expanded in scope and
appears on the books as Title 18, U.S. Code, Section 1030. This
statute contains essentially five parts--computer espionage,
theft of financial information, trespass into U.S. Government
computers, trespass into "Federal interest computers" (2) with
intent to defraud, and trespass into a Federal interest computer
to alter or destroy information. Both the FBI and the U.S.
Secret Service have joint jurisdiction to enforce this statute.
However, the statutes in the new computer fraud and abuse cases
have seldom been interpreted by the courts. In fact, only 74
FBI cases with the computer as the target of the crime were
identified between August 1987, and December 1989.
CASE STUDY
One particular case that captured much media attention
demonstrated how complex and elusive computer crimes and
computer criminals can be. In November 1988, a Cornell
University graduate student designed the "Internet worm," a
malicious code that spread to several hundred computers and
affected the operations of several thousand U.S. Government,
military, education, and commercial computer systems. This
"worm" did not destroy data but caused massive disruption to
the Defense Department's Advanced Research Project Agency
Network and the computers connected to it.
Investigators from several FBI field offices identified the
man responsible for the attack, which attracted attention when
it overloaded the system's capacity in numerous locations. This
student was charged with devising and executing a computer
attack on approximately 6,200 computers connected to the Defense
Data Network. On July 26, 1989, he was indicted for violating
the Computer Fraud and Abuse Act, a felony that carries a
sentence of up to 5 years in prison. On January 22, 1990, a
jury in the Northern District of New York returned a verdict of
guilty. The student was ultimately sentenced to 3 years'
probation, 400 hours of community service, and a $10,000 fine.
This particular case raised many questions regarding the
long-range impact of "malicious code." Malicious code is the
general term for computer software designed to deliberately
circumvent established security mechanisms or to take advantage
of inadequate system policies or procedures. It is often
difficult to trace and is frequently not discovered until it is
too late to prevent the intended harm.
Computer viruses and computer worms are malicious codes
most frequently introduced into computer systems. Although some
viruses have been known to carry benign code, more often they
will have devastating effects, such as destroying files or
corrupting data.
EFFECTS OF COMPUTER CRIME
Computer hacking and the unleashing of viruses are not
harmless pranks. These products of computer criminal action
have the potential for great harm, not only to large financial
institutions but also to all citizens. Criminals who hack into
a computer storing a doctor's patient and prescription
information could, by electronically altering the drugs and
dosages, inflict serious harm on patients. Criminals who hack
into defense computers could compromise valuable intelligence
information and possibly alter the world's balance of power.
And, a fanatical terrorist could inflict devastating damage with
a virus.
These are very real possibilities. And the increase in the
number of criminals who have the knowledge and capabilities to
access computers are the reasons why this emerging crime trend
is among the FBI's top priorities.
INVESTIGATING COMPUTER CRIME
Solving crimes that involve computers demands special
investigative strategies, training, and skills. To conduct
successful investigations in computer crime, the FBI uses a team
approach. In most of the investigations that involve computers,
the FBI Agent plays the role of the team leader, assisted by a
computer technician--often drawn from the FBI support personnel
ranks--when necessary. In addition, the FBI draws on knowledge
from other government agencies, private sector computer firms,
and universities to augment the level of expertise brought to
these sometimes very complex investigations.
COMPUTER CRIME TRAINING
In order to fight the computer criminals of the next
century, the FBI is providing investigators with the necessary
training and expert support services to ensure that their
efforts are well directed. For example, computer crime training
classes for FBI Agents and National Academy students at the
Bureau's facility at Quantico, Virginia, began in 1976. The FBI
training philosophy is: To be a computer crimes investigator,
you first must be a computer user.
Specifically, the FBI offers two computer courses to FBI
Agents and police investigators. In the 2-week basic computer
course, students learn to use computers and become familiar with
the various databases so they can recognize aberrations and
crimes when they occur. In short, they are made computer
literate.
Another course is a 1-week advanced investigative course
that zeroes in on viruses and other tricks of the trade. This
course also covers searches and seizures of crime evidence found
within computers.
INVESTIGATIVE SUPPORT
Not only are FBI Agents and police investigators trained in
computer operations, but they are also supported with CASIAT--the
FBI's computer-assisted security and investigative analysis tool.
CASIAT is not a computer but a group of experts--members of the
FBI's National Center for the Analysis of Violent Crime--who
analyze computer crime patterns and develop profiles of computer
criminals to assist investigators. For instance, as a result of
their research, it has been determined that computer hackers are
motivated by a variety of emotions--including revenge,
retaliation, vandalism, and malicious mischief. The CASIAT
experts are also establishing a national repository of malicious
software or viruses. In addition, they are studying the methods
used by various computer criminals in order to deal with crimes
committed by these individuals.
CONCLUSION
In the continuing fight against computer crime, law
enforcement must continue to strengthen its investigations,
training, and support services. The education of prosecutors
and investigators is necessary for them to know and to
understand the elements of criminal conduct in computer crime.
These crimes will be dealt with by using traditional laws and
investigative techniques when possible, but new strategies must
be adopted when needed in order to keep current with the
computer crime trends of the future.
However, the greatest point of control is removing the
opportunity to commit computer crime. Computer security is
first and foremost the responsibility of the system owner.
Therefore, corporations must bring the issues of computer
security to the management levels and create policies that
establish security standards and response strategies to computer
crimes. Cooperative efforts between the public and private
sectors will prevent the computer criminal from causing serious
damage in our Nation.
FOOTNOTES
(1) 18 U.S.C. sec. 1030 (Computer Fraud and Abuse Act of
1986); 18 U.S.C. sec. 2701 (unlawful access to stored
communications); 18 U.S.C. sec. 1362 (malicious mischief); 18
U.S.C. sec. 2314 (interstate transportation of stolen property);
18 U.S.C. sec. 1343 (wire fraud); 18 U.S.C. sec. 641 (theft of
government property); 18 U.S.C. sec. 793 (espionage).
(2) A "Federal interest computer" is defined as either a
computer used by the Federal Government or financial
institutions, or affecting the use for the Government or
institution, or a computer "which is one of two or more
computers used in committing the offense, not all of which are
located in the same state."

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Revised Computer Crime Sentencing Guidelines
From Jack King (gjk@well.sf.ca.us)
The U.S. Dept. of Justice has asked the U.S. Sentencing Commission to
promulgate a new federal sentencing guideline, Sec. 2F2.1, specifically
addressing the Computer Fraud and Abuse Act of 1988 (18 USC 1030), with a
base offense level of 6 and enhancements of 4 to 6 levels for violations of
specific provisions of the statute. The new guideline practically
guarantees some period of confinement, even for first offenders who plead
guilty.
For example, the guideline would provide that if the defendant obtained
``protected'' information (defined as ``private information, non-public
government information, or proprietary commercial information), the offense
level would be increased by two; if the defendant disclosed protected
information to any person, the offense level would be increased by four
levels, and if the defendant distributed the information by means of ``a
general distribution system,'' the offense level would go up six levels.
The proposed commentary explains that a ``general distribution system''
includes ``electronic bulletin board and voice mail systems, newsletters
and other publications, and any other form of group dissemination, by any
means.''
So, in effect, a person who obtains information from the computer of
another, and gives that information to another gets a base offense level of
10; if he used a 'zine or BBS to disseminate it, he would get a base
offense level of 12. The federal guidelines prescribe 6-12 months in jail
for a first offender with an offense level of 10, and 10-16 months for same
with an offense level of 12. Pleading guilty can get the base offense
level down by two levels; probation would then be an option for the first
offender with an offense level of 10 (reduced to 8). But remember: there
is no more federal parole. The time a defendant gets is the time s/he
serves (minus a couple days a month "good time").
If, however, the offense caused an economic loss, the offense level would
be increased according to the general fraud table (Sec. 2F1.1). The
proposed commentary explains that computer offenses often cause intangible
harms, such as individual privacy rights or by impairing computer
operations, property values not readily translatable to the general fraud
table. The proposed commentary also suggests that if the defendant has a
prior conviction for ``similar misconduct that is not adequately reflected
in the criminal history score, an upward departure may be warranted.'' An
upward departure may also be warranted, DOJ suggests, if ``the defendant's
conduct has affected or was likely to affect public service or confidence''
in ``public interests'' such as common carriers, utilities, and
institutions. Based on the way U.S. Attorneys and their computer experts
have guesstimated economic "losses" in a few prior cases, a convicted
tamperer can get whacked with a couple of years in the slammer, a whopping
fine, full "restitution" and one to two years of supervised release (which
is like going to a parole officer). (Actually, it *is* going to a parole
officer, because although there is no more federal parole, they didn't get
rid of all those parole officers. They have them supervise convicts' return
to society.)
This, and other proposed sentencing guidelines, can be found at 57 Fed Reg
62832-62857 (Dec. 31, 1992).
The U.S. Sentencing Commission wants to hear from YOU. Write: U.S.
Sentencing Commission, One Columbus Circle, N.E., Suite 2-500, Washington
DC 20002-8002, Attention: Public Information. Comments must be received by
March 15, 1993.
* * *
Actual text of relevant amendments:
UNITED STATES SENTENCING COMMISSION
AGENCY: United States Sentencing Commission.
57 FR 62832
December 31, 1992
Sentencing Guidelines for United States Courts
ACTION: Notice of proposed amendments to sentencing guidelines, policy
statements, and commentary. Request for public comment.
Notice of hearing.
SUMMARY: The Commission is considering promulgating certain amendments
to the sentencing guidelines, policy statements, and commentary. The
proposed amendments and a synopsis of issues to be addressed are set
forth below. The Commission may report amendments to the Congress on or
before May 1, 1993. Comment is sought on all proposals, alternative
proposals, and any other aspect of the sentencing guidelines, policy
statements, and commentary.
DATES: The Commission has scheduled a public hearing on these proposed
amendments for March 22, 1993, at 9:30 a.m. at the Ceremonial Courtroom,
United States Courthouse, 3d and Constitution Avenue, NW., Washington,
DC 20001.
Anyone wishing to testify at this public hearing should notify
Michael Courlander, Public Information Specialist, at (202) 273-4590 by
March 1, 1993.
Public comment, as well as written testimony for the hearing, should
be received by the Commission no later than March 15, 1993, in order to
be considered by the Commission in the promulgation of amendments due to
the Congress by May 1, 1993.
ADDRESSES: Public comment should be sent to: United States Sentencing
Commission, One Columbus Circle, NE., suite 2-500, South Lobby,
Washington, DC 20002-8002, Attention: Public Information.
FOR FURTHER INFORMATION CONTACT: Michael Courlander, Public Information
Specialist, Telephone: (202) 273-4590.
* * *
59. Synopsis of Amendment: This amendment creates a new guideline
applicable to violations of the Computer Fraud and Abuse Act of 1988 (18
U.S.C. 1030). Violations of this statute are currently subject to the
fraud guidelines at S. 2F1.1, which rely heavily on the dollar amount of
loss caused to the victim. Computer offenses, however, commonly protect
against harms that cannot be adequately quantified by examining dollar
losses. Illegal access to consumer credit reports, for example, which
may have little monetary value, nevertheless can represent a serious
intrusion into privacy interests. Illegal intrusions in the computers
which control telephone systems may disrupt normal telephone service and
present hazards to emergency systems, neither of which are readily
quantifiable. This amendment proposes a new Section 2F2.1, which
provides sentencing guidelines particularly designed for this unique and
rapidly developing area of the law.
Proposed Amendment: Part F is amended by inserting the following
section, numbered S. 2F2.1, and captioned "Computer Fraud and Abuse,"
immediately following Section 2F1.2:
"S. 2F2.1. Computer Fraud and Abuse
(a) Base Offense Level: 6
(b) Specific Offense Characteristics
(1) Reliability of data. If the defendant altered information,
increase by 2 levels; if the defendant altered protected information, or
public records filed or maintained under law or regulation, increase by
6 levels.
(2) Confidentiality of data. If the defendant obtained protected
information, increase by 2 levels; if the defendant disclosed protected
information to any person, increase by 4 levels; if the defendant
disclosed protected information to the public by means of a general
distribution system, increase by 6 levels.
Provided that the cumulative adjustments from (1) and (2), shall not
exceed 8.
(3) If the offense caused or was likely to cause
(A) interference with the administration of justice (civil or
criminal) or harm to any person's health or safety, or
(B) interference with any facility (public or private) or
communications network that serves the public health or safety, increase
by 6 levels.
(4) If the offense caused economic loss, increase the offense level
according to the tables in S. 2F1.1 (Fraud and Deceit). In using those
tables, include the following:
(A) Costs of system recovery, and
(B) Consequential losses from trafficking in passwords.
(5) If an offense was committed for the purpose of malicious
destruction or damage, increase by 4 levels.
(c) Cross References
(1) If the offense is also covered by another offense guideline
section, apply that offense guideline section if the resulting level is
greater. Other guidelines that may cover the same conduct include, for
example: for 18 U.S.C. 1030(a)(1), S. 2M3.2 (Gathering National Defense
Information); for 18 U.S.C. 1030(a)(3), S. 2B1.1 (Larceny,
Embezzlement, and Other Forms of Theft), S. 2B1.2 (Receiving,
Transporting, Transferring, Transmitting, or Possessing Stolen
Property), and S. 2H3.1 (Interception of Communications or
Eavesdropping); for 18 U.S.C. 1030(a)(4), S. 2F1.1 (Fraud and Deceit),
and S. 2B1.1 (Larceny, Embezzlement, and Other Forms of Theft); for 18
U.S.C. S. 1030(a)(5), S. 2H2.1 (Obstructing an Election or
Registration), S. 2J1.2 (Obstruction of Justice), and S. 2B3.2
(Extortion); and for 18 U.S.C. S. 1030(a)(6), S. 2F1.1 (Fraud and
Deceit) and S. 2B1.1 (Larceny, Embezzlement, and Other Forms of Theft).
Commentary
Statutory Provisions: 18 U.S.C. 1030(a)(1)-(a)(6)
Application Notes:
1. This guideline is necessary because computer offenses often harm
intangible values, such as privacy rights or the unimpaired operation of
networks, more than the kinds of property values which the general fraud
table measures. See S. 2F1.1, Note 10. If the defendant was previously
convicted of similar misconduct that is not adequately reflected in the
criminal history score, an upward departure may be warranted.
2. The harms expressed in paragraph (b)(1) pertain to the reliability
and integrity of data; those in (b)(2) concern the confidentiality and
privacy of data. Although some crimes will cause both harms, it is
possible to cause either one alone. Clearly a defendant can obtain or
distribute protected information without altering it. And by launching a
virus, a defendant may alter or destroy data without ever obtaining it.
For this reason, the harms are listed separately and are meant to be
cumulative.
3. The terms "information," "records," and "data" are
interchangeable.
4. The term "protected information" means private information, non-
public government information, or proprietary commercial information.
5. The term "private information" means confidential information
(including medical, financial, educational, employment, legal, and tax
information) maintained under law, regulation, or other duty (whether
held by public agencies or privately) regarding the history or status of
any person, business, corporation, or other organization.
6. The term "non-public government information" means unclassified
information which was maintained by any government agency, contractor or
agent; which had not been released to the public; and which was related
to military operations or readiness, foreign relations or intelligence,
or law enforcement investigations or operations.
7. The term "proprietary commercial information" means non-public
business information, including information which is sensitive,
confidential, restricted, trade secret, or otherwise not meant for
public distribution. If the proprietary information has an ascertainable
value, apply paragraph (b) (4) to the economic loss rather than (b) (1)
and (2), if the resulting offense level is greater.
8. Public records protected under paragraph (b) (1) must be filed or
maintained under a law or regulation of the federal government, a state
or territory, or any of their political subdivisions.
9. The term "altered" covers all changes to data, whether the
defendant added, deleted, amended, or destroyed any or all of it.
10. A "general distribution system" includes electronic bulletin
board and voice mail systems, newsletters and other publications, and
any other form of group dissemination, by any means.
11. The term "malicious destruction or damage" includes injury to
business and personal reputations.
12. Costs of system recovery: Include the costs accrued by the victim
in identifying and tracking the defendant, ascertaining the damage, and
restoring the system or data to its original condition.
In computing these costs, include material and personnel costs, as well
as losses incurred from interruptions of service. If several people
obtained unauthorized access to any system during the same period, each
defendant is responsible for the full amount of recovery or repair loss,
minus any costs which are clearly attributable only to acts of other
individuals.
13. Consequential losses from trafficking in passwords: A defendant
who trafficked in passwords by using or maintaining a general
distribution system is responsible for all economic losses that resulted
from the use of the password after the date of his or her first general
distribution, minus any specific amounts which are clearly attributable
only to acts of other individuals. The term "passwords" includes any
form of personalized access identification, such as user codes or names.
14. If the defendant's acts harmed public interests not adequately
reflected in these guidelines, an upward departure may be warranted.
Examples include interference with common carriers, utilities, and
institutions (such as educational, governmental, or financial
institutions), whenever the defendant's conduct has affected or was
likely to affect public service or confidence".
* * *
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Date: Thursday, 3 December 1987 07:16-MST
From: august at VLSI.JPL.NASA.GOV (Richard August)
To: info-modems
Re: Copyright: The Gospel according to CompuServe! (Their position)
--WHAT IS A COMPILATION COPYRIGHT?
CompuServe has copyrighted the contents of the CompuServe
Information Service as a compilation copyright, just as many magazines
and newspapers reserve such a copyright on the contents of their
publications. This copyright is held in accordance with the 1976
Copyright Act of the United States.
A compilation copyright is granted when an organization collects
information in a lawful way, adds value to it, and offers it to
others. In this case, the CompuServe Information Service is a
value-added product; CompuServe Incorporated has committed substantial
financial resources to collecting more than 400 databases and offering
them in an organized, structured way to a defined user base through a
nationwide telecommunications network. The compilation copyright is
intended to protect that substantial investment from unauthorized
exploitation. This does NOT mean that CompuServe assumes ownership of
individual programs and databases provided to the system by
subscribers or information providers.
--IF I UPLOAD A SOFTWARE PROGRAM I'VE DEVELOPED TO COMPUSERVE, DO
I STILL RETAIN OWNERSHIP OF THE PROGRAM?
Yes, you do. CompuServe's compilation copyright does NOT
supercede individual ownership rights or copyrights to any of the
material furnished to the Service by subscribers or information
providers.
For example, a subscriber who creates a program and uploads it to
a CompuServe forum data library STILL OWNS that program, and may
upload it to other information services and bulletin board systems.
It should be noted, however, that CompuServe cannot grant any
redistribution rights for materials copyrighted by the author, unless
specifically authorized to do so, CompuServe does not own the material
or the copyright. These rights must be obtained directly from the
author.
--WHAT IS COMPUSERVE'S STANCE TOWARD COPYRIGHTED, PUBLIC DOMAIN, AND
SHAREWARE PROGRAMS?
Each of these types of property have special characteristics, and
deserves separate explanation:
COPYRIGHTED MATERIAL
CompuServe does not allow copyrighted material to be placed on
the CompuServe Information Service without the author's permission.
Only the owner(s) or persons they specifically authorize may upload
copyrighted material to the Service.
Any subscriber may download copyrighted material for their own
use. Any subscriber may also non-commercially redistribute a
copyrighted program with the expressed permission of the owner or
authorized person. Permission must be specified in the document, on
the Service, or must be obtained directly from the author. See menu
choices 5,6 and 7 for more information about redistribution
guidelines.
PUBLIC DOMAIN
Any subscriber may upload public domain programs to the Service.
Any subscriber may download public domain programs for their own use
or non-commercially redistribute a public domain program. See menu
choices 5, 6, and 7 for more information about redistribution
guidelines.
SHAREWARE
Only the owner or an authorized person may upload shareware
programs.
Any subscriber may download shareware programs for their own use,
subject to the terms provided by the owner. Any subscriber may
non-commercially redistribute a shareware program subject to the
provided terms explicitly displayed in the software itself, or with
permission of the owner or authorized person. See menu choices 5, 6
and 7 for more information about redistribution guidelines.
--AS A COMPUSERVE SUBSCRIBER, CAN I DOWNLOAD PUBLIC DOMAIN INFORMATION
AND SHAREWARE PROGRAMS FOR MY OWN USE FROM COMPUSERVE FORUM DATA
LIBRARIES?
Yes, you can. Public domain information and shareware programs
are uploaded to CompuServe data libraries by their authors for use by
other CompuServe subscribers.
--MAY I DOWNLOAD PROGRAMS FROM COMPUSERVE FORUM DATA LIBRARIES AND
SHARE THEM WITH A FRIEND, OR UPLOAD THEM TO ANOTHER BULLETIN BOARD
SYSTEM?
In keeping with the spirit of the development of public domain
information and shareware, it is not CompuServe's current policy to
prevent casual redistribution of this type of information -- this is
low volume and low frequency use or redistribution of information
where no commercialism is involved. This means that a customer may
download a file and share it with others for no commercial gain --
either via a bulletin board service, diskette, or other means.
A subscriber may not, however, download a large number of files
for redistribution via any means, nor is it acceptable for a
subscriber to update another bulletin board regularly with files
obtained from CompuServe.
It's important to note that CompuServe cannot grant
redistribution rights for programs clearly copyrighted by the author,
unless specifically authorized to do so. Such permssion must be
obtained directly from the author of the program.
--MAY I DOWNLOAD AND RESELL A PROGRAM FROM A COMPUSERVE FORUM DATA
LIBRARY?
Commercial exploitation of material contained on the CompuServe
Information Service is specifically prohibited by the CompuServe
Service agreement, to which each subscriber agrees before being
permitted to access the Service. Therefore, subscribers cannot
lawfully download and redistribute public information or shareware
programs for personal gain.
In addition, mass redistribution of public domain information or
shareware is also prohibited. Mass distribution is defined as high
frequency and/or high volume transfers.
--WHAT ARE THE PENALTIES FOR VIOLATING THE COMPILATION COPYRIGHT OR
SERVICE AGREEMENT PROVISIONS?
When a situation involving exploitation is brought to
CompuServe's attention, we investigate and, if warranted, remind the
violator of the terms of the Service Agreement. If subsequent
violations are reported, access to the CompuServe Information Service
may be terminated for the violator and, in extreme cases, a letter is
sent from our legal counsel asking that he or she cease and desist, or
risk further legal action.
This is done as a positive step to protect the value and use of
the material for CompuServe Information Service subscribers, and to
discourage unauthorized redistribution of that material.
1. The CompuServe Information Service (the "Service") consists of the
use of the computing services, software and databases so designated by
CompuServe. These Terms and any Operating Rules published over the
Service constitute the entire Agreement for the Service and supersede
all prior and contemporaneous statements, communications and
documents.
2. Upon notice published over the Service, CompuServe may modify
these Terms, the Operating Rules, or the Service. Such modifications
may include, without limitation, price changes, implementation of user
priorities and discontinuance of parts of the Service. Upon at least
six months' prior notice published over the Service, CompuServe may
terminate the Service.
3. Customer's use of the Service is not transferable and is subject
to any limits established for Customer's credit card or any limits
established by CompuServe.
4. Customer is responsible for and must provide all telephone and
other equipment necessary to access the Service.
5. The Service is provided on an "as-is, as-available" basis.
NEITHER COMPUSERVE, ITS DISTRIBUTORS, NOR ITS SUPPLIERS MAKE ANY
WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION THOSE
OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT
TO THE SERVICE. Customer is responsible for implementing sufficient
procedures and chec kpoints to satisfy his/her requirements for
accuracy of data input and output and for maintaining a means external
to the Service for reconstruction of any lost data.
6. Customer will not reproduce, sell, publish, or in any manner
commercially exploit any information obtained through the Service or
participate in or allow such reproduction, sale, publications or
exploitation by any person.
7. The provisions of paragraphs 5 and 6 are for the benefit of
CompuServe and its data suppliers; any such data supplier shall have
the right to assert and/or to enforce such provisions directly on its
own behalf.
8. In addition to connect time charges, monthly minimums, and
purchases made through the Service, Customer will be responsible for
payment of all premium program charges, transaction charges, and/or
add-on connect time charges when the Customer utilizes such services
that generate these charges, and for any surcharges incurred while
using any supplemental networks other than CompuServe.
9. This Agreement will be performed in and governed by the laws of
the State of Ohio. Any claims or causes of action related to the
Service must be instituted within one year after the claim or cause of
action has arisen or be barred. Service Agreement I agree to pay the
CompuServe Information Service rates in effect for the billing period
in which the services are purchased and billed. I agree to pay the
validation charge in effect at the time this Agreement is accepted by
CompuServe. I agree to the terms and conditions of the Billin g
Option which I have selected and as published over the Service. I
shall maintain confidentiality of my password at all times and take
responsiblity for its security. I have read and fully understand the
Terms of this Agreement and agree to be bound by them.
law/compuser.law
+198
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@@ -0,0 +1,198 @@
Date: Thursday, 3 December 1987 07:16-MST
From: august at VLSI.JPL.NASA.GOV (Richard August)
To: info-modems
Re: Copyright: The Gospel according to CompuServe! (Their position)
--WHAT IS A COMPILATION COPYRIGHT?
CompuServe has copyrighted the contents of the CompuServe
Information Service as a compilation copyright, just as many magazines
and newspapers reserve such a copyright on the contents of their
publications. This copyright is held in accordance with the 1976
Copyright Act of the United States.
A compilation copyright is granted when an organization collects
information in a lawful way, adds value to it, and offers it to
others. In this case, the CompuServe Information Service is a
value-added product; CompuServe Incorporated has committed substantial
financial resources to collecting more than 400 databases and offering
them in an organized, structured way to a defined user base through a
nationwide telecommunications network. The compilation copyright is
intended to protect that substantial investment from unauthorized
exploitation. This does NOT mean that CompuServe assumes ownership of
individual programs and databases provided to the system by
subscribers or information providers.
--IF I UPLOAD A SOFTWARE PROGRAM I'VE DEVELOPED TO COMPUSERVE, DO
I STILL RETAIN OWNERSHIP OF THE PROGRAM?
Yes, you do. CompuServe's compilation copyright does NOT
supercede individual ownership rights or copyrights to any of the
material furnished to the Service by subscribers or information
providers.
For example, a subscriber who creates a program and uploads it to
a CompuServe forum data library STILL OWNS that program, and may
upload it to other information services and bulletin board systems.
It should be noted, however, that CompuServe cannot grant any
redistribution rights for materials copyrighted by the author, unless
specifically authorized to do so, CompuServe does not own the material
or the copyright. These rights must be obtained directly from the
author.
--WHAT IS COMPUSERVE'S STANCE TOWARD COPYRIGHTED, PUBLIC DOMAIN, AND
SHAREWARE PROGRAMS?
Each of these types of property have special characteristics, and
deserves separate explanation:
COPYRIGHTED MATERIAL
CompuServe does not allow copyrighted material to be placed on
the CompuServe Information Service without the author's permission.
Only the owner(s) or persons they specifically authorize may upload
copyrighted material to the Service.
Any subscriber may download copyrighted material for their own
use. Any subscriber may also non-commercially redistribute a
copyrighted program with the expressed permission of the owner or
authorized person. Permission must be specified in the document, on
the Service, or must be obtained directly from the author. See menu
choices 5,6 and 7 for more information about redistribution
guidelines.
PUBLIC DOMAIN
Any subscriber may upload public domain programs to the Service.
Any subscriber may download public domain programs for their own use
or non-commercially redistribute a public domain program. See menu
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Downloaded From P-80 International Information Systems 304-744-2253
law/computer.cri
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law/confess.law
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March 1991
WHY SUSPECTS CONFESS
By
David D. Tousignant, M.A.
Inspector
Lowell, Massachusetts, Police Department
Many criminal cases, even when investigated by the most
experienced and best qualified investigators, are ultimately
solved by an admission or confession from the person responsible
for committing the crime. Oftentimes, investigators are able to
secure only a minimal amount of evidence, be it physical or
circumstantial, that points directly to a suspect, and in many
instances, this evidence is not considered strong enough by
prosecutors to obtain a conviction. In such cases, the
interrogation of the suspects and their subsequent confessions
are of prime importance.
This article addresses the question of why suspects speak
freely to investigators, and ultimately, sign full confessions.
The physical and psychological aspects of confession and how
they relate to successful interrogations of suspects are also
discussed, as is the "breakthrough," the point in the
interrogation when suspects make an admission, no matter how
minuscule, that begins the process of obtaining a full
confession.
DEFINING INTERROGATION
Interrogation is the questioning of a person suspected of
having committed a crime. (1) It is designed to match acquired
information to a particular suspect in order to secure a
confession. (2) The goals of interrogation include:
* To learn the truth of the crime and how it happened
* To obtain an admission of guilt from the suspect
* To obtain all the facts to determine the method of
operation and the circumstances of the crime in question
* To gather information that enables investigators to arrive
at logical conclusions
* To provide information for use by the prosecutor in
possible court action. (3)
Knowing the definition and objectives of the interrogation,
the question then asked is, "Why do suspects confess?"
Self-condemnation and self-destruction are not normal human
behavioral characteristics. Human beings ordinarily do not
utter unsolicited, spontaneous confessions. (4) It is logical
to conclude, therefore, that when suspects are taken to police
stations to be questioned concerning their involvement in a
particular crime, their immediate reaction will be a refusal to
answer any questions. With the deluge of television programs
that present a clear picture of the Miranda warning and its
application to suspects, one would conclude that no one
questioned about a crime would surrender incriminating
information, much less supply investigators with a signed, full
confession. It would also seem that once suspects sense the
direction in which the investigators are heading, the
conversation would immediately end. However, for various
psychological reasons, suspects continue to speak with
investigators.
SUSPECT PARANOIA
Suspects are never quite sure of exactly what information
investigators possess. They know that the police are
investigating the crime, and in all likelihood, suspects have
followed media accounts of their crimes to determine what leads
the police have. Uppermost in their minds, however, is how to
escape detection and obtain firsthand information about the
investigation and where it is heading.
Such "paranoia" motivates suspects to accompany the police
voluntarily for questioning. Coupled with curiosity, this
paranoia motivates suspects to appear at police headquarters as
"concerned citizens" who have information pertinent to the case.
By doing this, suspects may attempt to supply false or
noncorroborative information in order to lead investigators
astray, gain inside information concerning the case from
investigators, and remove suspicion from themselves by offering
information on the case so investigators will not suspect their
involvement.
For example, in one case, a 22-year-old woman was
discovered in a stairwell outside of a public building. The
woman had been raped and was found naked and bludgeoned.
Investigators interviewed numerous people during the next
several days but were unable to identify any suspects. Media
coverage on the case was extremely high.
Several days into the investigation, a 23-year-old man
appeared at police headquarters with two infants in tow and
informed investigators that he believed he may have some
information regarding the woman's death. The man revealed that
when he was walking home late one evening, he passed the area
where the woman was found and observed a "strange individual"
lurking near an adjacent phone booth. The man said that because
he was frightened of the stranger, he ran back to his home.
After reading the media accounts of the girl's death, he
believed that he should tell the police what he had observed.
The man gave police a physical description of the
"stranger" and then helped an artist to compose a sketch of the
individual. After he left, investigators discovered that the
sketch bore a strong resemblance to the "witness" who provided
the information.
After further investigation, the witness was asked to
return to the police station to answer more questions, which he
did gladly. Some 15 hours into the interrogation, he confessed
to one of his "multiple personalities" having killed the woman,
who was unknown to him, simply because the victim was a woman,
which is what the suspect had always wanted to be.
This case clearly illustrates the need for some suspects to
know exactly what is happening in an investigation. In their
minds, they honestly believe that by hiding behind the guise of
"trying to help," they will, without incriminating themselves,
learn more about the case from the investigators.
INTERROGATION SETTING
In any discussion concerning interrogation, it is necessary
to include a review of the surroundings where a suspect is to be
interrogated. Because there is a general desire to maintain
personal integrity before family members and peer groups,
suspects should be removed from familiar surroundings and taken
to a location that has an atmosphere more conducive to
cooperativeness and truthfulness. (5) The primary psychological
factor contributing to successful interrogations is privacy--
being totally alone with suspects. (6) This privacy prompts
suspects to feel willing to unload the burden of guilt. (7) The
interrogation site should isolate the suspect so that only the
interrogator is present. The suspect's thoughts and responses
should be free from all outside distractions or stimuli.
The interrogation setting also plays an important part in
obtaining confessions. The surroundings should reduce suspect
fears and contribute to the inclination to discuss the crime.
Because fear is a direct reinforcement for defensive mechanisms
(resistance), it is important to erase as many fears as
possible. (8) Therefore, the interrogation room should
establish a business atmosphere as opposed to a police-like
atmosphere. While drab, barren interrogation rooms increase
fear in suspects, a location that displays an open,
you-have-nothing-to fear quality about it can do much to break
down interrogation defensiveness, thereby eliminating a major
barrier. (9) The interrogators tend to disarm the suspects
psychologically by placing them in surroundings that are free
from any fear-inducing distractions.
PSYCHOLOGICAL FACTORS
More than likely, suspects voluntarily accompany
investigators, either in response to a police request to answer
questions or in an attempt to learn information about the
investigation. Once settled in the interrogation room, the
interrogators should treat suspects in a civilized manner, no
matter how vicious or serious the crime might have been. While
they may have feelings of disgust for the suspects, the goal is
to obtain a confession, and it is important that personal
emotions not be revealed. (10)
Investigators should also adopt a compassionate attitude and
attempt to establish a rapport with suspects. In most cases,
suspects commit crimes because they believe that it offers the
best solution to their needs at the moment. (11) Two rules of
thumb to remember are: 1) "There but for the grace of God go
I"; and 2) it is important to establish a common level of
understanding with the suspects. (12) These rules are critical
to persuading suspects to be open, forthright, and honest.
Suspects should be persuaded to look beyond the investigators'
badges and see, instead, officers who listen without judging.
If investigators are able to convince suspects that the key
issue is not the crime itself, but what motivated them to commit
the crime, they will begin to rationalize or explain their
motivating factors.
At this stage of the interrogation, investigators are on
the brink of having suspects break through remaining defensive
barriers to admit involvement in the crime. This is the
critical stage of the interrogation process known as the
breakthrough.
THE BREAKTHROUGH
The breakthrough is the point in the interrogation when
suspects make an admission, no matter how small. (13) In spite of
having been advised of certain protections guaranteed by the
Constitution, most suspects feel a need to confess. Both
hardcore criminals and first-time offenders suffer from the same
pangs of conscience. (14) This is an indication that their defense
mechanisms are diminished, and at this point, the investigators
may push through to elicit the remaining elements of confession.
In order for interrogators to pursue a successful
breakthrough, they must recognize and understand certain
background factors that are unique to a particular suspect.
Many times, criminals exhibit psychological problems that are
the result of having come from homes torn by conflict and
dissension. Also frequently found in the backgrounds of
criminals are parental rejection and inconsistent and severe
punishment. (15) It is important that investigators see beyond
the person sitting before them and realize that past experiences
can impact on current behavior. Once interrogators realize
that the fear of possible punishment, coupled with the loss of
pride in having to admit to committing mistakes, is the basic
inhibitor they must overcome in suspects, they will quickly be
able to formulate questions and analyze responses that will
break through the inhibitors.
SUCCESSFUL INTERROGATIONS
Investigators must conduct every interrogation with the
belief that suspects, when presented with the proper avenue,
will use it to confess their crimes. Research indicates that
most guilty persons who confess are, from the outset, looking
for the proper opening during the interrogation to communicate
their guilt to the interrogators. (16)
Suspects confess when the internal anxiety caused by their
deception outweighs their perceptions of the crime's
consequences. (17) In most instances, suspects have magnified,
in their minds, both the severity of the crime and the possible
repercussions. Interrogators should allay suspect anxiety by
putting these fears into perspective.
Suspects also make admissions or confessions when they
believe that cooperation is the best course of action. (18) If
they are convinced that officers are prepared to listen to all
of the circumstances surrounding the crimes, they will begin to
talk. The psychological and physiological pressures that build
in a person who has committed a crime are best alleviated by
communicating. (19) In order to relieve these suppressed
pressures, suspects explain the circumstances of their crimes
they confess.
And, finally, suspects confess when interrogators are able
to speculate correctly on why the crimes were committed.
Suspects want to know ahead of time that interrogators will
believe what they have to say and will understand what motivated
them to commit the crime.
CONCLUSION
It is natural for suspects to want to preserve their
privacy, civil rights, and liberties. It is also natural for
suspects to resist discussing their criminal acts. For these
very reasons, however, investigators must develop the skills
that enable them to disarm defensive resistors established by
suspects during interrogation. Before suspects will confess,
they must feel comfortable in their surroundings, and they must
have confidence in the interrogators, who should attempt to gain
this confidence by listening intently to them and by allowing
them to verbalize their accounts of the crimes.
Interrogators who understand what motivates suspects to
confess will be better able to formulate effective questions and
analyze suspect responses. Obviously, more goes into gaining a
confession than is contained in this article. However, if the
interrogator fails to understand the motivations of the suspect,
other factors impacting on obtaining the confession will be less
effective.
FOOTNOTES
(1) Charles E. O'Hara and Gregory L. O'Hara, Fundamentals
of Criminal Investigation, 5th ed. rev. (Springfield, IL:
Charles C. Thomas, 1988), p. 117.
(2) W. E. Renoud, Criminal Investigation Digest (Springfield,
IL: Charles C. Thomas, 1981), p. 10.
(3) John J. Horgan, Criminal Investigations, 2d ed. (New
York, NY: McGraw-Hill Book Company, 1979), p. 78.
(4) Fred E. Inbau, John E. Reid, and Joseph P. Buckley,
Criminal Interrogation and Confessions, 3d ed. (Baltimore, MD:
Williams & Wilkins, 1986), p. 16.
(5) Robert F. Royal and Steven R. Schutt, The Gentle Art
of Interviewing and Interrogation: A Professional Manual and
Guide (Englewood Cliffs, NJ: Prentice-Hall, Inc., 1976), p. 56.
(6) Supra note 4, p. 24.
(7) Charles R. Swanson, Jr., Neil Chamelin, and Leonard
Territo, Criminal Investigation, 4th ed. (New York, NY: Random
House, 1988), p. 210.
(8) Supra note 5, p. 57.
(9) Ibid.
(10) Supra note 2, p. 12.
(11) Ibid., p. 13.
(12) Ibid., p. 13.
(13) Supra note 5.
(14) Supra note 7.
(15) James C. Coleman, James N. Butcher, and Robert C.
Carson, Abnormal Psychology and Modern Life, 7th ed. (Glenview,
IL: Scott Foresman and Company, 1984), p. 261.
(16) Supra note 7, p. 209.
(17) John Reid and Associates, The Reid Technique of
Interviewing and Interrogation (Chicago, IL: Reid & Associates,
1986), p. 44.
(18) Supra note 5, p. 115.
(19) Supra note 7, p. 209.

law/confess.txt
+328
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@@ -0,0 +1,328 @@
WHY SUSPECTS CONFESS
By
David D. Tousignant, M.A.
Inspector
Lowell, Massachusetts, Police Department
Many criminal cases, even when investigated by the most
experienced and best qualified investigators, are ultimately
solved by an admission or confession from the person responsible
for committing the crime. Oftentimes, investigators are able to
secure only a minimal amount of evidence, be it physical or
circumstantial, that points directly to a suspect, and in many
instances, this evidence is not considered strong enough by
prosecutors to obtain a conviction. In such cases, the
interrogation of the suspects and their subsequent confessions
are of prime importance.
This article addresses the question of why suspects speak
freely to investigators, and ultimately, sign full confessions.
The physical and psychological aspects of confession and how
they relate to successful interrogations of suspects are also
discussed, as is the "breakthrough," the point in the
interrogation when suspects make an admission, no matter how
minuscule, that begins the process of obtaining a full
confession.
DEFINING INTERROGATION
Interrogation is the questioning of a person suspected of
having committed a crime. (1) It is designed to match acquired
information to a particular suspect in order to secure a
confession. (2) The goals of interrogation include:
* To learn the truth of the crime and how it happened
* To obtain an admission of guilt from the suspect
* To obtain all the facts to determine the method of
operation and the circumstances of the crime in question
* To gather information that enables investigators to arrive
at logical conclusions
* To provide information for use by the prosecutor in
possible court action. (3)
Knowing the definition and objectives of the interrogation,
the question then asked is, "Why do suspects confess?"
Self-condemnation and self-destruction are not normal human
behavioral characteristics. Human beings ordinarily do not
utter unsolicited, spontaneous confessions. (4) It is logical
to conclude, therefore, that when suspects are taken to police
stations to be questioned concerning their involvement in a
particular crime, their immediate reaction will be a refusal to
answer any questions. With the deluge of television programs
that present a clear picture of the Miranda warning and its
application to suspects, one would conclude that no one
questioned about a crime would surrender incriminating
information, much less supply investigators with a signed, full
confession. It would also seem that once suspects sense the
direction in which the investigators are heading, the
conversation would immediately end. However, for various
psychological reasons, suspects continue to speak with
investigators.
SUSPECT PARANOIA
Suspects are never quite sure of exactly what information
investigators possess. They know that the police are
investigating the crime, and in all likelihood, suspects have
followed media accounts of their crimes to determine what leads
the police have. Uppermost in their minds, however, is how to
escape detection and obtain firsthand information about the
investigation and where it is heading.
Such "paranoia" motivates suspects to accompany the police
voluntarily for questioning. Coupled with curiosity, this
paranoia motivates suspects to appear at police headquarters as
"concerned citizens" who have information pertinent to the case.
By doing this, suspects may attempt to supply false or
noncorroborative information in order to lead investigators
astray, gain inside information concerning the case from
investigators, and remove suspicion from themselves by offering
information on the case so investigators will not suspect their
involvement.
For example, in one case, a 22-year-old woman was
discovered in a stairwell outside of a public building. The
woman had been raped and was found naked and bludgeoned.
Investigators interviewed numerous people during the next
several days but were unable to identify any suspects. Media
coverage on the case was extremely high.
Several days into the investigation, a 23-year-old man
appeared at police headquarters with two infants in tow and
informed investigators that he believed he may have some
information regarding the woman's death. The man revealed that
when he was walking home late one evening, he passed the area
where the woman was found and observed a "strange individual"
lurking near an adjacent phone booth. The man said that because
he was frightened of the stranger, he ran back to his home.
After reading the media accounts of the girl's death, he
believed that he should tell the police what he had observed.
The man gave police a physical description of the
"stranger" and then helped an artist to compose a sketch of the
individual. After he left, investigators discovered that the
sketch bore a strong resemblance to the "witness" who provided
the information.
After further investigation, the witness was asked to
return to the police station to answer more questions, which he
did gladly. Some 15 hours into the interrogation, he confessed
to one of his "multiple personalities" having killed the woman,
who was unknown to him, simply because the victim was a woman,
which is what the suspect had always wanted to be.
This case clearly illustrates the need for some suspects to
know exactly what is happening in an investigation. In their
minds, they honestly believe that by hiding behind the guise of
"trying to help," they will, without incriminating themselves,
learn more about the case from the investigators.
INTERROGATION SETTING
In any discussion concerning interrogation, it is necessary
to include a review of the surroundings where a suspect is to be
interrogated. Because there is a general desire to maintain
personal integrity before family members and peer groups,
suspects should be removed from familiar surroundings and taken
to a location that has an atmosphere more conducive to
cooperativeness and truthfulness. (5) The primary psychological
factor contributing to successful interrogations is privacy--
being totally alone with suspects. (6) This privacy prompts
suspects to feel willing to unload the burden of guilt. (7) The
interrogation site should isolate the suspect so that only the
interrogator is present. The suspect's thoughts and responses
should be free from all outside distractions or stimuli.
The interrogation setting also plays an important part in
obtaining confessions. The surroundings should reduce suspect
fears and contribute to the inclination to discuss the crime.
Because fear is a direct reinforcement for defensive mechanisms
(resistance), it is important to erase as many fears as
possible. (8) Therefore, the interrogation room should
establish a business atmosphere as opposed to a police-like
atmosphere. While drab, barren interrogation rooms increase
fear in suspects, a location that displays an open,
you-have-nothing-to fear quality about it can do much to break
down interrogation defensiveness, thereby eliminating a major
barrier. (9) The interrogators tend to disarm the suspects
psychologically by placing them in surroundings that are free
from any fear-inducing distractions.
PSYCHOLOGICAL FACTORS
More than likely, suspects voluntarily accompany
investigators, either in response to a police request to answer
questions or in an attempt to learn information about the
investigation. Once settled in the interrogation room, the
interrogators should treat suspects in a civilized manner, no
matter how vicious or serious the crime might have been. While
they may have feelings of disgust for the suspects, the goal is
to obtain a confession, and it is important that personal
emotions not be revealed. (10)
Investigators should also adopt a compassionate attitude and
attempt to establish a rapport with suspects. In most cases,
suspects commit crimes because they believe that it offers the
best solution to their needs at the moment. (11) Two rules of
thumb to remember are: 1) "There but for the grace of God go
I"; and 2) it is important to establish a common level of
understanding with the suspects. (12) These rules are critical
to persuading suspects to be open, forthright, and honest.
Suspects should be persuaded to look beyond the investigators'
badges and see, instead, officers who listen without judging.
If investigators are able to convince suspects that the key
issue is not the crime itself, but what motivated them to commit
the crime, they will begin to rationalize or explain their
motivating factors.
At this stage of the interrogation, investigators are on
the brink of having suspects break through remaining defensive
barriers to admit involvement in the crime. This is the
critical stage of the interrogation process known as the
breakthrough.
THE BREAKTHROUGH
The breakthrough is the point in the interrogation when
suspects make an admission, no matter how small. (13) In spite of
having been advised of certain protections guaranteed by the
Constitution, most suspects feel a need to confess. Both
hardcore criminals and first-time offenders suffer from the same
pangs of conscience. (14) This is an indication that their defense
mechanisms are diminished, and at this point, the investigators
may push through to elicit the remaining elements of confession.
In order for interrogators to pursue a successful
breakthrough, they must recognize and understand certain
background factors that are unique to a particular suspect.
Many times, criminals exhibit psychological problems that are
the result of having come from homes torn by conflict and
dissension. Also frequently found in the backgrounds of
criminals are parental rejection and inconsistent and severe
punishment. (15) It is important that investigators see beyond
the person sitting before them and realize that past experiences
can impact on current behavior. Once interrogators realize
that the fear of possible punishment, coupled with the loss of
pride in having to admit to committing mistakes, is the basic
inhibitor they must overcome in suspects, they will quickly be
able to formulate questions and analyze responses that will
break through the inhibitors.
SUCCESSFUL INTERROGATIONS
Investigators must conduct every interrogation with the
belief that suspects, when presented with the proper avenue,
will use it to confess their crimes. Research indicates that
most guilty persons who confess are, from the outset, looking
for the proper opening during the interrogation to communicate
their guilt to the interrogators. (16)
Suspects confess when the internal anxiety caused by their
deception outweighs their perceptions of the crime's
consequences. (17) In most instances, suspects have magnified,
in their minds, both the severity of the crime and the possible
repercussions. Interrogators should allay suspect anxiety by
putting these fears into perspective.
Suspects also make admissions or confessions when they
believe that cooperation is the best course of action. (18) If
they are convinced that officers are prepared to listen to all
of the circumstances surrounding the crimes, they will begin to
talk. The psychological and physiological pressures that build
in a person who has committed a crime are best alleviated by
communicating. (19) In order to relieve these suppressed
pressures, suspects explain the circumstances of their crimes
they confess.
And, finally, suspects confess when interrogators are able
to speculate correctly on why the crimes were committed.
Suspects want to know ahead of time that interrogators will
believe what they have to say and will understand what motivated
them to commit the crime.
CONCLUSION
It is natural for suspects to want to preserve their
privacy, civil rights, and liberties. It is also natural for
suspects to resist discussing their criminal acts. For these
very reasons, however, investigators must develop the skills
that enable them to disarm defensive resistors established by
suspects during interrogation. Before suspects will confess,
they must feel comfortable in their surroundings, and they must
have confidence in the interrogators, who should attempt to gain
this confidence by listening intently to them and by allowing
them to verbalize their accounts of the crimes.
Interrogators who understand what motivates suspects to
confess will be better able to formulate effective questions and
analyze suspect responses. Obviously, more goes into gaining a
confession than is contained in this article. However, if the
interrogator fails to understand the motivations of the suspect,
other factors impacting on obtaining the confession will be less
effective.
FOOTNOTES
(1) Charles E. O'Hara and Gregory L. O'Hara, Fundamentals
of Criminal Investigation, 5th ed. rev. (Springfield, IL:
Charles C. Thomas, 1988), p. 117.
(2) W. E. Renoud, Criminal Investigation Digest (Springfield,
IL: Charles C. Thomas, 1981), p. 10.
(3) John J. Horgan, Criminal Investigations, 2d ed. (New
York, NY: McGraw-Hill Book Company, 1979), p. 78.
(4) Fred E. Inbau, John E. Reid, and Joseph P. Buckley,
Criminal Interrogation and Confessions, 3d ed. (Baltimore, MD:
Williams & Wilkins, 1986), p. 16.
(5) Robert F. Royal and Steven R. Schutt, The Gentle Art
of Interviewing and Interrogation: A Professional Manual and
Guide (Englewood Cliffs, NJ: Prentice-Hall, Inc., 1976), p. 56.
(6) Supra note 4, p. 24.
(7) Charles R. Swanson, Jr., Neil Chamelin, and Leonard
Territo, Criminal Investigation, 4th ed. (New York, NY: Random
House, 1988), p. 210.
(8) Supra note 5, p. 57.
(9) Ibid.
(10) Supra note 2, p. 12.
(11) Ibid., p. 13.
(12) Ibid., p. 13.
(13) Supra note 5.
(14) Supra note 7.
(15) James C. Coleman, James N. Butcher, and Robert C.
Carson, Abnormal Psychology and Modern Life, 7th ed. (Glenview,
IL: Scott Foresman and Company, 1984), p. 261.
(16) Supra note 7, p. 209.
(17) John Reid and Associates, The Reid Technique of
Interviewing and Interrogation (Chicago, IL: Reid & Associates,
1986), p. 44.
(18) Supra note 5, p. 115.
(19) Supra note 7, p. 209.

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February 1991
PUBLIC SERVICES CONSOLIDATION:
THE ANSWER TO YOUR COMMUNITY'S NEEDS
By
Robert L. Sobba
Chief
Caldwell, Idaho, Police Department
The consolidation of police and fire services is not a new
concept. In fact, the first account of combining public service
functions dates back to 27 B.C. Then, the Roman Emperor Augustus
formed the Vigiles, a group of men armed with batons and short
swords who were responsible for keeping the order and fighting
fires. (1) In the United States, the first public safety
department can be traced back to 1911 in Grosse Point,
Michigan. (2) Yet, even though consolidation of public service
functions has a solid historical base, the concept has not been
readily accepted by police officers and firefighters alike.
This article considers the levels of consolidation that can
be implemented within a community. It then examines the issues,
options, and concerns involved in the consolidation of police
and fire services. But, in the final analysis, whether
consolidation can meet the needs of the community and the
expectation of its citizens rests with the individual
municipality. Only its administrators can decide if
consolidation can work for them.
LEVELS OF CONSOLIDATION
There are five levels of consolidation--full, partial,
selected area, functional, and nominal. (3) Each has been adopted
by individual municipalities throughout the United States as a
means to provide police and fire services to the residents of the
community. (4)
When public services are fully consolidated, police and
firefighting duties are combined under a single agency. Sworn
personnel, who are commonly referred to as public safety
officers, perform both law enforcement and firefighting
functions.
With partial consolidation, the two public service
functions remain separate, except for a designated cadre of
public safety officers who are trained to perform both law
enforcement and firefighting duties. When engaged in police
work, these personnel serve under the command of the police
administrator; when acting as firefighters, they are supervised
by the fire chief.
Selected consolidation occurs when only a certain portion
of a community is serviced by public safety officers. This
level of consolidation usually takes place in areas newly
annexed to the municipality. Except in this limited geographic
area, the police and fire departments remain separate.
Functional consolidation is practiced when separate
departments are maintained, but some duties usually performed by
one department are assigned to another. For example, fire
personnel may help in administering police work or police
officers may assist fire-fighters at the scene by reading gauges
or by hooking up hoses. (5)
With nominal consolidation, the police and fire departments
operate under the administration of a single director, though
the two departments remain completely separate. The public
safety director maintains full authority over all police and
fire services.
There are no nationwide figures that reflect the current
number of each level of consolidation in operation. The various
municipalities across the country that have adopted some form of
consolidation selected the level best suited for them. In
essence, consolidation varies from community to community.
CONSOLIDATION FACTORS
Issues To Be Addressed
The first issue of consolidation concerns efficiency and
productivity. Many city managers believe consolidation to be a
more productive and efficient way to manage employees. For
example, in Morgantown, North Carolina, city leaders conducted a
study to determine if the creation of a public safety department
would benefit their city. As a result of this study, they
discovered that less than 2% of firefighters' time is spent
fighting fires and that 60% of their time was considered
unproductive. In addition, 49% of the calls to the fire
department were either false alarms, nonfire rescues, or to
alert fire-fighters to stand by. Only 15 of the 285 calls
involving actual fires represented losses of more than $500, and
4 of these calls were for car fires. (6)
Another issue involved in the consolidation concept is
saving money, although this is a much-debated point. Opponents
often claim that any anticipated or realized savings are
actually used to pay for increased training and equipment costs.
With consolidation, a public service candidate officer must not
only complete training at the police academy but also the
training necessary to be certified as a firefighter. (7)
For proponents of consolidation, the issue becomes one of
cost avoidance, or more specifically, that consolidation avoids
future costs. An example would be projected city growth figures
that show a city may need five more police officers and five more
firefighters over the next 5 years. By cross-training personnel
in both police and fire duties, the city may need only seven more
employees, thus avoiding the continuing expense of three more
employees on the city's payroll. (8) This same theory can be
applied to equipment and maintenance.
An article entitled "Managing with Less: What Managers Can
Expect" perhaps best sums up the reasons for looking at
consolidation. This article states that city managers faced with
continuing, if not increasing, fiscal constraints can expect the
future to include the following:
1) Unchanged/increased demands for services by the public
2) Calls for hiring freezes from decisionmakers
3) Requests or demands for more specific performance
indicators on what is done
4) Calls for innovative and creative ways for providing
traditional savings. (9)
Yet, whatever the reasons, administrators need to address
many options and concerns before making a final consolidation
decision. Then, before such a program is implemented, they must
weigh them against the advantages and disadvantages that would
be realized. Nevertheless, for cities faced with increased
demands for service, but with dwindling funds to meet those
demands, consolidation may be the appropriate course of
action. (10)
Options To Consider
There is more to consolidation than merely merging two
public service functions. In fact, there are a wide range of
options. For example, what will be the level of consolidation?
Will it entail administrative consolidation only, or will it
combine administrative and support functions, while keeping
command and line support personnel separate? Then, there is the
option of partial consolidation, in which command personnel are
integrated and line personnel are cross-trained, but specialists
are not. Or, all full-time personnel are cross-trained and
responsible for a full range of police-fire duties. The extent
of consolidation depends entirely on the needs of the particular
community involved.
Concerns
With the various consolidation options come independent
concerns. First, and foremost, is the extent of training that
must be provided. Then, there are the perceptions of the public
and department personnel. Acceptance of consolidation by police
and fire personnel, which affects morale and performance, can
affect the viability of the concept before implementation.
Proponents of consolidation contend that consolidation can
have a significant positive impact on the community.
Consolidation can lead to better response time if fire personnel
could act on crimes observed instead of reporting the crime to
the police and then waiting for them to arrive at the scene. (11)
In other words, with consolidation, "police presence" increases.
The same holds true with police officers trained to fight
fires and to perform rescue activities. If the police are the
first to respond to a fire scene and take appropriate action to
contain the blaze, the devastation to property and the extent of
injury to victims could be lessened. (12)
In addition to quicker response times, consolidation
prevents duplication of support services, such as communication,
maintenance, and recordkeeping. It is also a means to eliminate
competition between both public services, promoting a team effort
and cooperation.
The funding issue also comes into play when consolidation is
considered, because both services vie for city funding. Under
the public safety concept, the director is responsible for both
the police and firefighters, and much of the traditional debate
over which service gets the most monies can be averted.
On the other hand, opponents of consolidation cite the
increased training costs of one person as a major reason for
maintaining two distinct service departments. Consolidation
requires an extended time period to recoup the costs of training
an individual to be both a police officer and a firefighter.
Many contend that consolidation destroys the camaraderie
developed within each service. Public service officers display
mixed loyalties, and their allegiance is to neither service,
instead of to one or the other. Other areas that must be
addressed are start-up equipment costs, the effect consolidation
would have on police and fire volunteers, and the acceptance of
or resistance to consolidation by professional associations and
unions.
The pay issue plays a major role in the consolidation
efforts. Obviously, the salaries must be equitable. One
department determined that at the current rate, it would have to
pay an entry-level police public safety officer $2,723 more a
year to make the salary equal to that of a first-year
firefighter. (13)
Esai Berenbaum, former Public Safety Director of Durham,
North Carolina, summed up the resistance in these words:
"Much of the local opposition to a program represents
sincere concern on the part of many that services will
deteriorate, and as a result, lives and property may be
lost. The traditional organized opposition will use these
fears to their advantage and exaggerate the potential
danger. They will report the often-heard fallacies that
those programs are from small towns only, for suburban
communities only, or as a temporary provision for newly
annexed areas. They will emphasize programs that have
failed. They will contend that `one man can't do two
jobs.' " (14)
Efforts to Consolidate
The many factors involved in consolidation must be given
serious attention before any steps are taken to convert to
public safety. The concept must be well thought out and
discussed among city administrators and fire and police
officials. They should thoroughly analyze the community's
police and fire needs and determine if consolidation is really
necessary to meet these needs.
After determining the overall mission of the public safety
concept, administrators should complete a detailed task analysis
to take into consideration what needs to be done, the amount of
time needed to complete the transition, and who will be involved
in the consolidation process. Then, the immediate expense of
the consolidation effort has to be considered.
Many times, while the idea of consolidation appears to be
the solution, administrators fail to recognize what is really
involved in the move toward consolidation. Few look at the cost
of uniforms, weapons, salaries, building remodeling, instructor
development, and recruiting, which may make the effort cost
prohibitive.
CONCLUSION
There is no doubt that public safety programs have
opponents. The concept creates feelings of apprehension on the
part of affected employees and the citizens of the community.
In fact, consolidation efforts have failed in several
communities.
At the same time, support for public service consolidation
exists, and this concept has answered the needs of many
communities. The public safety concept does work when carefully
planned and efficiently administered. It is traditional, yet
new, depending on the particular community involved. And, it may
be the wave of the future as more cities face growing demands for
service but less funds to meet those demands. Only time will
tell.
FOOTNOTES
(1) Richard S. Rubin, "Consolidation of Police and Fire
Services," Journal of Police Science and Administration, vol.
12, 1984, p. 221.
(2) Esai Berebaum, Municipal Public Safety (Springfield,
Illinois: Charles C. Thomas, 1977), p. 3.
(3) Ronald G. Lynch and Vivian Lord, "Public Safety
Programs: Consolidating Police and Fire Services," Popular
Government, Summer 1979, p. 2.
(4) A few cities that have consolidated public service
functions are Twin Falls, Idaho (personal interview with Tom
Courtney, city administrator); Orem, Utah (personal interview
with Ted Peacock, Director of Public Safety); and Texarkana,
Arkansas (Bobby Mixon, "Texarkana's Public Safety Program," FBI
Law Enforcement Bulletin, September 1979, pp. 24-27).
(5) Supra note 3.
(6) Douglas O. Bean, "A Small City Adopts the Public
Safety Concept: Morgantown, North Carolina A Case Study,"
Popular Government, Summer 1979, p. 16.
(7) Recruits in the Public Safety Department in Sunnyvale,
California, must attend an 18-week police academy, then a
12-week fire academy, followed by a field training program
(personal interview with Capt. Regan Williams, Sunnyvale,
California, Public Safety Department).
(8) When the consolidation effort was completed in
Kalamazoo, Michigan, there were 36 fewer positions within the
Public Safety Department than there were when the fire and
police functions were separate (Michigan Association of Chiefs
of Police, The Development and Administration of Consolidated
Fire-Police Departments, Okemos, Michigan, 1985, p. 3).
(9) Daniel E. O'Toole, "Managing With Less: What Managers
Can Expect," Public Management, June 1984, p. 20.
(10) Based on projections for maintaining and improving
the fire and police departments in Kalamazoo, Michigan, the
project committee anticipated the city would save $2 million a
year by starting a consolidated department (Michigan Association
of Chiefs of Police, The Development and Administration of
Consolidated Fire-Police Departments, Okemos, Michigan, 1985, p.
4).
(11) Prior to the Public Safety Officer (PSO) Program in
Texarkana, Arkansas, the city employed 50 policemen and 40
firemen and had an average of 3 patrol vehicles on duty. Both
police and fire response time was about 6 minutes. The city now
employs 73 PSOs and has, on the average, 10 patrol cars
available for patrol duties. Response time is down to 2.8
minutes for police calls and 1.5 minutes for fire calls. The
city also reports a decline in both crime and fire losses over
the years (Bobby C. Mixon, "Texarkana's Public Safety Program,"
FBI Law Enforcement Bulletin, September 1979, p. 26).
(12) In Oak Park, Michigan, patrolling public safety
officers have extinguished 171 fires without the aid of regular
fire apparatus during a recent 4-year period (Michigan
Association of Chiefs of Police, The Development and
Administration of Consolidated Fire-Police Departments, Okemos,
Michigan, 1985, p. 93).
(13) In Kalamazoo, Michigan, public safety officers were
given pay increases that amounted to over 10 percent for police
and 23 percent for firefighters (Michigan Association of Chiefs
of Police, The Development and Administration of Consolidated
Fire-Police Departments, Okemos, Michigan, p. 4).
(14) Supra note 2, p. 29.

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Laurence H. Tribe, "The Constitution in Cyberspace"
PREPARED REMARKS
KEYNOTE ADDRESS AT THE
FIRST CONFERENCE ON COMPUTERS, FREEDOM & PRIVACY
Copyright, 1991, Jim Warren & Computer Professionals for Social Responsibility
All rights to copy the materials contained herein are reserved, except as
hereafter explicitly licensed and permitted for anyone:
Anyone may receive, store and distribute copies of this ASCII-format
computer textfile in purely magnetic or electronic form, including on
computer networks, computer bulletin board systems, computer conferencing
systems, free computer diskettes, and host and personal computers, provided
and only provided that:
(1) this file, including this notice, is not altered in any manner, and
(2) no profit or payment of any kind is charged for its distribution, other
than normal online connect-time fees or the cost of the magnetic media, and
(3) it is not reproduced nor distributed in printed or paper form, nor on
CD ROM, nor in any form other than the electronic forms described above
without prior written permission from the copyright holder.
Arrangements to publish printed Proceedings of the First Conference on
Computers, Freedom & Privacy are near completion. Audiotape and videotape
versions are also being arranged.
A later version of this file on the WELL (Sausalito, California) will
include ordering details. Or, for details, or to propose other distribution
alternatives, contact Jim Warren, CFP Chair,345 Swett Rd., Woodside CA 94062;
voice:(415)851-7075; fax:(415)851-2814; e-mail:jwarren@well.sf.ca.us.[4/19/91]
[ These were the author's *prepared* remarks.
A transcript of Professor Tribe's March 26th comments at the Conference
(which expanded slightly on several points herein) will be uploaded onto the
WELL as soon as it is transcribed from the audio tapes and proofed against
the audio and/or videotapes.]
"The Constitution in Cyberspace:
Law and Liberty Beyond the Electronic Frontier"
by Laurence H. Tribe
Copyright 1991 Laurence H. Tribe,
Tyler Professor of Constitutional Law,
Harvard Law School.
Professor Tribe is the author, most recently, of
"On Reading the Constitution" (Harvard University Press,
Cambridge, MA, 1991).
Introduction
My topic is how to "map" the text and structure of our
Constitution onto the texture and topology of "cyberspace". That's
the term coined by cyberpunk novelist William Gibson, which many
now use to describe the "place" -- a place without physical walls
or even physical dimensions -- where ordinary telephone
conversations "happen," where voice-mail and e-mail messages are
stored and sent back and forth, and where computer-generated
graphics are transmitted and transformed, all in the form of
interactions, some real-time and some delayed, among countless
users, and between users and the computer itself
Some use the "cyberspace" concept to designate fantasy worlds
or "virtual realities" of the sort Gibson described in his novel
*Neuromancer*, in which people can essentially turn their minds into
computer peripherals capable of perceiving and exploring the data
matrix. The whole idea of "virtual reality," of course, strikes a
slightly odd note. As one of Lily Tomlin's most memorable
characters once asked, "What's reality, anyway, but a collective
hunch?" Work in this field tends to be done largely by people who
share the famous observation that reality is overrated!
However that may be, "cyberspace" connotes to some users the
sorts of technologies that people in Silicon Valley (like Jaron
Lanier at VPL Research, for instance) work on when they try to
develop "virtual racquetball" for the disabled, computer-aided
design systems that allow architects to walk through "virtual
buildings" and remodel them *before* they are built, "virtual
conferencing" for business meetings, or maybe someday even "virtual
day care centers" for latchkey children. The user snaps on a pair
of goggles hooked up to a high-powered computer terminal, puts on
a special set of gloves (and perhaps other gear) wired into the
same computer system, and, looking a little bit like Darth Vader,
pretty much steps into a computer-driven, drug-free, 3-dimensional,
interactive, infinitely expandable hallucination complete with
sight, sound and touch -- allowing the user literally to move
through, and experience, information.
I'm using the term "cyberspace" much more broadly, as many
have lately. I'm using it to encompass the full array of
computer-mediated audio and/or video interactions that are already
widely dispersed in modern societies -- from things as ubiquitous
as the ordinary telephone, to things that are still coming on-line
like computer bulletin boards and networks like Prodigy, or like
the WELL ("Whole Earth 'Lectronic Link"), based here in San
Francisco. My topic, broadly put, is the implications of that
rapidly expanding array for our constitutional order. It is a
cyberspace, either get bent out of shape or fade out altogether.
The question, then, becomes: when the lines along which our
Constitution is drawn warp or vanish, what happens to the
Constitution itself?
Setting the Stage
To set the stage with a perhaps unfamiliar example, consider
a decision handed down nine months ago, *Maryland v. Craig*, where
the U.S. Supreme Court upheld the power of a state to put an
alleged child abuser on trial with the defendant's accuser
testifying not in the defendant's presence but by one-way,
closed-circuit television. The Sixth Amendment, which of course
antedated television by a century and a half, says: "In all
criminal prosecutions, the accused shall enjoy the right . . . to
be confronted with the witnesses against him." Justice O'Connor
wrote for a bare majority of five Justices that the state's
procedures nonetheless struck a fair balance between costs to the
accused and benefits to the victim and to society as a whole.
Justice Scalia, joined by the three "liberals" then on the Court
(Justices Brennan, Marshall and Stevens), dissented from that
cost-benefit approach to interpreting the Sixth Amendment. He
wrote:
The Court has convincingly proved that the Maryland
procedure serves a valid interest, and gives the
defendant virtually everything the Confrontation Clause
guarantees (everything, that is, except confrontation).
I am persuaded, therefore, that the Maryland procedure is
virtually constitutional. Since it is not, however,
actually constitutional I [dissent].
Could it be that the high-tech, closed-circuit TV context,
almost as familiar to the Court's youngest Justice as to his even
younger law clerks, might've had some bearing on Justice Scalia's
sly invocation of "virtual" constitutional reality? Even if
Justice Scalia wasn't making a pun on "virtual reality," and I
suspect he wasn't, his dissenting opinion about the Confrontation
Clause requires *us* to "confront" the recurring puzzle of how
constitutional provisions written two centuries ago should be
construed and applied in ever-changing circumstances.
Should contemporary society's technology-driven cost-benefit
fixation be allowed to water down the old-fashioned value of direct
confrontation that the Constitution seemingly enshrined as basic?
I would hope not. In that respect, I find myself in complete
agreement with Justice Scalia.
But new technological possibilities for seeing your accuser
clearly without having your accuser see you at all -- possibilities
for sparing the accuser any discomfort in ways that the accuser
couldn't be spared before one-way mirrors or closed-circuit TVs
were developed -- *should* lead us at least to ask ourselves whether
*two*-way confrontation, in which your accuser is supposed to be made
uncomfortable, and thus less likely to lie, really *is* the core
value of the Confrontation Clause. If so, "virtual" confrontation
should be held constitutionally insufficient. If not -- if the
core value served by the Confrontation Clause is just the ability
to *watch* your accuser say that you did it -- then "virtual"
confrontation should suffice. New technologies should lead us to
look more closely at just *what values* the Constitution seeks to
preserve. New technologies should *not* lead us to react reflexively
*either way* -- either by assuming that technologies the Framers
didn't know about make their concerns and values obsolete, or by
assuming that those new technologies couldn't possibly provide new
ways out of old dilemmas and therefore should be ignored
altogether.
The one-way mirror yields a fitting metaphor for the task we
confront. As the Supreme Court said in a different context several
years ago, "The mirror image presented [here] requires us to step
through an analytical looking glass to resolve it." (*NCAA v.
Tarkanian*, 109 S. Ct. at 462.) The world in which the Sixth
Amendment's Confrontation Clause was written and ratified was a
world in which "being confronted with" your accuser *necessarily*
meant a simultaneous physical confrontation so that your accuser
had to *perceive* you being accused by him. Closed-circuit
television and one-way mirrors changed all that by *decoupling* those
two dimensions of confrontation, marking a shift in the conditions of
information-transfer that is in many ways typical of cyberspace.
What does that sort of shift mean for constitutional analysis?
A common way to react is to treat the pattern as it existed *prior*
to the new technology (the pattern in which doing "A" necessarily
*included* doing "B") as essentially arbitrary or accidental. Taking
this approach, once the technological change makes it possible to
do "A" *without* "B" -- to see your accuser without having him or her
see you, or to read someone's mail without her knowing it, to
switch examples -- one concludes that the "old" Constitution's
inclusion of "B" is irrelevant; one concludes that it is enough for
the government to guarantee "A" alone. Sometimes that will be the
case; but it's vital to understand that, sometimes, it won't be.
A characteristic feature of modernity is the subordination of
purpose to accident -- an acute appreciation of just how contingent
and coincidental the connections we are taught to make often are.
We understand, as moderns, that many of the ways we carve up and
organize the world reflect what our social history and cultural
heritage, and perhaps our neurological wiring, bring to the world,
and not some irreducible "way things are." A wonderful example
comes from a 1966 essay by Jorge Louis Borges, "Other
Inquisitions." There, the essayist describes the following
taxonomy of the animal kingdom, which he purports to trace to an
ancient Chinese encyclopedia entitled *The Celestial Emporium of
Benevolent Knowledge*:
On those remote pages it is written that animals are
divided into:
(a) those belonging to the Emperor
(b) those that are embalmed
(c) those that are trained
(d) suckling pigs
(e) mermaids
(f) fabulous ones
(g) stray dogs
(h) those that are included in this classification
(i) those that tremble as if they were mad
(j) innumerable ones
(k) those drawn with a very fine camel's hair brush
(l) others
(m) those that have just broken a water pitcher
(n) those that, from a great distance, resemble flies
Contemporary writers from Michel Foucault, in *The Archaeology
of Knowledge*, through George Lakoff, in *Women, Fire, and Dangerous
Things*, use Borges' Chinese encyclopedia to illustrate a range of
different propositions, but the *core* proposition is the supposed
arbitrariness -- the political character, in a sense -- of all
culturally imposed categories.
At one level, that proposition expresses a profound truth and
may encourage humility by combating cultural imperialism. At
another level, though, the proposition tells a dangerous lie: it
suggests that we have descended into the nihilism that so obsessed
Nietzsche and other thinkers -- a world where *everything* is
relative, all lines are up for grabs, all principles and
connections are just matters of purely subjective preference or,
worse still, arbitrary convention. Whether we believe that killing
animals for food is wrong, for example, becomes a question
indistinguishable from whether we happen to enjoy eating beans,
rice and tofu.
This is a particularly pernicious notion in a era when we pass
more and more of our lives in cyberspace, a place where, almost by
definition, our most familiar landmarks are rearranged or disappear
altogether -- because there is a pervasive tendency, even (and
perhaps especially) among the most enlightened, to forget that the
human values and ideals to which we commit ourselves may indeed be
universal and need not depend on how our particular cultures, or
our latest technologies, carve up the universe we inhabit. It was
my very wise colleague from Yale, the late Art Leff, who once
observed that, even in a world without an agreed-upon God, we can
still agree -- even if we can't "prove" mathematically -- that
"napalming babies is wrong."
The Constitution's core values, I'm convinced, need not be
transmogrified, or metamorphosed into oblivion, in the dim recesses
of cyberspace. But to say that they *need* not be lost there is
hardly to predict that they *will* not be. On the contrary, without
further thought and awareness of the kind this conference might
provide, the danger is clear and present that they *will* be.
The "event horizon" against which this transformation might
occur is already plainly visible:
Electronic trespassers like Kevin Mitnik don't stop with
cracking pay phones, but break into NORAD -- the North American
Defense Command computer in Colorado Springs -- not in a *WarGames*
movie, but in real life.
Less challenging to national security but more ubiquitously
threatening, computer crackers download everyman's credit history
>from institutions like TRW; start charging phone calls (and more)
to everyman's number; set loose "worm" programs that shut down
thousands of linked computers; and spread "computer viruses"
through everyman's work or home PC.
It is not only the government that feels threatened by
"computer crime"; both the owners and the users of private
information services, computer bulletin boards, gateways, and
networks feel equally vulnerable to this new breed of invisible
trespasser. The response from the many who sense danger has been
swift, and often brutal, as a few examples illustrate.
Last March, U.S. Secret Service agents staged a surprise raid
on Steve Jackson Games, a small games manufacturer in
Austin, Texas, and seized all paper and electronic drafts of its
newest fantasy role-playing game, *GURPS[reg.t.m.] Cyberpunk*,
calling the game a "handbook for computer crime."
By last Spring, up to one quarter of the U.S. Treasury
Department's investigators had become involved in a project of
eavesdropping on computer bulletin boards, apparently tracking
notorious hackers like "Acid Phreak" and "Phiber Optik" through
what one journalist dubbed "the dark canyons of cyberspace."
Last May, in the now famous (or infamous) "Operation Sun Devil,"
more than 150 secret service agents teamed up with state
and local law enforcement agencies, and with security personnel
>from AT&T, American Express, U.S. Sprint, and a number of the
regional Bell telephone companies, armed themselves with over two
dozen search warrants and more than a few guns, and seized 42
computers and 23,000 floppy discs in 14 cities from New York to
Texas. Their target: a loose-knit group of people in their teens
and twenties, dubbed the "Legion of Doom."
I am not describing an Indiana Jones movie. I'm talking about
America in the 1990s.
The Problem
The Constitution's architecture can too easily come to seem
quaintly irrelevant, or at least impossible to take very seriously,
in the world as reconstituted by the microchip. I propose today to
canvass five axioms of our constitutional law -- five basic
assumptions that I believe shape the way American constitutional
scholars and judges view legal issues -- and to examine how they
can adapt to the cyberspace age. My conclusion (and I will try not
to give away too much of the punch line here) is that the Framers
of our Constitution were very wise indeed. They bequeathed us a
framework for all seasons, a truly astonishing document whose
principles are suitable for all times and all technological
landscapes.
Axiom 1:
There is a Vital Difference
*Between Government and Private Action*
The first axiom I will discuss is the proposition that the
Constitution, with the sole exception of the Thirteenth Amendment
prohibiting slavery, regulates action by the *government* rather than
the conduct of *private* individuals and groups. In an article I
wrote in the Harvard Law Review in November 1989 on "The Curvature
of Constitutional Space," I discussed the Constitution's
metaphor-morphosis from a Newtonian to an Einsteinian and
Heisenbergian paradigm. It was common, early in our history, to
see the Constitution as "Newtonian in design with its carefully
counterpoised forces and counterforces, its [geographical and
institutional] checks and balances." (103 *Harv. L. Rev.* at 3.)
Indeed, in many ways contemporary constitutional law is still
trapped within and stunted by that paradigm. But today at least
some post-modern constitutionalists tend to think and talk in the
language of relativity, quantum mechanics, and chaos theory. This
may quite naturally suggest to some observers that the
Constitution's basic strategy of decentralizing and diffusing power
by constraining and fragmenting governmental authority in
particular has been rendered obsolete.
The institutional separation of powers among the three federal
branches of government, the geographical division of authority
between the federal government and the fifty state governments, the
recognition of national boundaries, and, above all, the sharp
distinction between the public and private spheres, become easy to
deride as relics of a simpler, pre-computer age. Thus Eli Noam, in
the First Ithiel de Sola Pool Memorial Lecture, delivered last
October at MIT, notes that computer networks and network
associations acquire quasi-governmental powers as they necessarily
take on such tasks as mediating their members' conflicting
interests, establishing cost shares, creating their own rules of
admission and access and expulsion, even establishing their own *de
facto* taxing mechanisms. In Professor Noam's words, "networks
become political entities," global nets that respect no state or
local boundaries. Restrictions on the use of information in one
country (to protect privacy, for example) tend to lead to export of
that information to other countries, where it can be analyzed and
then used on a selective basis in the country attempting to
restrict it. "Data havens" reminiscent of the role played by the
Swiss in banking may emerge, with few restrictions on the storage
and manipulation of information.
A tempting conclusion is that, to protect the free speech and
other rights of *users* in such private networks, judges must treat
these networks not as associations that have rights of their own
*against* the government but as virtual "governments" in themselves
-- as entities against which individual rights must be defended in
the Constitution's name. Such a conclusion would be misleadingly
simplistic. There are circumstances, of course, when
non-governmental bodies like privately owned "company towns" or
even huge shopping malls should be subjected to legislative and
administrative controls by democratically accountable entities, or
even to judicial controls as though they were arms of the state --
but that may be as true (or as false) of multinational corporations
or foundations, or transnational religious organizations, or even
small-town communities, as it is of computer-mediated networks.
It's a fallacy to suppose that, just because a computer bulletin
board or network or gateway is *something like* a shopping mall,
government has as much constitutional duty -- or even authority --
to guarantee open public access to such a network as it has to
guarantee open public access to a privately owned shopping center
like the one involved in the U.S. Supreme Court's famous *PruneYard
Shopping Center* decision of 1980, arising from nearby San Jose.
The rules of law, both statutory and judge-made, through which
each state *allocates* private powers and responsibilities themselves
represent characteristic forms of government action. That's why a
state's rules for imposing liability on private publishers, or for
deciding which private contracts to enforce and which ones to
invalidate, are all subject to scrutiny for their consistency with
the federal Constitution. But as a general proposition it is only
what *governments* do, either through such rules or through the
actions of public officials, that the United States Constitution
constrains. And nothing about any new technology suddenly erases
the Constitution's enduring value of restraining *government* above
all else, and of protecting all private groups, large and small,
>from government.
It's true that certain technologies may become socially
indispensable -- so that equal or at least minimal access to basic
computer power, for example, might be as significant a
constitutional goal as equal or at least minimal access to the
franchise, or to dispute resolution through the judicial system,
or to elementary and secondary education. But all this means (or
should mean) is that the Constitution's constraints on government
must at times take the form of imposing *affirmative duties* to
assure access rather than merely enforcing *negative prohibitions*
against designated sorts of invasion or intrusion.
Today, for example, the government is under an affirmative
obligation to open up criminal trials to the press and the public,
at least where there has not been a particularized finding that
such openness would disrupt the proceedings. The government is
also under an affirmative obligation to provide free legal
assistance for indigent criminal defendants, to assure speedy
trials, to underwrite the cost of counting ballots at election
time, and to desegregate previously segregated school systems. But
these occasional affirmative obligations don't, or shouldn't, mean
that the Constitution's axiomatic division between the realm of
public power and the realm of private life should be jettisoned.
Nor would the "indispensability" of information technologies
provide a license for government to impose strict content, access,
pricing, and other types of regulation. *Books* are indispensable to
most of us, for example -- but it doesn't follow that government
should therefore be able to regulate the content of what goes onto
the shelves of *bookstores*. The right of a private bookstore owner
to decide which books to stock and which to discard, which books to
display openly and which to store in limited access areas, should
remain inviolate. And note, incidentally, that this needn't make
the bookstore owner a "publisher" who is liable for the words
printed in the books on her shelves. It's a common fallacy to
imagine that the moment a computer gateway or bulletin board begins
to exercise powers of selection to control who may be on line, it
must automatically assume the responsibilities of a newscaster, a
broadcaster, or an author. For computer gateways and bulletin
boards are really the "bookstores" of cyberspace; most of them
organize and present information in a computer format, rather than
generating more information content of their own.
Axiom 2:
The Constitutional Boundaries of Private Property
and Personality Depend on Variables Deeper Than
*Social Utility and Technological Feasibility*
The second constitutional axiom, one closely related to the
private-public distinction of the first axiom, is that a person's
mind, body, and property belong *to that person* and not to the
public as a whole. Some believe that cyberspace challenges that
axiom because its entire premise lies in the existence of computers
tied to electronic transmission networks that process digital
information. Because such information can be easily replicated in
series of "1"s and "0"s, anything that anyone has come up with in
virtual reality can be infinitely reproduced. I can log on to a
computer library, copy a "virtual book" to my computer disk, and
send a copy to your computer without creating a gap on anyone's
bookshelf. The same is true of valuable computer programs, costing
hundreds of dollars, creating serious piracy problems. This
feature leads some, like Richard Stallman of the Free Software
Foundation, to argue that in cyberspace everything should be free
-- that information can't be owned. Others, of course, argue that
copyright and patent protections of various kinds are needed in
order for there to be incentives to create "cyberspace property" in
the first place.
Needless to say, there are lively debates about what the
optimal incentive package should be as a matter of legislative and
social policy. But the only *constitutional* issue, at bottom, isn't
the utilitarian or instrumental selection of an optimal policy.
Social judgments about what ought to be subject to individual
appropriation, in the sense used by John Locke and Robert Nozick,
and what ought to remain in the open public domain, are first and
foremost *political* decisions.
To be sure, there are some constitutional constraints on these
political decisions. The Constitution does not permit anything and
everything to be made into a *private commodity*. Votes, for
example, theoretically cannot be bought and sold. Whether the
Constitution itself should be read (or amended) so as to permit all
basic medical care, shelter, nutrition, legal assistance and,
indeed, computerized information services, to be treated as mere
commodities, available only to the highest bidder, are all terribly
hard questions -- as the Eastern Europeans are now discovering as
they attempt to draft their own constitutions. But these are not
questions that should ever be confused with issues of what is
technologically possible, about what is realistically enforceable,
or about what is socially desirable.
Similarly, the Constitution does not permit anything and
everything to be *socialized* and made into a public good available
to whoever needs or "deserves" it most. I would hope, for example,
that the government could not use its powers of eminent domain to
"take" live body parts like eyes or kidneys or brain tissue for
those who need transplants and would be expected to lead
particularly productive lives. In any event, I feel certain that
whatever constitutional right each of us has to inhabit his or her
own body and to hold onto his or her own thoughts and creations
should not depend solely on cost-benefit calculations, or on the
availability of technological methods for painlessly effecting
transfers or for creating good artificial substitutes.
Axiom 3:
*Government May Not Control Information Content*
A third constitutional axiom, like the first two, reflects a
deep respect for the integrity of each individual and a healthy
skepticism toward government. The axiom is that, although
information and ideas have real effects in the social world, it's
not up to government to pick and choose for us in terms of the
*content* of that information or the *value* of those ideas.
This notion is sometimes mistakenly reduced to the naive
child's ditty that "sticks and stones may break my bones, but words
can never hurt me." Anybody who's ever been called something awful
by children in a schoolyard knows better than to believe any such
thing. The real basis for First Amendment values isn't the false
premise that information and ideas have no real impact, but the
belief that information and ideas are *too important* to entrust to
any government censor or overseer.
If we keep that in mind, and *only* if we keep that in mind,
will we be able to see through the tempting argument that, in the
Information Age, free speech is a luxury we can no longer afford.
That argument becomes especially tempting in the context of
cyberspace, where sequences of "0"s and "1"s may become virtual
life forms. Computer "viruses" roam the information nets,
attaching themselves to various programs and screwing up computer
facilities. Creation of a computer virus involves writing a
program; the program then replicates itself and mutates. The
electronic code involved is very much like DNA. If information
content is "speech," and if the First Amendment is to apply in
cyberspace, then mustn't these viruses be "speech" -- and mustn't
their writing and dissemination be constitutionally protected? To
avoid that nightmarish outcome, mustn't we say that the First
Amendment is *inapplicable* to cyberspace?
The answer is no. Speech is protected, but deliberately
yelling "Boo!" at a cardiac patient may still be prosecuted as
murder. Free speech is a constitutional right, but handing a bank
teller a hold-up note that says, "Your money or your life," may
still be punished as robbery. Stealing someone's diary may be
punished as theft -- even if you intend to publish it in book form.
And the Supreme Court, over the past fifteen years, has gradually
brought advertising within the ambit of protected expression
without preventing the government from protecting consumers from
deceptive advertising. The lesson, in short, is that
constitutional principles are subtle enough to bend to such
concerns. They needn't be broken or tossed out.
Axiom 4:
The Constitution is Founded on Normative
Conceptions of Humanity That Advances
*in Science and Technology Cannot "Disprove"*
A fourth constitutional axiom is that the human spirit is
something beyond a physical information processor. That axiom,
which regards human thought processes as not fully reducible to the
operations of a computer program, however complex, must not be
confused with the silly view that, because computer operations
involve nothing more than the manipulation of "on" and "off" states
of myriad microchips, it somehow follows that government control or
outright seizure of computers and computer programs threatens no
First Amendment rights because human thought processes are not
directly involved. To say that would be like saying that
government confiscation of a newspaper's printing press and
tomorrow morning's copy has nothing to do with speech but involves
only a taking of metal, paper, and ink. Particularly if the seizure
or the regulation is triggered by the content of the information
being processed or transmitted, the First Amendment is of course
fully involved. Yet this recognition that information processing
by computer entails something far beyond the mere sequencing of
mechanical or chemical steps still leaves a potential gap between
what computers can do internally and in communication with one
another -- and what goes on within and between human minds. It is
that gap to which this fourth axiom is addressed; the very
existence of any such gap is, as I'm sure you know, a matter of
considerable controversy.
What if people like the mathematician and physicist Roger
Penrose, author of *The Emperor's New Mind*, are wrong about human
minds? In that provocative recent book, Penrose disagrees with
those Artificial Intelligence, or AI, gurus who insist that it's
only a matter of time until human thought and feeling can be
perfectly simulated or even replicated by a series of purely
physical operations -- that it's all just neurons firing and
neurotransmitters flowing, all subject to perfect modeling in
suitable computer systems. Would an adherent of that AI orthodoxy,
someone whom Penrose fails to persuade, have to reject as
irrelevant for cyberspace those constitutional protections that
rest on the anti-AI premise that minds are *not* reducible to really
fancy computers?
Consider, for example, the Fifth Amendment, which provides
that "no person shall be . . . compelled in any criminal case to
be a witness against himself." The Supreme Court has long held
that suspects may be required, despite this protection, to provide
evidence that is not "testimonial" in nature -- blood samples, for
instance, or even exemplars of one's handwriting or voice. Last
year, in a case called *Pennsylvania v. Muniz*, the Supreme Court
held that answers to even simple questions like "When was your
sixth birthday?" are testimonial because such a question, however
straightforward, nevertheless calls for the product of mental
activity and therefore uses the suspect's mind against him. But
what if science could eventually describe thinking as a process no
more complex than, say, riding a bike or digesting a meal? Might
the progress of neurobiology and computer science eventually
overthrow the premises of the *Muniz* decision?
I would hope not. For the Constitution's premises, properly
understood, are *normative* rather than *descriptive*. The philosopher
David Hume was right in teaching that no "ought" can ever be
logically derived from an "is." If we should ever abandon the
Constitution's protection for the distinctively and universally
human, it won't be because robotics or genetic engineering or
computer science have led us to deeper truths, but rather because
they have seduced us into more profound confusions. Science and
technology open options, create possibilities, suggest
incompatibilities, generate threats. They do not alter what is
"right" or what is "wrong." The fact that those notions are
elusive and subject to endless debate need not make them totally
contingent on contemporary technology.
Axiom 5:
Constitutional Principles Should Not
*Vary With Accidents of Technology*
In a sense, that's the fifth and final constitutional axiom I
would urge upon this gathering: that the Constitution's norms, at
their deepest level, must be invariant under merely *technological*
transformations. Our constitutional law evolves through judicial
interpretation, case by case, in a process of reasoning by analogy
>from precedent. At its best, that process is ideally suited to
seeing beneath the surface and extracting deeper principles from
prior decisions. At its worst, though, the same process can get
bogged down in superficial aspects of preexisting examples,
fixating upon unessential features while overlooking underlying
principles and values.
When the Supreme Court in 1928 first confronted wiretapping
and held in *Olmstead v. United States* that such wiretapping
involved no "search" or "seizure" within the meaning of the Fourth
Amendment's prohibition of "unreasonable searches and seizures,"
the majority of the Court reasoned that the Fourth Amendment
"itself shows that the search is to be of material things -- the
person, the house, his papers or his effects," and said that "there
was no searching" when a suspect's phone was tapped because the
Constitution's language "cannot be extended and expanded to include
telephone wires reaching to the whole world from the defendant's
house or office." After all, said the Court, the intervening wires
"are not part of his house or office any more than are the highways
along which they are stretched." Even to a law student in the
1960s, as you might imagine, that "reasoning" seemed amazingly
artificial. Yet the *Olmstead* doctrine still survived.
It would be illuminating at this point to compare the Supreme
Court's initial reaction to new technology in *Olmstead* with its
initial reaction to new technology in *Maryland v. Craig*, the 1990
closed-circuit television case with which we began this discussion.
In *Craig*, a majority of the Justices assumed that, when the 18th-
century Framers of the Confrontation Clause included a guarantee of
two-way *physical* confrontation, they did so solely because it had
not yet become technologically feasible for the accused to look his
accuser in the eye without having the accuser simultaneously watch
the accused. Given that this technological obstacle has been
removed, the majority assumed, one-way confrontation is now
sufficient. It is enough that the accused not be subject to
criminal conviction on the basis of statements made outside his
presence.
In *Olmstead*, a majority of the Justices assumed that, when the
18th-century authors of the Fourth Amendment used language that
sounded "physical" in guaranteeing against invasions of a person's
dwelling or possessions, they did so not solely because *physical*
invasions were at that time the only serious threats to personal
privacy, but for the separate and distinct reason that *intangible*
invasions simply would not threaten any relevant dimension of
Fourth Amendment privacy.
In a sense, *Olmstead* mindlessly read a new technology *out* of
the Constitution, while *Craig* absent-mindedly read a new technology
*into* the Constitution. But both decisions -- *Olmstead* and *Craig* --
had the structural effect of withholding the protections of the
Bill of Rights from threats made possible by new information
technologies. *Olmstead* did so by implausibly reading the
Constitution's text as though it represented a deliberate decision
not to extend protection to threats that 18th-century thinkers
simply had not foreseen. *Craig* did so by somewhat more plausibly
-- but still unthinkingly -- treating the Constitution's seemingly
explicit coupling of two analytically distinct protections as
reflecting a failure of technological foresight and imagination,
rather than a deliberate value choice.
The *Craig* majority's approach appears to have been driven in
part by an understandable sense of how a new information technology
could directly protect a particularly sympathetic group, abused
children, from a traumatic trial experience. The *Olmstead*
majority's approach probably reflected both an exaggerated estimate
of how difficult it would be to obtain wiretapping warrants even
where fully justified, and an insufficient sense of how a new
information technology could directly threaten all of us. Although
both *Craig* and *Olmstead* reveal an inadequate consciousness about
how new technologies interact with old values, *Craig* at least seems
defensible even if misguided, while *Olmstead* seems just plain
wrong.
Around 23 years ago, as a then-recent law school graduate
serving as law clerk to Supreme Court Justice Potter Stewart, I
found myself working on a case involving the government's
electronic surveillance of a suspected criminal -- in the form of
a tiny device attached to the outside of a public telephone booth.
Because the invasion of the suspect's privacy was accomplished
without physical trespass into a "constitutionally protected area,"
the Federal Government argued, relying on *Olmstead*, that there had
been no "search" or "seizure," and therefore that the Fourth
Amendment "right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and
seizures," simply did not apply.
At first, there were only four votes to overrule *Olmstead* and
to hold the Fourth Amendment applicable to wiretapping and
electronic eavesdropping. I'm proud to say that, as a 26-year-old
kid, I had at least a little bit to do with changing that number
>from four to seven -- and with the argument, formally adopted by a
seven-Justice majority in December 1967, that the Fourth Amendment
"protects people, not places." (389 U.S. at 351.) In that
decision, *Katz v. United States*, the Supreme Court finally
repudiated *Olmstead* and the many decisions that had relied upon it
and reasoned that, given the role of electronic telecommunications
in modern life, the First Amendment purposes of protecting *free
speech* as well as the Fourth Amendment purposes of protecting
*privacy* require treating as a "search" any invasion of a person's
confidential telephone communications, with or without physical
trespass.
Sadly, nine years later, in *Smith v. Maryland*, the Supreme
Court retreated from the *Katz* principle by holding that no search
occurs and therefore no warrant is needed when police, with the
assistance of the telephone company, make use of a "pen register",
a mechanical device placed on someone's phone line that records all
numbers dialed from the phone and the times of dialing. The
Supreme Court, over the dissents of Justices Stewart, Brennan, and
Marshall, found no legitimate expectation of privacy in the numbers
dialed, reasoning that the digits one dials are routinely recorded
by the phone company for billing purposes. As Justice Stewart, the
author of *Katz*, aptly pointed out, "that observation no more than
describes the basic nature of telephone calls . . . . It is simply
not enough to say, after *Katz*, that there is no legitimate
expectation of privacy in the numbers dialed because the caller
assumes the risk that the telephone company will expose them to the
police." (442 U.S. at 746-747.) Today, the logic of *Smith* is
being used to say that people have no expectation of privacy when
they use their cordless telephones since they know or should know
that radio waves can be easily monitored!
It is easy to be pessimistic about the way in which the
Supreme Court has reacted to technological change. In many
respects, *Smith* is unfortunately more typical than *Katz* of the way
the Court has behaved. For example, when movies were invented, and
for several decades thereafter, the Court held that movie
exhibitions were not entitled to First Amendment protection. When
community access cable TV was born, the Court hindered municipal
attempts to provide it at low cost by holding that rules requiring
landlords to install small cable boxes on their apartment buildings
amounted to a compensable taking of property. And in *Red Lion v.
FCC*, decided twenty-two years ago but still not repudiated today,
the Court ratified government control of TV and radio broadcast
content with the dubious logic that the scarcity of the
electromagnetic spectrum justified not merely government policies
to auction off, randomly allocate, or otherwise ration the spectrum
according to neutral rules, but also much more intrusive and
content-based government regulation in the form of the so-called
"fairness doctrine."
Although the Supreme Court and the lower federal courts have
taken a somewhat more enlightened approach in dealing with cable
television, these decisions for the most part reveal a curious
judicial blindness, as if the Constitution had to be reinvented
with the birth of each new technology. Judges interpreting a late
18th century Bill of Rights tend to forget that, unless its *terms*
are read in an evolving and dynamic way, its *values* will lose even
the *static* protection they once enjoyed. Ironically, *fidelity* to
original values requires *flexibility* of textual interpretation. It
was Judge Robert Bork, not famous for his flexibility, who once
urged this enlightened view upon then Judge (now Justice) Scalia,
when the two of them sat as colleagues on the U.S. Court of Appeals
for the D.C. Circuit.
Judicial error in this field tends to take the form of saying
that, by using modern technology ranging from the telephone to the
television to computers, we "assume the risk." But that typically
begs the question. Justice Harlan, in a dissent penned two decades
ago, wrote: "Since it is the task of the law to form and project,
as well as mirror and reflect, we should not . . . merely recite .
. . risks without examining the *desirability* of saddling them upon
society." (*United States v. White*, 401 U.S. at 786). And, I would
add, we should not merely recite risks without examining how
imposing those risks comports with the Constitution's fundamental
values of *freedom*, *privacy*, and *equality*.
Failing to examine just that issue is the basic error I
believe federal courts and Congress have made:
* in regulating radio and TV broadcasting without
adequate sensitivity to First Amendment values;
* in supposing that the selection and editing of
video programs by cable operators might be less
than a form of expression;
* in excluding telephone companies from cable and
other information markets;
* in assuming that the processing of "O"s and "1"s
by computers as they exchange data with one
another is something less than "speech"; and
* in generally treating information processed
electronically as though it were somehow less
entitled to protection for that reason.
The lesson to be learned is that these choices and these
mistakes are not dictated by the Constitution. They are decisions
for us to make in interpreting that majestic charter, and in
implementing the principles that the Constitution establishes.
*Conclusion*
If my own life as a lawyer and legal scholar could leave just
one legacy, I'd like it to be the recognition that the Constitution
*as a whole* "protects people, not places." If that is to come
about, the Constitution as a whole must be read through a
technologically transparent lens. That is, we must embrace, as a
rule of construction or interpretation, a principle one might call
the "cyberspace corollary." It would make a suitable
Twenty-seventh Amendment to the Constitution, one befitting the
200th anniversary of the Bill of Rights. Whether adopted all at
once as a constitutional amendment, or accepted gradually as a
principle of interpretation that I believe should obtain even
without any formal change in the Constitution's language, the
corollary I would propose would do for *technology* in 1991 what I
believe the Constitution's Ninth Amendment, adopted in 1791, was
meant to do for *text*.
The Ninth Amendment says: "The enumeration in the
Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people." That amendment provides
added support for the long-debated, but now largely accepted,
"right of privacy" that the Supreme Court recognized in such
decisions as the famous birth control case of 1965, *Griswold v.
Connecticut*. The Ninth Amendment's simple message is: The *text*
used by the Constitution's authors and ratifiers does not exhaust
the values our Constitution recognizes. Perhaps a Twenty-seventh
Amendment could convey a parallel and equally simple message: The
*technologies* familiar to the Constitution's authors and ratifiers
similarly do not exhaust the *threats* against which the
Constitution's core values must be protected.
The most recent amendment, the twenty-sixth, adopted in 1971,
extended the vote to 18-year-olds. It would be fitting, in a world
where youth has been enfranchised, for a twenty-seventh amendment
to spell a kind of "childhood's end" for constitutional law. The
Twenty-seventh Amendment, to be proposed for at least serious
debate in 1991, would read simply:
"This Constitution's protections for the freedoms of
speech, press, petition, and assembly, and its
protections against unreasonable searches and seizures
and the deprivation of life, liberty, or property without
due process of law, shall be construed as fully
applicable without regard to the technological method or
medium through which information content is generated,
stored, altered, transmitted, or controlled."
law/copr.txt
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HOW TO COPYRIGHT SOFTWARE
-------------------------
(c) 1990 Locus Inc
PREFACE
This booklet is a programmer's guide to copyrighting software.
It contains step-by-step instructions from a programmer/attorney
how to apply for a Certificate of Copyright Registration. This
material is being distributed on the honor system. It is not
public domain or free, although it may be uploaded or downloaded
freely. Just like a book in a bookstore, you have a limited
right to look before you buy. If you send $12.95 to the address
below, you will receive a printed copy of the complete work,
including the official forms that could not be included because
they contains non-ASCII graphics. BBS Support (502) 561-0742.
Thank you for your support!
* * *
Locus Incorporated, 122 Peace Lane,
Pewee Valley, Louisville, KY 40056-9001
* * *
INTRODUCTION
Everyone knows how easily computer programs and manuals can
be copied. Registration with the United States Copyright Office
in Washington D.C. is an excellent way to protect your valuable
work product with a minimum of red tape and expense. Patents and
trademarks are also valuable for computer software, but are
beyond the scope of this simple work. Patent and Trademark Office
rules are not quite as "user friendly" as the Copyright Office.
Understanding software protection requires some familiarity
with the law of copyrights. Chapter 1 explains the basics of
copyright law relating to computer software. Chapter 2 takes a
nuts-and-bolts approach how to fill out the official Copyright
Form TX to apply for a Certificate of Copyright Registration.
Chapter 3 deals with the remaining details of what, when, where
and how much to send to the Copyright Office along with your
application.
* * * * *
NOTE: This file is in standard ASCII text format with a hard
carriage return at the end of each line. It contains no special
characters or printer control codes.
================================================================
TABLE OF CONTENTS
Preface
Introduction
Chapter 1 Computer Law Basics
1.1 Ideas are Free
1.2 Scope of Protection
1.3 Bundle of Rights
1.4 Infringements
1.5 Copyright Notice
Chapter 2 Application Form TX
2.1 Space 1 - Title
2.2 Space 2 - Authorship
2.2.1 Name of Author
2.2.2 Works Made For Hire
2.2.3 Nationality
2.2.4 Anonymity
2.2.5 Nature of Authorship
2.3 Space 3 - Dates
2.3.1 Creation
2.3.2 Publication
2.4 Space 4 - Claimant
2.4.1 Claimant is Author
2.4.2 Claimant is not Author
2.4.3 Claimant is Joint Author
2.4.4 Transfer Statement
2.5 Space 5 - Previous Registration
2.6 Space 6 - Derivative Works or Compilations
2.6.1 Preexisting Material
2.6.2 Material Added
2.6.3 Examples
2.7 Space 7 - (deleted)
2.8 Space 8 - Reproduction for Blind or Handicapped
2.9 Space 9 - Correspondence From Office
2.10 Space 10 - Signature and Certification
2.11 Space 11 - Return Address For Certificate
Chapter 3 Final Steps
3.1 Filing Fee
3.2 Deposit Requirements
3.2.1 Special Relief and Trade Secrets
3.2.2 Object Code and Rule of Doubt
3.2.3 Screen Displays
3.3 Mailing
3.4 Office Action
3.5 About the Author
Appendix
Index
================================================================
CHAPTER 1: COMPUTER LAW BASICS
This booklet is designed to be a practical guide for non-
lawyers. A conscious effort was made to cut out legalese and
lawyer talk. However, copyrights are deceptively simple. The
basic concepts can be stated in a few sentences, yet the law
construing them occupies volumes. By all means, consult with your
lawyer if you have questions about any part of this registration
process. Or feel free to call the support BBS listed above. Two
other good sources of online legal information are GEnie's Legacy
and Compuserve's LawSig.
1.1 IDEAS ARE FREE
Copyright does not protect ideas, only expressions of
ideas. What does that mean? Think about it. An idea is an
original thought in your brain. An expression is that same
thought reduced to something you can see or hear. Particularly
with software, if you can see it you probably have an expression.
For example, you can see source code, but not mental logic.
Therefore, source code is protected, logic is not. Thus, the first
rule for any copyright is there must be a tangible form of
expression.
The second rule is that the expression must be original.
However, a single idea can be expressed more than one way. For
example, Lotus 1-2-3 and Microsoft Excel both share the same
idea of an electronic spreadsheet, yet each expresses the idea
differently. They have different interfaces, file structures,
and source code. There is no infringement. So, copyright only
protects original expressions that are fixed in some tangible
format.
Sometimes an idea is so common or there are so few ways to
express it that the idea and the expression are said to merge.
A merger of the idea and its expression occurs when the expression
is indispensable to the treatment of the idea. As a result, the
scope of protection may be severely limited if you end up in court.
1.2 SCOPE OF PROTECTION
Copyright protection is readily available for computer
programs in all their forms, including source code, object code,
and microcode. You can also copyright written documentation and
user manuals on the same application made for software. However,
copyright protection does NOT extend to the underlying procedure,
process, system, method, concept, principle, discovery, formula or
algorithm, regardless of the format in which it is coded,
described, illustrated or embodied in the work.
A derivative work is one based upon or incorporating a
preexisting work. For example, MicroSoft Windows 3.0 derives
from Windows 2.0, thus 3.0 is a derivative work of 2.0, and so
on. Other examples of derivative works include translations (ex.
rewriting BASIC into C), abridgements (ex. releasing a Lite
version), and additions (ex. adding pulldown menus). So whenever
a work is recast, transformed, or adapted, and the changes are
significant enough, you have a derivative work.
A compilation occurs when you collect and assemble other
preexisting materials or data. The creative effort in a
compilation copyright is in how you select, coordinate, or arrange
the material. The classic example of a compilation copyright is
the telephone directory. Another example would be a sampler disk
or a collection of programs from various authors (ex. PC Magazine
Utilities Disk). Note that you must have a copyright owner's
permission before reproducing, including or changing his work.
Public domain materials do not belong to anyone. They may
be copyrights that have expired or the author has dedicated to
the public. Or perhaps the author never registered the work, or
maybe the registration was denied for lack of proper subject
matter. Whatever the reason, public domain material does not
have an owner, per se, and may be copied or included in derivative
works and compilations.
1.3 BUNDLE OF RIGHTS
A copyright owner has certain exclusive rights. Only the
owner of a copyright on a program can: (1) reproduce or authorize
copying of the program; (2) make derivative works or changes to
the program; and (3) distribute, license or sell the program.
These exclusive rights last for the life of the author, plus 50
years. Or if the work was made for hire (see Section 2.2.2), for
75 years from the date of publication, or 100 years from creation,
whichever is shorter.
Having a Certificate of Registration is prima facie evidence
of the validity of your copyright. Also, if you are registered
at the time of the infringement, the defendant can no longer
claim to be an "innocent infringer." Plus, you can recover your
attorney fees if you have to go to court to enforce your rights
(and win).
When courts must determine who has right, title and interest
in a program, judges often struggle with the idea-expression
dichotomy. However, modern courts have recognized that software
consists of four legally significant elements: (1) source and
object code; (2) structure, sequence and organization; (3)
function or purpose; and (4) user interface. Copyright treats
each element as an independent work of authorship provided it
qualifies as an expression rather than an idea.
1.4 INFRINGEMENTS
Suppose you discover that someone is making unauthorized
copies or your program or is marketing, how can we say, a
"strikingly similar workalike?" What can you do? Once your
program has been registered, you can file a copyright infringement
suit in federal court. The judge can issue an injunction against
the defendant to cease and desist the infringing activities. The
judge can even order the U.S. Marshall to seize the infringing
materials. At trial, you can win money damages based on your lost
business or the defendant's unjust profits. Or if your damages are
speculative, you can demand statutory damages of up to $100,000 per
infringement (if registered at the time of the infringement).
Note that you cannot begin a copyright infringement suit until
your program is registered. If you are not registered at the time
you learn of the infringement, you have to hurry up and do it.
Fortunately, the Copyright Office can provide expedited handling
upon special request. A "Request for Special Handling" (see
Appendix C) must contain a sworn statement explaining the urgency,
accompanied by a special fee of $200.00. If your request is
granted, the Office will try to process the application within five
days.
To constitute an infringement, two programs must be
"substantially similar." Obviously, this is a subjective standard.
Therefore, modern courts are using a two-part test to determine
whether two computer programs are substantially similar. First,
an expert programmer may scrutinize the programs and testify
whether their sequence, structure and organization have a
"comprehensive nonliteral similarity." Second, a judge or jury may
look at the programs side by side and say whether they have the
same overall "look and feel." If both tests are true, there is
an infringement.
1.5 COPYRIGHT NOTICE
The copyright notice below no longer required, however it is
still highly recommended. If the purpose of copyright is to
protect, why not use this simple device? Thus, the following words
should appear prominently in the source code, and on the bootup
screen, the user manuals, and all other documentation and
distribution media:
**********************************************************
* COPYRIGHT (C) 1990 ABC COMPANY. ALL RIGHTS RESERVED. *
**********************************************************
The three parts to the copyright notice are : (1) the word
COPYRIGHT or COPR, or the letter (C) in a circle/parentheses; (2)
the YEAR of creation or first publication; and (3) the NAME of the
copyright owner. The phrase ALL RIGHTS RESERVED is not absolutely
necessary, but warns others of your claim to ALL other rights in
the work, including patents, trademarks, and trade secrets.
================================================================
CHAPTER 2: APPLICATION FORM TX
A copyright certificate is to a program like a deed is to
land. Both are evidence of ownership and title. Actually, your
copyrights existed from the moment you wrote the program. But to
perfect your rights you must register with the U.S. Copyright
Office. The registration process usually takes about three to six
months.
The Copyright Office considers computer programs to be
"writings," therefore we use the same as is required for books and
other literary works. Form TX is short for TeXt. The following
are all that are required to apply for a copyright:
(1) One completed Form TX.
(2) One copy of the program.
(3) The filing fee.
A blank Form TX and other forms are attached in the Appendix.
You can submit you application on photocopies of these official
forms, but make sure they are on two-sided paper. The Appendix
also contains a sample of a completed Form TX on which a
Certificate of Copyright Registration was issued.
The Copyright Office has a policy of Single Registration,
that is, one application per work. Since a program is rarely one
giant piece of code, but a system of interdependent parts (such as,
overlays, drivers, help files, etc.), the question is whether one
application can cover everything? YES. All these parts, including
user manuals and documentation, are considered a single work for
registration purposes and can be handled on one application.
The TX form is only two pages long, with 11 numbered spaces
for providing information. Each space has multiple lines; some
have boxes to check. Throughout this Chapter, the Section
numbering scheme corresponds to the appropriate space on the TX
form. Examples how to complete the spaces are in ALL CAPITAL
LETTERS or "in quotes."
2.1 SPACE 1 - TITLE
The name or title of your program goes in Space 1, Line 1.
This should be the full, popular title of your program, including
version number (if any). For example: "MICROSOFT QUICKBASIC 4.5"
or "LOTUS 1-2-3, RELEASE 3.0." There is no copyright in titles,
so the program name does not have to be completely original.
Just be sure not to use someone else's trade name or trademark
without their permission.
Usually, you can skip the rest of Space 1. However, if your
program has another name, give that name in Line 2 of Space 1. Or
if your program is part of a collection (such as a sampler disk or
magazine), give the title of the magazine or sampler in Line 3, and
state the volume and issue number in Line 4. For example, "BYTE
MAGAZINE, JANUARY 1991."
2.2 SPACE 2 - AUTHORSHIP
This is the most important section. Your answers here must be
consistent with your answers in Space 4 (Claimant). Correctly
identifying authorship involves significant rights and will have a
major impact on ultimate ownership, use, and transfer of the
software. Be sure to read through all of Section 2.2 first.
2.2.1 NAME OF AUTHOR
FOR INDIVIDUALS ==> If you wrote the program, put your full
name and birthdate in Line 1 of Space 2(a). If you wrote the
software jointly with one or more people with the intention that
all contributions be merged into a whole, give each person's full
name and birthdate in Spaces 2(b), 2(c), etc. If additional
spaces are needed, use Form TX/CON in Appendix A.
FOR BUSINESSES ==> If you are operating as a business and the
programming was done by you or regular employees of your business,
then put your company's full legal name as the author in Space
2(a), Line 1. Leave the birthdate information blank. Please be
sure to read Section 2.2.2 very closely, especially if you had
any contract programming done.
2.2.2 WORK MADE-FOR-HIRE. On the left side of Line 2, Space 2,
there is a check box for a tricky question: "Was this contribution
to the work a 'work made for hire'?" This is a legal term of art.
A work is made-for-hire if it is (1) prepared by employees within
the scope of their employment; or (2) specially ordered or
commissioned and the parties agree IN WRITING that the work is
made-for-hire. The author of a work made-for-hire is generally the
employer, not the employee. Just because you paid for it doesn't
mean it yours.
Work-for-hire situations can arise several ways. For example,
a dentist hires a neighbor's kid to write a billing system, or a
bank hires temporary contract programmers to finish a big project.
Even if the programmer is given instructions every step of the
way, there must be a written agreement signed by both parties
acknowledging the work is made-for-hire. Otherwise, all or part
of the copyright belongs to the programmer.
Therefore, if any part of the program was made-for-hire,
you must check "YES" in the box provided on Line 2 of Space 2, give
the employer's name as the Author of that part of the work. Leave
the space for dates of birth and death blank.
2.2.3 NATIONALITY. In the middle of Line 2 of Space 2, you must
give the country where the author is a citizen or is domiciled.
In most cases, the author of the work will be a U.S. citizen or
business. In general, a person is domiciled in the place where he
or she has a fixed and permanent residence with an intention to
continue living at that residence for an unlimited time or to
return to it whenever absent. If the author is a foreign company,
give the country where the business is domiciled.
2.2.4 ANONYMITY. On the right of Space 2, Line 2, you can
register anonymously. Anonymous registration is NOT recommended.
You should just check "NO" to both questions here. Always check
with your attorney before checking Anonymous or Pseudonymous. But
if you insist on being Anonymous, you can put "ANONYMOUS" for the
Name of Author in Line 1, or just leave blanks for the Name. If you
insist, you can give a pseudonym for the Name of Author, provided
you qualify it with the word "PSEUDONYM" (ex. "BIG JOHN,
PSEUDONYM"), or you can give your real name plus your pseudonym
(ex. "WILLIAM GATES, WHOSE PSEUDONYM IS WILD BILL").
2.2.5 NATURE OF AUTHORSHIP. In Space 2, Line 3, the Copyright
Office wants a VERY BRIEF description of your work. Brief Means
Terse! Just put "COMPUTER PROGRAM." If you also want to register
the documentation, just put "COMPUTER PROGRAM AND DOCUMENTATION."
Get the picture? Do not give any more detail than absolutely
necessary. Particularly avoid descriptions of program functions,
screens, design, structure, and the like. The more detailed you
get, the more likely the Copyright Office will question your
application.
2.3 SPACE 3 - DATES
2.3.1 CREATION. In Space 3(a), put the year the finished program
was created. A program is created when it is fixed in some
permanent tangible form. This is not to say you cannot change it
later since each significant version constitutes a copyrightable
work. In any event, make sure the creation date is consistent with
other dates appearing on the application and in the program.
2.3.2 PUBLICATION. A program is published when it is sold,
transferred, assigned, licensed, rented, leased, or offered for
distribution to the public. If your program has never been
published, just leave the date and nation information in Space
3(b) blank. If your program has been published, then you must
give the date and nation where it was first published. The
approximate date is acceptable if you cannot recall exactly.
2.4 SPACE 4 - CLAIMANT
The claimant is the person or company who is now claiming
ownership and title in the copyright, or at least part of it.
Usually, the claimant and the author are the same. However, the
claimant may be different when there has been an assignment or some
other form of transfer from the author originally named in Space 2.
If that is case, a brief transfer statement must be made (see
Section 2.4.4). In pseudocode:
IF SPACE 4 = SPACE 2
NO TRANSFER STATEMENT REQUIRED
ELSE
TRANSFER STATEMENT REQUIRED.
2.4.1 If the claimant is the SAME as the author named in Space
2, put his or her or its name and address in Space 4, Line 1.
Obviously, you do not need a transfer statement if there has been
no transfer.
2.4.2 If the claimant is DIFFERENT from the author named in Space
2, you need to explain this discrepancy. Thus, in Space 4, Line 1
give the claimant's full name and address, and on Line 2 give a
brief statement how title was transferred (see Section 2.4.4).
2.4.3 If there were joint authors and the claimant is less than
ALL of the authors, again you will need to explain this. In Space
4, Line 1 give this claimant's full name and address, and on Line 2
give a brief transfer statement how this claimant got title to the
entire work was obtained (see Section 2.4.4).
2.4.4 TRANSFER STATEMENT. The transfer statement is a very brief
explanation how the claimant got ownership. It is NOT the document
itself. Rather, the transfer statement need only be a word or two,
such as "BY ASSIGNMENT" or "BY WRITTEN AGREEMENT." Do NOT attach
the transfer document itself. However, transfer documents can be
filed separately with the Copyright Office by sending a letter of
request and a $10.00 filing fee per document.
2.5 SPACE 5 - PREVIOUS REGISTRATION
Each version or release of a program is a different work.
If you have registered your program before, check "YES" in the TOP
box in Space 5, plus check one or more of the next 3 boxes in Space
5 to explain why another registration is being sought. Those
reasons include:
(1) The program was unpublished when you first registered, and
you now seek a second registration to cover your first published
edition. Check the SECOND box.
(2) The program was previously registered by somebody else
(perhaps a co-author), and you now seek registration in your
name. Check the THIRD box.
(3) You revised the program since the first registration, and
now seek registration on the changed version. Check the FOURTH
box AND complete Space 6.
If you checked "YES" to the TOP box, you must give the
previous registration number and the year of registration on the
bottom line of Space 5. If you made more than one registration
of this program, you need only give the latest registration
number and year.
2.6 SPACE 6 - DERIVATIVE WORKS or COMPILATIONS
You only need to complete Space 6 if your program is a
derivative work, a changed version of another work, or a
compilation of preexisting works (see Sections 1.3 and 2.5 above).
Derivative or changed works are based upon or derived from one or
more preexisting works. A compilation collects or assembles
preexisting materials from various sources, or extracts and
reassembles material or data from another source. You must
complete Spaces 6a and 6b for derivative or changed works, but
for compilations you need only complete Space 6b.
2.6.1 PREEXISTING MATERIAL. Space 6a is for derivative works or
changed versions only. Here, briefly describe the preexisting
material or program you updated, adapted or transformed. That
is, identify any preexisting works your program may be based on
or incorporate. This may include public domain or government
material (see examples in Section 2.6.3)
2.6.2 MATERIAL ADDED. Space 6b is for derivative works and
compilations. The Copyright Office wants a BRIEF statement of
any added material in which you now claim copyright. If you have
a derivative or changed work, give a short description what is
new about this changed version. Or if you have a compilation,
start your description with the word "COMPILATION," then summarize
briefly your efforts in creating this work.
2.6.3 EXAMPLES. Examples of how you might complete Spaces 6a and
6b for derivative works and/or compilations are set forth below:
(1) For a derivative work, such as WordPerfect 5.1 -
6a - "WordPerfect 5.0"
6b - "Additional features and text"
(2) For a compilation, such as the PC Mag Utilities Disk -
6a - (leave blank)
6b - "Compilation of DOS utilities and text"
(3) For a derivative work AND compilation, such as a
program incorporating public domain material -
6a - "Standard file compression routines"
6b - "Additional programming and text"
2.7 SPACE 7 - (DELETED)
In the past, Space 7 was used for manufacturing provisions,
but it is no longer required. The new TX forms have deleted this
space. If you happen to have an old TX form, just leave Space 7
blank.
2.8 SPACE 8 - REPRODUCTION FOR BLIND OR HANDICAPPED
The Library of Congress reproduces and distributes some
works for use by blind or physically handicapped individuals. If
you wish to grant the Library of Congress a limited right to copy
and distribute your work solely for the blind or handicapped,
check Box 8b and sign your name. You can always terminate this
license upon 90 days notice.
2.9 SPACE 9 - CORRESPONDENCE FROM OFFICE
Skip the first half of Space 9, DEPOSIT ACCOUNT, unless of
course you have a charge account with the Copyright Office )if
that is the case, why do you need this booklet?)
However, the second half of Space 9 is very important in case
the Copyright Examiner needs to contact you. Give your name
(or person most suited to answer questions), an address and
daytime telephone number Often a simple phone call from the
Examiner can straighten out the problem.
2.10 SPACE 10 - SIGNATURE AND CERTIFICATION
Finally, you get to sign the application in Space 10. In the
top part of Space 10, check one of the boxes indicating your
status as the: (a) author; (b) other copyright claimant; (c)
owner of exclusive rights; or (d) authorized agent of a, b or c.
On the middle line of Space 10, type or print your name and
the date you signed the application. Make sure that if you
listed the work as published in Space 3, the date signed is later
than the date published.
Put your signature on the bottom line of Space 10, where the
finger is pointing. By signing the application, you are certifying
that everything is true and accurate to the best of your knowledge.
The TX form warns that any false representation of a material fact
in an application for copyright or in any written statement filed
in connection with it SHALL be fined up to $2,500.
2.11 SPACE 11 - MAIL CERTIFICATE TO
In Space 11, give the name and full mailing address where
you want the Certificate of Copyright Registration mailed. Usually,
this is the same address you have used time after time herein. If
you need to, you can have the certificate mailed to somebody else.
================================================================
CHAPTER 3: FINAL STEPS
3.1 FILING FEE
The required filing fee for each application is $10.00 until
January 2, 1991. Beginning January 3, 1991, the filing fee is
$20.00 per work. This fee is non-refundable. You can make your
check or money order payable to the "Register of Copyrights."
3.2 DEPOSIT REQUIREMENTS
The Copyright Office requires that you deposit with the
Library of Congress a "best edition" of your work. In most
cases, the best edition of a computer program is its source code.
You do not have to deposit the entire source code listing.
The source code may be deposited in any form visually
perceptible without the aid of a machine or device, on paper or
microform, preferably showing the copyright notice. Filing on
floppy disks and magnetic media are under consideration, but are
not required at the time of this writing. The following deposit
options are regularly available:
(1) The first 25 and last 25 pages of source code.
(2) If you have multiple programs, the first 25 pages from the
first program and the last 25 pages from the last program.
(3) If you have a revised version, and no changes or additions
are contained in the first 25 and last 25 pages, you can send any
50 representative pages of the revised material.
However, if you absolutely refuse to disclose ANY of your
source code, special deposit procedures are available and explained
in the following Section.
3.2.1 SPECIAL RELIEF AND TRADE SECRETS. Since Copyright Office
records are open to the public, trade secrets could be lost if you
deposit a significant portion of your source code. Recognizing
this possibility, the Copyright Office provides for special relief
from the above deposit options. Just write a letter to the Chief
Examiner requesting special relief, and the following deposit
options are available:
(1) The first 25 and last 25 pages of source code with up to
50% blocked out. The blocked-out portions must be proportionately
less than the material remaining. Some people photocopy the source
code through a clear plastic sheet with masking tape blocking out
half the sheet.
(2) The first and last 10 pages of source code with NO blocked
out portions.
(3) The first and last 25 pages of object code, plus any 10 or
more consecutive pages of source code with NO blocked-out portions.
3.2.2 OBJECT CODE AND RULE OF DOUBT. As mentioned before, in
rare cases you may deposit object code. Deposits of object code
are subject to the Copyright Office's "Rule of Doubt." This
means that the Copyright Office has accepted the deposit material
for filing purposes without making any independent determination of
its copyrightability.
3.2.3 COMPUTER SCREEN DISPLAYS. Computer programs and screen
displays should be registered as a single work. All copyrightable
expression owned by the same claimant and embodied in a computer
program, or first published as a unit with a computer program,
including computer screen displays, is considered a single work
and should be registered on a single application form.
There is no need to refer to screen displays on the TX
application. However, once you mention screens or other audio-
visual whistles and bells, you must send copies of screens,
printouts, photographs, drawings, or VHS and the Copyright Examiner
will be forced to make a judgment call on each screen. Deposit of
screen displays is disfavored by the Copyright Office and will
drastically slow down the application process.
3.3 MAILING
Pack up your application form, the deposit material, and the
filing fee, and address the whole package to:
Register of Copyrights
Library of Congress
Washington D.C. 20559
Regular U.S. mail is fine, certified or registered delivery
is not necessary. However, it is a good idea to send include a
cover letter listing the contents of your package. It also helps
to include a self-addressed postcard for the Copyright Office
mailroom to date-stamp and return to you acknowledging receipt
(see Appendix). On the postcard, list everything sent in the
package.
3.4 OFFICE ACTION
Processing by the Copyright Office usually takes about three
to six months. If the Examiner has any questions, you will receive
a letter or phone call. Communications are quite informal, but you
do need to reply to Office actions no later than six months.
Hopefully, the only thing you will receive is a big brown U.S.
government envelope containing your Certificate of Copyright
Registration.
3.5 ABOUT THE AUTHOR
Beach A. Craigmyle is a lawyer in Louisville, Kentucky. He
is a former programmer/analyst, information systems auditor, and
consultant. He concentrates his legal practice in the areas of
computer law and intellectual property. His office address is:
2500 Brown & Williamson Tower, Louisville, Kentucky 40202, phone
(502) 584-1135, FAX (502) 561-0442. He may also be reached
through the BBS Support (502) 561-0742 (SYSOP), GEnie
(B.CRAIGMYLE), and on CompuServe (72426,2567)
================================================================
APPENDIX
The documents included in the appendixes below could not be
attached to the disk version of this booklet because they are
typeset. Basically, they look like any other government document
with lots of lines, boxes, and fine print.
================================================================
APPENDIX A
Blank Forms TX and TX/CON
================================================================
APPENDIX B
Example TX Form Completed
Certificate of Copyright Registration
================================================================
APPENDIX C
Request for Special Handling
================================================================
APPENDIX D
Correspondence with Copyright Office
1. Transmittal letter
2. Request for Special Relief
================================================================
INDEX
References are to Sections and to Appendixes.
Abridgements, 2.6
Additions, 1.2, 2.6.2
Anonymity, 2.2.4
Assignment, 2.4.4
Authorship, 2.2.5
BBS support, 3.5
Birthdate, 2.2.1
Blind or handicapped, 2.8
Business name, 2.2.1
Certificate, 1.3, 2.11, Appx B
Claimant, 2.4, 2.2
Coauthor, see Joint
Collection, 2.1
Compilations, 1.2, 2.6
Copying, 1.3, 1.4
Correspondence, 3.3
Courts, 1.3, 1.4
Creation, 1.5, 2.3.1
Damages, 1.4
Dates, 1.4, 2.3
Deposit material, 3.2
Derivative works, 1.2, 2.6
Documentation, 1.2, 3.2
Domicile, 2.2.3
Employment, 2.2.2, 2.4
Expedited handling, 1.4
Expressions, 1.1, 1.2
Fees 2.0, 1.4
Help, 3.5
Ideas 1.1, 1.2
Infringement 1.4
Injunction, 1.3
Joint authors, 2.2, 2.4.3, 2.5
Judgment, 1.4
Mailing address, 2.9, 2.11, 3.3
Merger doctrine, 1.2
Microcode, 1.2
Nationality, 2.2.3
Notice, 1.5
Object code, 1.2, 3.2.2
Patents, Intro, 1.5
Preexisting material, 2.6
Previous registration, 2.5
Pseudonym, 2.2.4
Public domain, 1.2, 2.6.3
Publication, 2.3.2, 2.5, 2.10
Rights, 1.3, 1.2
Rule of doubt, 3.2.2
Screen displays, 1.2, 3.2.3
Signature, 2.10
Similarity, 1.4
Source code, 1.2, 3.2, 3.2.1
Special handling, 1.4, Appx C
Special relief, 3.2.1, Appx D
Titles, 2.1, 2.5
Trade Secrets, 1.5, 3.2.1
Trademarks, Intro, 1.5, 2.1
Transfer statement, 2.4, 2.4.4
Translations, 1.2, 2.6
TX Form, 2.0, Appx A
User interface, 1.1, 1.3
User manual, 1.2, 3.2
Work for hire, 2.2, 2.2.2
Written agreement, 2.2.2, 2.4.4
=========================[ END ]================================

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