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JAMES McNAIR THOMPSON SBN 67807 LAW OFFICES OF JAMES McNAIR THOMPSON PO BOX 636 LOS GATOS CA 95031 (408) 358-6047 Attorney for Tracy Ann Valenzuela

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

UNITED STATES OF CALIFORNIA, Plaintiff, vs. TRACY ANN VALENZUELA Defendant

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Case No.: CR 11 00471 DLJ DEFENDANT VALENZUELAS MOTION TO SUPPRESS EVIDENCE Date: July 19, 2012 Time: 9:00 a.m. Dept: Courtroom 7 - 4th Floor

TO THE CLERK OF THE ABOVE ENTITLED COURT, AND TO THE PARTIES TO THE ABOVE-CAPTIONED MATTER: PLEASE TAKE NOTICE that on July 19, 2012, at 9:00 a.m., in Courtroom 7 - 4th Floor of the above captioned court, or as soon thereafter as the matter may be heard, defendant Tracy Ann Valenzuela will move this court for an order suppressing all evidence seized from that certain Dell Laptop seized from defendant Valenzuelas home on or about January 27, 2011, together with all copies, mirrored images, files, images other material or data derived there from, and all fruits of any searches of or seizures of the foregoing, on the basis that all such searches and seizures were in violation of

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the defendants rights under the Fourth Amendment to the United States Constitution. POINTS & AUTHORITIES IN SUPPORT OF DEFENDANT VALENZUELAS MOTION TO SUPPRESS EVIDENCE I. INTRODUCTION On January 26, 2011, Magistrate Judge Lloyd signed a search warrant authorizing federal authorities to search the defendants home for certain electronic devices, as more precisely set forth in Attachments B and C to the warrant1; the federal authorities searched the defendants home on January 27, 2011 and seized, among other things, a Dell laptop computer. Although the warrant required the authorities to search the computer, identify such data and files as were authorized by the warrant to be seized within a specific time, and return or destroy all remaining data, the government did not perform that search, and data segregation, and did not seize any data authorized by the warrant, within the time authorized. Defendant is informed and believes that such a search, and such a seizure, was executed by the government after the time expired. A search of the computer, and seizure of data, after the time expired was warrantless, and thus unreasonable, and the fruits of that untimely search and seizure must be suppressed.2

The Search Warrant is attached to the Declaration of James McNair Thompson as Exhibit 1, the Affidavit as Exhibit 2, Attachment B as Exhibit 3 and Attachment C as Exhibit 4. 2 Defendant Valenzuela here attacks the search as warrantless because it was executed after the warrant had expired; defendant Valenzuela also believes that the warrant was not properly issued, because of inadequacies appearing on the face of the affidavit, however does not present that argument, or raise that ground, at this time because of her belief that this motion will summarily result in the suppression of the fruits of the search.
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II. FACTS A. THE AFFIDAVIT IN SUPPORT OF THE WARRANT A public controversy arose when Paypal, a subsidiary of EBay, announced that it was no longer willing to process donations to Wikileaks in view of Wikileaks publication of certain United States State Department cables. (Aff. 9)3 Paypal and EBay complained to the FBI that it had been subjected to a Denial of Service Attack on December 4, 2010 which it attributed to public dissatisfaction with its refusal to continue to process donations. (Aff. 9)4 EBay later complained to the FBI about high traffic on its system through December 10, 2010. (Aff. 10 11). EBay contended that this traffic consisted of a sequence of characters (Aff 6) specifically enabled by a program called a Low Orbit Ion Cannon. (Aff 6). LOIC was written in the C-Sharp language, or more commonly referred to simply as C#. C# is a language written and published by Microsoft, and is commonly available to developers. C# is an internationally known computer language used to create custom applications for Windows-based systems, the most popular computer operating system in the world. (Aff. 13) On December 15, 2010, EBay turned over to the FBI a list of 1,000 IP addresses which it contended had transmitted unwelcome communications to its servers. (Aff 14) One IP address was ultimately linked to defendant Valenzuelas residence (Aff 15), and the affiant, a special agent with the FBI, therefore requested a search warrant. (Aff 25)

The warrant, affidavit, Attachment B to the warrant and Attachment C to the warrant are attached as exhibits to the Declaration of James McNair Thompson, filed with this motion. 4 A denial of service attack involves saturating the target machine with external communications requests, such that it cannot respond to legitimate traffic, or responds slowly as to be rendered effectively unavailable. (Aff. 6) Legitimate traffic presumably includes traffic facilitating payments and money transfers to be made through the Internet (Aff 8), and speech protected by the First Amendment.
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B. THE WARRANT A warrant authorizing the search of the defendants home was issued on January 26, 2011. It authorized the federal authorities to search the defendants home for certain property, namely See Attachment B & Attachment C Attachment B told the government what it could look for when searching the defendants home. For example, it authorized the government to look for communications between the seized computer hard drive and other computers involved in the denial of service attack, (Att B 5) and application, utility programs, compilers, interpreters and other software used to facilitate direct or indirect communication with the digital device. (Att. B 13) Attachment B further authorized the government to look for these things in, among other places, any digital device and/or computer. (Att B1) However, Attachment C told the government when it could look in a computer for the specified materials. In the first place, if the search could be completed at the site, then the government was not authorized to even remove a device from the premises. (Att. C, 1) If the government determines that a search reasonably cannot be completed on site within a reasonable time period, the government must determine whether all or part of the authorized search can be completed by making a mirror image of, or in some other manner duplicating, the contents of the device and then conducting the forensic review of the mirror image or duplication off site. The government will

complete a forensic review of that mirror image within 120 days of the execution of the search warrant. (Att. C, 2; emphasis added)
Attachment C, Paragraph 6 provided

Within a reasonable period of time, but not to exceed 60 calendar days after completing the forensic review of the device or image, the government must use reasonable efforts to return, delete, or destroy MotiontoSuppress Page4

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any data outside the scope of the warrant unless the government is otherwise permitted by law to retain such data. The search having been conducted on January 27, 2011, the government was required to complete its forensic review not later than July 26, 2011, and to return or destroy all data not responsive to the search warrant by a date not later than September 24, 2011. IV. THE SEARCH OF THE DEFENDANTS LAPTOP WAS WITHOUT A WARRANT, AND A VIOLATION OF THE DEFENDANTS RIGHTS UNDER THE FOURTH AMENDMENT A. THE WARRANT WAS NOT TIMELY EXECUTED Defendant is informed and believes that as of July 26, 2011, and even as of September 24, 2011, the government had not conducted a forensic review of the defendants laptop. The government said so at the Status Conference held on May 3, 2012. Mr. Parrella: So, your honor, since the last time that we were here, the government has endeavored to comply with the discovery order from Magistrate Grewal and we have in part complied with that. We have asked for an extension, and we're continuing to review the order and will attempt to comply with it. Hopefully by the middle of next week we will -- well, let me back up. One of the portions of that order require the government to

segregate items and provide them to the defense discovery coordinator, Mr. Raoke.(sic)

The purpose of that is to allow each defendant to review the evidence obtained from his codefendant. We had attempted to address that issue by providing the complete drives that were imaged from each defendant. However, the defendants objected to that because they said that there is other personal information on those computers that they did not wish to share. The Court: Only the relevant information on the computer be disclosed. Mr. Parrella: Right. We had anticipated that each defendant would segregate the evidence to be shown to their codefendants. That was unacceptable. Page5

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material that you have that is relevant to your case? Mr. Parrella: Correct.

We are in the midst right now of actually completing that and hopefully by [] The Court: And you are now segregating in the sense that that The Court: And then the rest of the personal material doesn't go anywhere, back to the defendant or back to the -Mr. Parrella: Correct. We actually have returned many hard drives and computers that had no evidence on them at all, but just to follow the final step and the process you were talking about is once we he will then have a database of all of that and they can access that with no interference from the government. The Court: Okay. Mr. Parrella: Anyway, it's taking a bit of time. Mr. Chew has spoken with many of the defense counsel here today and I think most of them, if not all of them, have agreed that on July 19th, as a potential status date that is okay by the government. The Court: Does that anticipate that you will complete this segregation process? Mr. Parrella: Yes. (See Exhibit 5 TX May 3, 2012 Status Conference 6:22 9:6; emphasis added) The government here has openly and unequivocally admitted that it had not

get the evidence against -- from each defendant's computer that is relevant, segregated, we will then provide that to Mr. Raoke (sic) and

searched the defendants laptop to identify relevant data, and seized that relevant data, within the time permitted by the search warrant. The government also said so on April 19, 2012, when it admitted In its March 16, 2012 order, the Court stated that: In sum, . . . the government has no claim to data outside the scope of the warrant. By some other reasonable effort that minimizes the governments exposure to non-targeted documents, no later than 30 days from the date of this order, the government must endeavor to give back to the defendants data outside the scope of the warrants. The Court also ordered the government mak[e] the targeted data available to the defendants. However, the government needs additional time to comply with the Courts March 16, 2012 order. (Doc 247, p.2) On May 15, 2012, the government admitted in Doc. 265 that it had not conducted the required forensic review at a time authorized by the warrant: MotiontoSuppress Page6

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Of course, had the government completed its search of the defendants laptop on March 17, 2012, and seized data at that time, the search and the seizure would have been untimely, and unauthorized by the warrant.
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The government has also provided a copy of all the electronic information of all the defendants, other than Christopher (sic) Covelli, that the government has determined falls within the scope of the search warrants, to Mr. Aoki to be shared by defendants and defense counsel. (p2) That discovery was sent to Mr. Aoki on May 11, 2012, which, being more than 30 days after Magistrate Judge Grewals order, presumably means that government had not conducted its forensic review of defendant Valenzuelas hard drive before the 30 days expired on April 15, 2012.5 Furthermore, the government even now appears not to have completed its forensic review, saying in Doc. 265, filed on May 15, 2012, that it has encountered difficulty in determining what constitutes data within the scope of the warrants, for example, dates and times associated with each file item in a file system may be used to establish the identity of the user who was utilizing the computer when an computer-related offense was created. (Doc 265, p3) In other words, even as of May 15, 2012, the government has not completed its forensic review, has not seized the relevant data, and has not thereafter deleted, destroyed or returned all non-responsive data. It is still in the process of searching the defendants digital devices.

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B. MAGISTRATE JUDGE GREWALS ORDER WAS NOT A NEW SEARCH WARRANT, NOR AN ORDER EXTENDING THE TIME IN WHICH THE GOVERNMENT WAS REQUIRED TO SEARCH THE DIGITAL DEVICES AND SEIZE SUCH DATA AS WAS RESPONSIVE TO THE SEARCH WARRANT On February 4, 2012, defendant Valenzuela moved for an order to compel the government to identify information responsive to the warrants upon which the government relied in seizing any digital device or medium, to distribute that information to all defendants in accord with the current protocol, and to return all such devices and media to the defendant from whom it was seized forthwith. (Doc. 192, p2) Footnote 1 of that motion said, This is not a motion to suppress the fruits of a defective warrant or warrant defectively executed; defendant Valenzuela reserves her right to bring any such motions. (p 2) In that motion, defendant Valenzuela said The most probable other reason is that the government does not want to go to the bother and expense of returning the devices, and deleting and destroying all data outside the scope of the warrant on its mirror images. If the government admitted this, it would be admitting that it flagrantly and unlawfully violated the terms of the search warrant, as surely as if it searched a different residence. Since the government has not admitted this, defendant Valenzuela will presume that they have complied with the requirement that the government has deleted from all mirrors and copies of devices seized from defendant Valenzuela and her codefendants data outside the scope of the warrant, and therefore can produce the data described in the search warrant to the defendants within 10 days, without disclosing or producing non-pertinent and, in many cases. personal and confidential data (which it presumably no longer has.) (Doc. 192 pp 10 11) In short, Magistrate Judge Grewals March 16, 2012 order was not an order authorizing a search of the defendants lap top, but an order requiring the government to disclose the fruits of a search it had presumably conducted almost

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one year before defendants discovery motion was even filed, and disgorge data to which it was not entitled. C. A SEARCH AFTER THE WARRANT HAS EXPIRED IS A WARRANTLESS SEARCH A search occurring after the warrant has expired is a warrantless search. (See, for example, United States v. Jones, _____ U.S. ____, 132 S.Ct. 945, 948 (2012), in which a warrant valid for 10 days was executed on the 11th day, resulting in a conclusion that the search was a warrantless search.) D. A WARRANT AUTHORIZING THE SEIZURE OF ALL DATA WOULD HAVE BEEN OVERBROAD, AND VOID, SUCH THAT THE TIME LIMIT WAS AN INTEGRAL PART OF THE AUTHORIZATION TO SEARCH DEFENDANTS LAPTOP AND SEIZE DATA 1. AN OVERBROAD WARRANT IS AN INVALID WARRANT Under the Fourth Amendment, warrants must describe with particularity the things to be seized. Coolidge v. New Hampshire, 403 U.S. 443, rehg denied, 404 U.S. 874 (1971). Failure to particularly describe the place to be searched and/or the articles to be seized invalidates a warrant. U.S. v. Roche, 614 F.2d 6 (1st Cir. 1980);

U.S. v. Higgins, 428 F.2d 232 (7th Cir. 1970).

An overbroad warrant is invalid. Andresen v. Maryland, 427 U.S. 463, 480 (1976); U.S. v. Spilotro, 800 F.2d 959, 963 (9th Cir. 1986); U.S. v. Clark, 31 F.3d 831 (9th Cir. 1994)

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2. A WARRANT SIMPLY AUTHORIZING THE SEIZURE OF ANY DIGITAL DEVICE AND/OR COMPUTER CAPABLE OF BEING USED TO COMMIT, FURTHER COMMIT OR STORE EVIDENCE OF A VIOLATION OF 18 U.S.C. 1030 WOULD BE FATALLY OVERBROAD A warrant which did not specify the items to be seized with particularity is invalid as a general warrant. As the Court said in United States v. Kow, 58 F.3d 423, 427 (9th Cir. 1995) The warrant authorized the seizure of virtually every document and computer file at HK Video. To the extent that it provided any guidance to the officers executing the warrant, the warrant apparently sought to describe every document on the premises and direct that everything be seized. The government emphasizes that the warrant outlined fourteen separate categories of business records. However, the warrant contained no limitations on which documents within each category could be seized or suggested how they related to specific criminal activity. By failing to describe with any particularity the items to be seized, the warrant is indistinguishable from the general warrants repeatedly held by this court to be unconstitutional. E.g., Center Art Galleries-Hawaii, Inc. v. United States, 875 F.2d 747, 750 (9th Cir.1989); United States v. Stubbs, 873 F.2d 210, 211 (9th Cir.1989) (warrant invalid "because of the complete lack of any standard by which an executing officer could determine what to seize"). 3. ONLY THE SPECIFICATION SET FORTH IN PARAGRAPHS 4 15 OF ATTACHMENT B SAVES THE WARRANT FROM BEING OVERBROAD Only the specification set forth in paragraphs 4 15 of Attachment B saves the warrant from being overbroad. These paragraphs clarify that what the federal authorities are authorized to look for in any digital device and/or computer capable of being used to commit, further commit or store evidence of a violation of 18 U.S.C. 1030 (Attachment B, 1) was specific evidence related to the alleged violation of that particular statute.

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4. WITHOUT THE TIME LIMITS SET FORTH IN ATTACHMENT C, PARAGRAPH 1 OF ATTACHMENT B WOULD SUBSUME THE REST OF ATTACHMENT B, AND RENDER THE PARTICULARITY OF PARAGRAPHS 4 THROUGH 15 MEANINGLESS If the government was authorized to simply seize all digital devices, including all computers, and keep all files and data on those devices, then the limitation of paragraphs 4 through 15 of Attachment B would have been transformed into meaningless surplusage. Central to the validity of the warrant was the requirement in Paragraph 2 of Attachment C that the government complete a forensic review of the defendants laptop within 120 days of the seizure, and [w]ithin a reasonable period of time, but not to exceed 60 calendar days after completing the forensic review of the device or image, the government must use reasonable efforts to return, delete, or destroy any data outside the scope of the warrant unless the government is otherwise permitted by law to retain such data. (Attachment C, 6) Only through the imposition of these time limits did the warrant authorize a search for specific evidence such as data gathered or collected by means of the operation of the denial of service attack and/or botnet (Attachment B, 9) or records, documents, and materials that relate to malicious software, code, or other programs associated with Trojans, botnets, denial of service attacks, to include but not limited to LOIC and/or HOIC. (Attachment B, 4) Without the imposition of these time limits, the warrant simply becomes a general warrant such as the one condemned in Koh, supra.

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5. CONCLUSION OF DISCUSSION OF THE CENTRALITY OF THE ATTACHMENT C TIME LIMITS TO THE VALIDITY OF THE SEARCH WARRANT As a general rule, a warrant authorizing the seizure of property must be executed within 14 days. FRCP 41(e)(2)(A)(i) However, searching a computer in order to seize data or files described in a warrant can be complicated business. Searching computer systems for the evidence described in Attachment B may require a range of data analysis techniques. (Aff. p.20) For this reason, FRCP 41(e)(2)(B) exempts seizure of electronically stored information from the 14 day rule. However, the affiant, in securing the warrant at issue here, declared that government will complete a forensic review of that mirror image within 120 days of the execution of the search warrant. (Aff. p.23) The government further asserted in the affidavit, Within a reasonable period of time, but not to exceed 60 calendar days after completing the forensic review of the device or image, the government must use reasonable efforts to return, delete, or destroy any data outside the scope of the warrant unless the government is otherwise permitted by law to retain such data. (Aff, p.24) The magistrate imposed those time limits as a condition of the warrant, and thereby limited the warrant to a warrant to seize particularized files and data, rather than an invalid general warrant. V. THE DISTINCTION BETWEEN THE SEIZURE OF THE LAPTOP AND THE SEIZURE OF THE DATA STORED ON THE LAPTOP The distinction between the device in this case the laptop computer and the data stored on the device was carefully set forth in the warrant and must be borne in mind. MotiontoSuppress Page12

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Assuming for the sake of argument that the government had the right to retain the laptop as a forfeitable instrumentality of the alleged crime,6 it clearly did not have the right to retain any data on the laptop. Nothing about the governments obligation to return, delete, or destroy any data outside the scope of the warrant interfered with any right it may assert to retain the device. VI. THE ILLEGALLY SEIZED EVIDENCE, AND THE FRUITS THEREOF, MUST BE SUPPRESSED This should be a self evident proposition. As was made clear in United

States v. Shetler, 665 F.3d 1150, 1156 1157 (9th Cir. 2011)
The exclusionary rule bars the prosecution from using at trial evidence that has been obtained through a violation of the Fourth Amendment. Wong Sun v. United States, 371 U.S. 471, 484-85, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Although exclusion is not itself a personal constitutional right, it serves to enforce the underlying personal right to be free from unreasonable searches and seizures by deterring violations of the Fourth Amendment. See Davis v. United States, __ U.S. __, 131 S.Ct. 2419, 2426, 180 L.Ed.2d 285 (2011). The exclusionary rule applies both to direct products of an illegal search i.e., the physical evidence found during the search itself and to indirect products of the illegal search i.e., statements or physical evidence subsequently obtained in part as a result of the search if they " bear a sufficiently close relationship to the underlying illegality." United States v. Ladum, 141 F.3d 1328, 1336-37 (9th Cir.1998); see also Wong Sun, 371 U.S. at 485, 83 S.Ct. 407; United States v. Rodgers, 656 F.3d 1023, 1031 (9th Cir.2011); United States v. Crawford, 372 F.3d 1048, 1054 (9th Cir.2004) (en banc) (" It is well established that the Fourth Amendment's exclusionary rule applies to statements and evidence obtained as a product of illegal searches and seizures." ).
This assumption is not one which the defendant would concede, however. In the first place, no forfeiture allegations appear in the Indictment. More importantly, defendant Valenzuela asserts that she committed no crime.
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As Justice Holmes said over 92 years ago, The proposition could not be presented more nakedly. It is that, although, of course, its seizure was an outrage which the Government now regrets, it may study the papers before it returns them, copy them, and then may use the knowledge that it has gained to call upon the owners in a more regular form to produce them; that the protection of the Constitution covers the physical possession, but not any advantages that the Government can gain over the object of its pursuit by doing the forbidden act. [] In our opinion, such is not the law. It reduces the Fourth Amendment to a form of words. Silverthorne Lumber Co., Inc. v. United States, 251 U.S. 385, 391 (1920) Here, the government may regret not having searched the defendants computer within the time allotted by the warrant, and seized such data and files as it determined were within the things authorized to be seized, but allowing it to search the defendants computer at its leisure, and seize at any time whatsoever data files and other evidence from that computer, would reduce the Fourth Amendment to a form of words. VII. CONCLUSION The government was authorized to search defendant Valenzuelas laptop computer and to seize certain particularly described data and files from defendant Valenzuelas laptop computer within a specific period times. Neither a later search nor a later seizure was authorized by the warrant. Nothing about its obligation to return, delete, or destroy any data outside the scope of the warrant interfered with any right it may assert to retain the device. Defendant Valenzuela is informed and believes that the government did not perform a search of the laptop authorized by the warrant within the time allotted, and did not seize the data and files within the time allotted, and that therefore any MotiontoSuppress Page14

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seizure of such data and files was warrantless, unreasonable and in derogation of her rights under the Fourth Amendment of the United States Constitution. As such, the data, files and any fruits thereof must be suppressed. Dated: June 10, 2012 Respectfully submitted,

James McNair Thompson Attorney for Tracy Valenzuela

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