Adobe Stock Image Photoshopped by Author

Information To Be Seized by the Government

In Attachment B to the Application, Section III, paragraph 11, entitled Information to the Seized by the Government, the DOJ describes what the DOJ’s search team will be permitted to seize from the three iCloud accounts. It refers back to prior Information To Be Disclosed by the Provider Section II, and states.

All information described above in Section II.10.a. that constitutes evidence, contraband, fruits, or instrumentalities of violations of the Foreign Agents Registration Act , 22 U.S.C. 611, et seq., restrictions on former officers of the Executive Branch, 18 U.S.C. 207(f), obstruction of justice , 18 U.S.C. 1512(c), aiding and abetting, 18 U.S.C. 2(a), and conspiracy, 18 U.S.C. 371, namely:

i. Information relating to who created, accessed, or used the SUBJECT ACCOUNT, including records about their identities and whereabouts.

ii. Information relating to meetings, messages, conversations, or other interactions with:

– foreign governments or any agency of a foreign government, and their officials, representatives, or agents;

– U.S. government officials or members of Congress;

– Imaad Zuberi, Richard Olson, Ahmed Al-Rumaihi, John Sandweg, or Martin Van Valkenburg; and

– employees or agents of Spark Cognition, Fifth Dimension, or any overseas business entities. (bold added)

Then, just to be safe and clear, they add to the seizure list all of the items listed previously in Section II, Information to be Disclosed by the Provider.

Fifth Dimension – A Predictive Analytics Company

Author’s Photoshopped Graphic

Sound familiar? The predictive analytics part. Many of the best companies in ediscovery, very solid and honest ones indeed, would describe themselves in a similar fashion.

Although the Fifth Dimension website is closed, www.5dimension.com, and, as far as I know, has nothing to do with ediscovery, their LinkedIn description is still up and explains who they say they are, or were:

Fifth Dimension, founded by a group of former intelligence executives and data scientists, helps Law enforcement agencies to make the utmost use of their mass scale data. Leveraging advanced big data, AI and deep learning technologies, Fifth Dimension created an investigation and insight-driven platform for transforming customers’ data and challenges into true value.

With advance deep learning technologies such as text analysis, speaker recognition, computer vision, classification, pattern recognition and more, Fifth Dimension goes beyond solving specific business challenges- reaching core issues and creating game-changing value for its customers. Fifth Dimension empowers various customers across verticals including: intelligence agencies, border control organizations, law enforcement agencies and more.

Author’s Photoshopped Stock graphic

Apparently these are the kind of things our defendants were hustling to Qatar and others. Would have loved to have heard our defendants’ pitch for their AI based service. According to News Net Daily’s interpretation of the facts in sworn Application by the FBI agent:

The record suggests that General Allen also sought other forms of payment. An Israeli security firm, Fifth Dimension, had agreed to pay him $10,000 a month plus a 1.5% commission on any new business he generated, and he credited himself for persuading Qatar to sign a $72 million contract with the company over the same weekend. trip – potentially earning him a fee of over a million dollars.

Author’s Thumb Selfie

After providing the deadline, warrant orders Apple to provide the name and contact information for all employees who conduct the search and produce the records responsive to this warrant. The Application goes on to order Apple, including of course all of these Apple employees, to keep this Application secret.

The PROVIDER shall not notify any person , including the subscriber(s) of each account identified in Attachment A, of the existence of the warrant, until further order of the Court, until written notice is provided by the United States Attorney’s Office that nondisclosure is no longer required, or until one year from the date this warrant is signed by the magistrate judge or such later date as may be set by the Court upon application for an extension by the United States. Upon expiration of this order, at least ten business days prior to disclosing the existence of the warrant, the PROVIDER shall notify the agent identified in paragraph 12 above o f its intent to so notify .

There is no reason to think that Apple did not fully comply with this confidentiality restriction. Instead, it looks like the DOJ itself, or the District Court Clerk for the Central District of California, did not keep the Application sealed when it was filed on April 15, 2022 in Case No. 2:22-MJ-1530. The style of this case, by the way, is:

In the Matter of the Search of: Information stored within the iCloud Account associated with DSID/Apple Account Number 1338547227 and/or email address rickscafedxb@yahoo.comat, Apple Inc., One Apple Parkway, Cupertino, CA 95014

To understand this further we need to turn to the case itself, filed in the most populated United States District Court area in the country, the Central District of California.

Speculation That the Secret Application Was Disclosed Due to Limited Court Technology, Inevitable Human Error in Any Complex System, and the Novelty and Complexity of E-Filing Court Documents, Especially Criminal Warrants

Judge Rocconi Photo – Italian American Lawyers Assoc.

Judge Rocconi’s local rules guidance, Judge’s Procedures, which are the rules that all attorneys are required to follow to the letter, including especially DOJ attorneys in criminal matters, at paragraph 17, states:

17. Law Enforcement Submissions: Federal law enforcement agents and the U.S. Attorney’s Office are encouraged to advise the CRD in advance of the anticipated submission of warrants, criminal complaints, and other applications for the Court’s review.

The abbreviation CRD stands for the Courtroom Deputy Clerk assigned to assist the judge. I am also not saying this rule was not followed, that an AUSA attorney or FBI did not contact the CRD. I do not know. I am noting here that this “encouragement” – not an rule exactly – is included for good reason. It is a type of quality control suggestion to try prevent mistakes, to prevent leaks of confidential information. Mistakes that may have happened in this case. Whenever humans are involved in following complex instructions, errors are possible, even among the best of us. To err is human, to forgive is divine.

What I do know is that the attorneys, clerks and other courtroom professionals, including the CRDs, Baliffs, USAs, AUSAs and Judges, all of them involved in the judicial process, are a cut far above average. They are top notch professionals, well known in the Bar for their integrity and honesty. I do not think that any of them would intentionally leak the secret warrant in this case to the API, or anyone. That would be a blatant violation of their duties.

Instead, I suspect human error is to blame, a simple, but unfortunate accident. Aside from the universal good character and honesty of these persons, consider the complexity of the combined paper and e-filing tasks. Although filing an application for a warrant is a daily occurrence in most every federal court, especially one as busy as the court in Los Angeles, it is still very complex. In any complicated system like this, especially one equipped with lowest-bid technology, far from state of the art, it is easy to happen. It is often just too complicated for people having to act fast under a lot of pressure. Mistakes happen. That is why pilots and surgeons all use checklists. Lives are at stake.

a. Title and Content of Counsel’s email: The title of the email should include the case number(s), and the email should also include the contact information for the AUSA and agent. If you are sending an agent with documents filed in more than one case, the title of your email must identify the case number for each case e.g., “U.S. v. Search Warrant, 99-MJ-99999 and 88-MJ-88888”. The Judge is not aware of cases that are filed unless you identify the case number assigned to those cases in the title of your email(s) to her criminal duty email address.

b. Attachments: Courtesy copies in .pdf format of all documents for the Judge’s review.

c. Timing: Do not email chambers before being notified by the Clerk’s Office that access has been granted to the sealed docket.

d. Sending the Agent: If an e-filed matter requires an agent’s signature, chambers’ staff will notify the AUSA and/or agent when the agent should come to chambers. If conformed copies are needed, the agent should bring the necessary copies. Further instructions may be obtained by downloading the Criminal Duty Matters Electronic Filing Pilot Project User Manual located on the Clerk’s Office website under E-filing.

Other rules apply here as well, not only Judge Rocconi’s, but also the rules of the Central District Court of California. See for instance the Court’s Rules on Sealed Documents. Consider especially this portion of the original that is in bold.

If you believe you have e-filed a document incorrectly, resulting in a confidential document being publicly filed, please contact both the Court Room Deputy and the Help Desk (213-894-0242 or ecf-helpdesk@cacd.uscourts.gov (link sends e-mail)), explaining the error. Then, if you have not already done so, e-file an Application for Leave to File Under Seal pursuant to Local Rule 79-5.2.2.

Question: For a search warrant application, should the notification email include a Word cover sheet and affidavit in one attachment?

Answer: No. Under General Order No. 19-01, it is generally not necessary to attach any documents to the notice email. However, you should check your judge’s Procedures and Schedules. If your judge requires that copies be emailed, the warrant and application should be emailed to chambers as flattened, single PDF documents. First, you would send one flattened (not fillable) PDF document that includes the warrant, attachments A and B, and the affidavit, if appropriate. Second, you would send one that has the application, attachments A & B, and the affidavit. This would be done instead of sending chambers the face page as one document and the affidavit as a different one. A sealing application and proposed order must also be sent as flattened PDF documents.

Pacer Is Too Transparent And Does Not Do Enough to Protect Litigants’ Privacy Rights

If it was not the API themselves who found the court information, then perhaps another entity, maybe one politically motivated found it, and they told API about it. The mentioned National Press Foundation page on Pacer is filled with Pacer related information, including reference to Lexis and West, and one tool I had not heard of, Sqoop. It supposedly allows journalists to track when new suits are filed. Does not look like it to me, but that’s what the Press Foundation says.

I have personally looked for this Allen case, or a related case, on Pacer via Lexis in a number of ways. I could find no trace. But that just shows it was later removed from Pacer, not that it was never on Pacer and thereby Lexis. So unless API comes forward and volunteers this information, highly unlikely, this will probably remain a mystery.

False Claims Act Case Have Sealed Records Too – My Story With Clerk Confidentiality Errors

Although I am not a criminal lawyer, I am, in addition to ediscovery, a False Claims Act lawyer. See eg. my website, FraudIsBad.com. Government fraud whistleblower complaints are filed under seal. Sometimes, if the government intervenes on a private relator filed case, criminal subpoenas, Grand Juries and criminal indictments happen. Fraudulent billing of the government is a crime.

Image with Author’ domains added

I have personal experience with mistakes in sealing documents in these types of cases and with keeping them off of Pacer entirely, which they should be, at first at least. Most Qui Tam lawyers probably do. One experience is from many years ago and another this year, 2022. The first one was back in the day when all District Court clerks in Florida were not too familiar with Qui Tam actions (they are now). One clerk simply decided, quite erroneously, to unseal it. They had never seen a False Claims Act case before and still were in the paper records sealing mindset. Not bad faith or anything, but a significant mistake none the less. The judge was not involved.

Wax Sealed Official Record Photo from U.S. National Archives

I found out about it very soon thereafter, and after a few curse words yelled loudly for stress release, I immediately prepared and filed a motion to have it resealed. When the motion finally got to the judge to decide a few days later, my motion was immediately granted. No harm no foul. My relator client’s case, and my secret complaint against a major corporation, were sealed back up again, nice and tidy. Yet for almost a week anyone who cared to snoop around Pacer, and that was much harder to do back then, could have seen it. Someone could have been a hero to the big business I had sued by telling them about it. But nobody saw it, the odds of that happening back then were very remote. Not now.

Pacer as an Information Governance Challenge

Looking at this problem from the information governance perspective, where another excellent EDRM model applies, there is a high risk of accidental disclosures in Pacer. The security protections, again both policies (court rules and Pacer rules) and procedures, need to be improved. Pacer and the federal court system need to improve their information governance. There needs to be a fair balance between judicial disclosure and privacy. Who will make these decisions? Who is in charge? Too many cooks, I suspect.

Like many law firms today, I have several standing searches where Lexis alerts me whenever certain kinds of cases are filed, or even whenever certain word patterns are used in any Pacer filing. See eg. LexisNexis, Search Court Dockets Online With Lexis Courtlink. That’s how I found out about the Seinfeld case. Many firms use this kind of Pacer watch service to compete with other firms for new cases when one of their past or current clients are sued. Kind of old hat marketing by now, since everybody does it. But it was once quite flashy and effective.

That kind of ad hoc, random, review by individual attorneys and researchers is obviously an inadequate privacy risk protection system under any model of information governance. It is the opposite of governance. Can we afford that kind of chaos in online court filings and disclosures?

Pacer Needs to Be Tightened up To Protect Legitimate Privacy Rights

Stock Image of Author smiling with inadequate photoshopping

General Allen photo from Wikipedia

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