HAROLD J. MCELHINNY (Bar No.66781)
CARLA B. OAKLEY (Bar No.130092)
MATTHEW K. FAWCETT (Bar No.161087)
MORRISON & FOERSTER
345 California Street
San Francisco, California 94104-2675
Telephone: (415) 677-7000
Facsimile: (415) 677-7522
Attorneys for Defendant
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION RELIGIOUS TECHNOLOGY CENTER, a No. C-95-20091 RMW
California non-profit corporation; and BRIDGE
PUBLICATIONS, INC., a California non-profit
corporation, DECLARATION OF DENNIS ERLICH
FILED UNDER SEAL
Date: December 8, 1995
DENNIS ERLICH, an individual; TOM Time: 9:00 a.m.
KLEMESRUD, an individual, dba The Hon. Ronald M. Whyte
CLEARWOOD DATA SERVICES; and
NETCOM ON-LINE COMMUNICATION
SERVICES, INC., a Delaware corporation,
AND RELATED COUNTERCLAIMS I, Dennis Erlich, declare as follows:
I. I have personal knowledge of the facts set forth herein and, if called as a witness, could and would testify thereto of my own personal knowledge.
I. RAID AT MY HOME 2. On the morning of Monday, February 13, 1995, at 7:30 a.m., I was awake and working at my computer in the office of what was then my home in Glendale, California. The doorbell rang and I looked out the window and observed a group of approximately twenty-five people at my door and in my driveway. I remained inside the house, but soon received a call from someone identifying himself as an off-duty Sergeant Ed Eccles of the Inglewood Police Department. Mr. Eccies told me that he was standing outside my home, that he had a writ of seizure which allowed him to enter my home and that if I failed to open the door, he would carry out the writ by force.
3. I told Mr. Eccles that I refused to let so many people in my home.
After some discussion, six people came inside my home. Apart from Mr.
Eccles, these people included three people identified to me as officials of the Religious Technology Center ("RTC") -- Warren McShane, Thomas Small and Paul Wilmhurst, RTC's computer operator.
Also present were on-duty Glendale police officer Steve Eggert, off-duty Inglewood police officer Mark Fronterotta, and a private investigator hired by RTC's counsel, Robert Shovlin. I did not learn their names until after the seizure was over. Only Mr. Eccles identified himself at the outset, but he said he would not identify the others until after the raid. Once inside my home, Mr. Eccles presented me with a sheaf of legal documents and declared, "This house is now under our control."
4. The RTC officials and the other individuals identified in the preceding paragraph entered my office and proceeded to hook up one of my computers, which had been disconnected. For approximately one hour, Mr. Wilmhurst searched through the computer's hard drive. Mr.
Wilmhurst and Mr. McShane also used a separate computer, which they brought, to search my floppy disks.
5. After approximately one hour, off-duty officer Eccles and officer Eggert left the scene, leaving Robert Shovlin, the private investigator, to observe the seizure.
6. The RTC officials demanded to know where my "other" computers were.
They insisted that I unlock the room containing my music studio; once inside the room, they demanded that I open a closet that held my second, larger computer.
7. The RTC representatives dragged the second computer into my office, connected it and began searching my files.
8. Using a 250 megabyte backup tape, the RTC officials began to copy many of the files from the hard drive of my second computer. They then proceeded to erase the files that they copied from my hard drive. All of this occurred without my permission or consent. From what I can tell, the RTC officials erased files dealing with numerous topics -- including Internet messages, my financial records, my own independent research into Scientology, and other miscellaneous files having nothing to do with Scientology or L. Ron Hubbard. Unfortunately, I cannot know for sure exactly what, or how much, was downloaded or erased because the RTC officials would not permit me to make an inventory of the files.
9. In addition to copying and erasing my computer files, RTC officials searched throughout the remainder of my house. They searched many areas of my home -- including every closet and cupboard -- that contained no items related to computers or to Scientology. Finally, they kicked in my garage door in an attempt to search my garage.
10. While the RTC officials were searching my home and my computers, the off-duty officers and/or Mr. Shovlin monitored my movements around the house. When I walked towards the bathroom, Officer Fronterotta escorted me.
11. I placed telephone calls to my lawyer and a representative of the Cult Awareness Network to notify others that I was being subjected to a search. I also wanted to inform them who was executing the search, but the RTC officials still refused to identify themselves.
12. The search of my home by RTC officials lasted approximately seven hours. The search was interrupted by the arrival of members of the media, who took photographs and videotaped the proceedings.
Nevertheless, RTC officials continued to search through my home and my belongings until approximately 2:00 p.m.
13. Near the end of the search, RTC officials called in their personal photographer. Without my permission or consent, the photographer took numerous photographs of my home (inside and out) and my belongings, including the contents of the cupboards and closests they searched.
RTC's photographer also had a video camera with him.
14. As the RTC officials and the off-duty and retired police officers prepared to depart, an on-duty Glendale police officer arrived. I asked the officer for an inventory of the items that were being taken away. The officer refused my request for an inventory. Consequently, my sole record of the items taken from home was a handwritten, incomplete list of items prepared by Sgt. Eccles at approximately 9:00 a.m. A copy of this list is attached as Exhibit A.
15. The RTC officials ultimately took numerous items from my home.
These items included:
a. approximately 300 computer disks in the form of 3 1/2 inch and 5 1/4 inch floppy disks, containing such computer programs as DOS, Aldus Page Maker, Word Perfect, Turbo Tax, and Quicken;
b. approximately 40 of my books pertaining to Scientology;
c. personal papers pertaining to my research into Scientology;
d. a transcript of a radio broadcast debate between myself and Scientology official Herber Jentsche;
e. a "demo" tape of songs written by me; and f. an envelope containing my most recent bank statement.
16. In addition to the articles removed without my consent from my home, the following articles from my home were damaged by the search conducted by RTC officials:
a. the computer in my office (the first computer subjected to search by RTC officials) failed to boot up property after the seizure;
b. my second computer could not run the Windows operating system program, since RTC officials deleted a necessary instruction in the Windows program file containing the word "Clear";
c. my garage door was damaged by being kicked in by RTC officials.
17. Although the numerous computer disks mentioned above have been returned to me, I cannot use these disks for fear that they contain potentially harmful computer viruses. Thus, these disks -- worth at least several thousand dollars -- are effectively worthless to me.
II. METHOD USED TO REVIEW ALT.RELIGION.SCIENTOLOGY POSTINGS 18. It is my understanding that many of the documents RTC seeks to include in a revised and expanded preliminary injunction are copies of alleged copyright protected documents that were found on my computer hard drive during the February 13, 1995, seizure of my home. In the case of many of the documents, RTC does not claim that I posted them to the Internet (or anywhere else), but that they were just archived on my computer. I would like to explain to the Court generally how this would occur.
19. Given my computer set-up, the way I review all the messages that are posted to the alt.religion.scientology newsgroup ("a.r.s.") is via an off-line reader. I connect to the Internet through my phone line, but I only "log on" to the Internet for a very brief period of time.
All I do, once I am on-line," is execute a command that makes an automatic and sweeping download of all messages posted to a.r.s. that I have not already downloaded (this can run into the hundreds). I usually do this one or more times a day. Once the downloading is complete, which generally last just a couple of minutes, I immediately disconnect from the Internet. Thus, the only time that I am actually on the Internet for a.r.s. review is the time it takes for my computer automatically to download the entire a.r.s. newsgroup on to my computer's hard drive.
20. I do not control in any way the number or selection of messages that are downloaded from a.r.s. on to my hard drive. I also do not in any way "pre-screen" the a.r.s. postings before they are downloaded onto my hard drive. Everything that occurs in the downloading process happens electronically and without my control. Thus, if anybody posts copyrighted works to a.r.s., those postings would automatically be downloaded to and stored on my hard drive without my control, along with everything else posted on a.r.s.
21. After my computer executes the downloading, all the postings are stored on my hard drive. Then, I can read all the new a.r.s. messages at my leisure. Generally, I do not delete these messages after I have read them, but instead retain them for my personal research and study.
III. NATURE OF DISCUSSION ON ALT.RELIGION.SCIENTOLOGY NEWSGROUP 22. The patterns and practices for posting messages to the a.r.s.
newsgroup is important to evaluating my postings to a.r.s.
Specifically, the way that "threads" of postings relate to one another and spark debate, in what must seem like a chaotic environment to novices, is critical. Given the unmoderated and often volatile environment or the a.r.s. newsgroup, in my view it is especially necessary to use the words of L. Ron Hubbard exactly as they were written in order to carry out an effective and meaningful critique of Scientology's practices.
23. The a.r.s. newsgroup is incredibly busy. An enormous number of messages are posted there every day. In order effectively to carry out my mission of educating the public about what I believe is a deceitful and dangerous organization, it is absolutely critical that readers of the a.r.s. newsgroup believe I am credible. In order to achieve that level of credibility, it is essential to acknowledge, understand and comment on the words of Mr. Hubbard precisely and as written. There are at least four reasons for this.
24. First, it ensures my audience that I know what I am talking about, that I am familiar with Scientology. This is important because there are many people who post messages (both critical and praiseworthy) who simply do not have sufficient experience and knowledge to comment intelligently about the issues. In order for me to be able to reach and help a number of people on a.r.s., these people need to know that I have seen and studied the actual Scientology texts, and can help foster the debate and explain them. This is especially true because it is not uncommon for the pro-Scientology faction on a.r.s. to claim that other people's interpretation of Mr. Hubbard's policies are inaccurate -- even when they are not -- because they fear that the public will be dissuaded from joining the "church." I am one of the few people with the knowledge and experience to combat that tactic by verifying and explaining Hubbard's policies.
25. Second, as somebody who spent many years as a Scientology minister, I am one of the most knowledgeable contributors to the a.r.s. newsgroup about Scientology's practices -- and that includes the Scientologists who participate in the newsgroup. In that position, I feel I have an additional responsibility to the a.r.s. community to help facilitate debate on topics chosen by others. As a result, various people will often post a portion of what they think is authentic Hubbard material, and ask if I can "authenticate" it. In fact, there has always been a great deal of discussion on the newsgroup just about the authenticity of various quotes and writings attributed to Hubbard. This discussion often becomes the foundation for debate about important aspects of the Scientology belief system. I have, in the past, been able to verify for the a.r.s. community whether an alleged Hubbard work is real or not, which then helps the participants have a productive discussion about the topic. A good example of that is when I first saw OT III materials posted. I did not originally post those documents to the newsgroup, but I did verify -- for the benefit of the a.r.s. community and to further our discussion and debate -- that they were authentic. A true copy of my posting reflecting this is attached as Exhibit B. I feel it is important to let people know that they are debating the authentic works.
Furthermore, as I explained in my deposition, I only obtained the OT III documents and the vast majority of the other allegedly secret documents because somebody else had first posted them to the Internet before me.
26. Third, it is important to utilize Scientology works themselves because one of the first things a Scientologist is conditioned to believe is that only Mr. Hubbard's precise words can be used for teaching Scientology. It is absolutely forbidden for an instructor or supervisor to provide an "interpretation" of the texts, only Hubbard's words are allowed to be used. In fact, there are important Scientology policies on this very point. True and correct copies of two of those policies are attached as Exhibits C and D respectively. Those policies explain -- in Hubbard's words -- how instructors cannot actually explain Hubbard's writings, but can only direct pupils to the writings. Because part of my mission is to enlighten people who are already Scientologists, it is a forgone conclusion that they will ignore anything that is not actually Hubbard's writings. One of the things I must do in order to reach those people is actually use Hubbard's words, but juxtapose some of his policies in a way they may not have seen before. By doing this, I try to highlight the contradictions and conflicts in Scientology in a way that cannot be ignored. The result I try to accomplish is to present Scientology's practices so that they will evoke a response from current Scientologists, and help them see the hyprocrisy of the "church."
Unfortunately, because of the way Scientologists are conditioned to reject anything other than Hubbard's words, a mere discussion about Scientology without quoting Hubbard's words is unpersuasive and ineffectual.
27. Fourth, and most significantly, if I did not use Mr. Hubbard's own words in the precise way they were written, I would quickly be accused by the pro-Scientology faction on a.r.s of twisting Mr. Hubbard's words, using them out of context or simply making up fake documents.
These tactics are a very common way that the Scientology proponents deflect criticism of Scientology doctrines and practices and attempt to silence all critics. By claiming that a critical posting has misquoted Hubbard or taken his words out of context, the pro-Scientology faction can (and does) stifle debate on the subject and interfere with the free exchange of ideas. Because I want to foster such debate, the only way I can avoid being accused of using untrustworthy or bogus materials is to actually quote enough of the underlying works to prove that Mr. Hubbard actually advocated such outrageous things.
IV. NATURE OF THREADS ON A.R.S.
28. The level activity on a.r.s. is often frenzied and disparate. On any given day, there can be a number of distinct topics being debated at the same time (these topics are sometimes called "threads"). For somebody who is not familiar with the unmoderated nature of newsgroups generally, and the frenetic pace of a.r.s. in particular, it would be extremely difficult, if not impossible, to follow the threads. Because I have extensive experience with Scientology and with a.r.s., I can follow the many different debates occurring simultaneously. Often, the threads touch upon topics for which there are specific Scientology policies. To animate and elevate the debate, I have, in the past, posted portions of those directly applicable policies, so the rest of the group can refer to and make use of them in the debate. Contrary to what the plaintiffs claim, I do not simply post portions of Scientology documents for no reason. Instead, my postings are a small, though relevant, part of an ongoing and much larger debate. My goal in posting the works has been to provide the true words of Mr. Hubbard and my comments about his words, so that all interested parties can carry on the debate in which I participate.
29. A good example of this rather typical pattern can be illustrated with the a.r.s. discussion about Scientology's method of handling its critics. This debate was occurring in late August of 1994, when I was fairly new to the newsgroup. Attached as Exhibits E, F and G are postings that began the discussion of Scientology's "fair game"
policy, a term of art that refers to the ruthless attacks Scientologists are taught to make against their critics.
30. Exhibit E reflects a conversation between a Scientologist and me, where I saw the term "fair game" used for the first time on a.r.s.
Because I feel that policy is particularly relevant for my mission, I inquired whether the group had discussed the policy yet.
31. Exhibit F reflects a response to that inquiry. As the Court can see, the response states in part "I think that posting the Fair Game policy would be a good place to start. Do you happen to have it available for posting?"
32. Exhibit G reflects my initial response, where I posted a small portion of the policy, as well as a long letter I had received about a couple who had been the victims of "fair game." I included that letter because many low-level Scientologists are told that the "fair game"
policy is no longer in use, but clearly it is.
33. My next postings, attached as Exhibits H and I, and for which I am being sued, are fuller portions of the "fair game" policy. For example, Exhibit H explains how a Suppressive Person ("SP") becomes "fair game." According to Hubbard, an SP: "May be deprived of property or injured by any means by any Scientologist without discipline of the Scientologist. May be tricked, sued or lied to or destroyed." As Mr.
McShane testified, Scientology has officially declared that I am an SP.
34. As generally happens, those postings sparked even more discussion.
True copies of some of those postings are attached as Exhibits J and K. Exhibit J reflects a debate between two other people on a.r.s.
about whether "fair game" is still employed. Exhibit K is a declaration that describes what happened to somebody who was declared "fair game." Therefore, my postings constitute just a small part of a larger thread of debate on a particular topic. This group of exhibits is by no means the relevant thread in its entirety, but offers a relatively small sample.
35. Finally, the purpose of all of my postings has been to critique and comment on Scientology practices. I do not ask for, or receive, any compensation for my work. To the contrary, my work has caused considerable disruption to my life, including the seizure of my home and other harassment outside of this litigation.
V. ADVANCED TECHNOLOGY DOCUMENTS ON A.R.S.
36. As I noted above, I originally obtained the vast majority of the allegedly secret documents at issue here because somebody else had posted them to the a.r.s. newsgroup. I have been able to retrieve some of those original postings to illustrate this point to the Court.
37. Attached as Exhibit L hereto is a true copy of the original posting of NOTS Issue 1. As the headers on that document reveal, it was first posted by "firstname.lastname@example.org" on December 24, 1994.
38. Attached as Exhibit M hereto is a true copy of the original posting of NOTS Issue 34. As the headers on that document reveal, it was first posted by "email@example.com" on December 24, 1994.
39. Attached as Exhibit N hereto is a true copy of the original posting of NOTS Issue 35. As the headers on that document reveal, it was first posted by "firstname.lastname@example.org" on December 24, 1994.
40. Attached as Exhibit 0 hereto is a true copy of the original posting of NOTS Issue 36. As the headers on that document reveal, it was first posted by "email@example.com" on December 24, 1994.
41. Attached as Exhibit P hereto is a true copy of the original posting of NOTS Issue 43. As the headers on that document reveal, it was first posted by "firstname.lastname@example.org" on December 24, 1994.
42. I have no idea who originally posted these materials.
43. Additionally, I know of, and have even seen, the documents known as SCAMIZDAT. I am not involved in any way with the creation or publication of SCAMIZDAT.
44. I did not post the document titled LRH ED 149 INT, BRANCH 5 PROJECT SQUIRREL, as RTC claims.
VI. DECLARATION OF KIM BAKER 45 1 have reviewed the declaration of Kim Baker, filed by RTC in support of its motion to expand the prelimary injunction. While most of the declaration does not seem to have anything to do with me, Ms.
Baker states that I was ordained as a minister in some group called the "United Free Zone Fellowship." That is absolutely false.
46. The only other part of Ms. Baker's declaration that mentions me has to do with somebody who apparently wanted to donate money. I have no personal knowledge of that incident.
I declare under penalty of perjury undcr the laws of the United States of America that the foregoing is true and correct, Executed on November 16, 1995, at Glendale, California.
Rev. Dennis Erlich