1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ELOUISE PEPION COBELL, et al., : Civil Action 96-1285 : Plaintiffs, : : v. : Washington, D.C. : Wednesday, December 5, 2001 DEPARTMENT OF THE INTERIOR, : 10:09 p.m. et at., : : Defendants. : : - - - - - - - - - - - - - - - - : TRANSCRIPT OF STATUS HEARING BEFORE THE HONORABLE ROYCE C. LAMBERTH UNITED STATES DISTRICT JUDGE APPEARANCES: For the Plaintiffs: DENNIS GINGOLD, ESQUIRE MARK BROWN, ESQUIRE AUKAMP & GINGOLD 1275 Pennsylvania Avenue, N.W. Ninth Floor Washington, D.C. 20004 (202) 662-6775 ELLIOT H. LEVITAS, ESQUIRE 1100 Peachtree Street Suite 2800 Atlanta, Georgia 30309-4530 (404) 815-6450 KEITH HARPER, ESQUIRE NATIVE AMERICAN RIGHTS FUND 2025 I Street, N.W. Washington, D.C. 20006 (202) 785-4166 Pages 1 through 46 THERESA M. SORENSEN, OFFICIAL COURT REPORTER 2 APPEARANCES (Continued): For the Defendants: SANDRA P. SPOONER, ESQUIRE CHRISTOPHER KOHN, ESQUIRE UNITED STATES ATTORNEY'S OFFICE Civil Division 555-4th Street, N.W. Washington, D.C. 20001 MATTHEW J. FADER, ESQUIRE U.S. DEPARTMENT OF JUSTICE Civil Division Commercial Litigation Branch P.O. Box 875 Ben Franklin Station Washington, D.C. 20044 Court Reporter: THERESA M. SORENSEN, CVR-CM Official Court Reporter Room 4800-H, U.S. Courthouse Washington, D.C. 20001 (202) 273-0745 THERESA M. SORENSEN, OFFICIAL COURT REPORTER 3 1 P R O C E E D I N G S 2 THE DEPUTY CLERK: Civil Action 96-1285, Elouise 3 Cobell, et al. versus Department of the Interior, et al. 4 Dennis Gingold, Keith Harper, Elliot Levitas and Mark Brown 5 for the plaintiffs; Sandra Spooner, Matthew Fader, and Chris 6 Kohn for the defendants. 7 THE COURT: All right. Mr. Gingold, the Court made 8 public and unsealed various materials late yesterday and at 9 the same time directed that the plaintiffs prepare a written 10 application for the alternative form of relief they were going 11 to seek on a temporary restraining order and serve it on the 12 government before I scheduled -- before I conducted this 13 hearing this morning at ten a.m. So we're here for the 14 purpose of argument on that motion for a temporary restraining 15 order or alternative motion for a temporary restraining order 16 and the government's opposition thereto. 17 Mr. Gingold, you may proceed. 18 MR. FADER: Your Honor? 19 THE COURT: Yes. 20 MR. FADER: If I might, the government has a proffer 21 to make that I think would have an impact on today's hearing, 22 if I may? 23 THE COURT: Yes. 24 MR. FADER: Good morning, Your Honor. 25 Your Honor, I first received the plaintiffs' amended THERESA M. SORENSEN, OFFICIAL COURT REPORTER 4 1 motion this morning at six o'clock. It was faxed some time 2 before that, but that's when I first saw it. And that is the 3 first time that we saw the request specific to immediately 4 disconnecting from the Internet all information technology 5 systems whereas when this was first raised on Monday, it was 6 not limited to the Internet, it was indicated to shut down the 7 system. 8 When we received this, Interior began to look at the 9 issue of exactly what that meant, to shut down from the 10 Internet, and in doing so, trying to come up with an 11 assessment of the impact that that might have. They are still 12 in the preliminary stages of doing that; however, indications 13 are that it might not create a substantial disruption. I want 14 to emphasize that they still need to do further investigation 15 and talk to people to determine what the impact is on specific 16 systems. However, today, Interior has directed its systems, 17 the major systems that deal with the trust-related data to 18 disconnect from the Internet those systems, to look at the 19 systems to see and report back if there are any major problems 20 with doing that so that they are aware before they do that, 21 but otherwise to disconnect those major systems, and also with 22 the understanding that for systems in which they have 23 verification that a firewall is in place, the systems would 24 then be able to reconnect to the Internet, and when a firewall 25 would be put in place on other systems, then they could also THERESA M. SORENSEN, OFFICIAL COURT REPORTER 5 1 be reconnected to the Internet. 2 Your Honor, what we would propose since Interior is 3 still at the beginning stages of looking at this and has not 4 had more than -- a little bit more than three hours now to be 5 looking at the problem from the Internet perspective, is that 6 on Friday at noon, we could report back to Your Honor with a 7 specific description of the major systems that we are talking 8 about; a statement of their current status; whether they were 9 taken -- whether they were disconnected from the Internet; if 10 so, whether there was a verification of the presence of a 11 firewall and then it was reconnected; if not, that it's 12 currently disconnected; or if Interior discovers that there 13 are major problems and significant disruptions to the system 14 such that it would be imprudent to take them off line, that we 15 would report that back to Your Honor with a statement of the 16 problem as it has been described at that point. 17 THE COURT: All right. 18 Mr. Gingold. 19 MR. GINGOLD: Good morning, Your Honor. 20 One housekeeping question, Your Honor. As you may 21 know, we filed our alternative motion under seal last night. 22 We did that because of the lack of clarity as to what 23 currently is to be publicly available and what isn't, and we 24 noted that the deposition of Mr. Katz was not included in any 25 of the -- the Court's unsealing order, so as extra caution, we THERESA M. SORENSEN, OFFICIAL COURT REPORTER 6 1 -- 2 THE COURT: I think that was a prudent way to do it, 3 I agree with you. 4 MR. GINGOLD: So Your Honor, I will try and be 5 careful at this point regarding a specific discussion of those 6 issues. 7 I will also say I think what the government has 8 proffered may be very helpful in resolving this with some 9 modifications, so there may be for the first time, Your Honor, 10 some genuine hope that immediate action will be taken to 11 protect the trust data and the trust funds. 12 I would just like to make one note. Subject to the 13 ability of the special master to be able to independently 14 verify that the risks are properly identified and properly 15 addressed at the point in time they would reconnect to the 16 Net, it may be an acceptable proposal. 17 In addition, as you may note from what we filed last 18 night, there are other issues beyond the firewalls because of 19 the hard coding of some information that probably need to be 20 addressed at the same time, and my guess is that could be done 21 in another sealed hearing if you would like. But I want to 22 point out and I will also say to my surprise it was a very 23 positive statement that was made by counsel. 24 THE COURT: Well, maybe -- why don't I take a short 25 recess and let both counsel talk together about specifically THERESA M. SORENSEN, OFFICIAL COURT REPORTER 7 1 what is going to be done and I will let the special master 2 meet with you as well and then I will come back and we will 3 put on the record exactly -- so that I have straight exactly 4 who is doing what and when we are coming back again. 5 It is my notion that -- well, let me leave it at 6 that for now and I think you all can meet without others 7 present to discuss that. Maybe you ought to just do it in the 8 jury room. 9 MR. GINGOLD: Okay. 10 THE COURT: And I will come back in a few minutes. 11 (Whereupon, a short recess was taken.) 12 THE COURT: Okay. Mr. Fader, you want to tell me 13 where we stand? 14 MR. FADER: Tell you what, Your Honor? 15 THE COURT: Where we stand in terms of -- 16 MR. FADER: Your Honor, we had made our initial 17 proffer this morning, and I actually want to clarify that 18 proffer. I had originally said this morning that Interior has 19 directed that the major systems be disconnected from the 20 Internet. I also said that they were going to ask first what 21 major problems or disruptions may occur, and then they would 22 report that to the Court on Friday. They are not going to ask 23 that first; they have directed that they be disconnected from 24 the Internet and then to find out what major disruptions might 25 occur from that and report those, but they would still be THERESA M. SORENSEN, OFFICIAL COURT REPORTER 8 1 disconnected first. 2 But we had made that proffer, Your Honor, and then 3 we had recessed to discuss the issues that might allow for 4 there to be a resolution. We did not reach a resolution. 5 Interior has been working all day and since they 6 first received notice of plaintiffs alternative motion for a 7 temporary restraining order -- they got that at eight o'clock 8 this morning -- to identify possible issues dealing with that 9 and try to figure out first of all what the request means and 10 secondly what might be done with that. 11 Interior is still working on that, and Your Honor, 12 Interior would move for a delay in this hearing until ten 13 o'clock on Friday morning with the intent of continuing to 14 without through the many issues that need to be resolved to 15 figure out what exactly is at issue, what can be done, and 16 what the potential repercussions of these things are for 17 Interior so that basically what Your Honor would hear would 18 make sense, because coming in this morning with a new request 19 that there has been no time to analyze or discuss or figure 20 out what the answers are for all of the prongs of the 21 requirements for an injunction to issue are, we feel that it 22 would be to everybody's benefit to deal with this after there 23 was some time to actually figure out what was going on, and 24 Interior is actively working on those issues. 25 THE COURT: In the meantime, Interior has given this THERESA M. SORENSEN, OFFICIAL COURT REPORTER 9 1 direction that it gave this morning. 2 MR. FADER: This direction was given this morning. 3 THE COURT: Tell me again now what the direction is? 4 MR. FADER: The direction is for Interior's major 5 systems to be disconnected from the Internet, and that the -- 6 that should be done now, immediately, and that we would report 7 back to the Court -- 8 THE COURT: And not reconnected before I have a 9 further hearing. 10 MR. FADER: Well, the -- 11 THE COURT: If I do it at ten o'clock on Friday. 12 MR. FADER: The proffer was, Your Honor, that -- and 13 the directive was that they all be disconnected immediately, 14 that the systems that are currently protected by firewalls 15 would be reconnected once there is verification that the 16 firewall is in place. 17 THE COURT: Okay. But I thought that's what you 18 were changing. You didn't change that. 19 MR. FADER: No. What I was changing is that there 20 was a -- before we had said that if there were major problems 21 or disruptions with the disconnection, that we wouldn't 22 disconnect, but we would make the Court aware of exactly what 23 those problems were. Now those systems would just be 24 disconnected and then we would tell Your Honor about the 25 problems on Friday. But it still is the case, and if that is THERESA M. SORENSEN, OFFICIAL COURT REPORTER 10 1 Your Honor's specific concern, then we could certainly address 2 that with our client and get back to Your Honor very quickly 3 on whether or not we could postpone the reconnection until 4 Your Honor has a further hearing. But the initial proffer of 5 what Interior is doing is that they would reconnect only after 6 verification that a firewall is in place between the system 7 itself and Internet access. 8 THE COURT: All right. 9 MR. FADER: But if Your Honor would like, we could 10 huddle quickly on that issue. 11 THE COURT: All right. Well, let me see what the 12 plaintiffs' position is about whether that's sufficient to 13 delay the hearing. 14 MR. GINGOLD: Good afternoon, Your Honor. 15 Plaintiffs are strongly opposed to delaying the 16 hearing any more than it has already been delayed. Plaintiffs 17 believe this hearing has been delayed for a year and a half. 18 Plaintiffs also believe that the government has been on 19 notice, actual and constructive notice, since the point in 20 time of March 7th, 2000, most recently since May 17th of this 21 year, and then even more recently after that when the expert 22 witness for defendants was deposed by the special master and 23 he under oath specifically testified as to the nature and 24 scope of the problems, Your Honor. 25 The problem that we have is plaintiffs do not THERESA M. SORENSEN, OFFICIAL COURT REPORTER 11 1 believe Interior understands what it's talking about. If they 2 just read the testimony of their own witness, they would know 3 that firewalls alone don't create or cure this problem. They 4 should know that money alone doesn't cure this problem. They 5 are saying the same things to you, Your Honor, that roughly we 6 heard in March of 2000. 7 You must allow OIRM to relocate to Reston, Virginia 8 from Albuquerque, New Mexico, because we are so incompetent 9 that we must now hire outside contractors to cure the problems 10 that no longer can be cured because of the institutional loss 11 with the Indian employees who could not move to Reston, 12 Virginia. EDS, Your Honor, pointed out that that loss of 13 institutional knowledge continues and has not been filled. 14 There is nothing that has been said to you in this 15 litigation, Your Honor, that has been true, including the 16 recent responses from the new team of lawyers and the Interior 17 Department dealing with their explanation of the difference of 18 why the seventh quarterly report is true and why the eighth 19 quarterly report in the form of the EDS and other matters are 20 consistent, Your Honor. 21 Your Honor, it is now December 5th. An eighth 22 quarterly report has not been filed. Nothing that this Court 23 ordered on December 21, 1999 has been done by defendants, and, 24 in fact, they've concealed this problem. 25 This issue has been raised time and time again, and THERESA M. SORENSEN, OFFICIAL COURT REPORTER 12 1 I might also add that in the November 28th response -- I think 2 it's November 28th response, Your Honor, but let me just check 3 this -- it is November 28th response, Interior defendants' 4 response to plaintiffs' renewed motion for temporary 5 restraining order as amended, this new team of lawyers made 6 the following statement: 7 Plaintiffs, who have the burden of proof, have not 8 demonstrated that the IT security deficiencies identified by 9 the special master have actually resulted or will, in fact, 10 result in injury or that such injury will not be limited to 11 compensable economic loss. 12 This, of course, follows on the heels of the May 13 29th opposition to our original motion for a temporary 14 restraining order which said plaintiffs' motion is wholly 15 without merit. 16 Your Honor, if anyone bothered to read the special 17 master's report, they would have seen quite clearly harm has 18 been inflicted, continues to be inflicted, and further, Your 19 Honor, they have concealed that from the Court. 20 Indeed, the special master specifically expresses 21 serious concerns about believing anything more from the 22 defendants, especially their frequent refrain, which is, give 23 us more time, Your Honor, this time, we really mean it. 24 Your Honor, our clients can't afford any more of the 25 incompetence of the Department of the Interior. This Court THERESA M. SORENSEN, OFFICIAL COURT REPORTER 13 1 has to take some action. We are in a situation where 2 basically the government is taking the position, which is 3 extraordinary on its face, which is if they were able to 4 locate all the individual Indian trust money, which is 5 probably impossible, and if they are able to locate the actual 6 records, which is even more impossible based on the special 7 master's report and based on the testimony of their own 8 experts, that we can take all that money and all those 9 records, bring it to the front, the front of 1849 C Street, 10 burn it all, and there is nothing this Court can do. 11 What is the difference between destroying those 12 records with a bonfire, Your Honor, and making sure that 13 anyone in the United States can access the trust, making sure 14 that every day this so-called trust has been managed, that 15 more than 10,000 people within the Department of Interior and 16 their contractors and how many former Interior Department 17 employees and contractors can access the trust data, can 18 access the trust money, and delete, modify and do anything 19 they want? 20 Your Honor, they have ensured that the system has no 21 reliability, and this Court has told them, on April 4th, 2000, 22 that you are compelled to allow them to go forward so they can 23 fix these problems as they promised this Court notwithstanding 24 their sheer incompetence. 25 Your Honor, they lied to you then, and they're lying THERESA M. SORENSEN, OFFICIAL COURT REPORTER 14 1 to you now. Our clients cannot afford it. We need to have 2 this hearing today, Your Honor. We can't see this risk go 3 further. A good trustee, Your Honor, would say, we have a 4 problem, we are going to shut down the problem and make sure 5 this doesn't occur both internally and externally. But we 6 don't have a good trustee, Your Honor. We have a trustee 7 delegate who doesn't care about the trust beneficiaries. We 8 have a trustee delegate who doesn't care about what she tells 9 this Court either, Your Honor, and there is obviously no due 10 diligence, and anyone on the 28th of November that can file a 11 brief with you to say there is nothing in the special master's 12 report that creates the type of irreparable harm that the 13 Court of Appeals identified with regard to the need for 14 accurate and complete records is clearly not acting in good 15 faith before the bench. 16 So, Your Honor, we believe it's essential to go 17 forward. In five and a half years of this litigation, we've 18 seen nothing but more promises, more broken promises, more 19 delays, more metaphors and nothing has happened, and they 20 can't even explain to the consequences of unplugging the 21 system from the Internet because they don't even know what 22 they're talking about. If they don't know what they're 23 talking about, they can't predict the system. If they don't 24 know what they're talking about at four o'clock in the 25 afternoon on December 5th, they're not going to know what THERESA M. SORENSEN, OFFICIAL COURT REPORTER 15 1 they're talking about at ten a.m. on the morning of the 7th, 2 Your Honor. They've had years to deal with this issue, and 3 they've done nothing but lie to you, cover it up, and continue 4 to lie to you about this, and it is just not right. The 5 irreparable harm is palpable, the bad faith is palpable, and 6 Your Honor, this has to stop, and that's exactly why this has 7 to be wrapped into the contempt trial that is going to be 8 starting on Monday as well. It goes to every issue you've 9 identified in the order to show cause. 10 There is no discussion of any of these problems in 11 any of the quarterly reports submitted to you, including 12 whatever they characterize as their eighth quarter report. Is 13 everything fixed? No. Have they started to fix it? No. 14 They don't even know what they're supposed to do because they 15 don't read their own experts' reports. 16 Eighteen reports from their experts were 17 commissioned for a million dollars and they didn't read one of 18 them. The special master's report, which has been in process 19 since May of this year, 153 pages with 118 pages of fact, they 20 didn't read, Your Honor. When is this going to stop? It's 21 the same behavior. It is the most offensive behavior a 22 trustee can have to its trust beneficiaries, but, Your Honor, 23 it is the government that's the trustee, it is not the 24 Interior Department that is the trustee. And if one branch of 25 the government, whether it is Congress, which, as you may THERESA M. SORENSEN, OFFICIAL COURT REPORTER 16 1 recall from Mr. Klinger's testimony, does not have the ability 2 on a daily basis to ensure that an obdurate executive does his 3 job, then it's left to the Court. 4 It is unfortunate. We believe the Court has given 5 the Department of Interior many, many, many times and many 6 years to correct this, and if we delay this much further based 7 on the trial schedule that this Court has and based on the 8 issues that are before us, they will make sure that you're not 9 going to be able to address this effectively for another year. 10 We can't afford it, Your Honor. We need this to go forward, 11 we need our motion for an order to show cause be entered. 12 Whatever the government is able to do in the interim when 13 they're operating on the clock, if things are appropriate, we 14 could easily withdraw the temporary restraining order that 15 would be entered and work out a separate contempt order -- 16 consent order -- sorry, Your Honor -- so that could be 17 handled, but we don't believe that's likely to be the case. 18 Now, in the course of the discussions, it was 19 pointed out that there was some disagreement as to whether or 20 not they have to do anything to protect the trust funds and 21 the trust assets and the trust records from unauthorized 22 access internally where, again, more than 10,000 people can do 23 that on a daily basis. 24 As a result, we changed a couple of letters in the 25 proposed order that we filed last night at 11:58, and in that, THERESA M. SORENSEN, OFFICIAL COURT REPORTER 17 1 we think it will provide the Court with sufficient language to 2 be able to protect both the trust documents and the trust 3 funds from internal unlawful intrusion as well as external 4 intrusion, and if it may please the Court, I would like to 5 provide it to the Court and to the defendants. 6 Your Honor, I would like to direct your attention to 7 the second page, second paragraph, where it says, "Further 8 order that defendants shall immediately disconnect from the 9 Internet and terminate all user access to all information 10 technology systems which house or provide access." The 11 additional language is basically terminate all user access and 12 also to provide access to individual house or provide access 13 to trustee. Previously it read, "disconnect from the 14 Internet." As we learned, that does not have any effect on 15 the more than 10,000 people who may have full access to the 16 systems without any control whatsoever, so we needed to 17 tighten up. We also, Your Honor, provided this as an 18 alternative and an alternative to that which requires judicial 19 or special master oversight. 20 Because of the serious concerns plaintiffs have 21 regarding the accuracy and completeness of reporting and the 22 general candor or understanding of what they are doing, and 23 because of the substantial knowledge that the special master 24 has which is demonstrated in his compendium that he issued 25 regarding the IT security, we believe there must be oversight THERESA M. SORENSEN, OFFICIAL COURT REPORTER 18 1 to ensure and to verify carefully, and apparently, as the 2 special master issued in one of his recent reports dealing 3 with how the English language is used in this case, Your 4 Honor, "verify" doesn't mean "verify" to the defendants and 5 "carefully" doesn't mean "carefully" to the defendants because 6 it's very difficult to see how anyone can verify that final 7 reports actually are accurate if no such final reports exist. 8 Therefore, we believe that the two proposed orders should be 9 read in tandem, or, in the alternative, the Court has the 10 discretion to -- whatever it seeks to do is appropriate. We 11 just say to this Court that there is clearly irreparable harm 12 here. If you do not have accurate information, you can never 13 do an accounting. 14 The Court of Appeals specifically said that there 15 has already been undue delay, and there has already been 16 irreparable harm, and that the further documents are 17 destroyed, the further the data is destroyed that is 18 independent of anything that constitutes compensable economic 19 loss. Unfortunately, the government still doesn't recognize 20 this is a trust case. Breach of trust, Your Honor, is 21 irreparable harm on its face. It cannot be compensated 22 because of the nature of the relationship. 23 If ever the individual Indian trust beneficiaries 24 are going to be in a position so at least they can demonstrate 25 to this Court what has gone through this trust and what should THERESA M. SORENSEN, OFFICIAL COURT REPORTER 19 1 have been distributed to the individuals, that is going to be 2 based, as we have said now for years, on estimates because the 3 government has permitted the documents to be destroyed, has 4 willfully destroyed those documents themselves, and now we are 5 looking at the cornerstone of the entire trust, all the 6 systems which house the electronic data, the legacy systems 7 and the TAMS system. The TAMS system, which was going to be 8 the greatest system that was ever developed for the trust, 9 turns out to be as much of a failure as anyone has ever seen 10 and without any security whatsoever. 11 So where are we after all this? We aren't even in 12 the same position we were on June 10th, 1996 when this case 13 was filed because more damage has been done. We can't afford 14 it anymore, Your Honor. It cannot be compensated. It is 15 irreparable harm. It is in the public interest to stop this 16 now. It is in the interest of the United States Government 17 whether or not the obdurate trustee delegate and counsel who 18 is aiding and abetting this conduct, whether or not they 19 concede that it is in the best interest of the United States. 20 There is nothing more inimical to the interests of the United 21 States than breaching trust duties that Congress has imposed 22 on the executive, breaching trust duties that every other 23 trustee in the United States has to honor. 24 This Court has -- the Court of Appeals has stripped 25 the defendants of their Chevron deference. They are standing THERESA M. SORENSEN, OFFICIAL COURT REPORTER 20 1 before you as a private trustee stands before you. No private 2 trustee can get away with it, and in fact, Your Honor, the 3 United States Government never let the fiduciaries of national 4 banks or federally chartered or insured savings and loan get 5 away with it. When those institutions failed or when they 6 were failing, these same people in the Justice Department 7 prosecuted them, charged them civilly with breach of fiduciary 8 responsibility, and made them pay, first with civil trials, 9 and then with criminal trials. 10 As the Wall Street Journal reported today, 11 effectively what we're dealing with in the trust is a banking 12 system for nearly a half a million individual Indian trust 13 beneficiaries who are almost solely dependent on this money 14 for their income and survival, and they have been denied the 15 benefits of their legacy for many generations, Your Honor. 16 Why doesn't the government apply the same standards to itself 17 -- 18 THE COURT: If you terminate all user access, 19 doesn't that then terminate all payments in the meantime to 20 those beneficiaries? 21 MR. GINGOLD: Your Honor, prior to the Internet and 22 prior to electronic systems -- and as a matter of fact, as 23 we've read from the court monitor's reports, many of the 24 electronic systems are still not even used in many regions. 25 As we've seen, each area and each superintendent seems to do THERESA M. SORENSEN, OFFICIAL COURT REPORTER 21 1 whatever he wants to do, which is one of the problems that has 2 been discussed. Your Honor, five years ago, there wasn't even 3 an Internet of any use whatsoever. We -- 4 THE COURT: I know, but there is today. 5 MR. GINGOLD: There is today, but it doesn't look 6 like the Department of Interior is all that dependent on it 7 based on the diversified operations throughout the West and 8 the more than 100 area and agency offices that do business as 9 they see fit. 10 The MMS system today, by the way, with regard to the 11 individual Indian trust revenues is principally today a manual 12 system, Your Honor, because what they have to do is extract 13 the individual data manually from the data dealing with the 14 government -- the revenues developed from government lands. 15 So, Your Honor, there have always been delays in payments. 16 There are delays in payments today. There will be continued 17 delays in payments. But Your Honor, maybe for the first time, 18 the data can't be deleted and destroyed. Maybe for the first 19 time, the trust funds can't be accessed and sent to the wrong 20 people who are not even trust beneficiaries. 21 Your Honor, it is incumbent on the trustee, the 22 United States Government, to fix this. They have lied to you 23 about its status, they have lied to you about what they are 24 planning to do about it, and they can't give you an 25 intelligent explanation today. They have been on notice at THERESA M. SORENSEN, OFFICIAL COURT REPORTER 22 1 least since March 7th, 2000, since March 29th, 2000, since 2 April 4th, 2000, since May 17th, 2000, since June 7th -- since 3 May 17th, 2001, since June 7th, 2001, when the Justice 4 Department and Solicitor's Office lawyers sat in the 5 deposition of Mr. Katz and heard everything we heard, and some 6 of them are excerpted in the brief that we provided to you 7 last night at 11:58. If they don't know today, Your Honor, 8 they will never know. If they don't know, they don't want to 9 know. We've got to stop it, Your Honor. And it's in the 10 interest of our trust beneficiaries that whatever is left of 11 this trust, and who knows what's left of this trust today, 12 that whatever is left is protected and preserved, Your Honor. 13 THE COURT: All right. 14 Mr. Fader, I take it your representations don't deal 15 with this user access question at all? 16 MR. FADER: Your Honor, as far as I know, this user 17 access question first came -- it first came to my attention 18 this afternoon. 19 THE COURT: Right. 20 MR. FADER: That is one of the issues that we're 21 dealing with here, Your Honor. 22 The special master's report was 154 pages. 23 Identified many different issues. The contract that was used 24 to do an invasion into Interior's system identified two 25 primary problems that needed to be addressed first: a creation THERESA M. SORENSEN, OFFICIAL COURT REPORTER 23 1 of firewalls and the creation of an intrusion detection 2 system. That same contractor is now under contract with the 3 Department of the Interior. 4 Plaintiffs' counsel represents that absolutely 5 nothing is being done. That simply does not stand up to the 6 only facts that are in evidence in this record, which the 7 Court has a copy of the Predictive contract; a copy of the 8 modification indicating that when the investigations are to be 9 done; they needed half and again more money to do it. The 10 contract modification was entered. 11 Your Honor, we made a proffer this morning of a 12 directive that has been taken by Interior. That is certainly 13 moving forward in addressing these. Interior has acknowledged 14 that the special master's report identified deficiencies in 15 the system. But, Your Honor, it's important, in looking at 16 this from a temporary restraining order perspective, to also 17 note that there must be evidence on the record to provide the 18 basis for the temporary restraining order. 19 In dealing with the specific findings of the special 20 master's report, there are two things that are important to 21 recognize. First, as we have argued, the special master's 22 report should be subject to de novo review before this Court. 23 It cannot simply be adopted with its findings and 24 recommendations. It should be subject to a de novo review. 25 So that is not evidence in the record at this point. THERESA M. SORENSEN, OFFICIAL COURT REPORTER 24 1 Moreover, Your Honor, that report did not identify 2 specific instances in which there had been actual deletion of 3 data. It identified places in which these systems might be 4 susceptible and were susceptible to such problems, but with 5 the one exception of the actual invasion by Predictive that is 6 included in there, there is not evidence specific deletion or 7 manipulation of data. So there is no evidence on the record 8 that that has occurred, and it's important to recognize the 9 evidence, and that, of course, Your Honor, does not mean that 10 Interior does not recognize -- 11 THE COURT: You don't expect a thief to leave a 12 calling card. I don't understand that argument. 13 MR. FADER: Your Honor, the issue is, if there is 14 evidence that there has been actual damage to the trust data. 15 THE COURT: How would there be evidence if you don't 16 have any audit trails? I don't understand your argument. 17 MR. FADER: Well, I mean, Your Honor, there are 18 several ways in which that could be -- I mean, there could be 19 comparisons with paper documents, but the fact is that there 20 is nothing in the record that establishes that. The facts are 21 also there that Interior has recently taken substantial steps 22 to correcting the primary difficulties, and plaintiffs have 23 now raised today two issues in which they say they would like 24 to see further movement: the disconnection from the Internet, 25 and the user access. These are two of many issues that were THERESA M. SORENSEN, OFFICIAL COURT REPORTER 25 1 raised in the report, and it simply isn't the case that 2 because Interior is now looking at those issues that the Court 3 should ignore the steps that they have already taken, which 4 were the steps that were the highest priority steps initially 5 indicated by the contractor that was working with the special 6 master, and that has now been hired by Interior. I'm not 7 going to engage in a battle on the rhetoric on these issues, 8 Your Honor, but it is important to recognize, as I think this 9 Court has recognized before, that Interior has admitted that 10 there are problems, that it is trying to address those 11 problems, and that that is the evidence that is in the record 12 now. And, Your Honor, Interior is continuing to try to 13 address these problems to deal with some of the issues that 14 have been raised only very recently, including today. We 15 suggest that it would make a lot more sense for there to be 16 more information before the Court by seeing what analysis can 17 be done by Friday morning at 10 o'clock. It is not -- and 18 Plaintiffs' counsel said, and postpone this for a year. Your 19 Honor, we're seeking until Friday morning at 10 o'clock. 20 That's not a year. 21 THE COURT: Well, in light of the Secretary's action 22 of directing already that all major systems be disconnected 23 from the Internet if they provide access to individual Indian 24 trust data, I will continue this hearing until Friday at 10:00 25 a.m., and I'll see what both sides argue then. I won't say THERESA M. SORENSEN, OFFICIAL COURT REPORTER 26 1 anything more than that now. I do expect, though, and I'll 2 contact the U.S. Attorney's Office when I leave here, that we 3 should have a session tomorrow at 10:00 a.m. about the 4 witnesses and how we're going to go forward with the trial on 5 Monday because I do expect the trial to go forward Monday. 6 MR. GINGOLD: May I ask one question, Your Honor? 7 THE COURT: Yes. 8 MR. GINGOLD: The Court said it would entertain 9 whether or not to include IT security issues. These underline 10 everything that is going on in this case, Your Honor. 11 THE COURT: Right. 12 MR. GINGOLD: We would appreciate very much if the 13 Court considers that. 14 THE COURT: I plan to consider that as well. 15 MR. GINGOLD: Thank you. 16 THE COURT: Okay. 17 MR. GINGOLD: And, Your Honor, is there going to be 18 any evidence proffered that the Secretary is actually 19 executing what she is representing to -- 20 THE COURT: All I have done is continue the TRO 21 hearing, you know. We'll see what evidence anyone wants to 22 have. 23 MR. GINGOLD: May I make one point, Your Honor? 24 There has been a history in this case -- 25 THE COURT: I understand. THERESA M. SORENSEN, OFFICIAL COURT REPORTER 27 1 MR. GINGOLD: -- where instructions were issued from 2 Washington that nobody pays attention. As a matter of fact, 3 we haven't seen any evidence that anybody has paid attention 4 to these instructions. There is substantial doubt that 5 anything is going to change, and there's substantial doubt 6 that we're going to see any better situation than we have 7 today in light of the -- 8 THE COURT: I'm going to see what we have on Friday. 9 You've got your sources. You can find out what they've been 10 told by Friday, too. 11 I'll see you all at 10:00 tomorrow about the 12 schedule of witnesses and so on. I'll call the U.S. 13 Attorney's Office and tell them to be here at 10 tomorrow. 14 (Whereupon, the proceedings in the above-entitled matter 15 were recessed at 4:15 p.m., and resumed at 5:19 p.m.) 16 THE COURT: I apologize for having to reconvene, but 17 after everyone had left, in discussing the government's 18 representations, it became apparent that I had misunderstood 19 one of the key representations of the Secretary's actions, and 20 I asked the special master to call government counsel confirm 21 that, and that occurred. 22 I thought, when the counsel advised me that Interior 23 had directed that major systems be disconnected from the 24 Internet, that that would then protect the data. What became 25 apparent was that that does not protect data that would be in THERESA M. SORENSEN, OFFICIAL COURT REPORTER 28 1 a PC that might have this individual Indian trust data that 2 could still be accessed through the Internet, even thought it 3 was not connected to a major system, the PC itself would be 4 accessible. Therefore, the data would be at risk in that 5 fashion. 6 So if I understand that correctly, I'll ask Mr. 7 Fader if he can address that. 8 MR. FADER: Your Honor, from 9 what I understand the point to be is, is there a back door 10 through individual PCs into the trust data in the system, that 11 what the Secretary has done does not address that back door, 12 that is correct, Your Honor. 13 THE COURT: Okay. Then I reverse my ruling that I 14 will continue this until Friday at 10 a.m., and I will proceed 15 with the hearing on the temporary restraining order now. The 16 plaintiffs may proceed, and then I'll hear from the 17 government, and I'll hear it tonight. 18 MR. FADER: Your Honor, this is on a separate issue 19 we had redacted and produced an electronic version of the 20 redacted copy of the special master's report and 21 recommendation. I've just gotten that from our support staff, 22 and so if I can hand that up to you? 23 THE COURT: Okay. I appreciate it. 24 All right, Mr. Gingold, anything further you need to 25 say then? THERESA M. SORENSEN, OFFICIAL COURT REPORTER 29 1 MR. GINGOLD: Yes, Your Honor. First, Your Honor, 2 the access. Your Honor, access to the data in the system 3 through a PC is not a back door; that's a conduit, and it's a 4 direct conduit through the front door, Your Honor. There are 5 many back doors, and that's one of the other problems. 6 The problem that we see is the same problem that was 7 described by Mr. Katz, and Mr. Katz, again, is a Senate 8 expert, and Senate prepared 18 separate reports. Mr. Katz, on 9 page 145 of his transcript, specifically stated to the special 10 master under oath that files actually -- 11 MR. FADER: Your Honor, I have an objection. 12 MR. GINGOLD: Objection? 13 MR. FADER: This is an issue that was raised before 14 -- the reason he said he filed his report under seal was 15 because issues have not been clarified as to the deposition 16 transcripts. I just wonder if we need to clarify that issue 17 before we start reading from the transcripts. 18 THE COURT: Is there anything in the Katz testimony 19 that you think needs to be sealed? 20 MR. FADER: Your Honor, we have -- I have not 21 personally reviewed that testimony, all of that testimony. It 22 was the basis of the motion that we got this morning, so I 23 read through portions of it this morning. I have not seen 24 anything in the portions that I read through this morning, but 25 I have not reviewed the entire transcript. THERESA M. SORENSEN, OFFICIAL COURT REPORTER 30 1 MR. GINGOLD: Your Honor, as we understand in the 2 period of time that we spent with defendants and their counsel 3 on the redacted documents, they repeatedly stated they were 4 interested in redacting information that provided a roadmap 5 for hackers. I will not read portions of the transcript that 6 will provide a roadmap to hackers to get into the system. I 7 assure you, Your Honor, based on the feedback I've been 8 getting, that anyone who is a decent hacker already knows how 9 to get into the system. Moreover, Your Honor, defendants and 10 their counsel -- that's both Justice Department and 11 Solicitor's Office lawyers -- were in the entire deposition of 12 Mr. Katz for the many hours that it occurred. That was June 13 7th of this year. There is no excuse not to be familiar with 14 the transcript at this time, Your Honor. And it is pertinent 15 to representations made by Mr. Fader that there is effectively 16 no evidence that there is anything that has actually occurred 17 that is adverse or harmful, or somehow constitutes irreparable 18 harm, Your Honor. 19 THE COURT: All right. 20 MR. GINGOLD: The specific -- 21 THE COURT: The objection is overruled and you can 22 proceed. 23 MR. GINGOLD: Specifically, on page 145 of the 24 transcript Mr. Katz testified under oath, quote, "What I'm 25 saying is that people that are operating that do not THERESA M. SORENSEN, OFFICIAL COURT REPORTER 31 1 understand what is going on with a disappearance of files." 2 Your Honor, files have disappeared from the system. 3 And as Your Honor has pointed out, a thief doesn't usually 4 leave a calling card, and what is a critical problem in this 5 particular case is a total absence of internal audit controls 6 or audit trails. Accordingly, any manipulation, corruption, 7 distortion or theft of data is not going to be evidenced in 8 the system by definition, and this Court was absolutely 9 correct in that regard. 10 I would also like to turn this Court's attention to 11 page 149 of this same transcript. Mr. Katz states, in part, 12 "Strobble," (ph. sp.) "he is the, quote, unquote, database 13 administrator. He said files are missing. They have been 14 missing for three weeks." 15 I said, "Why don't' you do a search of the system, 16 see if they are there?" 17 He said, "No, they are not there." 18 I said, "Go and see who used the auditing tools to 19 see who removed them." 20 "There is no indication who removed them. So as of 21 Friday, the files were missing." 22 Mr. Katz goes on. "The fact that files -- it's 23 mysterious disappearance and reappearance of files is 24 something that happens. It's not -- it's not a unique 25 example. Once I verified it, I moved to the next subject." THERESA M. SORENSEN, OFFICIAL COURT REPORTER 32 1 Your Honor, this is the problem. Anybody in the 2 world right now who has access, whether they have access 3 through a PC or otherwise, to the Internet can get into the 4 individual Indian trust. Everybody every day, including 5 disgruntled employees, disgruntled employees who are not 6 necessarily happy with their own income, contractors, 7 disgruntled contractors access the system and can move 8 accounts, make files disappear, create files, and as the 9 special master demonstrated, create files in his own name. 10 Your Honor, the most fundamental responsibility of a 11 trustee is to protect the trust assets, the trust documents 12 because without the documents and the data nobody knows how 13 much money there is. What is clear, and I would like to hear 14 from counsel, if they can represent to you, that by doing this 15 they will protect the trust data from intrusion at this point 16 in time, and I would be very surprised if they can tell you 17 that the trust data will be protected. I would also be 18 surprised if they can tell you right now, as a matter of fact, 19 how many supervisor -- how many have supervisory access to the 20 system. How many are of that level? Are there 175? Are 21 there 275? Where normally only a handful have access to a 22 system of this sort. 23 I would like you also, Your Honor, to hear from 24 counsel whether or not they can determine whether or not 25 unauthorized access is going on as we speak, went on earlier THERESA M. SORENSEN, OFFICIAL COURT REPORTER 33 1 today, went on yesterday, last week, last month, or last March 2 7th or March 29th. Your Honor, they don't know. 3 They also, Your Honor, don't know, and I would like 4 to hear the answer before you today, how many actual trust 5 systems exist within a system, how many particular systems 6 that are accessible by the Internet, and accessible by more 7 than 10,000 people who don't necessarily have authority, house 8 or hold trust data, and that includes, Your Honor, the systems 9 for the Bureau of Reclamation for MMS, for BLM, for U.S. 10 Geological Survey, for National Business Centers, for the 11 situation involving TAMS, where TAMS itself, the clients of 12 Artesia have access to TAMS data. TAMS data, as you may 13 recall from the trial during the summer of '99, Your Honor, 14 that the data in the system was actually owned by the 15 contractor, as are the codes, which is a very unusual 16 situation. 17 We would also like you to ask counsel, if it is your 18 choosing, to ask how much money is missing as a result, and 19 how much data is missing as a result of this, and whether or 20 not they can quantify it today, or whether or not they could 21 ever quantify it. 22 The last question is, Your Honor, whether or not 23 they really believe they can rectify this particular problem 24 by Friday morning, and how they could possibly reinstall or 25 reopen the systems without making sure that this Court is THERESA M. SORENSEN, OFFICIAL COURT REPORTER 34 1 satisfied that everything that is possible has been done to 2 protect the data because it hasn't been done, Your Honor. 3 Your Honor, Mr. Katz characterized this system as a 4 monstrosity. That's a pretty strong statement. No trust 5 beneficiary is entitled to have his money in a monstrosity. I 6 don't know why Indian trust beneficiaries have to have their 7 money in a monstrosity. But what they can't do is tell you, 8 as Mr. Fader candidly told you just a few minutes ago, that 9 any of the data is protected, that any of the money is 10 protected, that is protected today or will be protected 11 tomorrow. And the risks that exists right now, in our 12 opinion, is unreasonable. It is not reasonable for a trustee 13 to even want a system to keep operating when so much is at 14 risk. That is irreparable, Your Honor. These documents and 15 this data cannot be recreated. 16 Accordingly, Your Honor, we believe it's important 17 to disconnect the entire system, make sure that all access to 18 the system, including the PCs, is terminated immediately; that 19 the special master be given authority to oversight to ensure 20 that whatever is done is being done properly before anything 21 is reopened, and that all access is denied to anyone who does 22 not have lawful access to any data in the system, and that if 23 anyone has access using common passwords, or using any other 24 technique, all that access is denied as well. Whether it's 25 10,000 or 10,000,000 people who have access to the system, THERESA M. SORENSEN, OFFICIAL COURT REPORTER 35 1 Your Honor, all the trust data, all the trust money is in 2 jeopardy today, and the special master proved that in his 3 report. And if, in fact, defendants and their counsel 4 bothered to read the report, they would have seen that in the 5 118 pages of facts represented in that particular report. 6 Moreover, Your Honor, as we pointed out in our 7 original motion, we had 30 paragraphs of facts detailing the 8 serious problems that exist in the system, and they have never 9 addressed a single one of those facts, attempted to rebut it, 10 attempted to object to it, and are treating the special 11 master's report, which under Rule 53 is entitled to deference, 12 Your Honor, is entitled to the clearly erroneous standard, 13 they are trying to treat that the same way they have discarded 14 the court monitor's report, where they didn't even bother to 15 object within the period of time. 16 Your Honor, the rules apply to the United States 17 Government as well as they apply to anybody else, whether it's 18 local rules, or federal rules, or orders of this Court, and 19 they choose not to follow them at their convenience. We think 20 if this Court does not act now to protect the data, there will 21 not be any data to protect in the future. 22 THE COURT: All right. Mr. Fader. 23 MR. FADER: Your Honor, I'd like to begin by noting 24 again that Interior has acknowledged the existence of 25 substantial deficiencies in its trust related IT security THERESA M. SORENSEN, OFFICIAL COURT REPORTER 36 1 system. Plaintiff continues to read from documents that were 2 filed months ago when the special master's report had not been 3 filed, when evidence that has come to light had not been 4 there. It is understood, Your Honor, that there have been 5 reports that have been issued for a long time, but it is the 6 case now, Your Honor, that Interior has recognized these 7 deficiencies. It has taken action to correct the worst 8 deficiencies, especially the firewalls and the intrusion 9 detection system that have been identified. Interior came 10 this morning with a good faith proffer. Your Honor, I 11 apologize if my language was imprecise and led you to 12 understand something different, but the proffer was unplugging 13 -- disconnecting the Internet from the major systems, and that 14 is a step that was -- that we thought was responsive to the 15 request that came in this morning in that temporary 16 restraining order, the alternative temporary restraining order 17 motion. 18 Your Honor, Predictive Systems is the contractor 19 that Interior has contracted with to put in firewalls and put 20 in an intrusion detection system. It is an entity that both 21 is familiar already with the system because of the use in the 22 special master's use of Predictive Systems, although it is a 23 separate part of Predictive Systems that is now doing the 24 installation of the firewalls and the intrusion detection 25 system. But it is a contractor with experience in this area, THERESA M. SORENSEN, OFFICIAL COURT REPORTER 37 1 and they are already under contract to perform this work. I 2 don't -- we had earlier today somebody here to testify from 3 Predictive Systems. I don't know if we're -- if they will be 4 -- he can't be reached. But that contract is underway and has 5 been signed, and that is addressing the two most urgent 6 problems that have been identified. 7 Your Honor, plaintiffs now have pending before you 8 two separate temporary -- motions for a temporary restraining 9 order, requesting alternative forms of relief. The first was 10 amended on November 16th, to request that the Court do two 11 things: The first was to adopt the special master's findings 12 and recommendations in total, and the second was to either 13 confer on the special master direct oversight and supervisory 14 authority Interior's information technology systems. That was 15 the relief they requested in the motion. It was stated a bit 16 differently in the proposed order, which would be to have the 17 special master immediately assume direct oversight and 18 supervision of all Interior systems that house or otherwise 19 hold individual Indian trust data and records. 20 THE COURT: I understand, but I told the plaintiffs 21 in open court -- maybe it wasn't in open court; it may be in 22 one of those hearings we're about to unseal -- that until I 23 conclude the contempt trial, I wasn't going to decide a 24 question that raises those separation of powers issues, and so 25 I suggested they file an alternate request, which they then THERESA M. SORENSEN, OFFICIAL COURT REPORTER 38 1 did last night, and I don't quite understand how there is a 2 separation of powers issue if I simply order the Secretary to 3 disconnect the system and any reconnection will be after I 4 approve it. It doesn't matter what the special master does 5 and there's no special master intrusion. I am going to 6 decide, and nothing will get reconnected until I decide it's 7 reconnected if I do that. And that is what the plaintiffs are 8 basically, in their alternative request, asking, isn't it? 9 MR. FADER: In their alternative request, if I 10 understand the Court to be saying that the Court is not now 11 hearing the initial request -- 12 THE COURT: Correct. I am only hearing that 13 alternative because I indicated -- 14 MR. FADER: Okay. 15 THE COURT: -- to the plaintiffs that I am not 16 getting into this whole receiver, non-receiver, separation of 17 powers, all those issues until I complete the contempt trial. 18 MR. FADER: Okay. Is Your Honor still hearing the 19 request in the first motion to adopt the special master's 20 findings and recommendations in total? 21 THE COURT: Not on a TRO. I don't need to. Maybe 22 by the PI, we'll need to. 23 MR. FADER: Okay. 24 THE COURT: The TRO, all I need to decide is whether 25 I should go further than what the Secretary has represented THERESA M. SORENSEN, OFFICIAL COURT REPORTER 39 1 she has done, and what she has represented she has done is 2 direct that major systems be disconnected from the Internet, 3 and as you conceded when we opened this session of the 4 hearing, she has not done anything about the PC connections, 5 which you concede are a back door -- they call it a front door 6 -- whatever kind of a door it is, it's still there, and the 7 question, then, I have presented is whether I should go ahead 8 and do an order that closes all the doors. 9 MR. FADER: Okay. 10 THE COURT: And why shouldn't I? 11 MR. FADER: Okay. Your Honor, I will work with that 12 frame work. 13 I want to point out, Your Honor, that the record 14 that plaintiff was reading from, I have not read the entire 15 transcript from Mr. Katz; however, I do want to point out 16 something in that transcript. 17 THE COURT: Okay. 18 MR. FADER: In plaintiffs' motion that we received 19 this morning, they indicate as one of their bases for imposing 20 the temporary restraining order that the absence of internal 21 controls means that unauthorized personnel have routinely 22 accessed and modified the trust data with no audit trail. 23 As support for that, they cite to a portion of the 24 transcript that appears from pages 136, line 20, to 139, line 25 12. Reading from that portion of the transcripts, we have Mr. THERESA M. SORENSEN, OFFICIAL COURT REPORTER 40 1 Katz saying, "And as I said, the processes -- you asked about 2 the business processes. If a user in the field is used to 3 pick up the phone and call a programmer who has the right, and 4 we're talking user that doesn't have the privilege right, 5 okay, let's say data entry person, here's the problem, and the 6 way they solve the problem is by calling a friend of theirs or 7 someone they trust on the programmer level who has the 8 privilege, and this person goes straight into the raw data and 9 modifies it best on request from the field. This is not 10 proper business process." 11 Special Master Balaran asked, "Has this happened?" 12 "Mr. Katz: From what I was told, it happens all the 13 time. It happened all the time. 14 "Special Master Balaran: Has that stopped 15 happening? 16 "Mr. Katz: It stopped happening when the new team 17 took over and they refused to do it. 18 "Special Master Balaran: What new team? 19 "Mr. Katz: You know that there was a transfer from 20 Albuquerque to Reston. 21 "Special Master Balaran: Correct. 22 "Mr. Katz: You know that most of the people, the 23 programmers, opted not to move to Reston. 24 "Special Master Balaran: Correct. 25 "Mr. Katz: They had to be replaced with new people THERESA M. SORENSEN, OFFICIAL COURT REPORTER 41 1 to do the job. 2 "Special Master Balaran: All right. 3 "Mr. Katz: BIA hired ISI. ISI provided the 4 technical people to do the job that the government people used 5 to do before. The technical people from ISI come with 6 backgrounds from the banking industry and they know that this 7 is unacceptable. So calls would come from the field asking 8 them to go ahead and modify. They said, we don't do such 9 things. And they say, oh, you don't do it? I will go and 10 find somebody else who will do it for me. And I asked them, 11 so what happens? And they said, I don't know, I just don't do 12 it. Somebody else takes care of that. I said, do you -- I am 13 asking the same -- as a matter of fact, I was in the same 14 position that you are now, okay? So I know -- now I know how 15 it feels to be questioned, okay?" 16 And it continues. But that transcript that they 17 were citing for the proposition that unauthorized personnel 18 have routinely accessed and modified the trust data, that 19 section supports the fact that -- the claim that that happened 20 in the past and with the move to Reston has not happened. 21 THE COURT: But can you today determine whether 22 there is unauthorized access to trust data? I think the 23 report suggests you cannot. 24 MR. FADER: The report suggests that the government 25 cannot, that the Interior Department cannot, and that the most THERESA M. SORENSEN, OFFICIAL COURT REPORTER 42 1 important things to deal with that -- 2 THE COURT: Can you answer that? 3 MR. FADER: Whether the government can? Your Honor, 4 I do not know. I know that the Interior Department has 5 identified -- 6 THE COURT: Why isn't that good enough for a TRO? 7 MR. FADER: Well, Your Honor, because the two most 8 important things to avoid that from happening are the 9 imposition of firewalls and an intrusion detection system, and 10 those two things are currently under contract to be done. 11 THE COURT: They are under contract to be done; 12 they're not done today. So as we sit here today, neither of 13 those is there. 14 MR. FADER: And Your Honor -- 15 THE COURT: The motion for temporary restraining 16 order is granted. Let me hand you down the language that I've 17 devised and see if you have any objections to the specific 18 language. Hand a couple over to the plaintiffs as well, if 19 you would. This will be a substitute on page 2 of the 20 plaintiffs' proposed order. I actually do not intend to 21 address anything except the alternative motion for a temporary 22 restraining order and I will delete the paragraph on the show 23 cause because that will be for another hearing. 24 MR. FADER: Your Honor, may we have the ability to 25 show this to a representative for the -- THERESA M. SORENSEN, OFFICIAL COURT REPORTER 43 1 THE COURT: Yes. 2 MR. FADER: -- Interior Department in the courtroom? 3 THE COURT: Sure. Here are a couple more. 4 (Brief pause in proceedings.) 5 MR. GINGOLD: Your Honor, this language is 6 satisfactory to plaintiffs. 7 THE COURT: Okay. And in light of our discussion, I 8 take it the plaintiffs think this accomplishes what we're 9 trying to do? 10 MR. GINGOLD: Yes, sir. 11 THE COURT: It includes all the PCs. 12 MR. GINGOLD: Yes, sir. 13 Your Honor, may I ask a question? 14 THE COURT: Let me wait and see what their comments 15 are. 16 (Brief pause in proceedings.) 17 MR. FADER: Your Honor, some of the language that is 18 in here is some of the same problems that we have been running 19 into in trying to figure out how to address these problems, 20 and right now, it is not clear to us what this language means 21 because there are several terms that we think could use 22 further definition or filling out to understand, if that is 23 possible. 24 THE COURT: Okay. 25 MR. FADER: First of all, the term "information THERESA M. SORENSEN, OFFICIAL COURT REPORTER 44 1 technology systems" is -- it is unclear exactly how broad that 2 is or exactly what is included in that. The term "individual 3 Indian trust data" is something that we think could be subject 4 to further interpretation and we do not know exactly what is 5 included in that term. The phrase "computers within the 6 custody and control of the Department of the Interior," we 7 want Your Honor to understand that there are contractors who 8 work with this data who are not within the custody and control 9 -- 10 THE COURT: That's my next line, "its employees and 11 contractors." 12 MR. FADER: Okay. So this would separately affect 13 the employees and the contractors. And the other term, Your 14 Honor, is "access," and access is something that we basically 15 -- basically we have been trying to figure out what access 16 means, especially with a system of interconnected computers, 17 and how far this goes into unrelated systems within the 18 Department of the Interior but that still share some common 19 systems and therefore it is possible that somebody could enter 20 through one computer in an entirely unrelated system. And we 21 don't even understand the full implications if this could be a 22 computer in an area outside of the Department of the Interior 23 that could end up being used to go through systems and get to 24 this data. This, of course, Your Honor, fits into the bottom 25 line that no computer system is ever entirely protected and THERESA M. SORENSEN, OFFICIAL COURT REPORTER 45 1 we don't know exactly how far this requires the Department of 2 the Interior to go since it is impossible for any computer 3 system to be entirely protected. We're just not -- we would 4 like for some of the terms to be spelled out a little bit 5 more. 6 THE COURT: What would you suggest? 7 MR. FADER: Your Honor, some of the problems we are 8 working with is we don't know exactly what to suggest to make 9 it the most clear. 10 THE COURT: Then I will sign the order as I've 11 proposed it. 12 MR. FADER: I just want to say for the record that 13 Interior does not understand this order. 14 THE COURT: You can tell me that at your contempt 15 trial. I don't believe one word you're telling me now and 16 you're just ruining your own credibility by talking to me that 17 way. 18 The Court is in recess. 19 (Whereupon, the proceedings in the above-entitled matter 20 were adjourned at 5:48 p.m.) 21 22 23 24 25 THERESA M. SORENSEN, OFFICIAL COURT REPORTER 46 1 CERTIFICATE OF REPORTER 2 I certify that the foregoing is a correct transcript 3 from the record of proceedings in the above-entitled matter. 4 5 ___________________________________ 6 Theresa M. Sorensen, CVR-CM 7 Official Court Reporter 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THERESA M. SORENSEN, OFFICIAL COURT REPORTER