The Crux of the Cisco-US Government Collaboration

As I said in this comment, we’re going to have to wait until the Canadian court releases more details on the failed extradition of Peter Alfred Adekeye to get a better sense of what the government did to piss off the court so badly. But this is my attempt to  the crux of the matter.

The Adekeye deposition in Canada was set up in April 2010 for a several day time period in May. On May 19 at the deposition, Adekeye admitted to accessing Cisco’s website perhaps five times, though he said a Cisco employee had offered him that access. That part of his deposition was streamed back to Northern California. That same day–May 19–the arrest warrant was signed in the US (making it possible that Adekeye’s deposition served to establish the probable cause to arrest him). And the Magistrate who signed the US arrest warrant was the same Magistrate overseeing discovery in this case. By the time Adekeye was arrested on May 20, his lawyers had not yet had an opportunity to question Adekeye. In effect, Cisco had gotten 14 hours of unrebutted deposition from Adekeye, after which he became unavailable to his lawyers.

In response, his lawyers requested that the civil procedure be stayed and that the judge order an accelerated discovery from Cisco with regards to its involvement in getting Adekeye extradited. As they described in their motion for a stay,

Mr. Adekeye’s deposition commenced in Vancouver, Canada on May 18, 2010. After Cisco spent nearly fourteen (14) full hours deposing Mr. Adekeye, the proceedings were interrupted by the Royal Canadian Mounted Police, who were accompanied by additional uniformed Vancouver Police Officers. The Mounted Police informed counsel and the Special Master appointed by the Court to oversee Mr. Adekeye’s deposition, that they were there in order to effectuate the arrest of Mr. Adekeye. The Mounted Police presented to counsel and the Special Master a “Warrant For Provisional Arrest” issued pursuant to Section 13 of the Extradition Act, wherein the Honourable Mr. Justice Leask had executed a provisional arrest warrant for Mr. Adekeye. Attached to this provisional arrest warrant was a bench warrant issued by the Honorable Howard R. Lloyd—the assigned Magistrate Judge to this matter–for the arrest of Mr. Adekeye.


At no point during these entire proceedings was there any mention to Mr. Adekeye or to his attorneys of a criminal investigation relating to the exact same facts underlying the instant civil lawsuit. Instead, Cisco insisted that the Court order Mr. Adekeye to be deposed, and proceeded to depose Mr. Adekeye for fourteen (14) hours. Despite having over three (3) days to do so, Cisco did not finish its questioning of Mr. Adekeye prior to his arrest. Mr. Adekeye’s attorneys, moreover, were entirely unable to question their client in order to clarify or develop Mr. Adekeye’s responses further. Because Mr. Adekeye is currently detained in Canada, without bail, he has not been able to review his testimony pursuant to Fed. R. Civ. P. 30, nor has he been able to otherwise summarize his testimony or prepare an affidavit to the Court requesting an extension of time to further brief the Underlying Motions.

In addition to the very real Fifth Amendment issues now a part of this case, Multiven fears that in the event the Court does not vacate or continue the supplemental briefing deadline and the June 7 hearing, Cisco will present, as evidence in support of its Underlying Motion, incomplete deposition testimony of a party witness. Such incomplete, one-sided and out of context evidence is entirely prejudicial to Multiven, and the Court should not consider it.

The judge denied both motions, largely because in the interim both parties had submitted briefs based on Adekeye’s deposition.

So in effect, the timing of the arrest accomplished two things. It gave Cisco an advantage in the civil case (insofar as Adekeye’s lawyers didn’t have a chance to depose him). But it also likely elicited evidence that supported Adekeye’s arrest warrant.

Within 2 months of the arrest, the judge ruled on the summary judgments, basically ruling against Adekeye. Here’s the logic he used to justify the claim that Adekeye got unauthorized access to Cisco’s compuuters.

Multiven admit that on one occasion Adekeye accessed secure areas of the Cisco network. They contend however, that a Cisco employee, Wes Olson, supplied Adekeye with his login and password, thus authorizing Adekeye to access the restricted website. (Multiven’s Opposition at 7-12.) It is undisputed that Wes Olson provided Adekeye with his login and “external” password. Olsen declares that the password was given to Adekeye “to give him access to Cisco’s network on one occasion, for a specific purpose.”10 However, it is also undisputed that an employee’s giving his login and password to Adekeye was a violation of Cisco’s policies, and thus Olson’s providing access to Adekeye in this manner did not constitute a valid authorization.

And here’s how he dismissed the Fifth Amendment concerns about the deposition.

On June 8, 2010, Multiven filed a Motion to Stay Counterclaims. (hereafter, “Motion to Stay,” Docket Item No. 234.) Multiven contend that further litigation of the counterclaims will jeopardize Adekeye’s Fifth Amendment privileges in parallel criminal proceedings arising out of the same factual circumstances. (Motion to Stay at 5-7.)


Here, Adekeye has already voluntarily submitted declarations in support of Multiven’s briefs regarding the parties’ cross-motions for summary judgment and has been deposed extensively, including fourteen hours of deposition testimony that he voluntarily provided in Vancouver, Canada prior to his arrest. Without deciding whether Adekeye was sufficiently aware of the likelihood of criminal prosecution for his declarations and deposition testimony to effect a waiver of his Fifth Amendment rights,21 the Court finds that continuing the litigation will only minimally implicate Adekeye’s Fifth Amendment rights, given the extensive testimony he has already provided in this


So that’s the real background to the settlement: Cisco had largely already won on their substantive claim, using evidence from Adekeye’s partial deposition. Which left Adekeye with the risk that continuing his anti-trust claim would expose him to ongoing risk on the criminal claims.

Now it does seem like Adekeye is vulnerable in the computer fraud charges (though presumably 5 of them, not 97). But at the same time, it does seem clear that the government used the deposition to set up–and probably collect evidence for–the arrest and with it the criminal case.

  1. orionATL says:

    only in our increasingly abusive legal system,

    could it be genuine “fraud” to access a corporation’s website in order to investigate possible corporate misconduct by gathering information on that possible misconduct from the only source available.

    fraud involves harm arising from false pretenses, and i cannot see any but empty technical grounds for such a claim against a man who had strong suspicion of corporate misconduct.

    the crux is the “harm”. if there had been no harm against an individual, then the court would surely have ruled “no harm; no foul” would it have not? what is the “harm” that cisco endured?

    exposure of illegal conduct.

    if we had adequate whistle-blower protection laws, anyone would be able to do what the nigerian did and have a reasonable defense and the nation would be much the better served.

    this reminds me of the food lion (a grocery chain) investigative reporting conflict of some years ago.

    when corporations are allowed, and in this case, facilitated by the government in using common law to cover their possible misconduct, the law, specifically respect for the law, is the loser,

    • PeasantParty says:

      I was just thinking the same! Those laws being used seem to only work one-sided, as proven numerous times. The Government, in favor of Corporations using laws to benefit the corporations against the citizenry is totally bankrupt of credibility!

      As the suspicion of using his own testimony as evidence against him, I tend to agree. I think the government has gone beyond anything moral or ethical in supporting this. Cisco, if it truly wants to be in a free market capitalistic operating zone, should remove all government aid in this case.

      Which brings me back to the Patriot Act of spying on citizens, but someone spying on a corporation that is breaking laws is a crime? WTHHWCT? What the hell have we come to?

    • emptywheel says:

      I don’t buy that (unfortunately). It would be one thing if Olson were whistleblowing. But if you were to allow anyone to break into a computer on the premise of proving a problem, there’d be no computer security and no intellectual property.

      • PeasantParty says:

        I understand you. What I was talking about is the Government protecting a corporation by laws that do not seem to be available to people in the same circumstance. I am not in favor of anyone at anytime hacking for the sake of looking for wrong doings.

      • orionATL says:

        there are several important whistleblowing issues here.

        i have a problem with the law distinguishing de facto (which it now does) between the data held by an institution and the data held by an individual NOT connected to aninstitution.

        given recent american court rulings, the police/ fbi can access john doe’s computer on suspicion with ease (hell, the police can, and do, STEAL her computer – with judicial mandate) but cannot with similar ease access an institution’s ( or an individual connected to that institution) computer.

        a whistleblower, a person with a high level of knowledge about an institution’s misconduct, cannot access that institution’s data – computer or otherwise – to prove his suspicion to others without certain punishment for doing so.

        so how do we free that knowleagable individual (like thomas tamm) from certain harm by government law offices and courts?

        if we can’t solve that problem, then we will have little of the whistleblowing a complex society NEEDS to maintain control over it’s large institutions?


        it must become illegal for gov’t or corporations to pursue ex post charges against whistleblowers for unrelated prior conduct (e.g., immigration violations).

        if a citizen exposes the incompetence, illegal conduct, etc., of an institution and is then pursued by gov’t or corporate power in retaliation, which retaliation involves invoking prior illegal (or fake-illegal) activity by the whistleblower, then we will see – we do now see – far less of whistleblowing than society requires to function legally or economically most efficiently.

        whistleblowing law is just the mirror image of law for the powerful and influential with the key difference that the special treatment under law for the whistleblower will be explicit in law, not hidden in law as it is for the mftu’s (mother fuckers of the universe).

        • PeasantParty says:

          Yes. We constantly see the rights of individuals removed in favor of some implied rights of corporations which are defended and even co-opted by the government. It appears, the government did not wish this man to have a fair or speedy trial.

  2. marksb says:

    Wow. This is a mess.

    Olsen declares that the password was given to Adekeye “to give him access to Cisco’s network on one occasion, for a specific purpose.”

    Well that’s pretty clear, if true and not after-the-fact claims. If I give bmaz my login/pwd to grab a file, I have not authorized him to dig around and find the dirty pictures I’ve been tweeting to the ladies. On the other hand, whistle-blowing lives on the premise that bmaz can get in there and grab the information that is fraudulent or illegal so he can expose it, right? If I’m doing something illegal, and bmaz finds it, isn’t it his responsibility to report it?

    A mess, indeed. Maybe too complicated a mess to expect any sort of positive outcome?

  3. manys says:

    Apropos to this, why does Tennessee outlaw sharing your password when the person with whom it is shared can just be prosecuted for unauthorized access anyway? Ridiculous. We’re seeing the legalization of Terms of Service, and with Facebook’s TOS prohibiting password sharing we should eventually see someone prosecuted for “hacking” Facebook in this way as well.

  4. emptywheel says:

    Oh, one more thing.

    I haven’t found a good explanation for Adekeye’s immigration issues yet. But he was on an H1B–presumably the one Cisco gave him to come to the US in 2003. That would have expired in 2009. So his immigration problems appear to stem from the fact that the US would not consider his role as CEO of his company to merit EITHER an H1B OR an E2 (a visa for investment purposes). Now that may well be a valid judgment–though immigration law is the single most kafkaesque part of America, IMO–but those decisions all apparently did happen after he sued Cisco.

  5. emptywheel says:

    Also, one more thing. THe timing on this makes it clear that Melinda Haag was not the person who wrote the arrest materials the judge in Canada has so many problems with. She will try the case, if Adekeye is ever extradited. But she was not yet confirmed as USA when he was arrested.

    • bmaz says:

      Thank you for that. Thankfully, the Wallow fire is in far eastern AZ and not anywhere near me. That said, it is one major nasty fire and I don’t think they are anywhere remotely close to getting a grip on it. Really bad.

      • bobschacht says:

        That’s one nasty fire– now ranked as Arizona’s second worst. Its about to destroy my favorite resort town– Greer. Well, Greer really isn’t big enough to be a town. Village? The smoke and haze from that fire is having a major affect on Albuquerque.

        Bob in AZ

        • bmaz says:

          Yeah, very bad bongos. Been bad fires in White Mountains and eastern AZ before of course, but this looks devastating.

    • PeasantParty says:

      Yeah, that is some Mt. Everest sized gall isn’t it?

      From your link:

      The US prosecutor also neglected to tell Canadian authorities that Alfred-Adekeye had filed a civil antitrust suit against Cisco. Two months after his arrest, Alfred-Adekeye and Cisco settled that suit, but the criminal hacking charges remain.

      Sandford also argued that the US prosecutor inflated the severity of the hacking charges, characterized Alfred-Adekeye as a flight risk, and asked Canadian authorities to to take the unusual step of arresting him because the prosecutor didn’t have time to file a formal extradition request – arguments that Sandford called “not truthful.”

      The arrest, according to Sandford, was a “planned and deliberate” ploy by Cisco and the US prosecutor. “They’re in it together,” she told McKinnon, ” they were both acting abusively.”

      On Tuesday, McKinnon agreed. The activities of Cisco and the US prosecutor that led to Alfred-Adekeye’s arrest, would make an impartial observer “blanch at the audacity of it all,” he said, referring to the information they provided to the Canadian authorities as “full of innuendo, half-truths and falsehoods,” according to the Vancouver Sun.

      The prosecutor didn’t have time to file a normal extradition!!!!!

      There you go! All of us agreed it was a very suspicious way of going about things. Marcy once again scooped any resemblance of news and investigative reporting they pretend to have!

    • earlofhuntingdon says:

      That behavior should void the settlement if Adekeye wanted that result. One hopes that Canada will permanently refuse to extradite him as a consequence of the duplicity engaged in by the US DoJ. Since Bush II, the DoJ has morphed from the people’s lawyer to the president’s personal defense lawyer to corporate prosecutor. Whewww.

      • bmaz says:

        That is what concerns me Earl. As you know, I have long bitched about parallel proceedings use with the criminal and civil modalities of the DOJ and other governmental modalities. It is a malignant practice. But at least it has primarily been among government modalities in the past, this is pretty clear use in a government/private bastard hybrid. Couple that with what went on with the bogus “immunity” and other mutual scams between government and private interests (that were undoubtedly already indemnified anyway) in the surveillance game, and you get a pretty worrisome picture on ever expanding parallel prosecution.

        • earlofhuntingdon says:

          Fascist or medieval corporatism, it is adverse to representative democracy because the representation is limited to what benefits corporations and the wealthy. Fish and prosecutorial offices, it seems, both rot from the head.

  6. Mary says:

    I haven’t spent any time with all the links above, so I may be very wrong on this, but I don’t think I’d agree from what you have above that CISCO had basically won its counterclaim.

    If the Judge denied their motion for Summary Judgment even after they have a depo from the guy where he admits he did access the account via their employee’s log in – I have to lean almost the other way. So what you have is a civil suit with a confession of all the operational elements of access, but where the judge STILL won’t give them summary judgment. And the prosecutors plan on winning a 97 count criminal suit?

    I’m no litigator, but I’ve been invovled in drafting plenty of summary judgment motions and other dispositive motions in civil suits/corporate setttings and if I lost one with the guy I’m claiming against admitting the elements of what I’m claiming, I’d be thinking twice about whether I’ve got a winner going forward.

    There may be a lot more I’m not processing in the drive by, but while the guy had been an employee of CISCO formerly, he wasn’t one when he made the access through the employee. So:

    “it is also undisputed that an employee’s giving his login and password to Adekeye was a violation of Cisco’s policies, and thus Olson’s providing access to Adekeye in this manner did not constitute a valid authorization”

    the fact that the employee violated Cisco’s policies is a tsk tsk for him, but that’s the employee’s contract violation and between the employee and the company.

    Cisco doesn’t show there was a common law tort being commited by the access or, most importantly, that the access resulted in direct damages to them. That’s what they’d need and it doesn’t look like (and again, I haven’t seen or read the links, so this may be wrong) they could make a colorable claim on that to go with their SJM.

    If they’ve now agreed to stop the prior practices as well, that would be almost as if they were saying that the access that was given by someone with apparent, but perhaps not actual, authority resulted in the “damage” that the company agreed to quit a business practice that apparently was an actionable practice. Not much in the way of damage there.

    Sorry if I have veered off track.

    Stay out of the way of fires bmaz.

    Keep starting virtual fires, EW.

    • marksb says:

      Mary, I worked with and against Cisco over the years, and they run a take-no-prisoners operation. They’ll run whatever they can until someone stops them. To be fair, it’s an industry-standard attitude, but in the datacom industry Cisco is what the salesguys call “the big swinging dick”: the biggest and the meanest dogs in the fight.


    • emptywheel says:

      My understanding (NAL, haven’t read every filing) is that the judge gave them PARTIAL summary judgment, ruling in favor of both their substantive issues before him. Not sure what the other issues were, though.

      My impression is they went partial summary judgment (which the judge said was kind of funky) as a way to get Adekeye to settle.