<color><param>0100,0100,0100</param>On 3 Aug 2001, at 9:48, Greg Broiles wrote: <color><param>7F00,0000,0000</param>> At 12:11 AM 8/3/2001 -0700, Tim May wrote:
Claims that releasing something in a form which may not practically (in
the strongest sense of the word!) be retrieved is some kind of
"spoliation" are bizarre. The claim that distributing via Freenet or Mojo
or Usenet, systems which are similar to ordinary publishing in the sense
that retrieval after distribution is nearly impossible, is also bizarre.
I think this is the really interesting leap here - from the ability of a
court to order production of documents, to the ability of a court to
control distribution of information. The "production" or subpoena aspect
has been hashed and rehashed ad nauseam on the list - but the reporter's
attorney said they were asking for all originals and copies of the
reporter's notes, which makes it sound like this grand jury (or the
prosecutor controlling it) would like to swallow them up and never give
them back - or delay public knowledge and discussion of the events involved
in the case until a time more convenient for prosecutors and law enforcement.
</color>Right. I feel it is bizzare that one can be charged with "spoliation" merely for purging old records that one has no conceivable use for on the grounds that you somehow "should have known" that it was "likely" that the records would be subpoenaed <color><param>FF00,0000,0000</param><bigger>{HYPERLINK "/search?hl=en&safe=off&q=subpoenaed&spell=1"}<color><param>0100,0100,0100</param><FontFamily><param>Times New Roman</param> </color><FontFamily><param>Arial</param><smaller> years later, but if that's the way it happens, that's the way it happens. I consider it, as I said, monstrous that a judge can legally deprive me of all copies of my own work in order to enforce a gag order, but again, if that's the way it is, that's the way it is. But it goes well beyond the bizzare to suggest that I should anticipate the possibility of a gag order and preemptively gag myslef in case one might be issued at a later date. <color><param>7F00,0000,0000</param>> I think a response more appropriate than secrecy (with the attending
arguments about offshore trusts, the relationship between crosscut
shredders and cryptography, etc) would have been immediate, widespread
publication - via Freenet or Cryptome, if the local paper wasn't
interested. Then there's no more arguing over secret documents, and the
grand jury's free to read about it in the newspaper and ask the journalist
to come in and confirm that no details were altered during the editing
process.
</color>Yeah, well, the reason I suggested posting encrypted to freenet is, I was thinking I might not want the stuff distributed for the whole world to see, but I want to make sure I have access to the stuff, either during the trial, or later once the trial is over (if the judge makes me hand over all copies, am I sure I'll get anything back?) In the particular case of a reporter's notes, one can easily imagine how this would be the case: my notes contain information which could be used to identify confidential sources of mine, that sort of thing. I don't want to lose this information, but I can't just openly blab it to the world. <color><param>7F00,0000,0000</param>> I think a lot of the tension around "cypherpunks should think about law" or
"cypherpunks should not waste time on law" comes from different basic
assumptions - if you start out thinking that police are thugs and you have
no rights except the ones you enforce yourself, then all of this legal
discussion is a big distraction. If you start out thinking that you live in
the high-school-civics-class version of America, and that the Bill of
Rights and the 14th Amendment are alive and well on the streets and in the
courtrooms, then, the legal discussion is relevant to the extent that it
brings those expectations back in line with reality.
Of course, sometimes people with the first view will admit that the thugs'
behavior isn't totally arbitrary, but needs to be mostly orderly and appear
reasonable so as to preserve the thugs' privileged position, and that it's
possible to take advantage of that systemic tendency towards predictability
to game the system, and thereby avoid the thugs - and sometimes people with
the second view will admit that perhaps the delta between the advertised
version of Reality and the implementation is so vast that it's easier to
list the positive changes from the "thug" model than the negatives changes
from the Jeffersonian/Madisonian ideal.
</color>and so groups one and two end up more or less agreeing on the defacto state of affairs, just describing it differently. George <color><param>7F00,0000,0000</param>>
--
Greg Broiles
gbroiles@well.com
"We have found and closed the thing you watch us with." -- New Delhi street kids
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