----- Original Message ----- From: <mmotyka@lsil.com> To: "Black Unicorn" <unicorn@schloss.li> Cc: <cypherpunks@cyberpass.net> Sent: Monday, July 30, 2001 4:01 PM Subject: Re: DOJ jails reporter, Ashcroft allows more journalist subpoenas
Black Unicorn wrote:
No. Well hidden backups would put the reporter in a position of contempt, committing obstruction of justice or perjury. Better to escrow such documents with an attorney in a jurisdiction not likely to cooperate with the United States. (I can suggest several to interested parties privately).
IANAL but it looks to me like obstruction relates to hindering the court's access to information not its total control of information.
Well, IAAL and today seems to be legal terminology 101 day. If only I billed for these hours... I can only assume you pulled this from some odd orifice or Perry Mason re-run because it bears little relation to fact. Obstruction of Justice- Impeding or obstructing those who seek justice in a court, or those who have duties or powers of administering justice therein. The act by which one or more persons attempt to prevent, or do prevent, _the execution of lawful process_. The term applies also to obstructing the administration of justice in any way- as by hindering witnesses for appearing, assaulting process servers, influencing jurors, _obstructing court orders_ or criminal investigations... (emphasis mine). In this case, such of it that I know, it's going to be contempt of court that's going to be more onerous in any event, but if you have been irritating enough you can probably expect an obstruction charge too, particularly as your refusals begin to look more like actions and not mere inaction. Also remember the recourse of the unjustly incarcerated contempt sufferer- an expensive, slow and usually useless appeal.
That is one method of "well hidden"
No, that's not hidden.
OKOKOK - stored, not hidden.
Same problem.
How about placing blocks of data on a safe site? A petit Napoleon would be able to subpoena a plaintext copy of the data and possibly make a fight about getting the keys but would not be able to deprive the owner of the data.
Nope.
Prosecutor: You retained copies of this document? Witness: Yes. Prosecutor: You were aware that all copies and original were subpoened by
court? Witness: Yes. Prosecutor: Where are these documents located? [Witness: I placed blocks of data on a safe site so they would be accessible.] [Witness: I split a cryptographic key and spread it among my friends and encrypted the document to it.] [Witness: I (insert clever but legally naive cypherpunk solution here)
[stuff] the the
document.]
(Oops)
#2 - Doesn't look so bad - she can produce all physical copies and still get access to her safe site. Safe is pretty generic, meaning possibly out of the jurisdiction, out of her control and visible to herself and possibly others as plaintext or otherwise. Not sure how it is possible to hassle her if she produces all physical copies as ordered but has taken steps to maintain future accessibility for her own purposes. Pardon me for being sloppy about "safe site".
I suppose if I wanted to stifle it as a judge I'd also order the production of all "media, machinery, computer equipment or other tangibles containing the content.... blah blah blah." Again, it's all evidence. It's all within the court's power to grab. It's an entirely legitimate act of the court to attempt to control and otherwise restrict the distribution of evidence or to protect it from destruction or distribution (such as in a libel case). Remember the mystery implement inside the envelope in the OJ case and all the expert imagery wonks analyzing the shadows and contours of the envelope to determine that it might be a big knife? By involving third party system administrators you've done nothing but make it more expensive for third parties who are going to lose the stuff if its seized or otherwise subject to discovery. There are a few cypherpunks probably listening to this who've been smacked with subpoenas for running remailers. I think you'll find that the government is pretty persuasive to third parties like these. The only defense (which one administrator of a remailer I won't name was clever enough to set himself up with) is to say (my paraphrasing) "I don't have access to those logs or any of that data. I don't keep such logs and I never have because it's too much overhead and work."
If the motherfuckers want all of the copies they can achieve that goal assymptotically by downloading the data repeatedly. Disks are cheap.
with:
Prosecutor: You retained copies of this document? Witness: No. Prosecutor: You have none of these documents in your possession or control? Witness: No. Prosecutor: Are you aware of any other copies of this document? Witness: Yes. Prosecutor: Where are they? Witness: An attorney representing the ABC trust bought a copy of the document before I knew about these proceedings. Prosecutor: Why didn't you instruct this attorney to turn over the documents? Witness: I have here a copy of the agreement assigning all my rights to
document over to this Isle of Man trust under control of the attorney
here. I understand Simon and Schuster has expressed interest in the manuscript but since I no longer have the power to influence the fate of
You miss the point. They don't have to do diddily. By this point you've been ordered by the court to produce such documents. So produce them or direct the court to them or pay the price and have the court get them anyhow. the listed the
document I cannot produce it, or I most certainly would comply with the court's most legitimate wishes and interest in effecting justice.
#3 - not entirely unlike #2 really - the data is out of her control. Only difference I can see is that there is a record of a transfer with a date prior to the subpoena.
The difference is that in #3 the witness does not have physical or logical control of the evidence and cannot, even if she or he wanted to, produce it or otherwise allow the court to put its hands on it or prevent its distribution. I disagree that the data is "out of her control" in example #2. Courts aren't fond of leaks.
#2 admits of this same solution if blocks of data are mailed to some safe location on a regular basis. I don't see why some official type of escrow is required as long as the unsquelchable distribution predates the subpoena.
Ask the question: Can the witness produce the document? If the answer is yes, then the witness will have to. Ask the question: Can the court prevent the distribution of the data (via gag order). If the answer is yes then you can expect it to be prevented. The time of the mailing is unimportant. If the data is known or should have been known to be the probable subject of an investigation you're still on the hook.
BTW - would a subpoena such as the one served on the journalist specify that the contents of the records were not to be communicated to anyone?
That's implicit in the "all copies and reproductions" language. Ask yourself how amused the court is going to be with your clever arguments. (Jim Bell transcripts are probably a good indication of how courts are going to treat mouthy geeks).
Why should an owner not be allowed to retain a copy?
Cause the court says so.
Not a particularly useful answer and not necessarily justifiable on the part of the court.
Totally false. The court has made an order. It involved the production of documents or other potentially exculpatory and material evidence. You pretty much have to comply because the court says so. Well, let me rephrase that. You can refuse and spend some time in lockup until you decide maybe you want to comply. (That can be a long wait. Years is not unheard of).
I think eventually a better answer would have to be produced, one that justified the censorship. We're back to what originally struck me as odd, and wrong, about this item. Whoever has her stuff should copy it and move the copy offshore because something is very wrong on the part of the court.
That person is pretty clearly obstructing justice. I'd suggest they not hang about the U.S. if they decide to knowingly distribute material that is under subpoena or a gag order or somesuch. Very naughty. If I were a judge I'd certainly encourage the prosecutor to order marshals to apprehend that individual and bring them before me for some special attention.
Mike
I do wish people would just do their homework before making these kinds of assertions. There is a wealth of information on gag orders, restriction of publication, court ordered seizures of manuscripts and etc. Just spend some time on your own rather than being lazy enough to have someone else explain it all to you. (I suppose I encourage this behavior by responding to this silliness). Really the acronym "IANAL" bothers me because it's effectively a stone cold certainty that the author is about to render some legal advice and expects to be taken seriously. Like some kind of magic talisman for people to be stupid and still contribute their blather to the conversation. A certain blowhard used ascii "smileys" to do the same thing, as if the magic effect of a :) allowed him blanket license to be a complete wad of ear cheese whenever he liked. No one would take "I am not a doctor but if you whack that lump down with the claw side of a hammer a few times it should go right away" seriously, why does IANAL seem to give carte blanche to armchair members of the Court TV Bar?