----- Original Message -----
From: Declan McCullagh
Two thoughts: * It is possible that "ordinary discovery" has gone too far in the U.S. Shielded areas, such as bookstores protected by this view of the 1A, might be a good thing.
It's about as "possible" as the "possibility" of the sun coming up over the horizon tomorrow morning. We all know that the system really doesn't work the way it is supposed to. The standard is SUPPOSED to be "probable cause" which should arguably mean that "the policeman knows that a crime has been committed and that there is at least a 51% probability that evidence of that crime is at the place in question." But in fact logic is totally ignored. We already know that the only evidence likely at the book store is that which points to the identity of the person who bought the book on the subject of drugs. Buying that book was not, in itself, a crime. And, in fact, the purchase of the book may have occurred before the drug-lab-manufacturing "crime." Thus, it is obvious that there is virtually certain to be no evidence at the book store of the crime for which the police are investigating. In fact, what the police are looking for might best be called "non-crime evidence." Information tending to prove or disprove acts which were NOT crimes. Iinterestingly enough, as far as I know the "justice system" (yucch!) doesn't have a separate term for "evidence that is not the evidence of a crime." It's just called "evidence." There's a problem with this, as I learned firsthand: Authorities drop by, take lots of stuff, and then tell the news media that "evidence was collected and removed." Problem is, neither at the time it was taken nor later was it actually "evidence" of some sort of crime. What they actually should have said was that "non-evidence was taken" but expecting them to be that honest is futile. If anybody is aware of a commonly (or, even, uncommonly) used term for "non-evidence-evidence" I' like to hear it.
* Richard Epstein has a nice piece in the May 2000 Stanford Law Review (I was reading it last night). Epstein argues against "First Amendment exceptionalism," which grants speech more protection than the common law would afford. He says that creates weird side effects that prohibit things like trespass to obtain private information but say (if such info is leaked to a newspaper) that info can be published without, generally, any recourse by the aggrieved party.
All of this may not be relevant once anonymous publishing -- or shall I say consequence-less publishing? -- becomes more widespread. -Declan
In this case, I'd say the issue is more like "consequenceless book-buying," not publishing. Nobody is talking about charging the book store with any crime. I think that businesses (including bookstores) should be entitled to do business with customers, giving binding promises to not share information about those transactions with anybody including police and courts, perhaps unless the transaction itself was criminal. Anybody ever heard of "impairment of contract"? Jim Bell