At 5:36 PM -0400 4/2/01, Declan McCullagh wrote:
It's true that I was subpoened in the Carl Johnson case (along with John Gilmore and perhaps some other list-members) and ended up testifying very briefly. My lawyer at the time indicated that because Johnson was not a source -- just some random guy who sent me a few messages -- I had no journalistic privilege that I could raise.
What's so weird (translation: IMO "unconstitutional" in the libertarian/Founders sense) about this is that it is completely arbitrary as to what constitutes being a _source_ in Declan's sense. Am I a "source" or just "some random guy" when I discuss with Declan my views about Washington? Am I a "source" or just "some random guy" when I discuss with Declan my personal views about what Timothy McVeigh did? Am I a "source" or just "some random guy" when I discuss with Declan the implications of untraceable digital money? Most importantly, Am I a "source" or just "some random guy" when Declan visits my house and I show him my arsenal of weapons and talk into the evening about things political? I think the Feds realize what a gold mine they have in Declan. A pity, really. And why is Declan's recounting of what Bell has been talking about any more "subpoenable" than what any number of list members responded to? (Because, of course, Declan is a journalist, and a journalist who writes about Toto or Bell or Detweiler or May or whomever has a "cachet" in prosecutorial circles that an article by a "not officially recognized" journalist (writer) does not have. Thus, prosecutors look to Declan's (or maybe Adam Chiralsky's) articles as somehow being more presentable in court than J. Random Listmember's articles. And so they haul Declan into court and expose him to cross examination about whom he talked to, what they said, who else was present, etc. (No doubt they are salivating about getting testimony about the infamous Alpine Inn Conclave. The nation's leading anarcho capitalist present. Too bad they didn't have advance warning.) Personally, I wish Declan well in his battles. He has been fair with me. Unfortunately, we seem to be entering an Orwellian era of thoughtcrime prosecutions, so it may be time to stop talking to Declan about anything besides "What about those 49ers, eh, Declan?" My hunch is that if he has to testify in a fishing expedition, his contacts with Cypherpunks will evaporate. Which may actually be one of the main reasons he is being called, actually. What a great way for Big Brother to silence a leading Cypherpunk-friendly journalist. The fact is, a journalist should no more be callable as a witness to an alleged crime than some other person who was not a witness to the actual events. If a claim is made that the alleged crime committer explained his crime, then this should be counted as "hearsay" in the same way hearsay it ordinarily treated. Enough for now. --Tim May -- Timothy C. May tcmay@got.net Corralitos, California Political: Co-founder Cypherpunks/crypto anarchy/Cyphernomicon Technical: physics/soft errors/Smalltalk/Squeak/agents/games/Go Personal: b.1951/UCSB/Intel '74-'86/retired/investor/motorcycles/guns