----- Original Message ----- From: "Trei, Peter" <ptrei@rsasecurity.com> To: <mmotyka@lsil.com>; <cypherpunks@cyberpass.net>; <declan@well.com>; "'Black Unicorn'" <unicorn@schloss.li> Sent: Monday, July 30, 2001 1:54 PM Subject: RE: DOJ jails reporter, Ashcroft allows more journalist subpoenas
From: <mmotyka@lsil.com> wrote
Declan, The larger problem notwithstanding there's at least one little bit of language in this piece that is odd :
"He said the government is seeking all of Leggett's material, including all originals and copies."
[...]
Looks like a reporter ( or anyone else for that matter ) should keep well hidden backups of their notes and work so that they can comply with Napolean complexes, fishing expeditions and spin control operations and not lose their life's work.
I said:
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).
Mr. Trei replied:
I'm curious what the term 'copy' refers to when the Internet and encryption gets involved. If a reporter posted an encrypted copy of her notes to usenet on a regular basis, she could recover them anytime, anywhere, from etin.com, dejanews, or any of the other news archiving services.
However, if ordered to 'turn over all originals and copies', what can she do? Ask deja to dismount a drive and send it to the court? Ask the NSA to please gather up all their tapes which had copies and send them?
Here is some text from an order I was a party to some time ago: Further, [someone who was kind of naughty] is hereby ordered to produce and disclose all copies, originals, reproductions, derivations, translations or other documents related to [a certain document] _within his direct or indirect control_. (Emphasis mine). That's pretty typical, the control part.
Isn't there an implied and anachronistic assumption here that a requested private document is physically seperable from other private documents, and that to be private a document has to be under the authors physical control? And that there is a meaningful distinction between an 'original' and a 'copy'?
Copy is an old term of art. "A transcript, double, imitation, or reproduction of an original writing, painting, instrument, or the like." As distinguished from original: "As applied to documents the original is the first copy or archetype; that from which another instrument is transcribed, copied, or imitated." Part of the confusion is because "copies" and "originals" bear different evidentiary weights. Copies can only be submitted as evidence in lieu of originals under certain circumstances (because of the risk of alteration or forgery or suchlike) and blah blah blah. "Copy" started to see the use you are describing because of the following kinds of exchanges: Prosecutor: And do you still have this document? Witness: No. (Thinks: but I have a xerox in my briefcase- ha ha ha).
This comes of a the same problem we find with so much of the IP arguement, that information exists only bound to some physical object, and shares it's limitations.
Very true. Consider: "An original of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it. An 'original' or a photograph includes the negative or any print therefrom. If the data are stored in a computer or similar device, any printout or other output readable by sight shown to reflect the data accurately, is an 'original.'" This leads to the very strange situation where data on a disk (not readable by sight) is not an original or a copy but a sort of "quasi-original." A meta-original if you will, capable of spawning infinite originals- as it were. It's curious to me that no one has pursued this kind of argument in a copyright/MPAA type case. It's not readable by sight is it? Might be too technical an argument.
I can only assume that the court, for reasons which seem unclear but which seem to amount to punishment, wish to deny her access to her own work. If many copies exist which are readable only by her, but not under her control, how can she be so deprived? (I suppose the court could order her to forget her passphrase :-)
I don't know the details but I suspect that they are trying to control evidence that might compromise an investigation or otherwise collect all the evidence to be sure that everything is covered? It doesn't sound THAT unusual. Courts generally try to grab everything to make sure nothing is destroyed, lost, stolen, tampered with... etc.
[I'm not addressing the issue of forced exposure of keys, just the information-theoretic notion of destroying or sequestering widely distributed information, and how that collides with the assumptions of ill-educated or maleific judges]
Since such a prospect is impossible it's a good tactic. Never try to outsmart forced disclosures. Make it impossible for you to comply with them in good faith. Outsmarting them just makes prosecutors mad. Making such disclosures/surrenders impossible makes them frustrated (i.e. mad but unable to do anything about it).