On Sat, 25 Aug 2001, Eugene Leitl wrote:

Date: Sat, 25 Aug 2001 18:41:23 +0200 (MET DST) From: Eugene Leitl <Eugene.Leitl@lrz.uni-muenchen.de> Reply-To: cypherpunks@einstein.ssz.com To: John Young <jya@pipeline.com> Cc: cypherpunks@lne.com Subject: CDR: Re: Jim Bell sentenced to 10 years in prison

On Sat, 25 Aug 2001, John Young wrote:

...

Motherfucking sonsofbitching shiteaters.

If this supposed to have been deterrence, it fully backfired. It introduced polarization, and makes acts as Mc Veigh's less loony.

As a direct result of this decision people will get killed eventually.

Actually, people have already been killed as a result of this action, when seen (as it should be) as just part of the big picture. This is the kind of thing which breeds Tim McVeighs by the truckload - as well as supporters for the financial needs of the trials... -- Yours, J.A. Terranson sysadmin@mfn.org If Governments really want us to behave like civilized human beings, they should give serious consideration towards setting a better example: Ruling by force, rather than consensus; the unrestrained application of unjust laws (which the victim-populations were never allowed input on in the first place); the State policy of justice only for the rich and elected; the intentional abuse and occassionally destruction of entire populations merely to distract an already apathetic and numb electorate... This type of demogoguery must surely wipe out the fascist United States as surely as it wiped out the fascist Union of Soviet Socialist Republics. The views expressed here are mine, and NOT those of my employers, associates, or others. Besides, if it *were* the opinion of all of those people, I doubt there would be a problem to bitch about in the first place... --------------------------------------------------------------------

Judgment converted to PDF: http://cryptome.org/jdb-hit.pdf (404KB)

Declan, you are still tarring me with messages addressed to me and cc'ed to cpunks. So I state: I want no direct e-mail to me about cybercriminals convicted or likely to be that. Anybody does that after I ask them not to I will consider working with the authorities, wittingly or unwittingly. Let me say that again, any reporter, priest, doctor, lawyer, or any other likely undercover agent which meets with me, sends me e-mail, telephones me, or faxes me without making that simultaneously public I will interpret as an attempt to entrap either for professional reasons or to help the authorities or both. Declan, I say to you, that means you. I think you are being used as a lure just as much as Jim Bell, CJ and a several more. Your journalistic conceit appears to be blinding you to the threat you pose. Recall our talk about this in Seattle when you warned me that our conversations could be someday revealed in court, and that you considered your telling me that as fair warning to be careful what I told you. This is not to single you out, I told the 60 Minutes reporters and other journalists what I'm saying to you here. None of you fuckers are free of being forced to tell what you have been told in confidence, and no fair warning relieves you of the obligation to tell those who confided in you just what you are telling others to save your own ass. All the privileged receivers of confidential information got to get used to going public before they are forced to testify in secret. That is happening now and will happen more as the homeland war heats up and nuts and tits get squeezed. Where am I going with this? I believe Jim Bell and CJ were shopped to the feds, and others are probably being shopped right now, whether on purpose or by inadvertency. I don't know who all is involved with this shit but it is damn well is going to come out. Best to just not pretend anymore that these privileged parties can or will keep information confidential. That means nobody.

On Sat, Aug 25, 2001 at 04:37:37PM -0400, Declan McCullagh wrote:

Just because the "homeland war" -- which you seem overly fixated on -- will likely lead to an erosion of some liberties, it does not logically follow that it will lead to an erosion of all of them. I urge you and any other publisher/reporter/commentator types reading this not to stand up for your First Amendment rights and not assume that you must divulge unpublished information about sources if you

Too many "not"s in that sentence. I obviously meant that you should stand up for your 1A rights as a reporter/publisher/commentator. That does impose a cost (mental and legal), true. But if you want to be a reporter/publisher/commentator, it's the cost of doing business. -Declan

At 02:33 PM 8/25/01 -0700, Tim May wrote:

As we've discussed before (and Declan is in agreement), the First Amendment doesn't give some specific class of people ("reporters") special rights not held by everyone.

Right. Especially nowadays, anyone can be a reporter/commentator. I do encourage Tim to apply for CFP press credentials and report back on what happens. I suspect most folks on the program committee are at least passingly familiar with what he's written, so he should get the most receptive audience possible.

_Some_ states have passed what I think are wholly unconstitutional "shield laws" conferring special privileges on officially-recognized journalists and reporters. Some states do not have such shield laws. I don't know what laws Washington state has.

My understanding is that it doesn't matter since U.S. v. Jim Bell was a federal prosecution.

The whole notion that Declan is an Official Reporter but that John Young is not stinks. And if John Young is a reporter, with special rights to not reveal his sources or contacts, then so is Tim May.

I agree that John Young should be considered a reporter. And also a commentator, which falls under the journalism umbrella: John and I both spoke at a conference organized by a journalist-1A group, the Freedom Forum, in NYC. John spoke last week at Usenix Security in DC. John now seems to be saying anything-you-tell-me-will-be-disclosed, but in the past he's offered guarantees of confidentiality (as I do with news tips) to people who provide him with documents to post on cryptome. Many cryptome items are marked as "provided by anonymous." If John gets a subpoena, surely he doesn't mean he'll spill his guts to prosecutors without a fight? If he doesn't stand by cryptome's apparent promises of confidentiality, he should clarify that immediately and publicly. Anyway, I do think the scope of civil and criminal discovery is too broad. Still, I think it's possible to differentiate between people involved or suspected of being involved in a criminal act (Clinton, Tripp, Condit, perhaps Vinnie, in your example) and neutral observers and commentators.

I doubt that "a reporter's First Amendment rights" entered into the calculation in a primary way (though perhaps in a secondary way, as it was a potential can of worms not worth opening for the limited probative value of Declan's remembrances of a phone conversation.)

Maybe, maybe not. You should read our briefs. See below. -Declan A. The Burden Imposed By Subpoenas Such As The One At Issue Here Has Caused The Courts To Extend The Privilege To Unpublished Information In Branzburg v. Hayes, 408 U.S. 665, 707 (1972), the United States Supreme Court recognized that journalists' newsgathering activities qualify for protection under the First Amendment to the United States Constitution. The Court concluded that "without some protection for seeking out the news, freedom of the press could be eviscerated." Id. at 681. Justice Powell, in casting the deciding fifth vote, stated that "[t]he Court does not hold that newsmen, subpoenaed to testify before a grand jury, are without constitutional rights with respect to the gathering of news or in the safeguarding of their sources." Id. at 709 (Powell, J., concurring). Although the Court did not permit the reporters in the Branzburg case to refuse to appear and testify before grand juries, federal courts have interpreted Branzburg as recognizing a qualified privilege that protects information gathered by journalists in preparation for new s reports, but which has not been published. See, e.g., Cuthbertson I, 630 F.2d at 146-47; Von Bulow v. Von Bulow, 811 F.2d 136, 143 (2d Cir. 1987); United States v. LaRouche Campaign, 841 F.2d 1176, 1181-82 (1st Cir. 1988). The United States Court of Appeals for the Ninth Circuit has recognized this First Amendment privilege in the context of criminal proceedings, Farr v. Pitchess, 522 F.2d 464, 467-68 (9th Cir. 1975), cert. denied, 427 U.S. 912 (1976), and has held that the privilege protects unpublished information, even if it is not obtained under an agreement of confidentiality, Shoen v. Shoen, 5 F.3d 1289, 1295 (9th Cir. 1993) ("Shoen I"). A court must weigh any claim of First Amendment privilege against the need for disclosure and strike a balance in favor of the "paramount interest." Farr, 522 F.2d at 468. The Ninth Circuit explained in Shoen I that "the privilege is a recognition that society's interest in protecting the integrity of the newsgathering process, and in ensuring the free flow of information to the public, is an interest 'of sufficient social importance to justify some incidental sacrifice of sources of facts needed in the administration of justice.'" 5 F.3d at 1292 (quoting Herbert v. Lando, 441 U.S. 153, 183 (Brennan, J., dissenting).). Protection of unpublished information is critical to freedom of speech, even where it is not gained under a promise of confidentiality, because routine demands for such information in court will interfere with journalists' work and independence. The Ninth Circuit stated: "The . . . four interests named are the threat of administrative and judicial intrusion into the newsgathering and editorial process; the disadvantage of a journalist appearing to be an investigative arm of the judicial system or a research tool of government or of a private party; the disincentive to compile and preserve non-broadcast material; and the burden on journalists' time and resources in responding to subpoenas." . . . To the extent that compelled disclosure becomes commonplace, it seems likely indeed that internal policies of destruction of materials may be devised and choices as to subject matter made, which could be keyed to avoiding disclosure requests or compliance therewith rather than to the basic function of providing news and comment. In addition, frequency of subpoenas would not only preempt the otherwise productive time of journalists and other employees but measurably increase expenditures for legal fees. Id. at 1294-95 (quoting LaRouche Campaign, 841 F.2d at 1182). The Ninth Circuit concluded that requiring journalists to testify impedes their ability to collect information, and thereby chills speech. "It is their independent status that often enables reporters to gain access, without a pledge of confidentiality, to meetings or places where a policeman or a politician would not be welcome. If perceived as an adjunct of the police or of the courts, journalists might well be shunned by persons who might otherwise give them information without a promise of confidentiality, barred from meetings which they would otherwise be free to attend and to describe, or even physically harassed if, for example, observed taking notes or photographs at a public rally. Id. at 1295 (quoting Duane D. Morse & John W. Zucker, The Journalist's Privilege in Testimonial Privileges (Scott N. Stone & Ronald S. Liebman eds., 1983), at 474-75). The Third Circuit reached the same conclusion in Cuthbertson, a criminal case: We do not think that the privilege can be limited solely to protection of sources. The compelled production of a reporter's resource materials can constitute a significant intrusion into the newsgathering and editorial processes. See Loadholtz v. Fields, 389 F. Supp. 1299, 1303 (M.D. Fla. 1975). Like the compelled disclosure of confidential sources, it may substantially undercut the public policy favoring the free flow of information to the public that is the foundation for the privilege. See Riley v. City of Chester, [612 F.2d 708, 716 (3d Cir. 1979)]. Therefore, we hold that the privilege extends to unpublished materials in the possession of CBS. See Altemose Construction Co. v. Building & Construction Trades Council, 443 F. Supp. 489, 491 (E.D. Pa. 1977) ("this qualified privilege can even apply when the news source and, perhaps, a portion of the withheld writing, are not confidential"). Cuthbertson, 630 F.2d at 147. Democracy's keystone is the dissemination of information to the public, permitting it to make informed choices. This dissemination depends on journalists who are successful in gathering facts, and that, in turn, depends on sources who will not disclose information unless they believe they are dealing with professionals who are trustworthy and objective. By compelling a journalist to disclose work product whenever a litigant views it as helpful to his or her case, a court sacrifices the very First Amendment freedoms that keep our nation informed and our government accountable. B. The First Amendment Privilege Can Be Overcome In Only The Most Limited Of Circumstances Recognizing the threat that compulsory disclosure of work product posed to the uninhibited flow of information, the Ninth Circuit adopted a three-part test that courts must apply whenever a journalist withholds unpublished information that was not gained under a promise of confidentiality. The test's purpose, the court explained, was to "ensure that compelled disclosure is the exception, not the rule." Shoen v. Shoen, 48 F.3d 412 (9th Cir. 1995) ("Shoen II"). We . . . hold that where information sought is not confidential, a civil litigant is entitled to requested discovery notwithstanding a valid assertion of the journalist's privilege by a nonparty only upon a showing that the requested material is: (1) unavailable despite exhaustion of all reasonable alternative sources; (2) noncumulative; and (3) clearly relevant to an important issue in the case. We note that there must be a showing of actual relevance; a showing of potential relevance will not suffice. Id. Although the Ninth Circuit has not had the opportunity to apply the three-part test of Shoen II in a criminal case, the Third Circuit has adopted a nearly identical test and applied it to a criminal subpoena that sought unpublished, nonconfidential information: "First, the movant must demonstrate that he has made an effort to obtain the information from other sources. Second, he must demonstrate that the only access to the information sought is through the journalist and her sources. Finally, the movant must persuade the Court that the information sought is crucial to the claim." United States v. Cuthbertson, 651 F.2d 189, 195-96 (3d Cir.) ("Cuthbertson II") (quoting United States v. Criden, 633 F.2d 346, 358-59 (3d Cir. 1980), cert. denied, 449 U.S. 113 (1981)), cert. denied, 454 U.S. 1056 (1981). Application of the First Amendment privilege in a criminal proceeding is just as important as in a civil context. As the Second Circuit held in United States v. Burke, 700 F.2d 70, 76 (2d Cir.), cert. denied, 464 U.S. 816 (1983): "[T]he important social interests in the free flow of information that are protected by the reporter's qualified privilege are particularly compelling in criminal cases. Reporters are to be encouraged to investigate and expose, free from unnecessary government intrusion, evidence of criminal wrongdoing."

At 06:12 PM 8/25/01 -0400, Declan McCullagh wrote:

I agree that John Young should be considered a reporter. And also a ...

Still, I think it's possible to differentiate between people involved or suspected of being involved in a criminal act (Clinton, Tripp, Condit, perhaps Vinnie, in your example) and neutral observers and commentators.

Ho-ho, but JY is a known subscriber/contributor to the same Conspiracy List as JB, CJ, etc. (As are you..) Ergo, a sufficiently rabid [per|pro]secutor could strip you of your 'neutrality'. (What's to stop Vinnie from starting a website covering the Mob to gain journalists' protections?) What's to stop a prosecutor for arguing that a journalist who publishes mostly in, e.g., lefty mags is not part of the Conspiracy du jour? What you and Tim ought to consider IMHO is that the 5th amendment's protection against self-incrimination protects everyone, and journalists don't need 'special' status under such a reading. All you need to do is realize how easily you can be painted into a conspiracy, or charged with an offense under some 'good-samaritan' (compulsory intervention) law. That is sufficient linkage between possible-testimony and self-incrimination. (Except when a grand jury abuses its ability to grant immunity...another thread.) That certainly would have excused JY from answering *anything*, regardless of his status as a Protected Species or not. In the case of that author who is writing her first book about some murder she's researched, she is probably 'guilty' of not reporting what she's learned, under some screwed law somewhere.

On Sun, 26 Aug 2001, Tim May wrote:

Except that all it takes is for the judge to grant the witness transactional or use immunity. Or even full immunity (less common, from what I hear).

Much on the Net. Here's just a flavoring:

"Title 18 U.S.C. ' 6002 provides use immunity instead of transactional immunity. The difference between transactional and use immunity is that transactional immunity protects the witness from prosecution for the offense or offenses involved, whereas use immunity only protects the witness against the government's use of his or her immunized testimony in a prosecution of the witness -- except in a subsequent prosecution for perjury or giving a false statement.

The notion that a witness can blithely escape having to testify by asserting the 5th Amendment is one of those folk beliefs that just doesn't hold up.

No thank you, your honor. Followed by a contempt charge. Yes it will be rough, but a citizen can't be forced to accept immunity. Note that this applies to ones speech, not documents. The 4th allows no exceptions once a court order is issued (and there should be none - equal protection) outside of the 5th. Of course the protection of the 5th gets fuzzier as one moves away from questions related to direct issues for one might be prosecuted, that 'witness against himself' part. The catch there is the court is in no place, being ignorant of the facts, to decide what constitutes testimony against oneself (ie 'any criminal case). The 5th would indicate that the only agent suitable to make that call would be the person being asked the question. Amendment V No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. -- ____________________________________________________________________ natsugusa ya...tsuwamonodomo ga...yume no ato summer grass...those mighty warriors'...dream-tracks Matsuo Basho The Armadillo Group ,::////;::-. James Choate Austin, Tx /:'///// ``::>/|/ ravage@ssz.com www.ssz.com .', |||| `/( e\ 512-451-7087 -====~~mm-'`-```-mm --'- --------------------------------------------------------------------

On Sunday, August 26, 2001, at 11:25 AM, Declan McCullagh wrote:

On Sun, Aug 26, 2001 at 09:55:05AM -0700, Tim May wrote:

...

Except that all it takes is for the judge to grant the witness transactional or use immunity. Or even full immunity (less common, from what I hear).

"Mr. McCullagh, the court hereby grants you transactional immunity for your testimony today. Now Mr. McCullagh, please answer the prosecutors questions and give the court all of your notes made regarding this witness."

I didn't assert the 5A, but the 1A, during my brief experience before the Grumpy Judge.

What Tim and Dave and John seem not to understand is that journalists routinely refuse to reveal their sources even when threatened with subpoenas and contempt of court. Some editors will only hire reporters who pledge they'll go to jail before revealing a source.

Don't tar me with that brush, Declan! I said absolutely nothing about what fraction of reporters stand their ground, what fraction roll over, what fraction end up going to jail on contempt charges, and so on. I've addressed two basic issues: -- the issue of shield laws, which I think are clearly unconstitutional and which raise issues of state sanctioning of some reporters over other reporters -- the claim that assertion of 5A rights lets a witness choose not to testify I made no claims about whether reporters routinely refuse to name their sources. (I did hint that Jeff Gordon, the victim/witness/real prosecutor probably took into account the "can of worms" he would be opening if he sought to compell disclosure of certain things...an implicit reference to the fact that many reporters will refuse to name sources and to disclose things said to them.)

Some journalists may be schmucks -- the local reporter in the Bell case who took the stand and blabbed for the better part of an hour is one example -- but many are principled. This may make prosecutors leery of calling them in the first place.

Hence the comment I made about can of worms. I think John Young would have had a much harder time claiming reporter's privilege. Checking the archives for the period when Bell was trying to track down home addresses of agents should clarify this point. John might have done better to assert 5A rights and make them force the issue by dropping the line of questioning or granting him some form of immunity. --Tim May

Also, along this line, I've posted some details abuot the Vanessa Leggett case here: http://www.politechbot.com/p-02437.html -Declan On Sun, Aug 26, 2001 at 02:25:22PM -0400, Declan McCullagh wrote:

On Sun, Aug 26, 2001 at 09:55:05AM -0700, Tim May wrote:

...

Except that all it takes is for the judge to grant the witness transactional or use immunity. Or even full immunity (less common, from what I hear).

"Mr. McCullagh, the court hereby grants you transactional immunity for your testimony today. Now Mr. McCullagh, please answer the prosecutors questions and give the court all of your notes made regarding this witness."

I didn't assert the 5A, but the 1A, during my brief experience before the Grumpy Judge.

What Tim and Dave and John seem not to understand is that journalists routinely refuse to reveal their sources even when threatened with subpoenas and contempt of court. Some editors will only hire reporters who pledge they'll go to jail before revealing a source. Some journalists may be schmucks -- the local reporter in the Bell case who took the stand and blabbed for the better part of an hour is one example -- but many are principled. This may make prosecutors leery of calling them in the first place. Only 10-20 professional journalists in the last two decades have been imprisoned, usually for a period not exceeding a few days, for not revealing their sources.

See the Reporter's Committee for Freedom of the Press for details.

-Declan

Declan - I've found that "Irfanview" is an excellent tool for reading lots of different graphics formats, including TIFF. Available at the usual download sites. At 01:00 PM 08/25/2001 -0400, Declan McCullagh wrote:

John, Can you post that in another format? Individual JPGs or GIFs or PDF? My version of Photoshop can't open the TIFF file you posted.

-Declan

On Sat, Aug 25, 2001 at 12:12:03PM -0700, John Young wrote:

...

See 9-page judgment in TIF format:

http://cryptome.org/jdb-hit.tif (262KB)