Declan McCullagh and prosecutions
Tim May wrote:
I probably should have said nothing to this journalist. If Declan is forced to testify, beyond a very basic acknowledgement that he was the author of the articles in question, I sure plan to refuse to ever speak to any journalist again about anything which someone might twist in front of a jury. "Hey, Declan, nice weather we're having, eh?" I'll continue to be Declan's friend, presumably, but I just won't talk to him about anything that may get extracted from him in this or in any future star chamber prosecutions.
I may regret this - but what's new here? Declan already testified and provided quite a bit of evidence in the Carl Johnson trial: http://www.freedomforum.org/templates/document.asp?documentID=7285 You know this. That was two years ago. Why in the world does this current testimony count, but not the last time Declan did that? I'm probably going to be deeply sorry for this, but the following question has been bothering me for a while: Why in the world does anyone on this list trust Declan McCullagh? If you believe that the government is planning some sort of repression, why ever say a single word to a person who will likely be a key prosecution witness at your trial? At some level, I don't get it. Yes, Declan is sociable and gives a good dinner party and chants the correct rants. Is that all that matters? Testifying for the government in criminal prosecutions is considered just a minor character flaw in such an ideologically lovable fellow-soul? I'm not a lawyer, but this is my view of the court issues in this case: Declan's authorship of the articles is not in dispute. The prosecution wishes to use them as evidence. In order for them to do so, they have to put Declan on the stand, and he has to testify not that he authored them, but under penalty of perjury, that they are accurate. Now, the prosecution would like nothing better for Declan to say "Yes, they're true so help me God, good-bye!". Star chamber??? The problem is the exact opposite. The US legal system allows the accused to challenge evidence against him. The defense attorney is going to want to impeach Declan's credibility (this is not hard to do :-)). He'll likely get up and say something along the lines of 'Mr. McCullagh, you're a sensationalist journo-monger, aren't you? You provoked my client into outbursts of meaningless rhetoric, which you then hyped-up to peddle your papers, didn't you?" (not in quite those words, of course) This is a fact: Declan's motion is mainly about how he doesn't want to be cross-examined by the DEFENSE. Not the prosecution, do you get it, the DEFENSE: "The prosecutor has informed counsel for McCullagh that McCullagh will be asked only to verify the accuracy of statements by Bell that are included in the Articles. Bell's counsel, however, has made clear that cross-examination will not be limited to published information, and Bell might seek testimony regarding a variety of areas that Bell thinks will be helpful to his defense." ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ ... "Requiring McCullagh to testify, even if it is very limited on direct examination, creates an impermissible burden by necessarily exposing McCullagh to the risk of an intrusive cross-examination that will interfere with McCullagh's current and future newsgathering." I'll say it again, because of where I'm writing: Declan's motion makes very clear that his fear is the cross-examination, which stems from the Sixth Amendement right of an accused to confront witnesses. This couldn't be further from a police state or Star Chamber. A key request in Declan's motion is essentially that the prosecution be given all the evidence it wants, but the defense be hamstrung trying to impeach the credibility of that evidence. Yet no-one who might, ah, be strongly affected by such a tactic in the future, seems to be going through the roof about it. There's no screaming he's in bed with the Fed, he's a stool-pigeon, he's a collaborator, etc. etc. Granted, there's some unhappiness. But look, he's moaning and groaning and minting reputation-capital about the basic fact that he's being a witness for the prosecution in a criminal trial! (again!) Once more, at some level, I don't get it: 1) Why now? Why didn't you stop talking after the Carl Johnson trial? 2) In general, why does anyone trust him given all I've outlined above? My prediction is that Declan will go testify, write some martyrish articles about the inhumanity of it all, and then everything will reset to be repeated in the next criminal trial where he's a prosecution witness. I should note, in case this message finds its way into some evidence presentation, that whether Declan testifies or not right now will make no difference in my estimation of him and as to whether I'd advise anyone to "cooperate with his newsgathering efforts because he is trustworthy and independent". My own views were formed long before this particular case, and based on seeing how callously he treated the legal risks of myself and other programmers (but that's another story). __ Seth Finkelstein Consulting Programmer sethf@mit.edu http://sethf.com
On Mon, Apr 02, 2001 at 02:52:15AM -0400, Seth Finkelstein wrote:
I'm probably going to be deeply sorry for this, but the following question has been bothering me for a while:
Why in the world does anyone on this list trust Declan McCullagh?
Your argument doesn't do much for me, Seth. The problem is, what you say of Declan could be true of ANYONE you talk to, journalist or not, and ANYONE on mailing lists or other forums where you send your thoughts. The advantage of talking to Declan is that maybe, possibly, some "freedom of the press" issues will let him avoid spilling everything. In that case, you'd need to trust him to keep your best interests. For non-press, you'd still need to wonder whose interests they have at heart, but without the (minimal) protection offered by a member of the press. More importantly, a member of the press isn't going to get a lot of inside scoops if he develops a reputation as a turncoat. This, to me, is the crux: It's in any journalist's interest to be trustworthy. In the context of cypherpunks activity, being trustworthy means not playing into the hands of over-zealous law enforcement techniques. After all, the DATA are there (that is, the Web pages, mailing list postings, news articles, etc.). All the Feds are looking for, in this case, is someone with credentials a judge will listen to. That's my logic, anyway. Personally, on what I've read from Declan, I'd trust him more than 99% of other journalists who write about technological issues. This is based on technical understanding, as well as what I consider to be a decent track record of standing up against authority. -- Greg
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. But I do now, and I have raised it. As for the motion, I didn't write it, and those aren't the *moral* or *principled* objections I would raise (and I have raised). Those are the objections my lawyer thinks constitute the best trial tactics, and I respect his judgment. Saying more than that seems inappropriate at this point. -Declan On Mon, Apr 02, 2001 at 11:01:19AM -0400, Greg Newby wrote:
On Mon, Apr 02, 2001 at 02:52:15AM -0400, Seth Finkelstein wrote:
I'm probably going to be deeply sorry for this, but the following question has been bothering me for a while:
Why in the world does anyone on this list trust Declan McCullagh?
Your argument doesn't do much for me, Seth. The problem is, what you say of Declan could be true of ANYONE you talk to, journalist or not, and ANYONE on mailing lists or other forums where you send your thoughts.
The advantage of talking to Declan is that maybe, possibly, some "freedom of the press" issues will let him avoid spilling everything. In that case, you'd need to trust him to keep your best interests.
For non-press, you'd still need to wonder whose interests they have at heart, but without the (minimal) protection offered by a member of the press.
More importantly, a member of the press isn't going to get a lot of inside scoops if he develops a reputation as a turncoat. This, to me, is the crux: It's in any journalist's interest to be trustworthy. In the context of cypherpunks activity, being trustworthy means not playing into the hands of over-zealous law enforcement techniques. After all, the DATA are there (that is, the Web pages, mailing list postings, news articles, etc.). All the Feds are looking for, in this case, is someone with credentials a judge will listen to.
That's my logic, anyway.
Personally, on what I've read from Declan, I'd trust him more than 99% of other journalists who write about technological issues. This is based on technical understanding, as well as what I consider to be a decent track record of standing up against authority.
-- Greg
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.
But I do now, and I have raised it.
My question does not involve journalistic privilege _per se_. It is addressed to the reputational implications of testifying as a witness for the prosecution in criminal trials (past, present, and future). By the way, again note you have raised privilege as a matter against the DEFENSE. You are not being asked by the prosecution to do anything but validate your articles under oath, in court, so they can use those articles as incriminating evidence.
As for the motion, I didn't write it, and those aren't the *moral* or *principled* objections I would raise (and I have raised). ...
I'm absolutely sure they aren't. And those "*moral* or *principled* objections" and a plane ticket get you to Tacoma. It's an excellent legal motion, in terms of serving the interests of the client. But the interests of the client and the interests of the person facing years in jail aren't the same at all. And that is manifest in the portion where the Court is asked to give the prosecution its evidence, but severely limit the defense's ability to attack the evidence via cross-examination. Which brings me back to my I-don't-get-it of why all of this somehow seems to *increases* the reputation-capital of the person being a prosecution witness in a criminal trial, to a group where many seem to think a police state is always around the corner (if not here already). Greg Newby wrote:
The advantage of talking to Declan is that maybe, possibly, some "freedom of the press" issues will let him avoid spilling everything. In that case, you'd need to trust him to keep your best interests.
But this is a worked-example of where his press interests are contrary to the defendant's interests. It's spelled out in great legal detail in his motion, and I summarized it colloquially. Can I summarize your argument to me as the classic If-[he]-didn't-do-it-somebody-else-would ? Generally, this doesn't work very well for the person who did do it. That is, is the situation that he doesn't "develops a reputation as a turncoat", no matter how many criminal trials he appears as a prosecution witness, if he just complains mightily about doing it? It's what he *says*, not what he *does*, which is determinative? I should disclaim that I'm not stating what Declan should or should not do, according to my views. Nor again is this an issue which has formed my own opinion of him. But it is a great mystery to me how he seems to always come out ahead for being a government prosecution witness, in the regard of many people who are supposedly under government prosecution risk, when all is said and done (especially done). __ Seth Finkelstein Consulting Programmer sethf@mit.edu http://sethf.com
On Mon, Apr 02, 2001 at 07:36:48PM -0400, Seth Finkelstein wrote:
My question does not involve journalistic privilege _per se_. It is addressed to the reputational implications of testifying as a witness for the prosecution in criminal trials (past, present, and future).
By the way, again note you have raised privilege as a matter against the DEFENSE. You are not being asked by the prosecution to do anything but validate your articles under oath, in court, so they can use those articles as incriminating evidence.
You appear to be intentionally misrepresenting the motion we filed last week as a way to make a personal attack. I understand your motive, but I don't care for it much. You have me at a disadvantage. My attorney advises me not to make public statements about what we're doing at this time, so I can only say that the motion speaks for itself: http://www.mccullagh.org/subpoena/motion.032901.html Also, it is not a surprise that the interests of a defendant and journalist may diverge. -Declan
Declan McCullagh wrote:
You appear to be intentionally misrepresenting the motion we filed last week as a way to make a personal attack. I understand your motive, but I don't care for it much.
I believe I understand why you think that. But note I've taken care to try to separate out the question I'm asking, from a personal moral criticism. That is, I'm not making a moral criticism of you. I'm asking why, logically, other people aren't making a moral criticism of you according to their framework. Because there's something here I just don't understand. Granted, it's a bit subtle, and I'm not likely to get a candid answer on-list. But for reasons of my own, it's been bothering me much over the past months. And since John Young already threw me into the flaming-pit, I thought I'd give the question a try in public. I conjecture that you think I'm making a backstabbing attack, because: a) It's what you would do, and often standard practice in your articles. b) You don't understand how I think about legal risk, since it's all a game to you. [See, I'm very clear when I am criticizing you _per se_]
You have me at a disadvantage. My attorney advises me not to make public statements about what we're doing at this time, so I can only say that the motion speaks for itself:
I'm sure you will eventually write a rousing article, saying how you hated to do it, you fought every inch of the way. This was your strategy to battle the horrible actions forced on you by the jack-booted-thugs, and defend Free Speech, the First Amendment, Common Law, and the Freedom Of The Press. I'll stipulate all of that. And you're a Libertarian and I'm not, too! It all would be a distraction from my question. None of this is a criticism of the legal arguments in the motion. They are fine client-advocacy. I went through it all to talk about the interests of the prosecution vs. defense. Now, as a general proposition, if there's a fear of government criminal prosecution, showing up as a prosecution witness is regarded very poorly by people who wonder if they might be next. They tend to hold that against you, no matter what your reasons. In fact, even if you have what's objectively a very good reason, often people will not accept it. Yet, you did this at the first such criminal trial. You're likely about to do it at the second such criminal trial. And you seem come out of it each time with *greater* reputation-capital. You may think I'm backstabbingly insinuating you're a bad person for what you're doing. Actually, I'm not. I'm trying very carefully to stay away from such implications. I just don't understand how you end up with a higher reputation among some of the very people you might be testifying against in the future. Can you comprehend how this utterly, honestly, mystifies me at some level? I *conjecture* the answer is that ideology overrides action. A few chants of "Free Huey!" (or, here "Free Market!"), often go a long way. But still, there's a limit, which is usually exceeded the first time you show up in the witness box. A second time boggles my mind. You appear to think I'm saying "Hey everyone, Declan's a collaborator". No. Rather, I'm asking "Why doesn't Declan get flamingly denounced as a collaborator?". Not because I want to imply you should be. Rather, because I'm trying to understand why it isn't happening. Again, I know, it's a journalistic technique to coyly ask a question when the real goal is to imply the assertion, to get the idea into play. *Shrug*. All I can say is that I don't operate that way, and I think I've shown it given I state my objections very directly.
Also, it is not a surprise that the interests of a defendant and journalist may diverge.
Right. If I ever become a defendant, or have a risk of becoming a defendant, I hope you will understand why I want you *far*, *far*, away from me. It's not because of your politics. It's because you're a hazard to one's legal health. And again, this is not based on this case. But rather, your actions in retaliating via abusing your lists and journalistic position to get back at people, and your arrogance in fanning the flames of lawsuits against programmers (e.g. your initial coverage and contemptuous messages to the developers involved in DeCSS/LiViD), are a sterling example of where "the interests of a defendant and journalist may diverge.". And I'd like to insure I'm never a similar worked example vis-a-vis your divergent interests. __ Seth Finkelstein Consulting Programmer sethf@mit.edu http://sethf.com
At 11:18 PM -0400 4/2/01, Seth Finkelstein wrote:
Declan McCullagh wrote:
You appear to be intentionally misrepresenting the motion we filed last week as a way to make a personal attack. I understand your motive, but I don't care for it much.
I believe I understand why you think that. But note I've taken care to try to separate out the question I'm asking, from a personal moral criticism. That is, I'm not making a moral criticism of you. I'm asking why, logically, other people aren't making a moral criticism of you according to their framework.
I don't make a moral criticism of Declan because he doesn't appear to have any choice in the matter. It's not as if he could have simply said "Fuck you" to either the Toto/CJ or the Bell subpoenas. For instance, in cases where I have been subpoenaed, I have complied. To do otherwise, to rot in jail on a contempt charge for several years the way that D.C. chick did, is foolish. I take it, Seth, that if you are ever subpoenaed you will do the morally right thing and go to jail? --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
Tim May wrote:
I take it, Seth, that if you are ever subpoenaed you will do the morally right thing and go to jail?
I would be astounded if anyone who thought they might face a similar criminal prosecution would ever say a word to me again. Moreover, I'd be flabbergasted if they remained friends with me. I'll repeat again - I'm not saying what you should do. I am trying to understand the reasoning behind it. I do not believe this country is on the verge of a police state. Nor do I expect to be of Federal criminal interest for any sort of gun or violent offense. This is a key difference. __ Seth Finkelstein Consulting Programmer sethf@mit.edu http://sethf.com
-- At 12:29 AM 4/3/2001 -0400, Seth Finkelstein wrote:
I would be astounded if anyone who thought they might face a similar criminal prosecution would ever say a word to me again.
Then you must have few friends indeed, for as far as I can determine, every member of the ordinary respectable middle class that I know reasonably well has committed multiple felonies that theoretically could put them behind bars for forty years or so, in the unlikely event that the prosecutors got the hots for them, and in the event the prosecutors found out. --digsig James A. Donald 6YeGpsZR+nOTh/cGwvITnSR3TdzclVpR0+pr3YYQdkG 5+hxwoYj4hnVfACXBQ8mFFBUjc+LLYKJKlxm5HJh 4CvXRNzUxXkoBpc0LealKucnkHyKaWEjgmITSL2Q+
Seth Finkelstein <sethf@mit.edu> wrote:
I *conjecture* the answer is that ideology overrides action. A few chants of "Free Huey!" (or, here "Free Market!"), often go a long way. But still, there's a limit, which is usually exceeded the first time you show up in the witness box. A second time boggles my mind.
If you really must chant I'd prefer "Freematt" over "Free Huey" but then I'm somewhat biased. Really you shouldn't say anything to a reporter anywhere that you wouldn't mind seeing on the front page of your local newspaper. And you really, really, shouldn't post your innermost feelings and plans for world domination on cypherpunks, unless of course you want everyone who cares to look know your innermost feelings and plans for world domination. Regards, Matt- ************************************************************************** Subscribe to Freematt's Alerts: Pro-Individual Rights Issues Send a blank message to: freematt@coil.com with the words subscribe FA on the subject line. List is private and moderated (7-30 messages per week) Matthew Gaylor, 2175 Bayfield Drive, Columbus, OH 43229 (614) 313-5722 ICQ: 106212065 Archived at http://groups.yahoo.com/group/fa/ **************************************************************************
-- At 11:18 PM 4/2/2001 -0400, Seth Finkelstein wrote:
You appear to think I'm saying "Hey everyone, Declan's a collaborator". No. Rather, I'm asking "Why doesn't Declan get flamingly denounced as a collaborator?". Not because I want to imply you should be. Rather, because I'm trying to understand why it isn't happening.
Probably because his testimony is not very exciting, and making him testify seems more like an act of harassment against him, than anything very useful to the prosecution. --digsig James A. Donald 6YeGpsZR+nOTh/cGwvITnSR3TdzclVpR0+pr3YYQdkG q70ASRR8QZ/E1/BHWVxAk/TTaG2QfkPsvvf402/9 4m9AD/So6EOlMgNcDyyIc2ZQH6YpNvb5vqh7QxyhT
At 11:18 PM 4/2/2001 -0400, Seth Finkelstein wrote:
You appear to think I'm saying "Hey everyone, Declan's a collaborator". No. Rather, I'm asking "Why doesn't Declan get flamingly denounced as a collaborator?". Not because I want to imply you should be. Rather, because I'm trying to understand why it isn't happening.
James A. Donald wrote: Probably because his testimony is not very exciting, and making him testify seems more like an act of harassment against him, than anything very useful to the prosecution.
I'm fascinated that you view it that way. Isn't it clear why his testimony is useful to the prosecution? It's a key part of the Federal Complaint. I was going to ask if you think the prosecution got a subpoena signed by the Attorney General himself just for giggles, but that's actually been answered. It's not "exciting" testimony, but then a lot of trials are very boring ("Where were you on the night of the 12th?" "I was by myself", etc. etc.). Once the prosecution wants him to testify, then exactly because we have functioning Constitutional due-process rights, generally that testimony has to be in open court. And the defense gets a chance to confront the accuser. That's just how it works. Now, the defense could agree not to oppose Declan's testimony, but that would be foolish of them (in my view). Again. people seem to somehow have acquired the idea that the *prosecution* is fishing for something. NO. Their evidence is specified already. They want Declan in and out of court as fast as possible, and wouldn't have him in court at all if they could avoid it. It's exactly the fact that they can't avoid having him in court which is causing the headache. Because the Sixth Amendment says a defendant has certain rights, and those are not being waived here. Again, that is just basic stuff as to how the system functions. If we didn't have Sixth Amendment protections in it, none of this would be happening! __ Seth Finkelstein Consulting Programmer sethf@mit.edu http://sethf.com
-- Seth Finkelstein:
You appear to think I'm saying "Hey everyone, Declan's a collaborator". No. Rather, I'm asking "Why doesn't Declan get flamingly denounced as a collaborator?". Not because I want to imply you should be. Rather, because I'm trying to understand why it isn't happening.
James A. Donald wrote:
Probably because his testimony is not very exciting, and making him testify seems more like an act of harassment against him, than anything very useful to the prosecution.
Seth Finkelstein:
I'm fascinated that you view it that way. Isn't it clear why his testimony is useful to the prosecution? It's a key part of the Federal Complaint.
In that case the charges are completely without substance -- but then we already knew that was the case.
I was going to ask if you think the prosecution got a subpoena signed by the Attorney General himself just for giggles,
No, it was to cause cost and inconvenience to Declan, to deter people from reporting the kind of stuff than Declan reports. It deterred me. I have avoided mentioning the name of the person charged, in this list and in another place, for fear that someone might churn out subpoenas on the basis of a groups.google.com search.
Again, that is just basic stuff as to how the system functions. If we didn't have Sixth Amendment protections in it, none of this would be happening!
Declan's news articles contain nothing that is not better attested by the defendant's own postings. The subpoena is just routine harassment of political enemies, same as in the PGP grand jury, and some of the hearings on the communist conspiracy. Repression as usual. --digsig James A. Donald 6YeGpsZR+nOTh/cGwvITnSR3TdzclVpR0+pr3YYQdkG jn9TsPfuECcLaia6E1lxXn0LYFRLxUEt2CV5tB6n 4Fhs5jGZ6w0tqWKuOs/Y6c9+3SQXFQ5uZUvrNJttN
[re-arranged for clarity] James A. Donald wrote
Declan's news articles contain nothing that is not better attested by the defendant's own postings.
I believe this is factually incorrect. For example, per the Complaint: "41. On November 11, 2000, an article about the search warrant at BELL's residence was published by Wired News. The article stated that in an interview, BELL acknowledged that he had shown up at the homes of suspected ATF agents ..." I haven't read all of Bell's posting, but I think that was key information not found elsewhere. Moreover, consider juries will be much more comfortable with witness testimony of the sort where someone claims the defendant admitted culpability to them in person, rather than mailing-list messages. You may disagree with this, but again, that's the way the system works in terms of winning cases.
No, it was to cause cost and inconvenience to Declan, to deter people from reporting the kind of stuff than Declan reports.
You have this backwards. The prosecution didn't want to bring Declan into court if they could have avoided it. The Sixth Amendment issues forced them, and the Justice Department rules meant they had to get approval from the Attorney General. This is covered in both their messages and the motion to quash the subpoena. The prosecution was very clear that if they could have avoided a personal appearance, they would have. And a reason for that, is they ran a risk Declan would have disowned his articles on the stand. Their nightmare was something like this: "Jim Bell? Isn't that some sort of exhibit in Philadelphia? Never heard of him. Articles? I write lots of articles. Don't remember the details of them all. I can't attest to my hazy and vague recollections with the solemnity needed in a court of law, to put a man in jail". You have it really backwards if you think they want to deter him from doing this sort of "reporting" in the future. They love it. He gave them solid evidence, with *no* *cross* *examination*. That's a jackpot. And the people possibly next on their list maybe still trust him! They have got to be drooling over what a great resource they have with Declan. But anyway, I have found your views helpful. __ Seth Finkelstein Consulting Programmer sethf@mit.edu http://sethf.com
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
Tim May wrote:
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 it allegedly came from Bell's own mouth. Note some of Bell's messages are part of the Federal Complaint. Be of good cheer. I suspect that if you conducted an interview with Jim Bell, where you claimed he made incriminating admissions, then wrote-up and posted the results, the prosecution would in general be just as willing to have you testify as a witness as they would an "official" journalist. You could test this :-).
My hunch is that if he has to testify in a fishing expedition, his contacts with Cypherpunks will evaporate.
Umm, why? Remember they didn't evaporate the first time around, from the Carl Johnson trial. And there's no government "fishing expedition" here. The prosecution has set out exactly the evidence it's seeking. Or were you referring to this part of the motion? "Put simply, Bell's likely cross-examination of McCullagh will be a fishing expedition in its purest form. The "mere hope" of obtaining exculpatory evidence is not sufficient for enforcement of a Rule 17 subpoena."
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.
I think I'm finally getting the answer to my question ... __ Seth Finkelstein Consulting Programmer sethf@mit.edu http://sethf.com
-- Tim May wrote:
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.
At 01:52 AM 4/3/2001 -0400, Seth Finkelstein wrote:
I think I'm finally getting the answer to my question ...
You are kind of slow on the uptake. The government has been using the judicial process itself as a punishment for many years, most infamously the PGP grand jury. These subpeonas are a form of harassment. I curb my speach not for fear that I will be prosecuted, but for fear that I will be summoned as a witness, in the course of investigating a supposed conspiracy. Recollect the great indignation during the fifties about the way the government used an investigation of an entirely real conspiracy, a conspiracy directed by a hostile foreign power seeking the destruction of the US, as a punishment against those of certain political views. --digsig James A. Donald 6YeGpsZR+nOTh/cGwvITnSR3TdzclVpR0+pr3YYQdkG qvmTY2l8Km4uBECjjQMiBNqss2WlO/xTlIhNDSDw 4UTt51zIkMGoCoaiuwKinwErcIjqvdr1n0Wrf7kcD
Seth said:
Why in the world does anyone on this list trust Declan McCullagh?
You've got a sympathant reporter that knows his beat. Also, he's protective, and that's a lot more than you might get elsewhere. Most big "investigative" full-teeth news orgs roll over as a matter of practice, and wouldn't offer you any level of source protection. (I previously posted an outline for a reporter-source agreement, but it's not much help in a criminal context.) If this was another reporter, there probably wouldn't be a fight here. It's not Declan's fault that press shields have been shot full of holes. I know some reporters that have fought these fights... some have trouble finding work... all are nervous near federal all-terrain vehicles. Nevertheless, Seth, your post is illustrative. The erosion of press shields in this country only serve to *keep information away* from the general public and authorities. On balance, I wonder if it might cost them more than they gain from it. When discontents stop talking to reporters, the government is in the dark until ..."KABOOOM!" Another way to draw attention to oneself, or one's cause, is to talk to reporters. Sadly, many "could be dangerous people" are reluctant to do that now. A trusted in-the-know reporter can serve an important educational role to the LEA and the public, who sometimes "misunderstand" collective groups of individuals. This educational role can be in the interests of all parties, and need not involve testimony, prosecutorial acts, or finking. Just judicially unfettered newsgathering and reporting. The press is an intermediary in public dialogue. Our changing demographics and pockets of discontent seem to make for stronger arguments for press shields, not weaker ones. The comments of May, Finkelstein, et. al. seem to support this proposition. Off soapbox, ~Aimee
participants (7)
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Aimee Farr -
Declan McCullagh -
Greg Newby -
James A. Donald -
Matthew Gaylor -
Seth Finkelstein -
Tim May