Declan McCullagh and prosecutions

[Seth Finkelstein]

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 at mit.edu  http://sethf.com