Spoliation cites

[Greg Broiles]

At 12:11 AM 8/3/2001 -0700, Tim May wrote:

>Claims that releasing something in a form which may not practically (in 
>the strongest sense of the word!) be retrieved is some kind of 
>"spoliation" are bizarre. The claim that distributing via Freenet or Mojo 
>or Usenet, systems which are similar to ordinary publishing in the sense 
>that retrieval after distribution is nearly impossible, is also bizarre.

I think this is the really interesting leap here - from the ability of a 
court to order production of documents, to the ability of a court to 
control distribution of information. The "production" or subpoena aspect 
has been hashed and rehashed ad nauseam on the list - but the reporter's 
attorney said they were asking for all originals and copies of the 
reporter's notes, which makes it sound like this grand jury (or the 
prosecutor controlling it) would like to swallow them up and never give 
them back - or delay public knowledge and discussion of the events involved 
in the case until a time more convenient for prosecutors and law enforcement.

I think a response more appropriate than secrecy (with the attending 
arguments about offshore trusts, the relationship between crosscut 
shredders and cryptography, etc) would have been immediate, widespread 
publication - via Freenet or Cryptome, if the local paper wasn't 
interested. Then there's no more arguing over secret documents, and the 
grand jury's free to read about it in the newspaper and ask the journalist 
to come in and confirm that no details were altered during the editing 
process.

Courts have relatively strong powers with respect to controlling the 
possession and disposition of physical things like notebooks or hard disks, 
but relatively weak powers with respect to limiting the dissemination of 
information not in the court's exclusive possession, so long as the 
disseminator is not a party to a case before the court, nor an attorney for 
a party.

So don't fight the court where they're strong and you're weak - fight where 
you're strong and the court is weak, e.g., about prior restraint of 
publishing, rather than whether or not evidence was destroyed or withheld, 
which might be a contempt proceeding, which includes very little "due 
process" and no jury.

The other lesson to be learned is that Texas courts don't recognize a 
journalistic privilege - so Texas journalists shouldn't expect to benefit 
from one. Also, that the protections afforded publishers in 42 USC 2000aa 
won't necessarily extend to abusive grand juries, since they likely don't 
fall within the definition of "government officers and employees", even if 
they're just a cat's paw for the prosecutor.

I think a lot of the tension around "cypherpunks should think about law" or 
"cypherpunks should not waste time on law" comes from different basic 
assumptions - if you start out thinking that police are thugs and you have 
no rights except the ones you enforce yourself, then all of this legal 
discussion is a big distraction. If you start out thinking that you live in 
the high-school-civics-class version of America, and that the Bill of 
Rights and the 14th Amendment are alive and well on the streets and in the 
courtrooms, then, the legal discussion is relevant to the extent that it 
brings those expectations back in line with reality.

Of course, sometimes people with the first view will admit that the thugs' 
behavior isn't totally arbitrary, but needs to be mostly orderly and appear 
reasonable so as to preserve the thugs' privileged position, and that it's 
possible to take advantage of that systemic tendency towards predictability 
to game the system, and thereby avoid the thugs - and sometimes people with 
the second view will admit that perhaps the delta between the advertised 
version of Reality and the implementation is so vast that it's easier to 
list the positive changes from the "thug" model than the negatives changes 
from the Jeffersonian/Madisonian ideal.


--
Greg Broiles
gbroiles at well.com
"We have found and closed the thing you watch us with." -- New Delhi street kids