Spoliation cites

[Tim May]

At 9:48 AM -0700 8/3/01, Greg Broiles wrote:
>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.
>

Indeed, the order to produce "and all copies" looks to be an obvious 
effort to quash the material. Thoughtcrime.

>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.
>

Some here are arguing that such publication constitutes "spoliation." 
I have seen no cites that support this novel interpretation. 
Publishing something, whether on Freenet or in Time, may trigger 
later damage claims (as with violating copyrights), but it can hardly 
be considered a kissing cousin to "destruction of evidence."

And for someone not an actual party to a court case, not subject to a 
court's order, not even "contempt of court" could apply.

>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.
>

Well said.

--Tim May

-- 
Timothy C. May         tcmay at 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