Forced disclosures, document seizures, that kind of stuff. Was: Re: DOJ jails reporter, Ashcroft allows more journalist subpoenas

[Black Unicorn]

----- Original Message -----
From: "Trei, Peter" <ptrei at rsasecurity.com>
To: <mmotyka at lsil.com>; <cypherpunks at cyberpass.net>; <declan at well.com>;
"'Black Unicorn'" <unicorn at schloss.li>
Sent: Monday, July 30, 2001 1:54 PM
Subject: RE: DOJ jails reporter, Ashcroft allows more journalist subpoenas

> >From: <mmotyka at lsil.com> wrote
> > > Declan,
> > > The larger problem notwithstanding there's at least one little bit of
> > > language in this piece that is odd :
> > >
> > >   "He said the government is
> > >    seeking all of Leggett's
> > >    material, including all
> > >    originals and copies."

[...]

> > > Looks like a reporter ( or anyone else for that matter ) should keep
> > > well hidden backups of their notes and work so that they can comply with
> > > Napolean complexes, fishing expeditions and spin control operations and
> > > not lose their life's work.

I said:

> > No.  Well hidden backups would put the reporter in a position of contempt,
> > committing obstruction of justice or perjury.  Better to escrow such
> > documents
> > with an attorney in a jurisdiction not likely to cooperate with the United
> > States.  (I can suggest several to interested parties privately).

Mr. Trei replied:

> I'm curious what the term 'copy' refers to when the Internet and encryption
> gets involved. If  a reporter posted an encrypted copy of her notes
> to usenet on a regular basis, she could recover them anytime,
> anywhere, from etin.com,  dejanews, or any of the other news
> archiving services.
>
> However, if ordered to 'turn over all originals and copies', what can she
> do? Ask deja to dismount a drive and send it to the court? Ask the
> NSA to please gather up all their tapes which had copies and send
> them?

Here is some text from an order I was a party to some time ago:

Further, [someone who was kind of naughty] is hereby ordered to produce and
disclose all copies, originals, reproductions, derivations, translations or
other documents related to [a certain document] _within his direct or indirect
control_.  (Emphasis mine).

That's pretty typical, the control part.

> Isn't there an implied and anachronistic assumption here that a
> requested private document is physically seperable from other
> private documents, and that to be private a document has to be
> under the authors physical control? And that there is a meaningful
> distinction between an 'original' and a 'copy'?

Copy is an old term of art.  "A transcript, double, imitation, or reproduction
of an original writing, painting, instrument, or the like."  As distinguished
from original: "As applied to documents the original is the first copy or
archetype; that from which another instrument is transcribed, copied, or
imitated."  Part of the confusion is because "copies" and "originals" bear
different evidentiary weights.  Copies can only be submitted as evidence in
lieu of originals under certain circumstances (because of the risk of
alteration or forgery or suchlike) and blah blah blah.  "Copy" started to see
the use you are describing because of the following kinds of exchanges:

Prosecutor:  And do you still have this document?
Witness:  No.  (Thinks: but I have a xerox in my briefcase- ha ha ha).

> This comes of a the same problem we find with so much of the
> IP arguement, that information exists only bound to some
> physical object, and shares it's limitations.

Very true.  Consider:  "An original of a writing or recording is the writing
or recording itself or any counterpart intended to have the same effect by a
person executing or issuing it.  An 'original' or a photograph includes the
negative or any print therefrom.  If the data are stored in a computer or
similar device, any printout or other output readable by sight shown to
reflect the data accurately, is an 'original.'"  This leads to the very
strange situation where data on a disk (not readable by sight) is not an
original or a copy but a sort of "quasi-original."  A meta-original if you
will, capable of spawning infinite originals- as it were.  It's curious to me
that no one has pursued this kind of argument in a copyright/MPAA type case.
It's not readable by sight is it?  Might be too technical an argument.

> I can only assume that the court, for reasons which seem unclear
> but which seem to amount to punishment, wish to deny her
> access to her own work. If many copies exist which are
> readable only by her, but not under her control, how can
> she be so deprived? (I suppose the court could order her to
> forget her passphrase :-)

I don't know the details but I suspect that they are trying to control
evidence that might compromise an investigation or otherwise collect all the
evidence to be sure that everything is covered?  It doesn't sound THAT
unusual.  Courts generally try to grab everything to make sure nothing is
destroyed, lost, stolen, tampered with... etc.

> [I'm not addressing the issue of forced exposure of keys, just
> the information-theoretic notion of destroying or sequestering
> widely distributed information, and how that collides with the
> assumptions of ill-educated or maleific judges]

Since such a prospect is impossible it's a good tactic.

Never try to outsmart forced disclosures.  Make it impossible for you to
comply with them in good faith.  Outsmarting them just makes prosecutors mad.
Making such disclosures/surrenders impossible makes them frustrated (i.e. mad
but unable to do anything about it).