DOJ jails reporter, Ashcroft allows more journalist subpoenas

[mmotyka at lsil.com]

Black Unicorn wrote:

> > > 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).
>
> IANAL but it looks to me like obstruction relates to hindering the court's access to information not its total control of information.

> > >
> > That is one method of "well hidden"
> 
> No, that's not hidden.
>
OKOKOK - stored, not hidden.
 
> > How about placing blocks of data on a safe site? A petit Napoleon would
> > be able to subpoena a plaintext copy of the data and possibly make a
> > fight about getting the keys but would not be able to deprive the owner
> > of the data.
> 
> Nope.
> 
> Compare:
> 
> Prosecutor:  You retained copies of this document?
> Witness: Yes.
> Prosecutor:  You were aware that all copies and original were subpoenaed by
> the court?
> Witness: Yes.
> Prosecutor:  Where are these documents located?
> Witness:  I won't answer that.
> 
> (Oops)
>
#1 - This is her current predicament - she refused to produce physical
"evidence"
 
> with:
> 
> Prosecutor:  You retained copies of this document?
> Witness: Yes.
> Prosecutor:  You were aware that all copies and original were subpoened by the
> court?
> Witness: Yes.
> Prosecutor:  Where are these documents located?
> [Witness:  I placed blocks of data on a safe site so they would be
> accessible.]
> [Witness:  I split a cryptographic key and spread it among my friends and
> encrypted the document to it.]
> [Witness:  I (insert clever but legally naive cypherpunk solution here) the
> document.]
> 
> (Oops)
>
#2 - Doesn't look so bad - she can produce all physical copies and still
get access to her safe site. Safe is pretty generic, meaning possibly
out of the jurisdiction, out of her control and visible to herself and
possibly others as plaintext or otherwise. Not sure how it is possible
to hassle her if she produces all physical copies as ordered but has
taken steps to maintain future accessibility for her own purposes.
Pardon me for being sloppy about "safe site".

If the motherfuckers want all of the copies they can achieve that goal
assymptotically by downloading the data repeatedly. Disks are cheap.
 
> with:
> 
> Prosecutor:  You retained copies of this document?
> Witness: No.
> Prosecutor:  You have none of these documents in your possession or control?
> Witness: No.
> Prosecutor:  Are you aware of any other copies of this document?
> Witness: Yes.
> Prosecutor:  Where are they?
> Witness: An attorney representing the ABC trust bought a copy of the document
> before I knew about these proceedings.
> Prosecutor:  Why didn't you instruct this attorney to turn over the documents?
> Witness: I have here a copy of the agreement assigning all my rights to the
> document over to this Isle of Man trust under control of the attorney listed
> here.  I understand Simon and Schuster has expressed interest in the
> manuscript but since I no longer have the power to influence the fate of the
> document I cannot produce it, or I most certainly would comply with the
> court's most legitimate wishes and interest in effecting justice.
> 
#3 - not entirely unlike #2 really - the data is out of her control.
Only difference I can see is that there is a record of a transfer with a
date prior to the subpoena. 

#2 admits of this same solution if blocks of data are mailed to some
safe location on a regular basis. I don't see why some official type of
escrow is required as long as the unsquelchable distribution predates
the subpoena. 

BTW - would a subpoena such as the one served on the journalist specify
that the contents of the records were not to be communicated to anyone?

> > Why should an owner not be allowed to retain a copy?
> 
> Cause the court says so.
> 
Not a particularly useful answer and not necessarily justifiable on the
part of the court. I think eventually a better answer would have to be
produced, one that justified the censorship. We're back to what
originally struck me as odd, and wrong, about this item. Whoever has her
stuff should copy it and move the copy offshore because something is
very wrong on the part of the court.

Mike