Do not taunt happy-fun-court. Was: Re: DOJ jails reporter, Ashcroft allows more journalist subpoenas

[Black Unicorn]

----- Original Message -----
From: <mmotyka at lsil.com>
To: "Black Unicorn" <unicorn at schloss.li>
Cc: <cypherpunks at cyberpass.net>
Sent: Monday, July 30, 2001 4:01 PM
Subject: Re: DOJ jails reporter, Ashcroft allows more journalist subpoenas


> 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.

Well, IAAL and today seems to be legal terminology 101 day.  If only I billed
for these hours...

I can only assume you pulled this from some odd orifice or Perry Mason re-run
because it bears little relation to fact.

Obstruction of Justice- Impeding or obstructing those who seek justice in a
court, or those who have duties or powers of administering justice therein.
The act by which one or more persons attempt to prevent, or do prevent, _the
execution of lawful process_.  The term applies also to obstructing the
administration of justice in any way- as by hindering witnesses for appearing,
assaulting process servers, influencing jurors, _obstructing court orders_ or
criminal investigations...  (emphasis mine).

In this case, such of it that I know, it's going to be contempt of court
that's going to be more onerous in any event, but if you have been irritating
enough you can probably expect an obstruction charge too, particularly as your
refusals begin to look more like actions and not mere inaction.

Also remember the recourse of the unjustly incarcerated contempt sufferer- an
expensive, slow and usually useless appeal.

> > > That is one method of "well hidden"
> >
> > No, that's not hidden.
> >
> OKOKOK - stored, not hidden.

Same problem.

> > > 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.

[stuff]

> > 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".

I suppose if I wanted to stifle it as a judge I'd also order the production of
all "media, machinery, computer equipment or other tangibles containing the
content.... blah blah blah."  Again, it's all evidence.  It's all within the
court's power to grab.  It's an entirely legitimate act of the court to
attempt to control and otherwise restrict the distribution of evidence or to
protect it from destruction or distribution (such as in a libel case).
Remember the mystery implement inside the envelope in the OJ case and all the
expert imagery wonks analyzing the shadows and contours of the envelope to
determine that it might be a big knife?
By involving third party system administrators you've done nothing but make it
more expensive for third parties who are going to lose the stuff if its seized
or otherwise subject to discovery.

There are a few cypherpunks probably listening to this who've been smacked
with subpoenas for running remailers.  I think you'll find that the government
is pretty persuasive to third parties like these.  The only defense (which one
administrator of a remailer I won't name was clever enough to set himself up
with) is to say (my paraphrasing) "I don't have access to those logs or any of
that data.  I don't keep such logs and I never have because it's too much
overhead and work."

> If the motherfuckers want all of the copies they can achieve that goal
> assymptotically by downloading the data repeatedly. Disks are cheap.

You miss the point.  They don't have to do diddily.  By this point you've been
ordered by the court to produce such documents.  So produce them or direct the
court to them or pay the price and have the court get them anyhow.

> > 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.

The difference is that in #3 the witness does not have physical or logical
control of the evidence and cannot, even if she or he wanted to, produce it or
otherwise allow the court to put its hands on it or prevent its distribution.
I disagree that the data is "out of her control" in example #2.  Courts aren't
fond of leaks.

> #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.

Ask the question: Can the witness produce the document?  If the answer is yes,
then the witness will have to.  Ask the question: Can the court prevent the
distribution of the data (via gag order).  If the answer is yes then you can
expect it to be prevented.

The time of the mailing is unimportant.  If the data is known or should have
been known to be the probable subject of an investigation you're still on the
hook.

> 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?

That's implicit in the "all copies and reproductions" language.  Ask yourself
how amused the court is going to be with your clever arguments.  (Jim Bell
transcripts are probably a good indication of how courts are going to treat
mouthy geeks).

> > > 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.

Totally false.  The court has made an order.  It involved the production of
documents or other potentially exculpatory and material evidence.  You pretty
much have to comply because the court says so.  Well, let me rephrase that.
You can refuse and spend some time in lockup until you decide maybe you want
to comply.  (That can be a long wait.  Years is not unheard of).

> 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.

That person is pretty clearly obstructing justice.  I'd suggest they not hang
about the U.S. if they decide to knowingly distribute material that is under
subpoena or a gag order or somesuch.  Very naughty.  If I were a judge I'd
certainly encourage the prosecutor to order marshals to apprehend that
individual and bring them before me for some special attention.

> Mike

I do wish people would just do their homework before making these kinds of
assertions.  There is a wealth of information on gag orders, restriction of
publication, court ordered seizures of manuscripts and etc.  Just spend some
time on your own rather than being lazy enough to have someone else explain it
all to you.  (I suppose I encourage this behavior by responding to this
silliness).

Really the acronym "IANAL" bothers me because it's effectively a stone cold
certainty that the author is about to render some legal advice and expects to
be taken seriously.  Like some kind of magic talisman for people to be stupid
and still contribute their blather to the conversation.  A certain blowhard
used ascii "smileys" to do the same thing, as if the magic effect of a :)
allowed him blanket license to be a complete wad of ear cheese whenever he
liked.

No one would take "I am not a doctor but if you whack that lump down with the
claw side of a hammer a few times it should go right away" seriously, why does
IANAL seem to give carte blanche to armchair members of the Court TV Bar?