Spoliation, escrows, courts etc.

[mmotyka at lsil.com]

I think there are several actions and states mixed up here and it makes
it difficult to extract the most pertinent opinions. I'm as guilty as
anyone of mixing the stuff together. I'll try to be more specific this
time. 

Let's start with the type of information the TX reporter might have. 

This information might be divisible into four classes : 
A) documents freely given by their owners
B) documents of dubious provenance
C) documentary works
D) editorial works

For information let's stick with C) and D). No real need to muddy the
waters. The sense of outrage is most keen when it comes to works created
by the reporter.


There are a fairly small set of states to be accounted for :
1) unaware that the information could become the object of a court
action
2) aware that the information could become the object of a court action
3) aware that the information was in fact the object of a court action

Now my sense of right and wrong says states 1) and 2) are equivalent and
that only state 3), awareness of a subpoena, is potentially relevant but
our relevant pro bono guy says not.


There are a few actions that are of interest
i)   disclosure
ii)  destruction
iii) revocable storage of copies
iv)  public distribution of copies
v)   irrevocable storage of copies

Whether it was clear or not, and despite it's being a frequent topic, I
don't think anyone was all that interested in the destruction of
evidence or the withholding of information, so that leaves iii), iv) and
v). Another frequent element of discussions here is the ease and
accuracy with which digital information can be copied and distributed
but I think most would agree that iii) is not interesting legally or
technically since like i) and ii) it comes down to can you conceal
information or not - a plain old ordinary fight. 

We're really left with three states :

  Perception and awareness of the court's degree of interest

    none, potential, forceful

and two actions :

  irrevocable storage of a copy as public or private

that are interesting. 

Narrowed down in this way my sense of right and wrong says the author of
the information can do as they choose and should not have to rely on
officially approved excuses to avoid incarceration. I feel this way
pretty much across the board for all types of works but for the moment
let's stick with non-software items such as a reporter is likely to
author. It seems as though, in the interest of justice, a court should
not have the power to confiscate or suppress an author's own work.
Examine it prior to publication? Possibly, but seriously debatable.
Aren't there any limits or controls on the actions of the court with
respect to an author? Aren't there some things that a court is simply
not allowed to do and will never even attempt? Is the only recourse in
the case of genuine abuse a long expensive losing battle against the
forces of darkness? To allow a court to punish the publication or
distribution of one's own works, even under subpoena, seems like an open
invitation to abuse. 

Oddly, thinking about this topic has made me remember some interesting
discussions with the person responsible for forcibly shutting down the
radio stations, television stations and newspapers as part of a (
successful and longstanding ) coup. It's a bit scary. I don't think the
power to destory^H^H^Hroy the press should be a fundamental part of the
structure here. Maybe we accept the actions of a police state more
peacefully when they're neatly clothed in formalities and done by baby
steps but that doesn't alter their underlying nature. As with a coup,
let's require full-blown military intervention to shut down the press.
At least then we'll have no doubts about where we stand. 

Mike

BTW - it will be interesting to actually find out detailed facts in the
case of this TX reporter. I'm sure Jim will graciously forward a link.


>Not being intimately familiar with the spec of freenet I can't really comment
>on that aspect or what a court will consider "impossible."  What will not
>amuse a court is the appearance of an ex ante concealment or disclosure in
>anticipation of court action.  If it looks like you knew it was going to be a
>court issue and you put it on freenet for that purpose, you're in trouble.
>Not only that but if you encrypt the stuff and it doesn't appear to be
>recoverable it almost sounds tantamount to destruction of evidence or
>spoliation (much more serious).  ("The intentional destruction of evidence...
>The destruction, or the significant and meaningful alteration of a document or
>instrument...")  I've never seen a case play out like that but I would
>certainly make the argument as a prosecutor.  Encrypting the stuff sure
>_looks_ like spoliation, particularly if it seemed likely that the evidence
>would be the subject of a judicial action.  "Knew or should have known" will
>likely be the standard with respect to the stuff being the subject of judicial
>action and they can use actions to demonstrate intent.  In this light freenet
>might be the _worst_ place to put it because its only purpose is (I believe)
>to avoid censorship or seizure of the data.  Why would you have used this
>relatively obscure and very specialized service if not in anticipation of
>court action which would later prevent the distribution of the data?  Who else
>was threatening the manuscript, document, etc. to such a degree to require you
>to use freenet?  (Not only that but spoliation carries with it the permissible
>inference that the data was detrimental to you and the jury gets to hear
>that).
>