15 April 1999

See Declan's Wired report on the trial and its fourth day: http://www.wired.com/news/news/politics/story/19145.html

    Date: Thu, 15 Apr 1999 06:00:39 -0700
    To: jya@pipeline.com
    From: Declan McCullagh <declan@well.com>
    Subject: FC: Day 3 of Washington State Cypherpunk Trial

    I am writing this from the 16th floor of the Sheraton in Tacoma, Washington,
    overlooking a humorless and silent downtown. Somewhere nearby -- I don' t know
    exactly where -- a cypherpunk is sitting behind bars waiting for his trial to
    resume in the morning. The charge: That he is guilty of posting three
    threatening messages to the cypherpunks mailing list. The government is asking
    for years and years of prison time as punishment. I suppose the exact
    number (a decade? 20 years?) will depend on the federal sentencing guidelines, rules
    that I've never been quite able to figure out myself.

    On Thursday morning John Gilmore will take the witness stand again. He
    testified on Wednesday about what a mailing list is, and the defense counsel
    gets to ask him questions in the morning. A few government folks are in line
    after him, but neither the prosecutor nor IRS agent Jeff Gordon has revealed
    who will testify next.

    I'm told there's no trial on Friday. So unless I get called to testify
    Thursday -- a long shot, I'm told -- I will be back out here next week. I don't know if
    the Department of Justice will try to force me to stay in Tacoma over the
    weekend or not.

    -Declan

    >To: jya@pipeline.com, declan@well.com, ann_harrison@cw.com,
    >        cryptography@c2.net, cypherpunks@toad.com, gnu@toad.com
    >Subject: Day 3 (first half) of the CJ vs. Jeff Gordon show
    >Date: Wed, 14 Apr 1999 12:08:12 -0700
    >From: John Gilmore <gnu@toad.com>
    >
    >I'm still in Tacoma.  I was not called to testify this morning.
    >Late in the morning there was an "outburst" from the defendant
    >and he was restrained by marshals.  Witness testimony is
    >on hold while the court figures out what to do next.  The
    >court will reconvene at 1PM Pacific time.
    >
    >       John
    >
    >PS:  Background is at
    >http://jya.com/cejfiles.htm
    >http://jya.com/crypto.htm
    >

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    >Date: Wed, 14 Apr 1999 23:05:21 -0400 (EDT)
    >From: "Michael Froomkin - U.Miami School of Law" <froomkin@law.miami.edu>
    >X-Sender: froomkin@boxster
    >To: John Gilmore <gnu@toad.com>
    >cc: jya@pipeline.com, declan@well.com, ann_harrison@cw.com,
    >        cryptography@c2.net, cypherpunks@toad.com
    >Subject: Re: Day 2 of the CJ vs. Jeff Gordon show
    >
    >you rang?
    >
    >On Wed, 14 Apr 1999, John Gilmore wrote:
    >[...]
    >
    >> Carl Johnson's house and seized computers from it.  An interesting bit
    >> of side news is that apparently you can't challenge the
    >> Constitutionality of a search done overseas -- even though US
    >
    >This is true when the foreigners do the search.  It may not be true
    >if US agents do it unless authorized by foreigners.  [Lawyers call it
    >the "does the constitution follow the flag" problem.] It makes sense,
    >actually: their home, their rules.   It would be absurd to require a
    >foreign government to get a warrant from a US court to search a foreign
    >property that happened to have a US citizen in it.  But if the search was
    >legal there, why exclude the evidence for lack of a US warrant.  Ditto for
    >a confession obtained without duress but also without a Miranda warning.
    >Why should French cops have to read you your Miranda rights when they
    >don't apply in France?
    >
    >Yes, it can be abused.  Indeed the claim that the NSA and GCHQ have a
    >you-spy-on-mine-I'll spy-on-=yours deal is, if true, an example of the
    >family of abuse.  But it may still be the best rule we can fashion.
    >
    >> prosecutors are introducing the results of the search as evidence to
    >> convict you with in the US.  Seemed like a big loophole to me.  Any
    >> lawyers care to comment?
    >>
    >
    >Actually, that's nothing.  You can't complain if US agents kidnap you
    >abroad (armed with a valid US warrant) and drag you home in violation of
    >foreign law, unless there happens to be a treaty with the foreign country
    >specifically and explicitly banning such state-sponsored kidnapping.
    >United States v.  Alvarez-Machain, 112 S. Ct. 2188 (1992).  Based on a
    >historic loophole of long standing...
    >
    >Well, you can't complain in your defense to the criminal case.  If
    >acquitted, you have a darn good civil case....Mexican Doctor Files $20
    >Million Suit Against U.S. Drug Agents, UPI, July 9, 1993
    >
    >A. Michael Froomkin   |    Professor of Law    |   froomkin@law.tm
    >U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
    >+1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
    >                    -->   It's hot here.   <--

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    >Reply-To: "Earthlink Account" <eagroup@earthlink.net>
    >From: "Earthlink Account" <eagroup@earthlink.net>
    >To: <declan@well.com>
    >Subject: Re: Day 2 of Washington State Cypherpunk Trial
    >Date: Wed, 14 Apr 1999 14:03:11 -0400
    >X-Mailer: Microsoft Outlook Express 5.00.2314.1300
    >
    >Declan:  re. the constitutionality point.  It is correct that your Fourth
    >Amendment rights don't protect you as regards foreign government searches.
    >That's because the Bill of Rights focuses on restricting what the U.S.
    >Government can do.  Its not a protection against what other governments
    >might do.  As for whether the evidence should be admissable, the general
    >presumption is in favor of allowing evidence, in order to determine the
    >facts.  Also, if challenges to foreign actions were to be allowed this would
    >be an administrative problem.  How could you ever determine the procedures
    >to be followed and whether they were in fact followed?  Thus, the result may
    >be harsh but I'm not surprised.  Paul Lembesis

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    >X-Mailer: Novell GroupWise 4.1
    >Date: Wed, 14 Apr 1999 10:40:11 -0500
    >From: CHARLES ISEMAN <CISEMAN@fcc.gov>
    >To: politech@vorlon.mit.edu, declan@well.com
    >Subject: FC: Day 2 of Washington State Cypherpunk Trial -Reply
    >
    >The legal issue, in my opinion, boils down to a choice between two legal
    >principles:
    >
    >1.  comity -- recognition of searches in another country (particularly,
    >democratic countries such as Canada) as legal here if they are legal
    >there under their law (with the expectation that the other country would
    >accord the same recognition to searches in the U.S.)
    >
    >vs.
    >
    >2.  recognizing searches in another country only if it both is legal over
    >there and also conforms to U.S. Constitutional principles -- this approach
    >extends greater protection to the accused, but may have an international
    >relations cost
    >
    >I can see this issue being decided ultimately by the Supreme Court (if it
    >hasn't already done so)
    >

    -------------------------------------------------------------------

    >Comments: Authenticated sender is <chatcher@services.state.mo.us>
    >From: "Charles Hatcher" <chatcher@services.state.mo.us>
    >To: declan@well.com
    >Date: Wed, 14 Apr 1999 11:56:54 +0000
    >Subject: Re: FC: Evidence gathering (Was: Day 2 of Cypherpunk Trial)
    >Priority: normal
    >X-mailer: Pegasus Mail for Windows (v2.53/R1)
    >
    >My limited understanding of general international applications is
    >that these searches need only meet the requirements of the "host"
    >country.  However, a more interesting aspect I wish to note is
    >personal jurisdiction.  Personal jurisdiction is the ability of a
    >court to require you to appear, generally as a defendant.
    >
    >While in law school, I took several classes on international law, and
    >intellectual property rights (both international and domestic).  I
    >wrote a paper on the ability of courts to impose personal
    >jurisdiction due to usage of the Internet.  The current standard for
    >imposing personal jurisdiction is "purposeful contacts".  There are
    >already 2 federal cases that established personal jurisdiction across
    >state lines because the defendents conducted contacts via email
    >with plaintiffs in other states.  (I'm sure I can dig up the cites if
    >anyone is interested)
    >
    >My paper focused on a possibility  of a home page in country A that
    >interacts with a web user in country B being dragged into court in
    >country B.  (Let's keep this simple and not get into servers in
    >country C, or email routed through country's D, E and F).  These
    >purposeful contacts could include actions from contracting
    >for goods or services to posting supposed illegal content.  We
    >already have had one federal case involving "Playmen", a playboy
    >knock-off based in Italy.  The judge ordered the Italian site to
    >refrain from selling access to U.S. customers.
    >
    >Moreover, the Missouri Attorney General has sued an Internet gambling
    >site based (I believe) in New Mexico or Arizona.  We also have
    >several news accounts of some action being taken against a
    >micro-brewery selling via Internet to minors.  Virginia recently
    >passed a bill concerning Internet contacts, and several states are
    >currently considering legislation that would expand their personal
    >jurisdiction to include contacts using the Internet.
    >
    >Jurisdiction of this sort would lead to each state being able to have
    >jurisdiction over a single company doing business over the Internet.
    >This, combined with the apparent search and seizure practices
    >allowable from other countries, would appear to put a larger damper
    >on E-commerce.
    >
    >Concluding: An observation might be that for so long, the
    >Internet has grown and developed without substantial government
    >involvement, but if these developments in jurisdiction and searches
    >continue then it may not be much longer before business begins
    >lobbying for a federal law that would impose a single standard with
    >predictable results for Internet commerce.
    >
    >Declan - I know it's too long, please edit as you see fit.
    >

    >Charles Hatcher
    >Attorney at law
    >chatcher@services.state.mo.us
    >

    -------------------------------------------------------------------

    From: "Hoefelmeyer, Ralph (MCI)"
    To: "'declan@well.com'"
    Subject: RE: Evidence gathering (Was: Day 2 of Cypherpunk Trial)
    Date: Wed, 14 Apr 1999 16:43:32 +0100
    X-Mailer: Internet Mail Service (5.5.2571.0)

    Declan,
    Stuff like this scares me ... especially when one reads in different forums
    about "the world brotherhood of law enforcement officers" attitude prevalent
    amongst the LE crowd.   One definitely gets the impression that if a foreign
    cop says one is a "criminal", the local cops will go out of their way to seek
    one out, regardless of evidence to the contrary, or lack of evidence.
    American
    LE types are chummy with LE from all over the world; they frequently get
    together to practice their military home invasion tactics (AKA SWAT or
    "dynamic
    entry"), and other items.

    Ralph

    >From: "Brooks, Rupert" <Rupert.Brooks@CCRS.NRCan.gc.ca>
    >To: "'Declan McCullagh'" <declan@well.com>
    >Subject: RE: Evidence gathering (Was: Day 2 of Cypherpunk Trial)
    >Date: Wed, 14 Apr 1999 14:04:14 -0400
    >X-Mailer: Internet Mail Service (5.5.2448.0)
    >
    >Declan,
    >
    >As a Canadian, I feel obligated to point out that Canadian rules for the
    >admissibility of evidence are very similar to US rules.  The RCMP is not a
    >rogue police force, although I am sure that was not deliberately implied.
    >If a constitutional challenge could be mounted against the evidence under US
    >law, then there would probably be a pretty similar challenge under Canadian
    >law.  Sounds like neither constitution is being applied to the search -
    >which is a different, and much more dangerous problem if this is the case.
    >
    >Mind you, I am not a lawyer.
    >
    >Rupert Brooks
    >

    -------------------------------------------------------------------

    >From: james_lucier@prusec.com
    >X-Lotus-Fromdomain: PRUDENTIAL
    >To: declan@well.com, politech@vorlon.mit.edu
    >Date: Wed, 14 Apr 1999 15:11:19 -0400
    >Subject: Re: FC: Evidence gathering (Was: Day 2 of Cypherpunk Trial)
    >
    >In fact, this is the way the gentlemen's agreement between the US and UK
    >has always worked:  the Brits spy on U.S. nationals here in the U.S.,
    >handing this data over the USG;  we courteously reciprocate by spying on
    >Brits in the UK and making data available to authorities there.
    >
    >

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