12 April 1999

See related files: http://jya.com/cejfiles.htm

    To: jya@pipeline.com, gnu@toad.com
    To: declan@well.com, ann_harrison@cw.com
    Cc: cryptography@c2.net, cypherpunks@toad.com
    Subject: Day 1 of the CJ vs. Jeff Gordon show
    Date: Mon, 12 Apr 1999 19:33:13 -0700
    From: John Gilmore <gnu@toad.com>

    I am in Tacoma, having been subpoena'd by the Assistant US Attorney,
    Robb London, to testify at the trial.  I didn't want to come, and got
    two hours of sleep after my return from a 10-day East Coast trip,
    but I'm here under penalty of contempt of court.

    This fiasco has been preceded by a long run-up.  The AUSA had filed
    several previous subpoenas against me, trying to force me to come to a
    grand jury with "all my correspondence relating to the cypherpunks".
    I resisted this gratuitous, unconstitutional and illegal fishing
    expedition through many megabytes of personal as well as public email,
    as illegal under the ECPA and the Privacy Protection Act, and the
    First and Fourth amendments.  It led to months of legal wrangling,
    thousands of dollars in legal bills, having Federal process servers
    confront me and my tenants, being directly threatened by IRS officer
    Jeff Gordon that he would get a search warrant to search my house
    (also illegal, I and my lawyers argued; he never followed through), an
    affidavit filed by me which says nothing interesting, and a formal
    motion filed with the court by me to quash the illegal subpoena.  Very
    soon after that, once I had brought his illegal conduct up in front of
    the judge, the AUSA apparently spent his spare time actually reading
    the law, and got much more reasonable.  The AUSA faxed me a specific
    list of email messages (identified by date, From address, and Subject)
    directly related to the investigation.  We then got to argue over how
    I would be compensated for the labor of searching out these messages,
    as required under the ECPA.  They aren't used to paying libertarian
    millionaires to do shitwork in the service of authoritarianism; we
    don't come cheap.  I did the work, sent the messages on floppy to my
    lawyer, the AUSA got a real warrant issued by a judge (not a
    rubber-stamped "issued in blank" subpoena), and seized them, finally
    following the law.  They still haven't paid me.  My lawyers' fees and
    my personal time spent fighting their unconstitutional acts will never
    be repaid.  I consider stopping illegal crap by civil servants who
    think they are civil masters to be part of my civic duty, like voting,
    fighting in the military, serving on a jury, or always taking tickets
    to court.  Luckily I have the money, if not the time, to do so without
    hurting at the moment.  Other cypherpunks archivists took other
    courses.

    The gov't then subpoenad'd me to come to the trial and testify.  They
    keep wanting to talk with me before the testimony, but I've declined.
    The subpoena requires me to testify, it doesn't require me to talk to
    them in private.  And for some reason, after the above experiences,
    they just aren't my preferred evening companions in beautiful Tacoma.

    I arrived in the courtroom about 2PM, which was apparently about when
    the trial actually started.  The guards at the entrance wouldn't let
    me bring in my cellophone and laptop.  One of them actually told me I
    couldn't bring pen and paper into the courtroom unless I was a
    journalist.  His partner luckily set him straight that citizens in the
    USSA still have a few First Amendment rights, even in the halls of
    justice.  We don't have First Amendment rights to use computers to
    communicate, like the Supreme Court said we did in ACLU v. Reno, but
    quill pens and other 18th-century inventions are still accepted.

    I first laid eyes on Carl Johnson in that (small) courtroom.  He
    looked a lot like me - balding, fringe of hair, bearded, leaning
    forward intently as his fate was being decided.  His public defender,
    Gene Grantham <gmgrantham@aol.com>, was beside him.  The rest of the
    room was full of government people in suits -- three at the
    prosecuting desk, two more behind them in the spectators' benches, a
    marshal by the door, another few suits on the benches on the defense
    side.

    It turns out that Judge Bryan was gone all last week too, and missed
    his flight back last night (he blamed "United Airlines and mother
    nature").  So he wasn't here in the morning to start the trial anyway.
    Nor had he yet read the briefs submitted by the parties.  He found it
    embarrassing.  I agree, it is.  I hope he will do a better job with
    the rest of the trial; a man's freedom is at stake here, as well as
    the reputation of a fine IRS officer who spent years monitoring the
    cypherpunks mailing list and has had to come up with some justification
    for it.

    The prosecution seemed flustered when I walked in.  They kept glancing
    in my direction.  After about ten minutes they brought up the topic of
    excluding witnesses from the courtroom.  The judge stated that on his
    own he would not exclude witnesses.  The government requested that
    witnesses be excluded.  The judge granted the request, stating that if
    either side requested it, he must do so.  This means that most of the
    cypherpunks who the government has used its power to drag across the
    country will be unable to watch the "show trial" except when they are
    the clowns in the center ring.

    My take is that their "show trial" would be ridiculed if the public
    actually saw it.  Therefore I hope that many members of the public
    will come down to the Tacoma Federal Courthouse, attached to the big
    old brick "Union Station", very visible from the freeway as you enter
    Tacoma heading south (past the sports dome).  Anybody know any Seattle
    or Tacoma reporters?  Clearly the government doesn't want them there --
    or the gov't would have invited some.  Let's see if we can bring some
    who care about civil rights, free speech in online fora, and the rights
    of citizens to be free from unreasonable searches.

    I later found out that Carl today requested a trial by judge instead of
    a trial by jury.  After questioning him on this decision to make sure
    it wasn't made lightly, Judge Bryan granted his request.

    The judge recessed the court shortly after excluding me and another
    witness, presumably so he could read the briefs.  It will reconvene at
    9:30AM tomorrow, Tuesday morning.

    I'll pass on whatever scuttlebutt I hear "in the halls of justice,
    where the justice is in the halls", where the government prefers to
    keep cypherpunks, without their communications devices, so they can't
    report on supposedly public trials.

    In some of my interactions with US Government employees I have come
    away with a better understanding of the challenges they face, and
    increased respect for how they conduct themselves.  This is not one
    of those.

    	John

    From: Gmgrantham@aol.com
    Date: Mon, 12 Apr 1999 22:28:14 EDT
    Subject: Re: Carl Johnson
    To: jya@pipeline.com

    I received your message regarding possible defense witnesses.  As you know
    the trial began today and will continue for about one week although it is
    difficult to say exactly what the timing will be.  There already are several
    witnesses who are Cpunks who will testify to their reaction to the postings
    and to the general tone of the Cpunks discussions. It looks like the
    additional testimony would be cumulative, although it wouldn't hurt to have
    the additional testimony.  Unfortunately this comes very late, but if any of
    those persons can arrange to come to Seattle, I would try to use them as
    witnesses, but it would duplicate testimony already planned.  The reaction of
    the listener is only one indication of whether the messages are threatening
    and certainly the trial judge will make his own interpretation of the text of
    the messages.  We clearly can show the political and satirical context of the
    statements from the records we have.

    Gene Grantham