Computers, Privacy & the Constitution
-- GerryMoody - 28 Mar 2008

 

Problems in Tibet. There has been a bust up in the net. The firewall tightening inside China is a further example of a concerted attempt to control inbound information with respect to a matter of interest to the world press. Good test of government measures to control flow of information. Chinese government has done a good job making it hard to find out what’s happening in Tibet, out here and in there. First, they prevent reporters from going in. What else? To prevent finding out what is happening inside China – it’s clear that the crucial place in network terms is the place called Youtube. Possession of Youtube was possession of the most important and difficult information in the last several weeks.

Primary problem is the attempt to control information distribution. If you’re in Lhasa, you can easily get video to Youtube via proxy. This is a serious, significant problem. It’s a reminder of difficulties with the prevailing devices or structures of interfering with information flow controls. It seems that the Chinese Communist Party has made their move. Now it's the turn of those who support the free flow of information.

We have a rule that American propaganda radio broadcasting may not be made in the United States with taxpayer money. This is a quasi-constitutional limitation, inasmuch as it is believed that a free government would not be one that would use propaganda in US. The rule, however, has been shredded. Sure, the statutes are still there, and even the values, too. This time, it's not even the US government misbehaving. The problem is this: we can no longer claim to have a firewall at the edge to prevent the blow-back of our own propaganda.

Should we prevent US citizens from coming into contact with propaganda emitted by the US government? What are the consequences of having information sent back chaotically? Should we close our border to stop information from coming back? Canadians have faced this problem for the past twenty years, in the context of the conflict between their fair trial rules and our media environment. Canadians have tried to shut all American media off. For example, in the 1990s, the Canadians attempted to shut down Usenet to prevent the dissemination of US news reports regarding a gruesome Canadian double-murder. And they attempted to interfere, before figuring out that there was no way to stop the dissemination of information across the border.

If the Canadians attempt to close their border and the US government assists to prevent the dissemination of American journalism in Canada is there a 1st Amendment violation?

If we can’t stop the inflow of propaganda, then that leads to the end of the rule against US made propaganda. So, do we now have to check all US government statements made abroad for their truth? It’s not that we can close the net to the domestic consequences of foreign statements. Moreover, we have not just licensed, but encouraged foreign intelligence services to collect and trade evidence to the justice system. So, if the Mossad makes up evidence, it can be used in US courts. This advances incentives of the Mossad to fabricate false evidence.

Move to the question of trial rights. Problem presented by trial rights is similar to the one we have now. The 6th Amendment guarantees a speedy and public trial, and the right to confront witnesses.

The 20th century confronted certain new problems with these trial rights.

We used to only have a quasi-anonymous jury. Once upon a time in England, we had a jury of witnesses. We swore them in as people who would find things. In the beginning, they were qualified on the basis of particular knowledge. The assumption was that they were locally knowledgeable and that localism is the most important quality of the jury. Once upon a time, that localism is expected because their knowledge is supposed to be invoked — you need people who know what was done. Jurors are supposed to be aware of the local details because they come from the right place. Medieval juries once were to be rounded up and sent to London, unless it was cheaper to send judges out to the countryside. Juries had to come from the place because that's the only way juries would know.

The concerns of the founders were somewhat different. One concern in the federal constitution for juries regarding vicinity is to prevent the packing of results by forum shopping by the prosecuting British Empire. That forum was Halifax. That was the British colonial Guantanamo. If you pick a jury from Halifax, it’s a naval base, and they won’t be sympathetic of rebellion. For the Bostonians--say, John Adams, for instance-- the fear is being tried for treason in Halifax.

The great concern of the New Yorkers is a little different - concern of of the whole of them: Murrays, Smiths, Hamiltons, Burrs. They were worried that the jury verdicts in the New York Supreme Court that say, he wasn’t smuggling molasses, would be reversed in Halifax. It was an appellate concern, as opposed to the Boston forum shopping concern.

So, we find two things in the Constitution: no appeals from jury verdicts with respect to fact and the prevention of changing jurisdictions. Theses are concerns to make sure that federal juries have no opportunities to play forum shopping games. So, localism of the jury with local opinions (as opposed to local knowledge) remains crucial.

All of this is a changed set of rules when cities become big enough that juries do not know anything and we begin to remodel the criminal trial around that fact. Good criminal litigation skills presume jurors with no knowledge and jurors with knowledge may not serve. After the American Civil War, we have a compulsorily na´ve jury. This develops with desire of prosecutors and defense lawyers to use media to undermine jury’s naivety – to use propaganda in the form of the courthouse steps press conference.

This is part of the rule of public trial, but it’s not a complete part. What does public trial mean? Surely not Guantanamo — we do not allow secret trials. Once upon a time it meant an opportunity to see the accused see the case brought against him, which meant a trip to Westminster Hall. Also, some limited opportunity for the public to attend was guaranteed. It meant the courthouse or the tree outside the courthouse. And publicity was taken to be a check on the ability to overcome localism---the rules protect localism of jury, trial, of cross-section of community, of the attendees. All depended on locale.

Now, we televise of trials. Now we have Court TV. That doesn’t mean that anyone can bring cameras into courtroom, but what should it mean? What should that mean under 21st century conditions? What if it was the public’s right to bring a camera to the courthouse?

What about a right to the court transcript? See Griffen v. Illinois: USSC says indigent defendant has the right to copy of the transcript. All federal criminal trials are transcribed. So, the accused has the right to a transcript. What if the accused says the transcript is not enough? What if she says, I want the video captured on Youtube?

Consider Rodney King--LA burned because of a change in venue. Prosecution did not want to hold the trial in central Los Angeles for obvious reasons—how could the police officers get a fair trial in South Central Los Angles? Two places were suggested: prosecutors suggested Riverside and defendant suggested Ventura County. Decision to move it to Ventura County made the city burn because it was an area that sympathized with cops. But the reason was absurd. Trial judge said we can't use Riverside, think of the traffic! So, they had a trial in a place where people could get to easily.

Again, it's about localism of jury. The concern about publicity and pretrial statements. No reason to be dismissive of concerns: public order, safety and people’s sense of justice can be affected by this. What is the guiding principle? How do we decide what constitutes levels of publicity? If a judge has personal knowledge, cannot sit.

...[could someone fill in a bit here?]...

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r3 - 17 Jan 2012 - 17:49:19 - IanSullivan
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