October 13, 2006 11:12 AM PDT

Police blotter: Prosecutors want reporters' hard drives

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(continued from previous page)

In addition, Microsoft's forthcoming Windows Vista will include BitLocker Drive Encryption that the company says will not include a backdoor for police. Whole-disk encryption options are also available for Linux.

Excerpts from Justice Ronald Castille's dissenting opinion: The majority apparently finds that Subpoena 686 is unconstitutional as a matter of law because there were other, more limited means by which the grand jury could obtain the information it sought. The majority also finds that the safeguards adopted by the supervising judge were insufficient, as a matter of law, to survive a constitutional challenge. In my view, this Court should defer to the supervising judge's assessment of this issue as well, which was not an abuse of the substantial discretion necessarily vested in his control over the grand-jury proceedings.

In overturning the supervising judge's order, the majority does not specifically identify whether it bases its decision on a particular ground raised by Lancaster Newspapers (the "newspapers"), all of their constitutional and statutory arguments or some combination thereof. The fact that the majority's ultimate dispositive analysis adverts to a potential chilling effect and overbreadth, however, suggests that the decision is powered by First Amendment concerns. As actual authority for overturning the trial court's order, the majority cites only to a single-judge opinion from the Southern District of New York, which of course is not binding on this court.

Moreover, it does not appear that that decision involved constitutional concerns, much less was it powered by constitutional authority which would bind this court. Particularly given the truncated nature of the proceedings and pleadings before the court in the case sub judice, which has been treated as an emergency, I am not inclined to elevate the view of a single federal trial judge in a different circuit to the status of constitutional command, by which we must measure the discretionary decisions of Pennsylvania judges supervising grand-jury proceedings.

The supervising judge limited the attorney general's search of the hard drives to Internet history and cached content of the hard drives. Neither of these types of information is protected by any of the privileges claimed by the newspapers--a point the newspapers conceded below. The newspapers' objection instead related to information on the computers that is not being sought by the commonwealth. The newspapers professed a fear that the commonwealth would abuse the subpoena and seek to access other information that might be subject to some constitutional or statutory protection.

I see no abuse of discretion in the safeguards adopted by the supervising judge in response to the newspapers' professed concerns. The court was not obliged to assume that the attorney general's representatives--officers of the court--would ignore the limitations of the subpoena and the judge's expressed concerns, and nefariously rummage about in the hard drives for information which was not the subject of the investigation.

Nor do I believe that the court was obliged to assume that the attorney general's information technology professionals would seek to subvert the court's imposed restrictions and plan of action. I also do not believe that the Constitution obliged the court to appoint some outside, "neutral" expert to perform an investigative function which is one of the core duties of the Attorney General's Office.

Finally, in my mind, the fact that the subpoena could be narrower and more to the liking of the newspapers does not render it unconstitutional. Because I would find that the newspapers failed to prove that the subpoena, as narrowed and framed by the supervising judge, was unreasonable or constitutionally improper, I would not interfere with the court's exercise of discretion and seek to micromanage this grand jury. Hence, I respectfully dissent from the court's vacatur order.

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6 comments

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escrow?
It'd be nice if there was some sort of escrow procedure for situations like this. Some certified agency would hold the entire drive, who would extract and deliver to the attorney general ONLY the stuff that was relvant. If the browser history was all that was relevant, only that would be provided.

But then how do you keep a handle on things that they don't start demanding that everything is relevant, and have the escrow guys going in a wild goose chase into things that don't need going into, and how to you keep corruption of the process from happenning?
Posted by amigabill (93 comments )
Reply Link Flag
Time to end the Grand Jury system
The grand jury system was put in place at the state and federal levels a half-century ago to combat the Sicilian mafia; it has been abused non-stop ever since, the ridiculous Clinton/Whitewater investigation by Kenneth Starr being the latest grevous example, and needs to be reformed so that the judicial branch oversees the proceedings as they go on and can step in to stop abuses before the fact. Our eyes have all been opened by the Bush administration's drive toward "Amero-fascism" and abusive totalitarian power. Prosecutors should not be trusted with powers they have proven certain to abuse.
Posted by Razzl (1318 comments )
Reply Link Flag
I have to agree
I have to agree that the Grand Jury system is totally outdated. It needs to be made so that a JUDGE has to order that there is enough evidence for a prosecution to go forward.

Most people on grand juries are....... well, I have to say it.... stupid. Because most ADULTS OF GRAND JURY AGE are stupid and believe ANYTHING a law-enforcement officer or prosecutor tells them.
Posted by Leria (585 comments )
Link Flag
Oh well!
Oh well, thus begins the short fast march to the end of democracy and even quicker rise to the reinstatement of Stalin's version of no freedom for the individual and all power to the state!

All too soon, with the 'diebold rent-a-vote!' electronic voting machines , state and federal elections will be so rigged, that even those that died last century, will now be able to vote in the current mid term elections!, and then after that we can use the Texas/Florida Razor, to disenfranchise all the living voters!

In the interim, the corrupt power hungry DA's and police forces will continue to grow in power, legally terrorize their own population at the slightest inconceiveable pretext(as happened very recently in the United Kingdom), will be inventing new ways and means to curtail all press freedoms and replace it with that similar to George Orwell's vision as used in 1984!

Welcome to America's new undeclared war on it's own population, very similar to that which CIA sponsored and were very active participants as well, as that which happened in Argentina in the eighties, or Greece in the late sixties(allegedly fighting the evil communists, but in reality something totally different)!
Posted by heystoopid (691 comments )
Reply Link Flag
Oh well indeed!
Heystoopid publicly made this remark:

"All too soon, with the 'diebold rent-a-vote!' electronic voting
machines , state and federal elections will be so rigged, that
even those that died last century, will now be able to vote in the
current mid term elections"

They won't have to do anything that obvious because those
horrible communistic diebold "rent-a-vote" machines leave no
paper trail to follow and are easier to hack than Winblows. So
you go vote for your favorite Democratic representative along
with 70% of the population, but the next day you read in the
papers that the Republican won. How would you prove fraud?
Answer - YOU CAN'T!!!

Time to lay down, you sheeple. Take what the government gives
you and like it. Unless you prefer a room in Gitmo and the title
of "enemy combatant".

WAKE UP! IMPEACH THE SON OF A BUSH ... NOW!!!
Posted by Dalkorian (3000 comments )
Link Flag
Taking Hard Drives
This would discombubulate most people, how does one stay in
business, given legal processes last for years, and removing hard
drives from laptops can be difficult or expensive.
Posted by samhuff (21 comments )
Reply Link Flag
 

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