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From: jmc@Gang-of-Four.usenet (John McCarthy)
Newsgroups: comp.org.eff.news
Subject: Re: Evidence (was Re: Musing on Constitutionality)
Message-ID: <20773@well.sf.ca.us>
Date: 12 Sep 90 22:09:42 GMT
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In-Reply-To: fnord@spdcc.COM's message of 12 Sep 90 19:01:46 GMT

As far as I can see, no-one actually answered Gene Spafford's question
about whether the law sees a difference between the New York Times
and a basement produced sheet.  I have never heard of such a difference
being argued in a censorship case.  The legal movement has been in
the direction off erasing differences.  For example, advertisements
have been granted First Amendment protection to some extent.

Concerning "best evidence".  There obviously needs to be some
compromise here between keeping evidence and letting someone
get on with his work.  There are several possibilities.

1. A person's disk could be printed and he could stipulate via
his lawyer that the printout was correct.  Then he could have
his disk back.  When facts are stipulated by the prosecution
and defense, judges permit reneging on the stipulation only
in exceptional cases.

2. He could have a right to a copy of the confiscated files.

3. If his computer was an IBM PC XT, this could be stipulated,
and he could get his computer back.  Any PC XT or the documentation
of the PC XT would be acceptable evidence if he should destroy
the one he got back.

I believe courts would support such compromises on the grounds
that refusal by prosecutors to make them would constitute
"unreasonable search and seizure".