The optimal solution might well be to allow access to the tape with strict limits on redistribution (perhaps requiring that it be viewed in the courthouse rather than distributing copies) or perhaps blurring the faces of all the persons involved. But most likely neither of these possible solutions satisfies either of the inflexible legal structures. The only way I see of avoiding the problem is for the U.S. Attorney to exercise prosecutorial discretion and allow this sort of limited access. But I'm not sure how likely that is to occur.
The first time I heard of the tape was a CNN report where the journalist viewed it in the District Attorney's office. What an easy solution it would have been. Limit viewing of the tape to the press in the confines of that office. Probably no action by the federal prosecutor. Probably no questions about distribution of pornography. Most importantly, no untold amount of copies floating free across the land.
Which brings me back to a question I first alluded to on March 1.
Every action is backed by motive. Why was this tape let out in the open? What was the motivation? D.A. McDade claims he was simply following the law. Given what we know about exemptions from the Open Records provision, federal child pornography laws and the concept of federal preemption, this is shaky ground at best. Certainly common sense would lead us to wonder if there is a different answer to the question "why".
But even if we give D.A McDade the benefit of the doubt, even if we believe if he was just making a good faith effort to comply with the law, there is still a question which needs to be answered. Why wasn't the time taken to contemplate a better solution than just handing out tapes to anyone who asked (and possibly those who didn't)?
Do we not expect persons holding such enormous power and responsibility to hold to reason and restraint? Do we not expect prudence?
We could dive into the legal minutae until we all drown. Instead, can we not have the clean air of answers to a few simple questions?