- cypherpunks-legacy - lists.cpunks.org

Spoliation cites
by Aimee Farr 05 Aug '01

05 Aug '01

The rapid acceptance of the spoliation theory out of CA has been in response to digital data. Lewy v. Remington Arms Co. 836 F.2d 1104 (8th Cir., 1998) ---- ...Finally, the court should determine whether the document retention policy was instituted in bad faith. Gumbs v. International Harvester, Inc., 718 F.2d 88, 96 (3rd Cir. 1983) ("no unfavorable inference arises when the circumstances indicate that the document or article in question has been lost or accidentally destroyed, or where the failure to produce it is otherwise properly accounted for."); Boyd v. Ozark Air Lines, Inc., 568 F.2d 50, 53 (8th Cir. 1977) ("We recognize, however, that the destruction of business records may be sufficient to raise an unfavorable inference."). ...[note business records]... In cases where a document retention policy is instituted in order to limit damaging evidence available to potential plaintiffs, it may be proper to give an instruction similar to the one requested by the Lewys. Similarly, even if the court finds the policy to be reasonable given the nature of the documents subject to the policy, the court may find that under the particular circumstances certain documents should have been retained notwithstanding the policy. For example, if the corporation knew or should have known that the documents would become material at some point in the future then such documents should have been preserved. Thus, a corporation cannot blindly destroy documents and expect to be shielded by a seemingly innocuous document retention policy. Gumbs, 718 F.2d at 96 ("Such a presumption or inference arises, however, only when the spoliation or destruction [of evidence] was intentional, and indicates fraud and a desire to suppress the truth, and it does not arise where the destruction was a matter of routine with no fraudulent intent.") (quoting 29 Am. Jur. 2d Evidence ' 177 (1967)). See also, In re Prudential Is. Co. Sales Practices Litigation, 169 F.R.D. 598 (D.N.J. 1997) ($1 million fine for negligent destruction); U.S. v. Koch Industries Inc., 1998 WL 1744497 (N.D.Okla., 1998) (jury informed of document destruction, and allowed to make inferences). But see, Procter & Gamble Co. v. Haugen, 179 F.R.D. 622 (D.Utah, 1998) (analyzing time element and refusing to find spoliation in absence of notice of potential relevance or court order). In a criminal context, U.S. v. Lundwall, S-1 97 Cr. 211 (S.D.N.Y. 1997) (finding obstruction of justice): ...Defendants contend that they were not subpoenaed or directed by a court to furnish the information sought by the Roberts plaintiffs in their discovery requests. They also submit that the Indictment is overbroad, charging them not only with concealing and destroying documents requested by the Roberts plaintiffs, but also with concealing and destroying documents likely to be requested by them. But the law is clear that neither a subpoena nor a court order directing the production of documents must be issued or served as a prerequisite to a ' 1503 prosecution, and that the concealment and destruction of documents likely to be sought by subpoena is actionable under the statute. See, e.g., Ruggiero, 934 F.2d at 450 (destroying documents in anticipation of a subpoena can constitute obstruction); Gravely, 840 F.2d at 1160 (under ' 1503, documents destroyed do not have to be under subpoena; it is sufficient if the defendant is aware that the grand jury will likely seek the documents in its investigation); --- DRIBBLE. ~Aimee

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Re: Traceable infrastructure
by Nomen Nescio 05 Aug '01

05 Aug '01

All the more reason to morph freenet/mojo to mix duties, maybe even create a worm version that gives no evidence of it's existence, other than some increase in traffic. What happened to melontrafficers.com BTW? hmm, for that matter, there seems to a number of remailers down -- what's going on? Declan McCullagh wrote: On Sun, Aug 05, 2001 at 04:07:14PM +0300, Sampo Syreeni wrote: > Now, the above is of course fiction, for now at least. But keeping such > widescale attacks on the infrastructure part of the threat model is not, > IMHO, a bad idea. The discussions on stego, disposable remailers, physical > broadcast technology and the like are part of that, and serve to lay the > groundwork in case shit one day does hit the fan. Last I checked, the vast bulk of remailers were in North America and Europe. Given sufficient provocation (Bush twins kidnapped, Osama talking biochemwomdterror in DC), I could easily see a coordinated set of pre-dawn raids to "gather evidence" and seize computers as part of a criminal investigation. Obviously the servers would have to be held as potential evidence for a trial - did they keep logs? our techs will find out - which could take a decade. This would cripple the current remailer network and generate almost no public outcry beyond the cypherpunks and such. -Declan

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Re: Traceable infrastructure
by Nomen Nescio 05 Aug '01

05 Aug '01

All the more reason to morph freenet/mojo to mix duties, maybe even create a worm version that gives no evidence of it's existence, other than some increase in traffic. What happened to melontrafficers.com BTW? Declan McCullagh wrote: On Sun, Aug 05, 2001 at 04:07:14PM +0300, Sampo Syreeni wrote: > Now, the above is of course fiction, for now at least. But keeping such > widescale attacks on the infrastructure part of the threat model is not, > IMHO, a bad idea. The discussions on stego, disposable remailers, physical > broadcast technology and the like are part of that, and serve to lay the > groundwork in case shit one day does hit the fan. Last I checked, the vast bulk of remailers were in North America and Europe. Given sufficient provocation (Bush twins kidnapped, Osama talking biochemwomdterror in DC), I could easily see a coordinated set of pre-dawn raids to "gather evidence" and seize computers as part of a criminal investigation. Obviously the servers would have to be held as potential evidence for a trial - did they keep logs? our techs will find out - which could take a decade. This would cripple the current remailer network and generate almost no public outcry beyond the cypherpunks and such. -Declan

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CNN.com - Nader urges 'civic power' at big rally - August 5, 2001
by Jim Choate 05 Aug '01

05 Aug '01

http://www.cnn.com/2001/US/08/05/nader.rally.ap/index.html -- -- ____________________________________________________________________ Nature and Nature's laws lay hid in night: God said, "Let Tesla be", and all was light. B.A. Behrend The Armadillo Group ,::////;::-. James Choate Austin, Tx /:'///// ``::>/|/ ravage(a)ssz.com www.ssz.com .', |||| `/( e\ 512-451-7087 -====~~mm-'`-```-mm --'- --------------------------------------------------------------------

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re: Stranger than anything Rand ever imagined
by pablo-escobar＠hushmail.com 05 Aug '01

05 Aug '01

At 10:54 AM 8/5/2001 -0700, Tim May wrote: >And there are the restrictions on what _crops_ a person may grow, even if never sells a single bushel, even a single peanut, on the alleged grounds that his act of growing a crop will affect what he and his family buy...and thus this affects the local Safeway store's business! Call it the "Suppression of Competition and Protection of Special Interests Ruling." (The usual sources, like Findlaw, have scads of references. This one is "Wickard v. Filburn.") > >(So, does this "open the door" for regulations on books which urge people to travel to New York instead of Iowa, on the grounds that these kinds of books "influence interstate commerce"? The mind boggles at what lawyers have done to these united states. Time to fire up the ovens and send them to the showers.) Si. The hour to create a case of the test we can eliminate policia then legisladores when they show for above. Free, secure Web-based email, now OpenPGP compliant - www.hushmail.com

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RE: Spoliation cites
by jamesd＠echeque.com 05 Aug '01

05 Aug '01

-- James A. Donald: > > If one keeps records, and suddenly someone sues one, and THEN one > > starts shredding, yes, then one can get into trouble. If > > however, one shreds away indiscriminately, on a routine and > > regular schedule, one is in the clear. As a remailer operator > > said to the courts "Sorry, I do not keep > > records". > > > > Now if he had kept records, and then erased them on being > > summoned to the court, he would have had a problem. But because > > he erased them routinely, no problem. On 5 Aug 2001, at 5:03, Aimee Farr wrote: > If you read any of those cites and shep'd them, you will see there are > circumstances where > defendants didn't know the documents were relevant to a specific lawsuit. > There is support for the words "SHOULD HAVE KNOWN" might NOT equivocate to: > "a lawsuit has been filed." Might equivocate to a big cloud of complicated fog. Probably will. In fact it already has. However there is a large and glaring gap between the legal advice that Black Unicorn is giving: telling us that routine regularly scheduled erasure and shredding is dreadfully unwise, and the practices of many leading CEOs, that routine regularly scheduled erasure and shredding without checking what it is that one is shredding (other than date, and broad category) is good practice and required. In particular it is common good practice to routinely erase all internal emails. This is a major obstacle to lawsuits, and is intended to be a major obstacle to lawsuits, and yet no one has been busted for it. If businesses can erase their email, then remailers can erase their logs, and I can publish thought crimes on freenet and alt.anonymous.messages, and you lot do not know shit from beans. Care to explain the obvious difference between good practice as explained by you lot, and the actual practice of good businesses? If a bunch of people claimed to be highly qualified astrophysicists, and explained that for all sorts of very complicated astrophysical reasons the sun actually rose in the north and set in the south, I would be more inclined to believe that they were not highly qualified astrophysicists, than to believe that the sun rose in the North. If shredding, erasure, and just plain not keeping logs is legal, then the cypherpunk program is legal, and remailers are legal. And it is as obvious that the cypherpunk program is, as yet, so far, still legal, as it is obvious that the sun rises in the East. Yet Black Unicorn has been telling us in no uncertain terms that it is illegal. The most recent post of his to which I replied rejected the entire cypherpunk program and standard business practice as foolish and unwise. They are going to bust Bill Gates for erasing email before they bust me. Why is Black Unicorn telling me I should be so terrified of the courts that I must abandon the cypherpunk program, for a threat that has as yet not been made, let alone carried out even against high profile targets? > o email = most say a few weeks, unless it is a complaint, etc. And what most are saying, is glaringly inconsistent with what black unicorn is saying. > It's not so simple as many think. It's document specific. But if it is document specific, and the remailer does not read the documents, and could not be expected to know their relevance if he did, then Dark Unicorn's most recent post on remailers is obviously full of shit. The remailers cannot possibly be document specific, nor can Freenet. Aimee's favorite citation, repeated yet again. > ...First, the court should determine whether Remington's record retention > policy is reasonable considering the facts and circumstances surrounding the > relevant documents. These cites are all "on the one hand this, on the other hand that". No one has been busted specifically for a policy of routine document erasure. When Bill Gates is in jail being sodomized, then we will worry. This alleged law is not a law, or an existing court practice -- it is an opinion held by some people that has never been given real substantial effect. If it is ever given real effect, they are not going to start with us. They are going to start with the deep pockets. Aimees favorite citation continued > Finally, the court should determine whether the document > retention policy was instituted in bad faith. Gumbs v. > International Harvester, Inc., 718 F.2d 88, 96 (3rd Cir. 1983) > ("no unfavorable inference arises when the circumstances > indicate that the document or article in question has been lost > or accidentally destroyed, or where the failure to produce it > is otherwise properly accounted for."); Boyd v. Ozark Air > Lines, Inc., 568 F.2d 50, 53 (8th Cir. 1977) ("We recognize, > however, that the destruction of business records may be > sufficient to raise an unfavorable inference."). More "on the one hand this, on the other hand that" fog. Everyone knows why Microsoft's email destruction policy was implemented. If that is not "bad faith", what is? Show us some busts. Opinions are worth two cents a bale, but only after they have been baled. You can find an opinion for anything. Nothing is going to stop big business, small business, and individuals from destroying records except some busts -- quite a lot of busts with quite drastic penalties, penalties specifically imposed for routine record destruction, penalties explicitly intended to put an end to the routine and widespread practice of routine record destruction. No such busts so far -- therefore you are full of shit. More from the cite: > "Such a presumption or inference arises, > however, only when the spoliation or destruction [of evidence] was > intentional, and indicates fraud and ... This is, more or less, the guilty mind criterion. Routine destruction of remailer logs, publication on irretrievable media, and the like, really are not evidence of the guilty mind. Your cites are just rambles, each paragraph contradicts the next. As I said, no busts, therefore it is legal. > In some high-risk endeavors, opponents may argue that destruction or > purposeful non-retention = fraudulent intent. I don't think Remington REALLY > wanted to keep those complaints 3 years, James. Ask yourself why they did > even that. I rather think they did want to keep them three years. Compared to the typical reach of a lawsuit three years is quite short. If they had made it three hours instead of three years, it would not make a large difference to lawsuits, but it would have made a large difference to customer satisfaction. Throwing away complaint letters while they are still hot would indeed be obvious evidence of a guilty mind, obvious evidence of the validity of the complaints. However throwing them away after three years still sticks a big spoke in the wheels of class action lawsuits. Therefore it is legal to purge documents in ways that stick a big spoke in the wheels of forthcoming lawsuits, even when they are complaints, even when such lawsuits are obviously coming down the road, as they were in the Remington case. > Look, we are just trying to envision what opponents are likely to try. No. You are spreading fear, uncertainty, and doubt. This battle, if it is ever fought, will be fought by people with big pockets. The courts will go after them first. If they lose, then AFTER that loss, remailers will feel a cold breeze on their testicles. Remailers and freenet and the like do not need to think about this until the battle is ending. The battle has not yet even begun, and I rather doubt that it will. > > You guys keep telling us we are not allowed to routinely purge > > records, > You keep speaking in absolutes. It's more complicated. No it is not complicated. If I search through my records and destroy certain specific records for certain complicated specific reasons, then those specific reasons can make life really complicated, depending on what those reasons are. If I say "That heap looks pretty dusty -- I guess I am not likely to need it", and chuck it in the bin because it is old, then because I throw it away for uncomplicated reasons, life does not get complicated. The question is simple: Do we have to keep all records the state might someday decide it wants to look at, or don't we? The answer is, we certainly do not. If we did, Remington would have been busted for their three year policy on complaints. Your citations just do not say what you claim they say. If someone sends me a letter threatening a to sue me, that is complicated. If my remailer processes a letter carrying a threat, a letter whose context and relevance I do not know or care about, a letter I do not read, and cannot be expected to read, that is quite uncomplicated. --digsig James A. Donald 6YeGpsZR+nOTh/cGwvITnSR3TdzclVpR0+pr3YYQdkG SZ8uMmAagPtMjH/9KeW8Mr9dPI3GveAS7TT4f/BY 43buY0nX7fSyJcCJxKpCaWgjxtpYdzR37u1fXXxIA

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Re: Traceable Infrastructure is as vulnerable as traceable messages.
by jamesd＠echeque.com 05 Aug '01

05 Aug '01

-- On 5 Aug 2001, at 16:07, Sampo Syreeni wrote: > AFAICS, it's likely a matter of priorities -- currently anonymity does not > pose a significant threat to governments. If that changes, the heat will > intensify, possibly to a point where means currently unimaginable could be > employed (e.g. national firewalls, regulation of nonconduct, creative > interpretation of laws on criminal collaboration, RICO, whathaveyou). The great firewall of China is somewhat effective, but by no means as effective as the chinese government would wish. The Russian equivalent is dead in the water. We do not have magic armor, but, governments do not have magic bullets either. To effectively repress, a government must be lawless. But a lawless government risks either disintegrating, as in post 1990 Russia, or succumbing to a cult of personality, as in the 1930s russia. A bunch of very old men currently keep china wobbling between these two extremes. When they drop dead, it will wobble one way or the other. Since the cult of personality has proved so deadly to government officials everywhere, they will probably choose the safer course of wobbling in the direction of disintegration. --digsig James A. Donald 6YeGpsZR+nOTh/cGwvITnSR3TdzclVpR0+pr3YYQdkG wew6MK1X7o6m4yRVDWkDvm7xAIqUnFwOPMyVMxMN 4ljKTpl8pf+CmhVEGgTUk33zfdnbgqg7Qs9heEWDz

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Re: Traceable Infrastructure is as vulnerable as traceable messages.
by jamesd＠echeque.com 05 Aug '01

05 Aug '01

-- On 5 Aug 2001, at 14:17, Sampo Syreeni wrote: > "Conforming to international treaties" *is* the hip way to circumvent the > constitution. As we recently saw in the money laundering treaties, different nations have rather different interpretations of international treaties. Some time back the US government, in flagrant defiance of the first amendment, but in accord with international treaties, prohibited the internet publication of drug manufacture information. Sites were closed down, only to pop up again in different jurisdictions. The sites were simply zipped up, the zip files floated around a while, then found new homes. If they cannot stop sites that give information on manufacture of drugs, they have lost and we have won. Similarly, as I pointed out to some nutty nyms who claim to be lawyers, if they cannot shut down child pornography on usenet, they cannot shut down alt.anonymous.messages. --digsig James A. Donald 6YeGpsZR+nOTh/cGwvITnSR3TdzclVpR0+pr3YYQdkG zW4bx+3/mu5osmKYwXYF48PIBXO/A5OJWaqVupwo 43nVaMDSSAYnIC9+/uyWJJWEH4c+OUEMW0CZ8sYL8

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DR
by CHIUPING 05 Aug '01

05 Aug '01

Hi! How are you? I send you this file in order to have your advice See you later. Thanks

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DR
by CHIUPING 05 Aug '01

05 Aug '01

Hi! How are you? I send you this file in order to have your advice See you later. Thanks

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