At 1:31 AM -0700 8/1/01, Petro wrote:
This is truely humorous.
As BU said earlier "You overestimate the average contextual awareness level of the typical cypherpunk reader I think."
He's right.
Coming from you (which one of you is Petro and which one is Reese?), quite a compliment.
A book store owner has no expectation of being investigated for a selling a perfectly legal book, and no obligation to track the purchasers of it.
Even if a book store _expects_ to be investigated (or worse), there are simply no laws requiring tracking purchasers. Drug dealers and hookers are charged, for example, for specific alleged violations, not for failing to keep records of their past transactions so as to help their prosecution. A bookie who keeps his records in his head is not "spoliating" because he failed to keep records in a prosecutor-friendly form.
However, if that conversation was between the "State Board of Equalization" (for those outside California this is the department that deals with state sales tax apparently):
SBOE: We'd like to see your sales records for 1997-1999. STORE: "Sorry, can't do that, see there was this *really* weird fire on my desk last night, and wouldn't you know, all those records are gone".
You're going to be talking to a judge about this, and no, they won't be happy.
Only because there are SPECIFIC STATUTES that require the keeping of certain tax and financial records, and thus it is up to a judge to decide whether that "really weird fire" was in fact deliberate destruction of required records. There is no such requirement that people tape their phone calls, log their contacts, keep diaries, or store copies of cryptographic keys in places prosecutors can later obtain them. (This last point being the gist of the key escrow debate, of course). Purging old files and old papers is part of regular housecleaning. Whether one _thinks_ some prosecutor would be happy to find such papers is irrelevant.
I say this is bullshit. By your vague (no plausible cites, just some 1L literatlisms), whispering is spoliation. Failure to archive tape recordings of conversations is spoliation. Use of encryption is spoliation. Drawing the curtains is spoliation.
No, but destroying audio tapes, or blanking over bits of them *is*.
Cites? Many people get rid of old tapes. Recording over answering machine tapes is not a crime. If Gary Condit expected he would be questioned by the police, was he under some actual legal obligation to "lock down his office" (and apartment) so as to preserve it for investigators a couple of months down the road? Of course not. "You snooze, you lose."
They didn't get John Gotti for whispering, so I doubt "spoliation" is nearly the tool you and Aimee Farr seem to think it is.
There is a singnificant difference between Gotti and your bog-standard CP. Gotti could afford *really* good lawyers, and was making *real* money doing what he did.
You might be surprised how much money some of us make compared even to mafiosos. And the point above just as easily could have been that bookies are charged with spoliation for having kept their records in their heads instead of in some subpoena- or warrant-friendly form. Ditto for hookers not charged for having failed to keep records on their clients. The point is that spoliation is used only in narrow situations. Findlaw and Google have numbingly boring articles on its limitations. Black Unicorn seems to be trying to scare remailer operators out of business by claiming that they are likely facilitating such spoliations. This seems to be the business of lawyers, to warn that nearly everything is illegal. --Tim May -- Timothy C. May tcmay@got.net Corralitos, California Political: Co-founder Cypherpunks/crypto anarchy/Cyphernomicon Technical: physics/soft errors/Smalltalk/Squeak/agents/games/Go Personal: b.1951/UCSB/Intel '74-'86/retired/investor/motorcycles/guns