----- Original Message ----- From: "Tim May" <tcmay@got.net> To: <cypherpunks@lne.com> Sent: Tuesday, July 31, 2001 7:15 PM Subject: Re: Spoilation, escrows, courts, pigs.
At 12:22 PM -0700 7/31/01, Black Unicorn wrote:
Not being intimately familiar with the spec of freenet I can't really comment on that aspect or what a court will consider "impossible." What will not amuse a court is the appearance of an ex ante concealment or disclosure in anticipation of court action. If it looks like you knew it was going to be a court issue and you put it on freenet for that purpose, you're in trouble.
I think the cops will _someday_ come to rip my place apart. So?
Hardly "knew or should have known" unless... well Mr. May you'll know better than I will how naughty you've been.
Show me exactly which law I am breaking by placing some of my documents or files in a place even I cannot "turn over all copies from."
I have never heard of such a law.
If you know you've committed some kind of weapons violations or some such and you have reason to believe you have come to the attention of the authorities, burning the record of those bulk AK-74 purchases might be a bad idea- if you got caught. I've seen more of this in the white collar world, where billing records, transaction records and such were destroyed but the principal holds. Still, based on what you seem to have read me as saying we probably lost a good deal of the context of the discussion. The original question, as I understood it, was what an individual who was faced with a clearly pending court action (or an existing court order) could to do frustrate that order and prevent certain materials from being distributed- _without consequences_. My discussion was limited to that context, though I did not probably clarify that sufficiently. I also made some speculative suggestions about what encrypting such data might look like in a test case extending the facts to be a bit more edgy just to see where the limits were. Such a test case (of which there are none to my knowledge) would easily present a close issue to argue if a savvy prosecutor were around. I'm not sure anyone could tell how it would come out. Consider it a cautionary note for cypherpunks designing evidence destroying (concealing, whatever) systems. I never asserted a the kind of law you describe above existed. A careful re-reading of my post will reflect that.
You talk a lot about "courts not being amused" but I can find no evidence that such laws exist. Nor can I find any case where a Mafia don was prosecuted for "spoliation" a future prosecution by whispering.
Spoliation is usually used in specific reference to evidence, not a case or prosecution. Again, I think the context got lost after my fifth post on the subject or so.
Do you have such examples? And an appeals court assessment of the examples?
I could cite any number of obstruction and contempt examples, two from personal experience. One in which the defendant wished to prevent the disclosure of certain financial documents and other information to the court, all of which were secreted away before any proceedings began, but when it was clear the improprieties were going to come to light. One in which the defendant wished to disclose certain information (for not in my view the most kosher reasons) to the public which was the subject of a case and also the subject of a judicial gag order. Both efforts landed both defendants in confinement for a period of time- both times on contempt rulings. I can cite some case law if you really want or if there is some legitimate need for more clarification, but we are a bit far afield of the original discussion now, and that was not intended to allege anything close to the kind of prohibition you seem to be talking about.
Not only that but if you encrypt the stuff and it doesn't appear to be recoverable it almost sounds tantamount to destruction of evidence or spoliation (much more serious).
Cites?
I don't have any. This was my theory. Hence my language: "It almost sounds tantamount..." Hence my cite of the definition of spoliation below, for comparison. Hence my discussion of a prosecutor's likely tactic in making the argument. Encrypting to an "irrecoverable" key certainly comes close to if not outright meets the technical definition of spoliation in Black's Law Dictionary. What "irrecoverable" means will depend on the judge probably.
Remember, the hypo involves placing material in irrecoverable forms prior to any actual court case.
Well, that's not the hypo I remember but in any event the case doesn't need to have been called, the defendant merely needed to "know or should have known" that the material in question was likely to be the subject of a legal proceeding or material evidence to same. (Given that some states might have different standards- this is pretty close to what you can expect generally). The burden of proving that aside, that's the standard. Burning the offshore account statements on the morn before your indictment for bank fraud is going to get you a spoliation/destruction of evidence charge. Encrypting the statements to some (unrecoverable?) key looks very much like the same thing, doesn't it? The effect to the court is certainly the same. Again, if I were a prosecutor I would at least make this argument. Its success would probably be 100% dependent on how much cotton the judge has in his ears at that particular moment, how badly he wanted to get out of court and meet the call girl he just reserved (ever wonder why Friday's are always "motion days"?) and how "unamused" he is with the defendant. I talk a lot about how "not amused" a court is because, frankly, that has a substantial impact on the way rulings go. At least in my experience judges are very unlikely to be receptive to motions by a defendant that has pissed them off.
("The intentional destruction of evidence...
The destruction, or the significant and meaningful alteration of a document or instrument...") I've never seen a case play out like that but I would certainly make the argument as a prosecutor. Encrypting the stuff sure _looks_ like spoliation, particularly if it seemed likely that the evidence would be the subject of a judicial action. "Knew or should have known" will likely be the standard with respect to the stuff being the subject of judicial action and they can use actions to demonstrate intent.
And I think you're way off-base. "Known or should have known" that I, for example, will eventually be raided by the TP means that it is a crime for me to place files beyond the reach of those same TP?
(Sorry- TP?) Absolutely. If you know that something is or will be evidence to a crime and you destroy it knowing full well that a judicial proceeding is imminent, or knowing that an investigation is being considered, you've committed a felony in most states. It wouldn't take much effort for you to look up the California statute on destruction of evidence or spoliation.
I know you believe yourself to be a Real Lawyer. I cheerfully admit that IANAL.
Depends on your definition of "real lawyer." I hold the degree. I'm licensed to practice somewhere or another. I've probably made 15 or more motions before courts in various proceedings in various jurisdictions. I don't practice anymore so perhaps that disqualifies me. Still, all of this is academic- just as this discussion is. My qualifications are irrelevant. You got my opinion for free. I think I can fairly say you got more than you paid for. Look up the statutes for yourself.
But I say you are full of it.
Keeping to the contextual caveats above- I reassert my position. You can't simply knowingly deny a court access to evidence or testimony and not expect to get bit. Hard.
--Tim May