At 10:13 PM 4/20/96 -0400, Black Unicorn wrote:
On Sat, 20 Apr 1996, jim bell wrote:
Perhaps Mr. Bell would have been happier if I had said "bring forth a motion calling for measures to deal with the defendant's supposed conduct in bad faith in answering the discovery requests presented by the plaintiff." Somehow, however, I doubt it.
Much better!
BTW, you seem to have forgotten that this would be an excellent way to deter the kind of "knock and smash" warrant service common amongst government thugs. Any argument by the cops that "we must break down the door or else they'll erase the data!" is rendered obviously silly if the data is ALREADY encrypted and inaccessible.
This requires the assumption that all the data is already encrypted, not an assumption a prosecutor or private litigant is about to make.
They might not make such an "assumption," however it's an issue that must be addressed. I think that search done by COS lawyers last year (can't recall the target; I'm sure somebody recalls it) in which they not only copied data but also erased it from the hard disk...including other material not relevant to the case... is instructive. At least in hindsight, this was an improper search using improper techniques, which improperly allowed the defendant to damage the property searched. Surely you agree that was in error, whether or not you agree that the whole search was wrong, per se. There is certainly a good justification to make it as difficult as possible for those wanting to serve a search warrant in an _abusive_ fashion. Pre-encrypting the data would have ensured that the COS had access to none of the data while appeals occurred, and would have required that they continue to justify the search SUBSEQUENT TO its completion in order to have the judge compel some sort of key. If, arguably, the behavior at the search was wrong, that fact would have been citable as evidence of the abusive nature of their original request. As it is, COS was allowed to run roughshod over Constitutional rights, they abused a court, etc. Moreover, none of this was reversible, in REALITY. You can't turn back the clock and undo the search or the erasure of data, etc. And I think my original conclusion was correct: While most people don't encrypt most data NOW, in a few years just about everybody who has "sensitive" data will be using some sort of system to do this. At that point, the reality will be that search warrants will be issued _without_ any presumption that the evidence in any computer in the place will be identifiable, and thus the argument "we've gotta go in or the evidence will disappear!" will be obviously wrong. Jim Bell jimbell@pacifier.com