At 10:19 PM -0700 7/31/01, Black Unicorn wrote:
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.
Show me the cites. I commit felonies on a weekly, even daily, basis.
I've seen more of this in the white collar world, where billing records, transaction records and such were destroyed but the principal holds.
IBM instructed employees to destroy records. At Intel, we destroyed records--I did so as part of the "Crush" program (to drive several competitors out of business). So long as we were not being ordered to turn over evidence, not any kind of crime. A bookstore is not "spoliating" for failing to keep records of who bought which books. Cop: "We have a court order requiring you to turn over all records concerning who bought the book "Applied Cryptography."" Store: "We don't keep records." Cop: "Why not?" Store: "None of your business." (Interjection by Black Unicorn: "The court is not amused.") Cop: "We could charge you with spoliation!" Store: "Go right ahead." (Interjection by Black Unicorn: "It's not nice to fool with Mr. Happy Fun Court.")
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.
The discussion included claims that those who use remailers, or who run remailers, may be guilty of spoliation. And it included comments that using offshore/unreachable methods if one ever expects to be charged is spoliation. 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.
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.
But you said, more than once, "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." And why would it be a crime for John Gotti to make his communications inaccessible or irretrievable or unrecallable? How aboutL "If it looks like you knew it was going to be a court issue and you whispered so that the FBI could not understand your words , you're in trouble."? Isn't this spoliation by your broad standards?
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.
But, Black Unicorn, you're the one who chose to lecture all the children here. I have asked for a cite that shows that higher courts, up to the Supreme Court, have held that using Freenet or encryption would constitute spoliation, which you brought into the discussion as a reason why Cypherpunks had better not count on using encryption, or offshore storage, or any other means that might cause the court to "not be amused." 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.
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.
John Gotti "knew or should have known" that prosecutors would have loved to have had his tape-recorded conversations. Was he then obligated by "spoliation" standards to have neatly archived them or could he re-use his answering machine tapes the way everyone else does/ (Again, he is not in Marion for spoliation.) And so on. I could give a dozen examples off-hand of cases where records were not kept, where whispering or coded messages were used. No prosecutions on spoliation that I know of. Cites from you?
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.
I'm asking for some cites that your broad interpretation, which you have even extended to saying that remailer operators may be running afoul of the spoliation law merely for not keeping records of who used their services, is at all in the ballpark of plausibility. A person under indictment or called as a witness who throws a gun into a river, or who burns diaries, may be said to be tampering with or destroying evidence. Maybe "spoliation" is the Black's Law term. Who cares? But this is a far cry from saying that anyone "who knows or has reason to expect" that he will someday be charged with some crime is committing spoliation by using remailers, offshore accounts,whispering, using secure phone lines, etc. Saying I should "look up the statute" is a cop-out. In fact, I did some Findlaw searches and found nothing to support your broad claim that using a remailer or an offshore storage site exposes one to spoliation charges. In the real world, that is, not the 1L simplicities of reading statutes overly literally. If you're going to try to scare remailer operators with the claim that they may already be violating the spoliation laws, at least provide some strong evidence. --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