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. At 11:19 PM -0700 7/31/01, Tim May wrote:
At 10:19 PM -0700 7/31/01, Black Unicorn wrote:
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.
Were these destructions ordered because investigations were *known to be* imminent, or because someone was looking ahead and figured that someday someone might start an investigation, and it would be better if that stuff was already gone. Context. In one case you have a reasonable assumption that someone *is* going to look for that stuff. In the other, you don't have that assumption. It's not whether you commit the crime, it's whether you assume you're going to get investigated for it.
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.")
That's not what he said at all. 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. 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.
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.
No, that is not what Unicorn said. It is not "if one ever expects to be charged" although it could be argued that be suspecting that you were going to be charged you knew you were committing a crime, but I suspect that is tangental.
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*.
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. Most of us here aren't making anywhere near what Gotti did. If the Feds come after one of us, it's either for harassment--in which case a spoliation charge is as good as any (it doesn't matter whether they win or lose, they've raised the cost of whatever joe CP is doing enough that he's going to take up a cheap hobby like Golf or Sailing instead), or it's for something in which they already have a good amount of evidence, and the "spoliation" will be a bargaining chip in the proceedings (cop to <x> and we'll drop <a>-<v>).