On 31 Jul 2001, at 12:22, Black Unicorn wrote:
So it seems to me that if you, say, publish documents to freenet (encrypted or not) then you're ok; it's right there in the spec, documents cannot be removed, even by the original author. If your life depends on removing the document, then you die. How is this wrong?
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.
OK, but is there a legal distinction between ex ante disclosure in anticipation of a specific court action vs. anticipation of court action in general? I mean, if I had spent a lot of time on a particular piece of code, and the potential existed that a judge might order me to turn over all copies, I might want to take precautions against this, even if there were no particular case pending where this was likely, and the possibility itself seemed rather remote.
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).
Just to clarify, I suggested possibly encrypting it just because I might not want it leaking without my consent. I wouldn't expect a judge to be dumb enough to buy the argument that "I just can't remember that damn key, but I probably will once this trial is over".
"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. In this light freenet might be the _worst_ place to put it because its only purpose is (I believe) to avoid censorship or seizure of the data. Why would you have used this relatively obscure and very specialized service if not in anticipation of court action which would later prevent the distribution of the data? Who else was threatening the manuscript, document, etc. to such a degree to require you to use freenet?
It's not THAT obscure. If i were in the habit of putting all my source code on freenet, the argument that I must have put a particular piece of it on freenet to avoid complying with a legitimate judicial order seems to me to be pretty weak. What I'm concerned with here is the possibility (which I consider monstrous) that a judge might be able to force me to surrender ALL copies of my work, leaving me incapable of accessing it. I fully understand that there's no way I can get a judge to accept the claim that I can't give him A copy of my work, even though I can still access it myself.
(Not only that but spoliation carries with it the permissible inference that the data was detrimental to you and the jury gets to hear that).
I'm not sure there are many arguments for using freenet other
Thanks, I'll remember that, it could come in handy some day. than
"I knew you pigs were going to try and grab it so I sent it far, far away."
"Knew" is too strong a word in this case, "suspected" or "feared" would be more accurate. And even I know better than to refer to a judge as a "pig" in his own courtroom. In the immortal words of Mae West, "No your honor, I'm doing my best to conceal it." George