Decent thread. I still think there is plenty of opportunity for the laws of mathematics to make other laws moot but this is interesting. I have a few, hopefully not useless or inflammatory, comments. 1) The piece of useful information most easily extracted from this thread is that the best defense is that the "evidence" never existed and the device lacks the capability of creating it. Is it possible that the courts could decide that using or designing a device lacking logging features or that compiling a device from source with logging capabilities but with those capabilities selectively disabled is in itself an act of spoliation? These are acts done without any specific knowledge of people, places, things or events likely to be of interest to a court. General knowledge of the effects of designing, compiling or using such a device might be shown. 1a) Isn't there a PA statute prohibiting altering the headers on a communication? 1b) Could a remailer be declared to be a common carrier and subject to CALEA? 1c) Could a remailer operator be compelled to add or enable logging features without notifying users? 2) Most of the cites seem to describe cases involving corporations. Is it reasonable to think that while in theory corporations and individuals could be treated identically that in practice there are more documentation requirements on the part of a corporation, especially in the case of one that produces a product that is sold to the public? Would the expectations be different for individuals not engaged in commercial activities?
I suspect it can only get worse as we start to get more electronic evidence cases, particularly in IP law- since the criminal sides of that are starting to show up in civil based actions (much like anti-trust in the 80s-90s). Everyone is a prosecutor who can afford to be one.
Great.
3) The same technology that is providing all this super eavesdropping and logging capability is also making it easier to fabricate or plant evidence. Electronic evidence may seem wonderful to a prosecutor but aren't we going to have to deal with its vulnerability at some point? Maybe only after someone with deep pockets gets hurt. Mike
On Thu, 2 Aug 2001 mmotyka@lsil.com wrote:
I have a few, hopefully not useless or inflammatory, comments.
1) The piece of useful information most easily extracted from this thread is that the best defense is that the "evidence" never existed and the device lacks the capability of creating it. Is it possible that the courts could decide that using or designing a device lacking logging features or that compiling a device from source with logging capabilities but with those capabilities selectively disabled is in itself an act of spoliation? These are acts done without any specific knowledge of people, places, things or events likely to be of interest to a court. General knowledge of the effects of designing, compiling or using such a device might be shown.
No, they demonstrate that Black Unicorn drops the 'intent' requirement in his cites when he find it convenient.
1a) Isn't there a PA statute prohibiting altering the headers on a communication?
No, as far as I'm aware there is nothing that prevents the operator of a system from munging the packets that hit his NIC as they see fit.
1b) Could a remailer be declared to be a common carrier and subject to CALEA?
Not without a significant change in the laws for 'common carrier'.
1c) Could a remailer operator be compelled to add or enable logging features without notifying users?
No, they can't even be compelled to continue operation of the remailer. Though it could be 'confiscated' and operated by the LEA's and courts.
2) Most of the cites seem to describe cases involving corporations. Is it reasonable to think that while in theory corporations and individuals could be treated identically that in practice there are more documentation requirements on the part of a corporation, especially in the case of one that produces a product that is sold to the public? Would the expectations be different for individuals not engaged in commercial activities?
All the cite's require 'intent' in one definition or another to be specific toward obfuscating the future case. You know you fucked up, now hide it fast before anybody finds out about it. Oops, didn't hide it fast enough. -- ____________________________________________________________________ Nature and Nature's laws lay hid in night: God said, "Let Tesla be", and all was light. B.A. Behrend The Armadillo Group ,::////;::-. James Choate Austin, Tx /:'///// ``::>/|/ ravage@ssz.com www.ssz.com .', |||| `/( e\ 512-451-7087 -====~~mm-'`-```-mm --'- --------------------------------------------------------------------
Mike wrote: Good questions, Mike. Especially this one:
2) Most of the cites seem to describe cases involving corporations. Is it reasonable to think that while in theory corporations and individuals could be treated identically that in practice there are more documentation requirements on the part of a corporation, especially in the case of one that produces a product that is sold to the public? Would the expectations be different for individuals not engaged in commercial activities?
~Aimee
participants (3)
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Aimee Farr -
Jim Choate -
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