At 07:35 PM 3/29/96 -0500, Black Unicorn wrote:

On Fri, 29 Mar 1996, jim bell wrote:

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entails criminal charges?

You _do_ have an odd way with words. "entails" criminal charges? Hey, they can charge ANYBODY with ANYTHING, but that doesn't mean that a crime has actually been committed. Further, it isn't clear that anybody is obligated to respond to a subpoena without the possibility of a court challenge, and your fantasy about the cops showing up and trying to strongarm the ISP is laughable at best.

Ok, forget "entails" try "is a crime."

I think the reason you are so sloppy with language is that you don't want to be held to a strict standard of accuracy. For you, "entails" is sufficiently vague that you think you can get away with it. This kind of "abuse the language" behavior is common among lawyers. Check out the New York Times vs. Sullivan SC decision and their odd usage of the term "malice": It's a definition that appeared in no dictionary and (apparently) no prior legal decision. Clearly, lawyers (and especially judges) think that they can dynamically re-define the language in order to suit their needs.

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Who said anything about "destruction of material evidence"? Refusing to hand over information until AFTER a court has properly responded to a challenge to a subpoena is old hat to newspapers, TV stations, and other media-organizations who are occasioinally served with a subpoena. The ISP need merely say, I'm challenging this subpoena in court, go away motherfuckers! ISP prepares a challenge, "CC's" ALL the affected individuals, (including the person whose information is desired!), and the validity of the subpoena is tested.

What you miss are provisions for the preservation of evidence called for in the order during the hearing process.

Before the challenge occurs? Hardy har har! Yes, the evidence WILL be preserved, in fully encrypted form.

The fact that you can fight a subpoena has no bearing what-so-ever on the fact that its a crime to destroy the evidence until the court rules that its non-material or otherwise quashes the subpoena.

Encrypting evidence is NOT "destroying evidence." Why don't you STOP talking about "destroying evidence, because it is clear that you've phonied up this assertion to buttress your claims.

I grow tired of being the source of your continuing legal education.

I'm sure other people are growing tired of your failure to support your claims, as well as your failure to recognize the fundamental unfairness of the various things you've CLAIMED judges do. I suspect that any reasonably unbiased person would be shocked and astonished at the various behaviors you've claimed judges have displayed; he would then understand quite clearly why encryption is going to be such an important improvement in future society, because it will quickly emasculate the government and its ability to do precisely the sort of things you've claimed its agents do.

Anyone who knows me knows I spend all my days end arounding the U.S. government.

Explains a lot! You _are_ paid for this. In an earlier era, you would have gladly run the ovens at Auschwitz if you'd gotten paid for it. I'm reminded of that famous New Yorker magazine cover which showed, in cartoon form, a picture of Manhattan in the foreground, Jersey in the middleground, and the midwest towards the back, then California in the distance, etc. Clearly, you see the government as "Manhattan," occupying the vast majority of your scenery, and the rest of the country is clearly ignorable in the background. Chances are good that the reason you aren't more bothered at the government's behavior is that, fundamentally, you PROFIT from the excesses of the government.

The reason you can't see that is because I don't threaten to murder officials, but choose the intellectual detour around the myopic laws instead.

I think you mean, "EXPENSIVE detour." You know, the one where the lawyers on both sides get paid a lot of money, the taxpayers and the victims get screwed, etc. Explains a lot about your motivations.

What is the function of your elusive super-secret "rosebud" warning then? To tell the account holder to get a cup of coffee and call the prosecutor to arrange for the delivery of the sought information?

Simple. I disagree that it is constitutional to prohibit a person from informing yet another person (should he be inclined to do so) that he has been approached by officials. I see no support in the Constitution for such a tactic, since it is obviously equivalent to prior restraint. Obviously, however, there is a strong motivation for the officials to WANT to keep their interest a secret, but people want a lot of things without necessarily getting them. Your problem is that you are unable to admit that this practice is of dubious propriety; the government has been able to get away with it because it has dealt with large organizations that depend on it and can easily control. Smaller organizations, like ISP's and such, are run by people who aren't quite so contaminated with the "Government is God" philosophy, and who are far more likely to get around (or challenge) a old tenet that officials had grown to know and love.

Subjecting the target to compelled discovery orders $50,000+/day fines, contempt charges, and incarceration for non-compliance. This, by the way, regardless of the "incriminating" nature of the evidence. Fines are not going to be refunded if the data/evidence is later proved immaterial.

You keep making statements which merely represent abuses of the system. What you don't explain is why any judge who does such abusive things shouldn't be removed from office, by whatever means necessary. You would be far more credible if you prefaced your sweeping statements about what a government does with, "Yes, it's illegal, but they..."

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Ideally, this would be done automatically every time a person calls his ISP, although the software to do this probably doesn't exist yet. The result would be that whenever the target was NOT connected to the ISP, there would be no information on the ISP's system that could be decrypted by the ISP operator.

Again, this still subjects the account holder to fines etc.

You haven't explained why. You have appeared to accept the premise that the ISP's system is automatically programmed to make it impossible for the ISP to provide information, and you've just ADMITTED (and yes, it's really an admission!) that a judge would be inclined to abuse his position in such circumstances. As far as I can see, the American Revolution was fought over violations of freedom substantially less severe than these.

God help him if he can't produce the desired information. He's likely to spend quite a long time in jail until the judge is convinced that he's telling the truth when he says "I threw away the key."

Tell me, honestly: Do you genuinely believe that the average citizen (or ISP operator) is going to feel any more generous to the government's desire to regulate encryption if he's told that he may some day be held in contempt for failing to provide what he knows he cannot provide? Further, one of the provisions of the Leahy bill seems to be that key-escrow is OPTIONAL. It is, therefore, presumably true that the key-owner can write whatever conditions into that escrow arrangement he's inclined to add. Suppose for a moment the key-owner reads your suck-up commentary and believes you: He'd have to be a fool to use a key-escrow agent that was within the jurisdiction of the US or treaty agreements, OR he'd insist on using encryption to hide the keys. That being the case, pressure on the key-escrow agent is totally useless, as least with regards to getting the actual key. Obviously, then, the only purpose of such strong-arm tactics could possibly be is to deter any key-escrow agents that offer a _secure_ key-escrow service. But we've reached a contradiction: Is key-escrow voluntary or isn't it? You seem to have forgotten the subject of this thread. The appropriateness of any particular piece of legislation depends not exclusively on what it says, but in fact how it will be abused by crooked judges and prosecutors. Every time you open your digital mouth, you further destroy whatever credibility those guys have in the eyes of the public. At this point, anybody with a brain in his head should be terrified of giving the thugs any more power to abuse.

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This would be one of those inventive future uses of encryption, well beyond plain vanilla PGP, which we must assure ourselves will be developed. The kind of thing you dread, obviously.

I don't dread it at all. I simply recognize the limited protection it affords the evidence concealer.

Actually, its protection against the individual is excellent. What you've done, essentially, is assert that the government will abuse any and all people who contract with the individual in order to deter them from entering into useful contracts which are secure against government intrusion. This worries me, and should worry anybody else. It's somewhat equivalent to the government holding your nearest neighbors responsible for any crimes you commit, which will induce them to spy on you to ensure that you're not doing anything that they'll later get it trouble for. Look up the term "bill of attainder" if you don't understand.

I certainly won't endorse moronic schemes that are so out of touch with practical and legal reality so as to be laughable.

That's odd. I've debated all comers, including clueless ones such as yourself. I've never run across a person who identified himself as a lawyer, and put even the smallest amount of effort into debunking my claims. I don't claim that everything I've said must be the truth; rather, I've pointed out that it's a good estimate and I've asked for clarifications and corrections. Nobody ever SPECIFICALLY challenges me on the big items; mostly I get statements like the one you've made just above which are so laughably non-specific that it's hard to know whether you seriously expect me to be satisfied with it.

The what's the purpose of your secret-super-duper "rosebud" warning? In the absence of evidence/information availability to law enforcement at the ISP, the account holder will be directly accountable. Is this a better solution?

You've now changed the structure of your "protection" scheme four times to duck my criticisms.

Actually, what I've done is poked four _different_ large holes in your arguments I haven't presented these as being part of the same claim. I don't have to.

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No, an even better defense is to make it absolutely impossible, as a matter of business practice, to assist the police with any kind of an investigation.

On the part of the ISP, this is possible. A secret "rosebud" tipoff is not the way to do it.

Why not? If it's undetectable, then there's no risk to the ISP even if you assume that he's not entitled to inform the target.

Your constant encryption option is a bit better, but still subjects the account holder to an investigation where the ISP is compelled to cooperate with the authorities in secret and intercept or record the computing session in real time.

This is rich! You're saying the ISP has to CHANGE HIS BUSINESS PRACTICES to ADD A FUNCTION not previously provided? Hey, if there is any argument in favor of kicking these bastards out of office, feet first, it is this. A search warrant, even a wiretap warrant, is NOT a "do anything and everything we tell you no matter how much time it takes and how much money it costs" order. The reason the government wanted that Digital Wiretap act passed was because (supposedly) there simply wasn't the technology in place to do the kind of wiretaps they claim they wanted. There was no hint, BTW, that any judge was fining and local telephone company for failing to do a tap because the equipment wasn't designed to do that. (in fact, I've read that the thugs were forced to PRIORITIZE their taps, and to thus accept the existing limitation) If what YOU claimed was possible, then that Digital Wiretap Act would have been unnecessary: The government would have simply leaned on the phonecos to force them to install this equipment anyway. I agree that an old-line company like AT+T or IBM or such might have complied with such an order, simply to stay on the government's good side, but to assume that such a broad interpretation will fly in the modern era is laughable at best.

Unfortunately, records can only be completely destroyed in a pre-emptive way when they are of no use any longer. This, again, ignores the possibility of real-time investigation or informers.

While courts will look askance

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at it when it does not appear to be a regular business practice (say, the company gets sued today and they have a mass shredding tomorrow) there is nothing wrong about regularly making past records unavailable by shredding, burning, erasing, or by any other method.

Once suit is filed there is.

Only if they are under discovery procedures. If I file a lawsuit again, say, the local phoneco, that doesn't mean that their entire records-destruction system must be put on hold. Only the material specifically needed and requested.

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Making those records SELECTIVELY unavailable by encrypting them with somebody else's public key and keeping them has probably never been tested in court, but if the business contracts this ISP regularly signs have this as a provision of doing business, the court can't squawk after the fact.

No, instead, knowing of this provision, any plaintiff or prosecutor will apply for a TRO to preserve evidence before ever filing for a warrant.

It's pretty hard to TRO a microprocessor.

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After all, the ISP might have simply erased the files, keeping them from being accessed by ANYBODY, including their "owner."

This argument will go over real well in court.

It really doesn't matter how well it "goes over." Once ISP's start using pre-emptive anti-warrant procedures, I predict that they will become standard in the industry: "Due diligence," as it were. Given a choice, I'd much rather use an ISP that was willing to make it as difficult as possible for the government to get what they want. If the ISP WANTS to do this, they can.

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In any case, I think it's fair to hold an ISP to his word and contract.

Contracts are void to the extent they are illegal.

Note to the rest of you: Unicorn is abusing the term "illegal." There is a difference between an "unenforceable" contract and one which actually is a crime. Unicorn's trying to mix up these two distinctions. Just because a contract can't be enforced in court because of legal bias, doesn't mean it can't be enforced "extra-judicially."

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If you can repeatedly describe, in nominally accurate terms, how abusive the government has become and NOT oppose its actions with every fiber in your being, then YOU have made yourself part of the problem.

Who said I didn't oppose it?

You only oppose it when PAID to! You have all the business ethics of a whore. Actually, maybe less.

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Remember that prosecutor who died in Boston a few months ago? You know, the one who made the national news? I'm still waiting to see how that one came out, but I suspect they will never be able to prove who did it, and may not even be able to find out.

Parties who believe Mr. Bell might have been responsible are invited to call the Boston Police and provide an anonymous tip.

Don't try to be funny. You're not very good at it. I try to follow all these kinds of "weird" cases that (strangely) make the national news for reasons that are not clear at the time. I figure that the reason they make the national news is that somebody knows something about the case which makes it worthy of the attention, but they can't quite say it because they have no proof. The word gets around, I'm sure.

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Except that in a court room, the decision maker is PAID by a party to the case, the government. That sounds like a classic conflict of interest to me.

Yadda yadda yadda.

That's the best this guy can do! (unless he's paid...) Jim Bell jimbell@pacifier.com