Black Unicorn wrote:

...

Looks like a reporter ( or anyone else for that matter ) should keep well hidden backups of their notes and work so that they can comply with Napolean complexes, fishing expeditions and spin control operations and not lose their life's work.

No. Well hidden backups would put the reporter in a position of contempt, committing obstruction of justice or perjury. Better to escrow such documents with an attorney in a jurisdiction not likely to cooperate with the United States. (I can suggest several to interested parties privately).

That is one method of "well hidden" How about placing blocks of data on a safe site? A petit Napoleon would be able to subpoena a plaintext copy of the data and possibly make a fight about getting the keys but would not be able to deprive the owner of the data. That is, to me, the strangest and most disturbing part of this story considering how easy and cheap it is to make decent copies of almost anything written or taped. Why should an owner not be allowed to retain a copy? Mike

Black Unicorn wrote:

...

...

No. Well hidden backups would put the reporter in a position of contempt, committing obstruction of justice or perjury. Better to escrow such documents with an attorney in a jurisdiction not likely to cooperate with the United States. (I can suggest several to interested parties privately).

IANAL but it looks to me like obstruction relates to hindering the court's access to information not its total control of information.

...

...

That is one method of "well hidden"

No, that's not hidden.

OKOKOK - stored, not hidden.

...

How about placing blocks of data on a safe site? A petit Napoleon would be able to subpoena a plaintext copy of the data and possibly make a fight about getting the keys but would not be able to deprive the owner of the data.

Nope.

Compare:

Prosecutor: You retained copies of this document? Witness: Yes. Prosecutor: You were aware that all copies and original were subpoenaed by the court? Witness: Yes. Prosecutor: Where are these documents located? Witness: I won't answer that.

(Oops)

#1 - This is her current predicament - she refused to produce physical "evidence"

with:

Prosecutor: You retained copies of this document? Witness: Yes. Prosecutor: You were aware that all copies and original were subpoened by the court? Witness: Yes. Prosecutor: Where are these documents located? [Witness: I placed blocks of data on a safe site so they would be accessible.] [Witness: I split a cryptographic key and spread it among my friends and encrypted the document to it.] [Witness: I (insert clever but legally naive cypherpunk solution here) the document.]

(Oops)

#2 - Doesn't look so bad - she can produce all physical copies and still get access to her safe site. Safe is pretty generic, meaning possibly out of the jurisdiction, out of her control and visible to herself and possibly others as plaintext or otherwise. Not sure how it is possible to hassle her if she produces all physical copies as ordered but has taken steps to maintain future accessibility for her own purposes. Pardon me for being sloppy about "safe site". If the motherfuckers want all of the copies they can achieve that goal assymptotically by downloading the data repeatedly. Disks are cheap.

with:

Prosecutor: You retained copies of this document? Witness: No. Prosecutor: You have none of these documents in your possession or control? Witness: No. Prosecutor: Are you aware of any other copies of this document? Witness: Yes. Prosecutor: Where are they? Witness: An attorney representing the ABC trust bought a copy of the document before I knew about these proceedings. Prosecutor: Why didn't you instruct this attorney to turn over the documents? Witness: I have here a copy of the agreement assigning all my rights to the document over to this Isle of Man trust under control of the attorney listed here. I understand Simon and Schuster has expressed interest in the manuscript but since I no longer have the power to influence the fate of the document I cannot produce it, or I most certainly would comply with the court's most legitimate wishes and interest in effecting justice.

#3 - not entirely unlike #2 really - the data is out of her control. Only difference I can see is that there is a record of a transfer with a date prior to the subpoena. #2 admits of this same solution if blocks of data are mailed to some safe location on a regular basis. I don't see why some official type of escrow is required as long as the unsquelchable distribution predates the subpoena. BTW - would a subpoena such as the one served on the journalist specify that the contents of the records were not to be communicated to anyone?

...

Why should an owner not be allowed to retain a copy?

Cause the court says so.

Not a particularly useful answer and not necessarily justifiable on the part of the court. I think eventually a better answer would have to be produced, one that justified the censorship. We're back to what originally struck me as odd, and wrong, about this item. Whoever has her stuff should copy it and move the copy offshore because something is very wrong on the part of the court. Mike

Oh pointy one, I suppose you feel the same way about discussions of law as I feel about discussions of physics. I think if we studied the archives we'd find that my physics is pretty well on target. I try to stay out of it but sometimes I just can't help myself. It's not necessarily a bad thing. When I said IANAL I did not offer legal advice - I only offered what I think is right. Maybe that's what IANAL means. Shake loose a little of your own earfudge and try reading it that way. Right and wrong are not strictly the same as what is legal and what is not. That imperfect alignment is the topic of many of the discussions on this list. It may be idealistic and out of line with reality but no more so than is the idea that the law defines right and wrong, is absolute and in control. Besides, without a little idealism we'd all be eating the King's shit three times a day and telling ourselves it's delicious. SO, thanks bunches for your time. When I need legal advice I'll certainly hire a lawyer and not someone who prefaces his statements with IANAL. When I want to discuss opinions of what is right and what is wrong I already know enough to take what a lawyer says cum grano salis. Mike

-- Dark Unicorn:

...

Not a particularly useful answer and not necessarily justifiable on the part of the court. I think eventually a better answer would have to be produced, one that justified the censorship. We're back to what originally struck me as odd, and wrong, about this item. Whoever has her stuff should copy it and move the copy offshore because something is very wrong on the part of the court.

On 31 Jul 2001, at 0:12, Dr. Evil wrote:

Just because they're wrong and you're right doesn't benefit you at all when you are in jail for contempt, losing your ass-cherry. The belief to the contrary is what M. Unicorn would call a "classic Cypherpunk fallacy". M. Unicorn is absolutely right here. Trusts are a great thing which, in this case, allow you to completely achieve what you're trying to achieve, while complying all of the court's instructions. Use them! Why waste time being an outlaw?

The point of using cryptography such purposes is to make ones non compliance undetectable, or at least unprovable. Trusts and the like raise a red flag. You are generating legal documents that advertise your intended non compliance and explain how you intend to do it. Further, if authorities really have the hots for you, they can apply pressure to the trust authority is all sorts of ways. They do not have to comply with the law -- you do. For example they could kidnap the child of the person holding the trust, and hint that in return for cooperation they will overlook the crack they planted on him, carrying a twenty year prison sentence. Encrypted data with a long passphrase will resist any amount of pressure. Legal solutions will not. --digsig James A. Donald 6YeGpsZR+nOTh/cGwvITnSR3TdzclVpR0+pr3YYQdkG MkiOliQYRoCsvFgXrPssDQkVSSND546JvVIRynLL 46tYSopIdwQ4wSNumiw8frcVouKamWs1caYcGGMD4

On Tue, 31 Jul 2001 georgemw@speakeasy.net wrote:

If it's a crime to take actions specifically for the purpose of later rendering you unable to comply with a judge's order (is it?), how is escrowing it on the isle of man any different?

Oddly, I've been watching this one with some interest. The other day I got worried about potential disk drive crashes, since with one thing and another I'm starting to accumulate a lot of unreleased original source code on my main machine. After the work I've put into it, I'd hate to lose it. But it's not an application that does anything useful yet. It would be handy, from my point of view, to use usenet as an "offsite backup" solution -- posting encrypted source for work-in-progress on binary newsgroups so I could just go back and nab it out of the archives if I ever have a disk crash or in case the computer gets stolen. If I want to increase the odds of its getting archived, I would just embed it in a sound file or a movie file using stego (original sound and movies, so as to avoid DMCA hassles, of course). Stegograms present an interesting copyright question for the legally inclined; if I'm using usenet archives as offsite backup via stegograms, I'm okay with the release and public use of the stegogram, which most folks will interpret as being the same as the covertext. But would that entangle the copyright on the stegotext as well? Or if somebody took the stegogram and figured it out, would I have legal recourse to stop them from doing anything with my code? (I was considering going to a lawyer with this one, but since the odds against anyone hacking the password on the encrypted data in the stegotext are literally astronomical, I figure the point is sufficiently moot to be not worth answering except as an intellectual curiosity.) Bear

At 11:52 AM 07/31/2001 -0700, Ray Dillinger wrote:

It would be handy, from my point of view, to use usenet as an "offsite backup" solution -- posting encrypted source for work-in-progress on binary newsgroups so I could just go back and nab it out of the archives if I ever have a disk crash or in case the computer gets stolen.

"Your message may cost the net hundreds if not thousands of dollars." Usenet may be effective for Blacknet and samizdat and unreliable storage of critical secrets where the Fedz won't stomp them all out, but it doesn't scale well for normal backups. You can use one of those "100megsfree.com" sites, or buy storage, and use some anonymizer to stash your stuff there. The real advantage of using Usenet as opposed to a non-broadcast medium is that it's much harder for eavesdroppers to find the people reading it when they're targeting the writer, so you can use a Blacknet service anywhere; if that's not relevant, then don't bother. A broadcast medium like Usenet used to flood the net with huge numbers of copies for a week or so, and after that only a few archive sites like Deja would have it in findable form. That's probably less true today, since more people read it with NNTP on their ISP's machine, and many non-huge ISPs use a small number of NNTP service providers instead of doing their own, while the Dejanews-like services are less dependable. Stegoizing usually inflates your data by a factor of 10 or so, if you're trying to use credible stego (as opposed to simply titling your cyphertext as pic12345.jpg or maybe adding some file headers.) The real problem is that most of the searchable Usenet archive services ignore binary attachments, so they won't keep the contents of your file. So you'll need to use a stego system that turns it into text, like Peter Wayner's Mimic Functions or Dilbert's Pointy-Haired-Boss-Speak, adding yet another layer of content inflation.

Stegograms present an interesting copyright question for the legally inclined; if I'm using usenet archives as offsite backup via stegograms, I'm okay with the release and public use of the stegogram, which most folks will interpret as being the same as the covertext. But would that entangle the copyright on the stegotext as well? Or if somebody took the stegogram and figured it out, would I have legal recourse to stop them from doing anything with my code?

Anything you post on Usenet is pretty much toast. If you make plaintext world readable, it's world copyable; if you don't like that, only post cyphertext. Maybe the Berne Convention theoretically protects you, but so what? You're proposing putting this stuff on Usenet instead of a storage site because it's too hot for you to handle, so don't expect the US copyright system to help you much :-) It's especially rough on any Plausible Deniability you might have had.

On 30 Jul 2001, at 14:38, Black Unicorn wrote:

...

Prosecutor: You retained copies of this document? Witness: Yes. Prosecutor: You were aware that all copies and original were subpoened by

...

court? Witness: Yes. Prosecutor: Where are these documents located? [Witness: I placed blocks of data on a safe site so they would be accessible.] [Witness: I split a cryptographic key and spread it among my friends and encrypted the document to it.] [Witness: I (insert clever but legally naive cypherpunk solution here)

----- Original Message ----- From: To: Sent: Tuesday, July 31, 2001 9:55 AM Subject: Re: DOJ jails reporter, Ashcroft allows more journalist subpoenas the the

...

document.]

(Oops)

Forgive me for being naive wrt the law, but as I interpret what you have written, the critical distinction is, if you refuse to comply with a judge's orders (for whatever reason) you'll get cited for contempt, but if you cannot comply with his orders you're ok. Correct me if I'm misinterpreting you.

Pretty close I think.

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. 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). ("The intentional destruction of evidence... The destruction, or the significant and meaningful alteration of a document or instrument...") I've never seen a case play out like that but I would certainly make the argument as a prosecutor. Encrypting the stuff sure _looks_ like spoliation, particularly if it seemed likely that the evidence would be the subject of a judicial action. "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? (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).

If it's a crime to take actions specifically for the purpose of later rendering you unable to comply with a judge's order (is it?), how is escrowing it on the isle of man any different?

There are legitimate purposes for escrowing it on the Isle of Man over and above keeping it out of a court's hands. The key is to have _some_ leg to stand on when asked "if not trying to thwart the authority of this court, why did you do that." Good answers might sound like: "I wanted the proceeds of the manuscripts sale protected in trust for my grandchildren." "I wanted the negotiations to be handled by the same attorney that manages my spendthrift trust" (You do have one, right?) "I wanted to publish it anonymously, and needed a good attorney in a jurisdiction with strong confidentiality statutes to accomplish that end. I had no idea that the irrevocable trust was so far reaching that it would deny access to a legitimate judicial proceeding, your honor..." I'm not sure there are many arguments for using freenet other than "I knew you pigs were going to try and grab it so I sent it far, far away."

Thanks, George

Sure.

At 12:22 PM -0700 7/31/01, Black Unicorn wrote:

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.

I think the cops will _someday_ come to rip my place apart. So? 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. You talk a lot about "courts not being amused" but I can find no evidence that such laws exist. Nor can I find any case where a Mafia don was prosecuted for "spoliating" a future prosecution by whispering. Do you have such examples? And an appeals court assessment of the examples?

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).

Cites? Remember, the hypo involves placing material in irrecoverable forms prior to any actual court case. ("The intentional destruction of evidence...

The destruction, or the significant and meaningful alteration of a document or instrument...") I've never seen a case play out like that but I would certainly make the argument as a prosecutor. Encrypting the stuff sure _looks_ like spoliation, particularly if it seemed likely that the evidence would be the subject of a judicial action. "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.

And I think you're way off-base. "Known or should have known" that I, for example, will eventually be raided by the TP means that it is a crime for me to place files beyond the reach of those same TP? I know you believe yourself to be a Real Lawyer. I cheerfully admit that IANAL. But I say you are full of it. --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

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

At 1:31 AM -0700 8/1/01, Petro wrote:

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.

Coming from you (which one of you is Petro and which one is Reese?), quite a compliment.

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.

Even if a book store _expects_ to be investigated (or worse), there are simply no laws requiring tracking purchasers. Drug dealers and hookers are charged, for example, for specific alleged violations, not for failing to keep records of their past transactions so as to help their prosecution. A bookie who keeps his records in his head is not "spoliating" because he failed to keep records in a prosecutor-friendly form.

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.

Only because there are SPECIFIC STATUTES that require the keeping of certain tax and financial records, and thus it is up to a judge to decide whether that "really weird fire" was in fact deliberate destruction of required records. There is no such requirement that people tape their phone calls, log their contacts, keep diaries, or store copies of cryptographic keys in places prosecutors can later obtain them. (This last point being the gist of the key escrow debate, of course). Purging old files and old papers is part of regular housecleaning. Whether one _thinks_ some prosecutor would be happy to find such papers is irrelevant.

...

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*.

Cites? Many people get rid of old tapes. Recording over answering machine tapes is not a crime. If Gary Condit expected he would be questioned by the police, was he under some actual legal obligation to "lock down his office" (and apartment) so as to preserve it for investigators a couple of months down the road? Of course not. "You snooze, you lose."

...

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.

You might be surprised how much money some of us make compared even to mafiosos. And the point above just as easily could have been that bookies are charged with spoliation for having kept their records in their heads instead of in some subpoena- or warrant-friendly form. Ditto for hookers not charged for having failed to keep records on their clients. The point is that spoliation is used only in narrow situations. Findlaw and Google have numbingly boring articles on its limitations. Black Unicorn seems to be trying to scare remailer operators out of business by claiming that they are likely facilitating such spoliations. This seems to be the business of lawyers, to warn that nearly everything is illegal. --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

On Thu, 2 Aug 2001, Jim Choate wrote:

On Wed, 1 Aug 2001, Petro wrote:

...

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.

And there won't be a damn thing that they can do about it either unless they can PROVE you were aware of THE (as opposed to a hypothetical one) investigation.

Wow. You're seriously in denial, you know that? Hint: The cites BU provided are *REAL*. This actually happens, routinely. Bear

-----Original Message----- From: owner-cypherpunks@lne.com [mailto:owner-cypherpunks@lne.com]On Behalf Of Ray Dillinger Sent: Thursday, August 02, 2001 9:04 PM Cc: cypherpunks@einstein.ssz.com Subject: Re: Spoilation, escrows, courts, pigs.

...

On Wed, 1 Aug 2001, Petro wrote:

[On record destruction]:

...

...

You're going to be talking to a judge about this, and no, they won't be happy.

Jim Choate replies:

...

And there won't be a damn thing that they can do about it either unless they can PROVE you were aware of THE (as opposed to a hypothetical one) investigation.

Mr. Dillinger retorts:

Wow. You're seriously in denial, you know that?

Hint: The cites BU provided are *REAL*. This actually happens, routinely.

Bear

Jim Choate has been in a filter on my mail which dumps all his posts into a "Junk" folder along with anything containing the words "Get Rich Quick," "Miracle Penis Enlargement" or "The Internet Spy" for at least six weeks. Six wonderfully silent weeks. Every once in a while I see "Choate" sneak through when someone quotes him (the last time was this LSAT business he chickened out of). When I saw this post above I peeked at the "Junk" folder and found a host of legal commentary by Jim Choate, none of which, of course, shows any sign that he has bothered to so much as peek at any of the cases involved, or even bother to read the entirety (or majority) of the content in my posts. It does reaffirm that Mr. Choate not only has no legal credentials or expertise whatsoever but has actually strayed into territory I thought could not possibly exist; specifically: Perfect Legal Anti-Credibility. That is to say that the careful reader can get an awful lot of good legal advice out of Mr. Choate's post by merely reversing all the legal conclusions. The result turns out to be pretty good counsel. Remarkable indeed. As for Mr. Choate's posts, they are all awfully absent and I generally consider Mr. Choate the cypherpunks village idiot of the type who unfortunately lacks any redeeming quality in being amusing enough to provide entertainment. These below, however, convince me that Mr. Choate doesn't really even have any common connection with reality whatsoever: Mr. Choate:

...the point you and the courts seem to be jumping right over isn't the 'spoliation' per se but rather the environment that indicates 'willful' and 'substantial certainty' in the consequences of those document destructions. It isn't the document destruction per se but rather your motive to destroy them to hide your crime.

...and in another post: On Thu, 2 Aug 2001 mmotyka@lsil.com wrote:

...

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.

Mr. Choate replies:

No, they demonstrate that Black Unicorn drops the 'intent' requirement in his cites when he find it convenient.

mmotyka@lsil.com continues:

...

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?

Mr. Choate comments:

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.

Mr. Choate levels the kind of accusations that, in academic circles, would be very severe indeed. I could get pretty upset about this- that is until I remember it's just Mr. Choate. If his credibility credit reports are as anti-accurate as his legal views I take his posts as high compliment on my astounding legal skill and acumen. Mr. Choate insists I have some how "pulled a fast one" by avoiding the discussion of intent, which is implicit as a requirement in all of these cases. This accusation puzzles me intensely. In another of his posts he pretty much insists that I am intentionally omitting key facts from the case cites which would show the severity of the problem is actually far less than what I describe. To wit:

Review BU's cites and then ask yourself this (let's take the doctors records example specifically)...

Had the record that was lost been one of a hundred that were lost in a box would spoliation charges have been filed? Most likely not, because there was nothing singularly interesting about that record in that context.

In the other case, it wasn't that the company lost several cars and this particular one happened to be of interest, but rather that was the only(!) car that was lost.

Had Mr. Choate bothered to look up these cases he would have discovered that the record "loss" in the medical malpractice case (Bondu v. Gurvich) was in fact several records which were lost or otherwise misplaced at the same time of which the plaintiff's were but one. This is admittedly bit difficult to discern from the appeals case, but is clear at the trial court level. With respect to "loss" of the car in Hirsch v. General Motors it is clear to anyone who has spent 10 minutes with the case that the car was sold, as a matter of course, and records of the buyer not available or otherwise "lost." It also came out that this was the practice of the dealership with respect to many used car purchases that were on terms other than financing and that many used cars had been sold under the same circumstances with respect to records and thus "lost" before and since the car in question. As to his accusation that I avoided the intent issue I can only quote myself from the very post which is the subject of his accusation:

If you flesh out the case law on "intent," which I'll do some below, you'll find that there is no requirement that the investigative proceeding or demand have been made yet.

[...]

In a lovely piece of language on intent with reference to the destruction of the documents the court also notes: "...intent is broader than a desire or purpose to bring about physical results. It extends not only to those consequences which are desired, but also to those which the actor believes are substantially certain to follow from what the actor does." (More on this later).

[...]

...also, note the intent interpretation, applied to spoliation, is articulated better in Lopez v. Surchia 112 Cal.App.2d 314. A person who acts willfully intends "those consequences which (a) represent the very purpose for which an act is done (regardless of the likelihood of occurrence), or (b) are known to be substantially certain to result (regardless of desire)." On this point See Also Generally: Perkins on Criminal Law (2d ed.).

Taking it to the remailer example, sure, your (a) very purpose for which [logs are routinely erased] is accomplished. to wit: the saving of space time etc. but it is also (b) known to be substantially certain to result in [the denial of a court of law's access to the records pertaining to an issue before it]. Let's face it, remailers are not politically correct animals (all the human rights and recovery group arguments notwithstanding). A court might well assign intent to a remailer operator on the basis of this piece of case law, which is _strongly_ engrained in California jurisprudence incidentally and used as a major cite in several intent issue arguments.

I suppose what surprises me the most (and then again, doesn't considering the source) is that Mr. Choate is (intentionally or unintentionally I'm not quite sure) committing _precisely_ the kind of academic and intellectual dishonesty that he accuses me of in the very act of accusing me of it, specifically outright deleting any reference to my clear (and numerous) discussions of intent to serve his own ends. What's curious is how directly transparent this would be to anyone who bothered to read my posts after Choate's or those of Ms. Farr. What can he hope to accomplish? I suppose woo the court of the lazy? I don't know what to make of this in good faith other than that the medication lapsed at exactly the 3 disparate moments in my post when he caught a bit of intent discussion in my posts. (This seems suspicious to me, but I'll give him the benefit of the doubt since I believe him to be a very sick man). Of course, Mr. Choate is welcome to provide citations to the cases themselves refuting my interpretations of them if he wishes. Someone will have to forward them to me though because after this I intend to forward all mail with his name on it directly to the trash instead of to the "Junk" purgatory it currently enjoys.

----- Original Message ----- From: "Tim May" To: Sent: Tuesday, July 31, 2001 11:19 PM Subject: Re: Spoilation, escrows, courts, pigs.

At 10:19 PM -0700 7/31/01, Black Unicorn wrote:

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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 can't speak to your felonious activities, but on the other points, very well. For spoliation as an independent cause of action in tort (not to mention the criminal sanctions that can attach through obstruction) See: Bondu v. Gurvich, 473 So.2d 1307 (1985). Medical malpractice case in which court rules that the loss (not destruction) of medical records related to the claim constituted spoliation of evidence. (Note: no willful destruction was shown, mere negligence and the records were "lost" by actions prior to the commencement of the proceedings). See also: Hirsch v. General Motors, 628 A.2d 1108 (1993). Products liability case- vehicle caught fire, was refurbished, sold, then "lost" to an unknown purchaser. Only then did Plaintiffs file a suit against General Motors and the dealer who sold them the car. Court held the "loss" of the car constituted spoliation of evidence. (Note that no proceeding for products liability had been pending when the car was resold). See also generally: Brian E. Howard, Spoliation of Evidence, 49 J.Mo.B. 121 (1993). On the dangerous and insidious nature of Spoliation in civil cases Generally: Mary A. Wells, Penalties for Spoliation of Evidence Can be Serious, Including Exclusion of Evidence, Adverse Inferences and Liability for an Independent Tort, 60 Def.Couns.J. 280 (1993).

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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.

So long as it was regular practice and documented as policy it meant you had a _defense_ against an action or spoliation issue. It hardly meant that you weren't potentially going to be found in contempt of court, subject to a civil suit for spoliation or worse. As I'm sure you are aware your argument is flawed because of a sampling error. i.e.: "I walked across the street today and was not struck by an automobile. Therefore I can always expect no automobile will strike me when walking across the street." This is clearly not so. IBM and Intel are also better resourced than our typical remailer operator. (Unless you know something I don't?) I think it's pretty easy to argue that IBM and Intel were engaged in some naughtiness, that's not the issue. The issue is who is going to go after them and who wants to spend the money against an IBM or Intel defense team. (In fact you will probably know that in the Intel anti-trust days there was a bit of naughtiness done and there is a statute out there generated at least partly from Intel's conduct- specifically a change was made to 18 USC 1505: "Obstruction of proceedings before departments, agencies, and committees: Whoever, with intent to avoid, evade, prevent, or obstruct compliance, in whole or in part, with any civil investigative demand duly and properly made under the Antitrust Civil Process Act, willfully withholds, misrepresents, removes from any place, conceals, covers up, destroys, mutilates, alters, or by other means falsifies any documentary material, answers to written interrogatories, or oral testimony, which is the subject of such demand; or attempts to do so or solicits another to do so... [blah blah blah...] shall be fined under this title or imprisoned not more than five years, or both." If you flesh out the case law on "intent," which I'll do some below, you'll find that there is no requirement that the investigative proceeding or demand have been made yet. Intel and IBM aside, a remailer operator is hardly going to be doing him or herself a favor looking to large multi-nationals to define the rules of conduct since all of us here know (or should have known) that the rules don't always (ever?) apply to large multi-nationals.Back to the matter at hand.In reference to your example c.f. the experience in Willard v. Caterpillar, Inc., 40 Cal.App.4th 892 (1995). Defendant destroys all internal records on the design for a tractor that eventually results in an injury and a lawsuit (products liability), some ten (10) years later. Defendant destroyed these records _on advice of counsel_ 10 years before the proceedings and years before the accident. The trial court found spoliation in a hot minute, imposed sanctions and referred to the prosecutor the suggestion that criminal obstruction charges be filed. If this were a remailer operator we'd be struggling to scrape together $2,000.00 for EFF to defend the guy and he'd still be in the can, I suspect. In a lovely piece of language on intent with reference to the destruction of the documents the court also notes: "...intent is broader than a desire or purpose to bring about physical results. It extends not only to those consequences which are desired, but also to those which the actor believes are substantially certain to follow from what the actor does." (More on this later). An expensive appeal overturned a portion of the sanctions, but _only_ it seems, because the judges were convinced that the action of destruction was on advice of counsel and this outweighed the spoliation effect itself, which was low since the probative value of the records destroyed were regarded by the court to be minimal.

A bookstore is not "spoliation" for failing to keep records of who bought which books.Now we just haven't created any records- or any evidence.

I'd counter that the bookstore would be running afoul of standard accounting practices, or that most of the records of credit card transactions would be otherwise available so it's not a very good hypo, but let's go with it.

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.")

I note that you have omitted my "knew or should have known" that those records were likely to be part of a proceeding, I assume not just because it serves your argument in this instance. (I also note that the quote is "do not taunt happy-fun-court." A reference to the SNL quote "Do not taunt happy-fun-ball" and a statement of the dangers of taunting powers you may not understand). Still, the facts in Willard might still support your hypo as plausible, though I find it hard to envision it being pressed, and I think if you look at the facts of Hirsch v. General Motors you'll also find that the court isn't that kind to an otherwise innocent third party who does anything with records or "evidence" that eventually is sought after by the court, reasonability aside, knowledge aside, pending litigation aside. Disturbingly, innocent third parties have increasingly been taking it on the chin in American jurisprudence, but that's another essay.

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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.

And I stand by those. Such people have no (or just a little depending on the age of the judge in the case) defense in "normal course of business" or "custom" or "policy" that their actions were for any purpose other than to dispose of potentially material evidence to a crime. Face facts. Remailers are to destroy or prevent the creation of records. It's pretty reasonable to assume that the operator knows about this effect and anticipates the result. (More on that in a sec). Let's pretend for sake of argument that we could make a normal course of business argument (which IBM and Intel certainly would make, citing document destruction policies broadly written but loosely applied, to demonstrate their intent as being kosher). Even this isn't always enough, but it tends to help, particularly if your a big company keeping lots of records. (See e.g., Willard, Hirsch). Also, note the intent interpretation, applied to spoliation, is articulated better in Lopez v. Surchia 112 Cal.App.2d 314. A person who acts willfully intends "those consequences which (a) represent the very purpose for which an act is done (regardless of the likelihood of occurrence), or (b) are known to be substantially certain to result (regardless of desire)." On this point See Also Generally: Perkins on Criminal Law (2d ed.). Taking it to the remailer example, sure, your (a) very purpose for which [logs are routinely erased] is accomplished. to wit: the saving of space time etc. but it is also (b) known to be substantially certain to result in [the denial of a court of law's access to the records pertaining to an issue before it]. Let's face it, remailers are not politically correct animals (all the human rights and recovery group arguments notwithstanding). A court might well assign intent to a remailer operator on the basis of this piece of case law, which is _strongly_ engrained in California jurisprudence incidentally and used as a major cite in several intent issue arguments.

I say this is bullshit.

In response I can only direct you to read above.

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.

This is the point. The practical definition of destruction of evidence is what the court says it is. All you can do, all you can ever do, in court is to make arguments the other way. Either the court will buy them, or they won't. I tend to think your bookstore example would be unlikely to bring about a case. However, if I walked into the bookstore, told the manager I was going to sue him because he was overcharging 2% for every book, and then left, _technically_ the destruction of billing records after that point makes a pretty good case for spoliation. Something I didn't even give thought to, that I discovered thanks to Mr. May's insistence that I provide cites, is that it's even worse than that. You don't even have to intentionally toss the records to be spoiling evidence. You can do it by mere negligence or inaction. See e.g., Continental Casualty Co. v. Superior Court, 190 Cal.App.3d (1987).

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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.

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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."

See above.

And why would it be a crime for John Gotti to make his communications inaccessible or irretrievable or unrecallable?

That's preventing the creation of evidence in the first place. That is not the same problem. Extending to remailers, disabling the logging function entirely (rather than just routing to /dev/null or deleting regularly) is the best policy probably. Even better is to be a middle remailer. I fall back to my earlier position. Put yourself in the spot to be able to say "I couldn't give you those if I wanted to cause I don't control them." Adding to my earlier position you should rather be able to say "No such logs ever existed because that function doesn't exist in the software I use." or "No such logs exist because mail that comes to my system doesn't have meaningful headers on it anyhow." Or even better, just give them a full set of 20gigs of logs of encrypted mixmaster stuff with headers from nothing but 4 other front end remailers, maybe compressed in an obscure format on old Western Digital Corp tape reels or something.

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."?

Let's not be silly. That falls under the realm of not creating evidence in the first place, not destroying evidence that already exists. If you don't recognize the difference this discussion is a bigger waste of time than it already appears to be. If you routinely tape your calls for whatever purpose you're creating evidence. If you take notes, there's evidence. If there's a witness, there's evidence. There is no evidence if two parties are whispering in a loud Italian restaurant, unless the FBI has rather more sophisticated listening devices than I am led to believe. Well, technically there is evidence in the second party as a witness. If you tamper with him or her, you're in trouble too, as Gotti will, I suspect, readily attest to.

Isn't this spoliation by your broad standards?

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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

They aren't my standards and no, it's not, for the reasons I cite above. Mr. May Asks: the

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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.

The children can do a little homework if they are personally interested in more detail. As it is I did a bit of research for the list and you Mr. May, since FindLaw didn't seem to do it for you. (Not surprising since I don't regard it as a tool of much use). Whatever you, or anyone else, might think I don't pull this stuff out of thin air just to hear myself type.I'm interested in seeing remailers stick around and grow in numbers. That's not going to happen if remailer operators get pinched and bullied on a regular basis. We've been pretty lucky so far. I don't expect that to last forever. There are so many teeth getting built into "thought crimes" now with respect to intellectual property that I believe that this evidence issue is going to become a huge one, akin to what export was (is) in the mid 90s. You have DirectTV on the cover of yesterday's Wall Street Journal saying they are going to pursue end users citing over a billion dollars in "loss" due to pirates (and needing to dust off their financials for an upcoming acquisition transaction). You have distributors whining about the potential illicit digital redistribution of Planet of the Apes. You have researchers being pounded for publishing DMCA violating research. You have 20 something kids smart enough to be giving lectures at DEFCON in federal custody, despite the fact that the FBI buys their stuff, because a corporation got an IP bug stuck in its rectum.I'm happy to suggest prudent, conservative approaches for remailer operators, data haven types and suchlike- based on my experience with courts, white collar crime, production orders, discovery, and etc., because I think it's needed but even so I don't particularly I want to go romping through case law every week just to win a battle of egos on a mailing list. It's only the vigor and venom of your reply that's spurring me on in this instance actually since you made a few credibility comments that I think might have been a bit uncivil and unfair. (Lesson for other posters- to get legal research for free out of Uni, just insult him a lot).

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."

Well, that's not what you asked for. You asked for cites on spoliation generally, or so I understood you to ask. I also don't remember you specifying which courts you wanted cases from (though the ones I've cited are generally state supreme court level or otherwise major citations in the states they represent. I didn't spend time in the federal stacks today so you get state cites. A little exploration into the FRCP will yield equivalent cites for federal discovery and etc.

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.

I've seen obstruction and spoliation tacked on to about every white collar criminal action I have had any exposure to- almost like mail and wire fraud. It usually ends up in court imposed sanctions. Expensive ones. More importantly the credible allegation that evidence was tampered with or destroyed by the defendant is a _very_ persuasive thing for a jury to hear. Murder cases are won on that alone without bodies. A good place to look at this is in piracy cases, where the evidence is almost always tossed overboard and eaten. Lots of discussion about evidence that the evidence was tossed and lots of convictions. I regret that I can't talk in much detail about examples I had personal involvement with, I hope the cites I provide are enough for you to look further. They should be as they are, generally, the premise for much of the evidence case law out there in this area. My personal examples probably eventually resulted in briefs which cite these cases or their contemporaries because they were the same issues. Mr. May reminds us:

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Remember, the hypo involves placing material in irrecoverable forms prior to any actual court case.

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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/

Hirsch v. General Motors suggests that the "normal course of business" (i.e. reusing answering tapes perhaps) is not an absolute defense, or even a good defense, for spoliation. (c.f. Catapiller which suggests at least that it might have some weighted persuasive value if it was your attorney who told you to burn the documents- wonder if there was a malpractice case there?). They resold a damaged and refurbished car. That's what they do. They are a dealership. They sell cars. Some of them are used. Some have been damaged. Routine. The only problem was that the previous owners then decided to sue General Motors. Court, not being amused at the lack of availability of the car, imposes sanctions and permits a civil action for spoliation against GM and the dealer. Look, I agree with you. That's stupid to me. Don't burn the messenger though. Your outrage at my assertions is better directed to your legislative representative and even above you've still giving an example above of not actually creating evidence, unless there actually were taped conversations that Gotti actually altered or such.I'm not sure remailer operators can credibly give the "not creating evidence" example yet.

(Again, he is not in Marion for spoliation.)

Gotti is probably a bad example to argue your point with. He did have several counts of obstruction and tampering which stuck. I remember something off the top of my head about several sets of court sanctions against Michael Coiro, Gotti's attorney (whom I actually met once) related to evidence. He was eventually found guilty for money laundering and there was some tampering or destruction discussion there. You can write and ask Gotti if you like, if the throat cancer hasn't got him yet, I'm not looking that one up. (Mr. John Gotti #18261-053 USP Marion PO Box 1000 Marion, IL 62959).

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?

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Depends on your definition of "real lawyer." I hold the degree. I'm

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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

Again, if you don't actually _make_ records then there's nothing to spoil. That's a different hypo. To Mr. May's apparent chide that I consider myself a "real lawyer.": licensed paid

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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.

Cites provided. See above. I think I show its more than in the ballpark, but rather a called third strike.

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?

Because the applicability extends farther than just someone called as a witness or under indictment. Certainly in tort its _much_ more extensive. I'm tired of citing, see above.

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.

I think we've addressed most of these above either by discounting them as out of the scope of discussion or providing cites.

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.

You didn't look very hard or maybe you did but findlaw isn't the best resource either. It's for armchair attorneys. Seriously interested researchers will spend time at the library, look up statutes and learn to Shepardize. I happened to be at the law library for an unrelated matter so I wasted 90 minutes looking this silliness up for you and the list Mr. May. I herewith submit my invoice, payable on receipt, for more civil treatment, for services rendered.

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.

I actually pointed out examples of how to avoid the problems and cited a real individual example (but since I did not consult with him or her ahead of time I left the individual nameless- I see, but have not read- a reply that might be from said individual on the list now) of a successful dodge of a subpoena- or harmless emergence from the process in any event. The point is not to try and scare anyone, but impose some sense of reality that many cypherpunks just miss, having never seen the inside of a courtroom or having rendered a court "unamused." There's nothing quite like an unamused court if your standing (sitting) in front of one, and in answer to your implied query- I call them that because the judge always frowns, scowls, leans forward and says "I am not amused Counsler." Suddenly things get really quiet.

--Tim May

-- Tim Starr:

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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.

Black Unicorn:

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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.

Tim Starr:

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.

Same here. Black Unicorn is just making this stuff up. Black Unicorn

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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.

Tim Starr:

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.

In the case of Black Unicorn, it appears to me he was a lawyer who used to be in the business of finding loopholes in laws. In a world where governments seldom bother to read their own laws, and when they do so bother they find that everyone is a felon, that is a dying business. --digsig James A. Donald 6YeGpsZR+nOTh/cGwvITnSR3TdzclVpR0+pr3YYQdkG nTddd9XZ1iJqpU0/ppYWEqYOLwArmipx2klG73S 4n86cH5ve4oq1hb/spodUgjWicxLpkJKTrn3FMB7h

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I have never heard of such a law.

Black Unicorn:

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.

You are full of shit. I do not keep records of my butter purchases -- Why am I supposed to keep records of my ammo purchases? The only records one is required to keep are those that you claim exist in some filing, for example supporting your tax deductions. No one keeps the records they should, let alone the records law enforcement would like them to keep, and no one has every been punished for failure to keep such records. If this law that you have conjured out of your imagination existed, everyone would be punished for it, for everyone has broken it. --digsig James A. Donald 6YeGpsZR+nOTh/cGwvITnSR3TdzclVpR0+pr3YYQdkG Oj9UcAp8RSHCXuw8u7RlhqUHc74chNCrUWK2/9Q/ 4Xd24XW19DXZdpx9PbScFA7hohJEbS4IVCnIh9/a5

On Tue, Jul 31, 2001 at 07:15:29PM -0700, Tim May wrote:

You talk a lot about "courts not being amused" but I can find no evidence that such laws exist. Nor can I find any case where a Mafia don was prosecuted for "spoliating" a future prosecution by whispering.

Do you have such examples? And an appeals court assessment of the examples?

BU may be speaking of the attitude of a district judge when he learns what you've done. It may not be an offense in itself, but it skirts refusing a court order (in one hypothetical), and is really going to just piss the judge off. So many trials include both sides trying to convince the judge that they're taking reasonable positions, and occasionally getting blindsided by a pissed off judge when he thinks they're not. It's petty tyranny, true (look at my wired.com report on the Scarfo case and the judge getting pissed at press coverage of it) but it's what happens. -Declan

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

At 9:35 PM -0500 7/31/01, Aimee Farr wrote:

in another thread, either the one dealing with timed-key memoirs (Tim called this a "beacon") or logs, but the conversation was soon whittled to dribble.

"drivel"

Which is the idea expressed the following paper, but "Tim May said..." (Mr. May inferred this was an old idea, and that it was better to use traditional means.)

"implied," not "inferred." Actually, I didn't "imply" it was an old idea, I _said_ it was an old idea. Seeing all you high-power lawyers here humbles me. --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

At 10:22 PM -0700 7/31/01, Black Unicorn wrote:

----- Original Message ----- From: "Tim May" To: Sent: Tuesday, July 31, 2001 7:52 PM Subject: RE: Spoliation, escrows, courts, pigs.

...

Seeing all you high-power lawyers here humbles me.

Even when your grumpy, Mr. May, sometimes you just make me smile despite myself.

I'm not grumpy. I rankle at seeing you in this "princely lecturing" mode, telling all the children what a fine lawyer you are and how foolish we all are. --Tim -- 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

-- On 31 Jul 2001, at 12:22, Black Unicorn wrote:

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. 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). ("The intentional destruction of evidence... The destruction, or the significant and meaningful alteration of a document or instrument...") I've never seen a case play out like that but I would certainly make the argument as a prosecutor. Encrypting the stuff sure _looks_ like spoliation, particularly if it seemed likely that the evidence would be the subject of a judicial action.

[...]

There are legitimate purposes for escrowing it on the Isle of Man over and above keeping it out of a court's hands.

And there are legitimate purposes for encrypting it and "forgetting" the key. The big difference is "I forgot the key" is pretty much immune to cross examination, whereas your " legitimate" purposes for escrowing it on the isle of man requires a complicated cover story which w ill undoubtedly fall apart. --digsig James A. Donald 6YeGpsZR+nOTh/cGwvITnSR3TdzclVpR0+pr3YYQdkG l767+hopKaK3OhmU00x5dLsP9twS9adqsTDwX706 4GSivlIXyiUoZh4L503KHLLGtYLbjnNG8iNfZDzGr