The rapid acceptance of the spoliation theory out of CA has been in response to digital data. Lewy v. Remington Arms Co. 836 F.2d 1104 (8th Cir., 1998) ---- ...Finally, the court should determine whether the document retention policy was instituted in bad faith. Gumbs v. International Harvester, Inc., 718 F.2d 88, 96 (3rd Cir. 1983) ("no unfavorable inference arises when the circumstances indicate that the document or article in question has been lost or accidentally destroyed, or where the failure to produce it is otherwise properly accounted for."); Boyd v. Ozark Air Lines, Inc., 568 F.2d 50, 53 (8th Cir. 1977) ("We recognize, however, that the destruction of business records may be sufficient to raise an unfavorable inference."). ...[note business records]... In cases where a document retention policy is instituted in order to limit damaging evidence available to potential plaintiffs, it may be proper to give an instruction similar to the one requested by the Lewys. Similarly, even if the court finds the policy to be reasonable given the nature of the documents subject to the policy, the court may find that under the particular circumstances certain documents should have been retained notwithstanding the policy. For example, if the corporation knew or should have known that the documents would become material at some point in the future then such documents should have been preserved. Thus, a corporation cannot blindly destroy documents and expect to be shielded by a seemingly innocuous document retention policy. Gumbs, 718 F.2d at 96 ("Such a presumption or inference arises, however, only when the spoliation or destruction [of evidence] was intentional, and indicates fraud and a desire to suppress the truth, and it does not arise where the destruction was a matter of routine with no fraudulent intent.") (quoting 29 Am. Jur. 2d Evidence ' 177 (1967)). See also, In re Prudential Is. Co. Sales Practices Litigation, 169 F.R.D. 598 (D.N.J. 1997) ($1 million fine for negligent destruction); U.S. v. Koch Industries Inc., 1998 WL 1744497 (N.D.Okla., 1998) (jury informed of document destruction, and allowed to make inferences). But see, Procter & Gamble Co. v. Haugen, 179 F.R.D. 622 (D.Utah, 1998) (analyzing time element and refusing to find spoliation in absence of notice of potential relevance or court order). In a criminal context, U.S. v. Lundwall, S-1 97 Cr. 211 (S.D.N.Y. 1997) (finding obstruction of justice): ...Defendants contend that they were not subpoenaed or directed by a court to furnish the information sought by the Roberts plaintiffs in their discovery requests. They also submit that the Indictment is overbroad, charging them not only with concealing and destroying documents requested by the Roberts plaintiffs, but also with concealing and destroying documents likely to be requested by them. But the law is clear that neither a subpoena nor a court order directing the production of documents must be issued or served as a prerequisite to a ' 1503 prosecution, and that the concealment and destruction of documents likely to be sought by subpoena is actionable under the statute. See, e.g., Ruggiero, 934 F.2d at 450 (destroying documents in anticipation of a subpoena can constitute obstruction); Gravely, 840 F.2d at 1160 (under ' 1503, documents destroyed do not have to be under subpoena; it is sufficient if the defendant is aware that the grand jury will likely seek the documents in its investigation); --- DRIBBLE. ~Aimee
-----Original Message----- From: owner-cypherpunks@lne.com [mailto:owner-cypherpunks@lne.com]On Behalf Of Aimee Farr Sent: Thursday, August 02, 2001 5:01 PM To: cypherpunks@lne.com Subject: Spoliation cites
The rapid acceptance of the spoliation theory out of CA has been in response to digital data.
And this strikes me as unfortunate, because I don't think courts have understood this well.
Lewy v. Remington Arms Co. 836 F.2d 1104 (8th Cir., 1998)
In cases where a document retention policy is instituted in order to limit damaging evidence available to potential plaintiffs, it may be proper to give an instruction similar to the one requested by the Lewys. Similarly, even if the court finds the policy to be reasonable given the nature of the documents subject to the policy, the court may find that under the particular circumstances certain documents should have been retained notwithstanding the policy.
Yep. Ouch. Document retention/destruction policy a good idea, but no absolute defense.
For example, if the corporation knew or should have known that the documents would become material at some point in the future then such documents should have been preserved. Thus, a corporation cannot blindly destroy documents and expect to be shielded by a seemingly innocuous document retention policy. Gumbs, 718 F.2d at 96 ("Such a presumption or inference arises, however, only when the spoliation or destruction [of evidence] was intentional, and indicates fraud and a desire to suppress the truth, and it does not arise where the destruction was a matter of routine with no fraudulent intent.") (quoting 29 Am. Jur. 2d Evidence ' 177 (1967)).
This is the nexus of spoliation theory that bother me. Consider: Retention policy is ok under Gumbs (but only in its limited scope discussed below) only when (under 29 Am. Jur. 2d) "the spoliation or destruction [of evidence] was intentional... it does not arise where the destruction was a matter of routine with no fraudulent intent." The only problem is that the standard for intent is overly broad in my view. Consider again 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)." Well, the other problem is that none of the judges seem to be reading or relying on the American Jurisprudence discussion, because that "desire to suppress the truth" language never seems to make into these cases. To me, in the absence of this little bit of case law from Lopez, Gumbs seems just fine and logical to me. With Lopez, however, "fraudulent intent" becomes the equivalent of knowledge that a court won't have access to the records if they are destroyed (under the second part of the Lopez test where consequences are "known to be substantially certain to result (regardless of desire)." You'd have to be of IQ < 70 to fail to make that conclusion. I am reminded of the asinine distinction drawn between "discrimination in intent" and "discrimination in effect" (the latter meaning that if you refuse to hire felons, and as it turns out this means that you don't hire any Alaskan natives because all of the ones who applied were felons, you are guilty of discriminatory practices even if you didn't even know they were Alaskan natives. See Also: "Redlining" prosecution silliness in the early and mid 90s). Effectively, corporations and individuals are required to possess oracle like powers to determine what their retention requirements are. That's just silly and very onerous. Also note that Gumbs is only really talking about how the destruction policy (which looks to have been a sub-issue of the matter at hand- not a contempt or destruction charge) will influence jury instructions- in this case what inferences the jury can be instructed are permitted when in their deliberations. In cases where the actual destruction of evidence is the primary matter of the case things seem to get more serious for the defendants- maybe because courts spend more time considering the issue. A jury instruction that the destruction of evidence could be considered fraudulent is bad. An actual charge of spoliation or obstruction is worse.
See also, In re Prudential Is. Co. Sales Practices Litigation, 169 F.R.D. 598 (D.N.J. 1997) ($1 million fine for negligent destruction); U.S. v. Koch Industries Inc., 1998 WL 1744497 (N.D.Okla., 1998) (jury informed of document destruction, and allowed to make inferences).
I looked at this after I wrote the above. Exactly what bothered me.
But see, Procter & Gamble Co. v. Haugen, 179 F.R.D. 622 (D.Utah, 1998) (analyzing time element and refusing to find spoliation in absence of notice of potential relevance or court order).
There are SOME reasonable courts. Seems time is a weighing factor, but not an absolute defense. Same story all around on this issue.
In a criminal context, U.S. v. Lundwall, S-1 97 Cr. 211 (S.D.N.Y. 1997) (finding obstruction of justice):
...Defendants contend that they were not subpoenaed or directed by a court to furnish the information sought by the Roberts plaintiffs in their discovery requests. They also submit that the Indictment is overbroad, charging them not only with concealing and destroying documents requested by the Roberts plaintiffs, but also with concealing and destroying documents likely to be requested by them. But the law is clear that neither a subpoena nor a court order directing the production of documents must be issued or served as a prerequisite to a ' 1503 prosecution, and that the concealment and destruction of documents likely to be sought by subpoena is actionable under the statute. See, e.g., Ruggiero, 934 F.2d at 450 (destroying documents in anticipation of a subpoena can constitute obstruction); Gravely, 840 F.2d at 1160 (under ' 1503, documents destroyed do not have to be under subpoena; it is sufficient if the defendant is aware that the grand jury will likely seek the documents in its investigation);
I should have spent the time to look at the federal stacks the other day because Ruggiero is exactly what I was worried about- specifically that FRCP and USC would have more teeth and federal courts less tolerance. Ouch. I suspect it can only get worse as we start to get more electronic evidence cases, particularly in IP law- since the criminal sides of that are starting to show up in civil based actions (much like anti-trust in the 80s-90s). Everyone is a prosecutor who can afford to be one. Great.
I think you're getting a little off-track here --- the original discussion was about whether the court could make the journalist turn over *all copies* of a document. She wasn't trying to destroy them to hide anything, As others have stated, if you don't keep logs, or throw away all your reciepts, there's not jack they can do about it --- the interesting question is whether or not they can somehow expect you to turn over *all* copies of a document you've published on freenet or mojo. And whether they are encrypted or not is irrelevant. Although really, the most serious question everyone should be asking is why the court wants "all" copies. -- Harmon Seaver, MLIS CyberShamanix Work 920-203-9633 hseaver@cybershamanix.com Home 920-233-5820 hseaver@ameritech.net http://www.cybershamanix.com/resume.html
-----Original Message----- From: owner-cypherpunks@lne.com [mailto:owner-cypherpunks@lne.com]On Behalf Of Harmon Seaver Sent: Thursday, August 02, 2001 7:02 PM To: cypherpunks@cyberpass.net Subject: Re: Spoliation cites
I think you're getting a little off-track here --- the original discussion was about whether the court could make the journalist turn over *all copies* of a document. She wasn't trying to destroy them to hide anything,
I'm not sure where you have been over the last 48 hours but clearly you've not been paying attention. Courts _clearly_ have the ability to demand the production of all copies and originals of a document. They have merely to order it. They _clearly_ have the ability to smack a gag order on also. The rest of us settled that question some time ago.
As others have stated, if you don't keep logs, or throw away all your reciepts, there's not jack they can do about it.
Uh, no. And if you had been reading the many, many posts on this point you'd see that about every one of the 10-15 cases cited here say exactly the opposite of what you claim above. (I didn't see a legal background on your resume either but perhaps you have any cites that I don't know about?)
--- the interesting question is whether or not they can somehow expect you to turn over *all* copies of a document you've published on freenet or mojo. And whether they are encrypted or not is irrelevant.
Now I'm beginning to regret responding to this post at all because it's painfully clear that you just haven't got a good grip on this issue. Had you been reading you'd have known the answer to this, and why encryption or non-encryption was important about 40 posts ago.
Although really, the most serious question everyone should be asking is why the court wants "all" copies.
Asked and answered. Summarizing: You assert that the topic of electronic evidence spoliation is off topic for cypherpunks. You restate a question answered some 48 hours ago. You boldly assert, incorrectly, what the law is with respect to compelled production and court powers in the discovery process. You restate the question which followed the original query, as if it had never been asked and answered (which it had and was). You reintroduce the encryption and destruction issue, which I'm pretty sure I brought up and speculated on in the first place- and which you have earlier claimed was irrelevant. You return to ask again the original (answered) question which was the nexus of the discussion. Fine piece of work.
Black Unicorn wrote:
I'm not sure where you have been over the last 48 hours but clearly you've not been paying attention.
Actually, I have.
Courts _clearly_ have the ability to demand the production of all
copies and
originals of a document. They have merely to order it.
Really? So some senile asshole orders it. I give him ten copies. So then what? Oh, there's more? How many? All? How many is "all"? Okay, here's ten more. Prove that's not "all".
They _clearly_ have the ability to smack a gag order on also. The rest of us settled that
question some time ago.
Hmm --- no, you decided it was settled to your satisfaction.
As others have stated, if you don't keep logs, or throw away
your reciepts, there's not jack they can do about it.
Uh, no. And if you had been reading the many, many posts on this
all point
you'd see that about every one of the 10-15 cases cited here say exactly the opposite of what you claim above.
Cases dealing with corporations who naturally keep lots of records, files, etc. This was about a journalist, one entity, who probably keeps about the same number of grocery store receipts as the rest of us, like zero.
(I didn't see a legal background on your resume either but perhaps you have any cites that I don't know about?)
Hmm, sorry. IANAL. But I have spent one heck of a lot of time in Gov. docs reading statute and case law. Not that it matters -- this is really more about justice and common sense. Common sense dictates that I'd produce -- if ordered to hand over the "original and all copies" of my own work -- the "original" and maybe 2 copies, then bogey to another jurisdiction and anonymously spam the whole world with whatever they were trying to suppress.
--- the interesting question is whether or not they can somehow expect you to turn over *all* copies of a document you've published on freenet or mojo. And whether they are encrypted or not is irrelevant.
Now I'm beginning to regret responding to this post at all because
it's
painfully clear that you just haven't got a good grip on this issue.
I think I've got an extremely good grip on the issue -- it's you who are doing your utmost to muddy the waters and take everyone's mind off the real issue. Who gives a fast flying fuck what this asshole judge, or any other scumbag court has to say when they are trying to suppress the truth?
Had you been reading you'd have known the answer to this, and why encryption or non-encryption was important about 40 posts ago.
All I've seen from you is a whole lot of BS plainly intended to obscure the real issue. Cite whatever you want --- it's totally irrelevant. People need to learn about their options. Cite us the case of the villagers in Latin America who hacked a judge to death with machetes -- that's much more relevant.
Although really, the most serious question everyone should be asking is why the court wants "all" copies.
Asked and answered.
Asked, but not answered. The only possible answer is that it's a crooked judge who wants to suppress the truth. -- Harmon Seaver, MLIS CyberShamanix Work 920-203-9633 hseaver@cybershamanix.com Home 920-233-5820 hseaver@ameritech.net http://www.cybershamanix.com/resume.html
C'punks, So by my count it looks as though we are now up to at least THREE village idiots. Each convinced that he knows the law (not in theory, but as practiced in reality) better than the lawyers. There's a small black part of me that REALLY would enjoy seeing these three arrogantly childish ignoramuses in the docket, pissing their pants when the macho flash wears thin. Hey Jimbo, that LSAT "easy money" is still waiting for you to grow a pair. S a n d y
All we lawyer-types are saying is to engage the law in your problem-solving, it's in your threat model. Many of your "solutions" are 100% conflict-avoidance, or even ...conflict-ignorance. A strategic error. Where there is a corpus, there is a law to get it. You always PLAN FOR CONFLICT. Hence, we have _The Art Of War_ -- and not, _The Art Of Hiding_. Hiding or secrecy as a total strategy has historically been limited by the Rule Of Secrets/Least Safe Principle, and the equally-important "well, doesn't this look suspicious!" -- a rule of natural law and human disposition. Crypto is not a person, object and asset invisibility machine. Until such a marvel comes to pass, stick to traditional wargaming. THE SITUATION: ------------- Controverted spies have brought you intelligence that the enemy has a new long-range weapon. You learn that it works, but you think you lie outside the current range. However, you learn that it is undergoing rapid development and experimentation. SOME OF YOUR RESPONSES: ----------------------- "They're dumb, I hate them, and they can't hit us." "IF they've never hit us, THEN they can't." "They can't hit what they can't see." "We should insult and burn the spies at the stake for bringing us this information." "Bitch. Bitch. Bitch." *** Within this particular range of hypotheticals, the courts are going to see a problem and they might reach for spoliation. Arguing over the rightfulness or wrongfulness of it is a futile exercise. When you learn your adversary is using a new tactic or developing a new weapon, you examine your own tactics and adjust them accordingly in ANTICIPATION OF CONFLICT. You assume they will "get better" unless you do something about it. Given the nature of the law, there is nothing to be done other than to prepare for advancement and proliferation. The legal question is never what is - but what will be. In this light, precedent is not "a rule," it is an aid for prediction. "To secure ourselves against defeat lies in our own hands, but the opportunity of defeating the enemy is provided by the enemy himself." -- Sun Tzu. A most apt analogy for the law. Where it presents an obstacle, it presents an opportunity. ~Aimee
On Fri, 3 Aug 2001, Aimee Farr wrote:
All we lawyer-types are saying is to engage the law in your problem-solving, it's in your threat model. Many of your "solutions" are 100% conflict-avoidance, or even ...conflict-ignorance. A strategic error. Where there is a corpus, there is a law to get it. You always PLAN FOR CONFLICT. Hence, we have _The Art Of War_ -- and not, _The Art Of Hiding_.
Truly you have missed the point of the work then... A battle which doesn't have to be fought is a superior strategy. Defeating your enemies mind, versus his armies, is a superior strategy. Attacking where your enemy isn't is a superior strategy. Only a naive grognard would head for the main point of resistance given any alternative at all (including waiting until another day).
Hiding or secrecy as a total strategy has historically been limited by the Rule Of Secrets/Least Safe Principle, and the equally-important "well, doesn't this look suspicious!" -- a rule of natural law and human disposition.
Which is after all why(!) we have things like the 4th and 5th... Keep this line of thought up and you'll be where I am, C-A-C-L doesn't work because of human nature.
Crypto is not a person, object and asset invisibility machine. ^ universal
Until such a marvel comes to pass, stick to traditional wargaming.
I can tell you haven't, wargamed that is. Always be unconventional, do what your opponent doesn't expect.
THE SITUATION: ------------- Controverted spies have brought you intelligence that the enemy has a new long-range weapon. You learn that it works, but you think you lie outside the current range. However, you learn that it is undergoing rapid development and experimentation.
SOME OF YOUR RESPONSES: ----------------------- "They're dumb, I hate them, and they can't hit us."
"IF they've never hit us, THEN they can't."
"They can't hit what they can't see."
"We should insult and burn the spies at the stake for bringing us this information."
"Bitch. Bitch. Bitch."
***
Within this particular range of hypotheticals, the courts are going to see a problem and they might reach for spoliation.
I'd say you're certainly reaching. Oh, you're comment about 'can't see, can't hit' isn't correct. The inverse, "What you can see you can kill" is. Note that they are not equivalent (Hint: it has to do with your definition of 'seeing').
Arguing over the rightfulness or wrongfulness of it is a futile exercise.
Over what are we arguing? You've raised three seperate issues that are in conflict in this example. Which one is futile? And if you think 'moral indignation' doesn't have something to do with war then you truly don't understand war.
When you learn your adversary is using a new tactic or developing a new weapon, you examine your own tactics and adjust them accordingly in ANTICIPATION OF CONFLICT.
Perhaps, but history is full(!!!) of examples where nations didn't do that (consider Plan Orange & Plan Black and the verious strategies they followed).
"To secure ourselves against defeat lies in our own hands, but the opportunity of defeating the enemy is provided by the enemy himself." -- Sun Tzu.
A most apt analogy for the law. Where it presents an obstacle, it presents an opportunity.
Actualy it isn't, the quote argues AGAINST your point, m'lady. There is a difference between 'secure ourselves against defeat' and 'defeating the enemy'. That disctinction cuts to the very core of your argument and disembowels it like a Wakizashi. -- ____________________________________________________________________ Nature and Nature's laws lay hid in night: God said, "Let Tesla be", and all was light. B.A. Behrend The Armadillo Group ,::////;::-. James Choate Austin, Tx /:'///// ``::>/|/ ravage@ssz.com www.ssz.com .', |||| `/( e\ 512-451-7087 -====~~mm-'`-```-mm --'- --------------------------------------------------------------------
On Fri, 3 Aug 2001, Aimee Farr wrote:
Hiding or secrecy as a total strategy has historically been limited by the Rule Of Secrets/Least Safe Principle, and the equally-important "well, doesn't this look suspicious!" -- a rule of natural law and human disposition. Crypto is not a person, object and asset invisibility machine.
The real problem with hiding or secrecy as a total strategy is that there can be no community. Your lovely crypto-auction protocol is no damn good unless you can get a critical mass of people to participate in a marketplace, and rather useless unless those people can be anonymous. Ebay may be a good thing, but can you imagine how useless it would be if it had to be kept secret from law-enforcement types? You'd pretty much have to keep it secret from the whole public, and then of course nobody would use it. I've got a nice protocol for running a fully-encrypted mailing list stegoized in images on a web/FTP site, which would be totally invisible to non-participants - but such a list can't be announced publicly so of course nobody could find out about it and join it, without also letting the law know about it and join it. And the list goes on. Every time you try to get something used by more than a dozen people, it cannot be secret. What cannot be secret, you can't keep the law from knowing about. What you can't keep the law from knowing about, you can't keep the law from trying to regulate. And regulation of anything on the internet can happen, because EVERY IP address is in principle traceable. Oh, it may take a week or two -- they may have to slap your ISP with an order to preserve logs and wait for the next time something happens if you're on DHCP, or they may have to get the cooperation of one or more other governments if your login trail runs outside their jurisdiction -- but ultimately, it's traceable. Bear
At 8:37 AM -0700 8/3/01, Ray Dillinger wrote:
On Fri, 3 Aug 2001, Aimee Farr wrote:
Hiding or secrecy as a total strategy has historically been limited by the Rule Of Secrets/Least Safe Principle, and the equally-important "well, doesn't this look suspicious!" -- a rule of natural law and human disposition. Crypto is not a person, object and asset invisibility machine.
The real problem with hiding or secrecy as a total strategy is that there can be no community. Your lovely crypto-auction protocol is no damn good unless you can get a critical mass of people to participate in a marketplace, and rather useless unless those people can be anonymous.
Ebay may be a good thing, but can you imagine how useless it would be if it had to be kept secret from law-enforcement types? You'd pretty much have to keep it secret from the whole public, and then of course nobody would use it.
I've got a nice protocol for running a fully-encrypted mailing list stegoized in images on a web/FTP site, which would be totally invisible to non-participants - but such a list can't be announced publicly so of course nobody could find out about it and join it, without also letting the law know about it and join it.
I know I've passed on cites more than a couple of times to try to educate you about things you keep missing. You apparently don't bother to read what people suggest you read. Security through obscurity is what you are talking about above. It is NOT what many of us here are talking about. Read up on remailers, Blacknet approaches, Gnutella/Morpheus/Freenet approaches, Pipenet, and even Freedom (ZKS). Unlinkability has bandwidth costs. There are practical reasons why in a world of connectivity at DSL speeds some things (like large file-swapping) will not be practically unlinkable. But small files, such as text files, political tracts, digital cash, etc. is easily made unlinkable in a world of DSL-speed connections. Do the math. You say you have "a nice protocol for running a fully-encrypted mailing list stegoized in images," but in your time on this list I have not seen you contribute any interesting technical ideas. Distributing stegoized images to a list of recipients is so banal and hackneyed that it barely deserves comment: of COURSE it is just security through obscurity...what else could it be? (Dig up my article from 1989 on stegoizing in images to see a treatment of this point.) We knew in 1992 that running the CP list as an encrypted list or stegoized list was pointless, given the absence of unlinkability. You need to do some reading and some deeper thinking than you have so far done.
And the list goes on. Every time you try to get something used by more than a dozen people, it cannot be secret. What cannot be secret, you can't keep the law from knowing about. What you can't keep the law from knowing about, you can't keep the law from trying to regulate.
All well known.
And regulation of anything on the internet can happen, because EVERY IP address is in principle traceable. Oh, it may take a week or two -- they may have to slap your ISP with an order to preserve logs and wait for the next time something happens if you're on DHCP, or they may have to get the cooperation of one or more other governments if your login trail runs outside their jurisdiction -- but ultimately, it's traceable.
You apparently don't even understand how even simple remailer chains work. I could give examples, but this is well-trod ground. Look it up yourself. --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 Fri, 3 Aug 2001, Tim May wrote:
and wait for the next time something happens if you're on DHCP, or they may have to get the cooperation of one or more other governments if your login trail runs outside their jurisdiction -- but ultimately, it's traceable.
You apparently don't even understand how even simple remailer chains work.
Hello, earth to Tim. (1) You can send anonymous mail by sending it through a remailer, but (2) The remailers themselves are not anonymous. (3) If the remailers *were* anonymous, they could not operate because then the users would not know where to send their mails. As long as the remailers themselves are traceable, make no mistake: they exist only because the lions have not yet passed a law against them. You cannot have encryption technologies advancing and leaving the law behind, so long as any vital part of the infrastructure you need is traceable and pulpable by the law. Bear
At 10:51 AM -0700 8/3/01, Ray Dillinger wrote:
On Fri, 3 Aug 2001, Tim May wrote:
and wait for the next time something happens if you're on DHCP, or they may have to get the cooperation of one or more other governments if your login trail runs outside their jurisdiction -- but ultimately, it's traceable.
You apparently don't even understand how even simple remailer chains work.
Hello, earth to Tim. (1) You can send anonymous mail by sending it through a remailer, but (2) The remailers themselves are not anonymous.
Are you dense? Do you understand the concept of nested, encrypted text blocks? While the remailers may be "non-anonymous," this certainly does not mean that an external attacker can know the mapping from N arriving messages (encrypted) to N' departing messages (also encrypted, but not the same pattern). Do we have to draw a picture? Do you think that knowing the locations of, for example, all of the remailers in the world means that messages can be traced through the network? Have you even _thought_ about these issues which were explained a decade ago? Do you know about DC-Nets?
(3) If the remailers *were* anonymous, they could not operate because then the users would not know where to send their mails.
Actually, this is false. Pipenets and Blacknets don't require knowing locations/identities of nodes. Using alt.anonymous.messages is increasingly common. Go look at it if this is new to you. Left as an exercise, though oft-discussed here in past years, is how to post messages untraceably to it and how to read messages untraceably. (I used a variant of this for Blacknet in 1993.)
As long as the remailers themselves are traceable, make no mistake: they exist only because the lions have not yet passed a law against them.
You cannot have encryption technologies advancing and leaving the law behind, so long as any vital part of the infrastructure you need is traceable and pulpable by the law.
You haven't even bothered to think about the technical issues, have you? --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 Fri, 3 Aug 2001, Ray Dillinger wrote:
(2) The remailers themselves are not anonymous.
No, but to shut them down you have to know where they are, and to make your intent known to operators of such. The remailers could reside in a state with a weak mutual enforcibility (Eastern Block successor states, Israel, developing countries). The remailers could be physically hidden in a large facility (of course, you could always whip up a firewall filter blocking them), or be connecting via 802.11b and successors. The remailers could be packaged as part of a well-behaved worm, thus overwhelming detection and enforcement capabilites.
On Fri, 3 Aug 2001, Ray Dillinger wrote:
As long as the remailers themselves are traceable, make no mistake: they exist only because the lions have not yet passed a law against them.
You cannot have encryption technologies advancing and leaving the law behind, so long as any vital part of the infrastructure you need is traceable and pulpable by the law.
Exactly, which is why the 'small world' network model applied to key management is such a powerful tool. -- ____________________________________________________________________ Nature and Nature's laws lay hid in night: God said, "Let Tesla be", and all was light. B.A. Behrend The Armadillo Group ,::////;::-. James Choate Austin, Tx /:'///// ``::>/|/ ravage@ssz.com www.ssz.com .', |||| `/( e\ 512-451-7087 -====~~mm-'`-```-mm --'- --------------------------------------------------------------------
-- On Fri, 3 Aug 2001, Ray Dillinger wrote:
You cannot have encryption technologies advancing and leaving the law behind, so long as any vital part of the infrastructure you need is traceable and pulpable by the law.
Child porn still gets distributed through usenet. Silencing "alt.anonymous.messages" would be even harder. --digsig James A. Donald 6YeGpsZR+nOTh/cGwvITnSR3TdzclVpR0+pr3YYQdkG D3mSaXUOKtpBwVa0yzglN3AvpL5bobypB96Q/AKi 4/iQQK3RkSE349+qsFPX3zwyPj3kjETgblPuQ1wFl
At 10:51 AM 8/3/01 -0700, Ray Dillinger wrote:
Hello, earth to Tim. (1) You can send anonymous mail by sending it through a remailer, but (2) The remailers themselves are not anonymous. (3) If the remailers *were* anonymous, they could not operate because then the users would not know where to send their mails.
As long as the remailers themselves are traceable, make no mistake: they exist only because the lions have not yet passed a law against them.
You cannot have encryption technologies advancing and leaving the law behind, so long as any vital part of the infrastructure you need is traceable and pulpable by the law.
Bear
Our ursine friend neglects the use of broadcast. Consider: An ephemeral anonymous remailer entrypoint (Bob) publishes half a PK pair. Alice stegos a message using Bob's key and a snapshot she takes, and posts it to something widely received, and with some memory. Bob (and only Bob) sees the message, waits a bit, and reinjects it into the System, where it bounces around, encrypted, until it gets released to its destination. Bob can't actually read the message because its inside more crypto envelopes. ..... Yes it would be insecure with sufficient subversion, as all things.
On Fri, Aug 03, 2001 at 10:51:04AM -0700, Ray Dillinger wrote:
As long as the remailers themselves are traceable, make no mistake: they exist only because the lions have not yet passed a law against them.
Of course it would take many -- hundreds -- of jurisdictions acting in concert to do this. There is no evidence that such a global anti-remailer treaty is underway. (Though I have documented many anti-anonymity efforts on the part of U.S. law enforcement.)
You cannot have encryption technologies advancing and leaving the law behind,
Why not? It already has. -Declan
Bear wrote, quoting me:
Hiding or secrecy as a total strategy has historically been limited by the Rule Of Secrets/Least Safe Principle, and the equally-important "well, doesn't this look suspicious!" -- a rule of natural law and human disposition. Crypto is not a person, object and asset invisibility machine.
Ebay may be a good thing, but can you imagine how useless it would be if it had to be kept secret from law-enforcement types? You'd pretty much have to keep it secret from the whole public, and then of course nobody would use it.
I guess that would be flip-side of the Rule Of Secrets, or something.
I've got a nice protocol for running a fully-encrypted mailing list stegoized in images on a web/FTP site, which would be totally invisible to non-participants - but such a list can't be announced publicly so of course nobody could find out about it and join it, without also letting the law know about it and join it.
Interesting. Just as interesting: -NAACP v. Alabama, 357 U.S. 448 (1958) -Laird v. Tatum, 408 U.S. 1 (1972) -Philadelphia Yearly Meeting of the Religious Society of Friends v. Tate, 519 F.2d 1335 (3d Cir. 1975) -Reporters Comm. for Freedom of the Press v. American Tel. & Tel., (D.C.Cir. 1978) -Gordon v. Warren Consol. Bd. of Educ, 706 F.2d 778 (6th Cir. 1983) -Alliance to End Repression v. Chicago, 627 F.Supp. 1044 (N.D.Ill.1985)
And the list goes on. Every time you try to get something used by more than a dozen people, it cannot be secret.
"Three make keep a secret, if two of them are dead." -- Benjamin Franklin, 1728.
What cannot be secret, you can't keep the law from knowing about. What you can't keep the law from knowing about, you can't keep the law from trying to regulate.
That's probably one of those "universal truths" I've been talking about. *laughter*
And regulation of anything on the internet can happen, because EVERY IP address is in principle traceable. Oh, it may take a week or two -- they may have to slap your ISP with an order to preserve logs and wait for the next time something happens if you're on DHCP, or they may have to get the cooperation of one or more other governments if your login trail runs outside their jurisdiction -- but ultimately, it's traceable.
Hm. For an equally-relevant proposition, See United States v. White, 401 U.S. 745 (1971); United States v. Miller, 425 U.S. 435 (1976). I've seen predictions that by 2005-7, your IP will be biometrically associated. (I have nothing to back to that up, but the source was credible.) ~Aimee
At 12:54 PM -0500 8/3/01, Aimee Farr wrote:
Bear wrote, quoting me:
I've got a nice protocol for running a fully-encrypted mailing list stegoized in images on a web/FTP site, which would be totally invisible to non-participants - but such a list can't be announced publicly so of course nobody could find out about it and join it, without also letting the law know about it and join it.
Interesting.
Banal, actually.
And the list goes on. Every time you try to get something used by more than a dozen people, it cannot be secret.
"Three make keep a secret, if two of them are dead." -- Benjamin Franklin, 1728.
A platitude which misses the point of modern PK and DC-Net sort sorts of approaches. The "security" of chained remailers is of course not perfect, but it does not depend on the naive attacks which Ray Dillnger claims make the security as bad as he claims. Nor is his "stegoized mailing list" even the slightest bit interesting. Well-trod ground. What is it about some of you people who don't even bother to learn the basics?
And regulation of anything on the internet can happen, because EVERY IP address is in principle traceable. Oh, it may take a week or two -- they may have to slap your ISP with an order to preserve logs and wait for the next time something happens if you're on DHCP, or they may have to get the cooperation of one or more other governments if your login trail runs outside their jurisdiction -- but ultimately, it's traceable.
Hm. For an equally-relevant proposition, See United States v. White, 401 U.S. 745 (1971); United States v. Miller, 425 U.S. 435 (1976).
I've seen predictions that by 2005-7, your IP will be biometrically associated. (I have nothing to back to that up, but the source was credible.)
IP addresses have nothing to do with attacks on remailers and DC-Nets. Do some reading. Start with Chaum's 1981 paper on untraceable e-mail, read at least the first 5 or 7 pages of his 1988 paper on dining cryptographers nets, and then move on to the other list-related sources. --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
Tim May:
At 12:54 PM -0500 8/3/01, Aimee Farr wrote:
Bear wrote, quoting me:
I've got a nice protocol for running a fully-encrypted mailing list stegoized in images on a web/FTP site, which would be totally invisible to non-participants - but such a list can't be announced publicly so of course nobody could find out about it and join it, without also letting the law know about it and join it.
Interesting.
Banal, actually.
Maybe to you, Tim, but I was looking at it from a different perspective. First, in regard to dissident group bulletproofing, so as to provide the greatest First Amendment associational protections. (I suspect some of you get your legal advice from the government.) And, also in regard to dissident group surveillance. This list has been affected by recent events, and "subjectively chilled." While it is not the first time for such things, the effects on group dynamics are of interest to me. Second, I would like to see the conversational economic theories at work in a protected list. Third, many of your concepts were harbingers of a shift where people take costly evasive maneuvers to protect what is legal, and traditionally highly-valued speech and association (being critical of the government). Your ideas are being implemented, or examined, often by ordinary people with less spectacular motives and aims. So, the more "trodden," "banal," .....[insert Tim Mayism here]...something is to you, the more interesting it is to me.
And the list goes on. Every time you try to get something used by more than a dozen people, it cannot be secret.
"Three make keep a secret, if two of them are dead." -- Benjamin Franklin, 1728.
A platitude which misses the point of modern PK and DC-Net sort sorts of approaches. The "security" of chained remailers is of course not perfect, but it does not depend on the naive attacks which Ray Dillnger claims make the security as bad as he claims. Nor is his "stegoized mailing list" even the slightest bit interesting.
I'm sure you are aware that some disagree with you, Tim. In a rather significant way. I wish they found it less interesting, too. But, they don't.
Well-trod ground. What is it about some of you people who don't even bother to learn the basics?
I've seen predictions that by 2005-7, your IP will be biometrically associated. (I have nothing to back to that up, but the source was credible.)
IP addresses have nothing to do with attacks on remailers and DC-Nets.
Okay.
Do some reading.
I read a lot, Tim. My practice areas don't come neatly packaged. I realize your frustration with me, and can only beg your understanding and tolerance, although I have low expectations in this regard. (Picking on me is about as sporty as shooting turtles in a stock tank.) I could never match the technical skillsets or understanding of this list, please forgive me for my sins. Yea, I know not what I do..... I am aware of my shortcomings, (!!!) and I do appreciate your taking the effort to try to help me with my conceptualization. You often do so, and I note your good intentions, even when they come with a few well-placed darts.
Start with Chaum's 1981 paper on untraceable e-mail, read at least the first 5 or 7 pages of his 1988 paper on dining cryptographers nets, and then move on to the other list-related sources.
Perhaps I can contribute in other areas, Tim. I will try to do better. I mean that sincerely. I pitched a paper on these spoliation concepts many months back and was awarded with 10,000 words in a legal pub. However, you intimidated me to the extent that I promptly torched my efforts. Had you not done so, perhaps I could have contributed something more substantial to this thread. As for spoliation, DO SOME READING TIM, you comments are BANAL, ACTUALLY. You are a the leader of a pack of prize jackasses that pick on cripples in here. *REAL* SUBVERSIVES have a gentlemanly demeanor (at least the decency of pretense). ~Aimee
At 3:30 PM -0500 8/3/01, Aimee Farr wrote:
Tim May:
At 12:54 PM -0500 8/3/01, Aimee Farr wrote:
Bear wrote, quoting me:
I've got a nice protocol for running a fully-encrypted mailing list stegoized in images on a web/FTP site, which would be totally invisible to non-participants - but such a list can't be announced publicly so of course nobody could find out about it and join it, without also letting the law know about it and join it.
Interesting.
Banal, actually.
Maybe to you, Tim, but I was looking at it from a different perspective.
First, in regard to dissident group bulletproofing, so as to provide the greatest First Amendment associational protections. (I suspect some of you get your legal advice from the government.) And, also in regard to dissident group surveillance. This list has been affected by recent events, and "subjectively chilled." While it is not the first time for such things, the effects on group dynamics are of interest to me.
You need to learn about the severe limitations of "security through obscurity." An encrypted list, or a stegoized list, is not secure if it is open to various subscribers. Weakest link math, obviously. The crypto name is, as I said, "security through obscurity." Kirchoff's Principle by another name, essentially. (The only reason we have sometimes considered having an encrypted list is to a) weed out those unwilling to figure out how to do PGP, b) make PGP use more widespread. The notion of keeping the contents "secret" was not even debated seriously.) Sociobabble handwaving about "effects on group dynamics" doesn't change this. So you think that just throwing in some words about "value propositions" and "conversational economics" is the way to put forward a real idea or argument? Looks like bullshitting to me. Like the output of an Internet rant generator.
Second, I would like to see the conversational economic theories at work in a protected list.
Sociobabble. First, an encrypted or stegoized list would not be protected. See above. Second, it has nothing to do with "conversational economic theories" (?).
Third, many of your concepts were harbingers of a shift where people take costly evasive maneuvers to protect what is legal, and traditionally highly-valued speech and association (being critical of the government). Your ideas are being implemented, or examined, often by ordinary people with less spectacular motives and aims. So, the more "trodden," "banal," .....[insert Tim Mayism here]...something is to you, the more interesting it is to me.
You are blithering. I don't think you have the foggiest idea what is being talked about. And instead of learning, you just blither.
IP addresses have nothing to do with attacks on remailers and DC-Nets.
Okay.
Do some reading.
I read a lot, Tim. My practice areas don't come neatly packaged. I realize your frustration with me, and can only beg your understanding and tolerance, although I have low expectations in this regard.
You keep apologizing. Is this some kind of chick thang? Instead of "begging tolerance," do some very _basic_ reading. Once you grok what remailer networks are all about, you'll (maybe) have an epiphany that all the yammer about IP addresses defeating remailers is nonsense. And once you grok the idea of how sending encrypted mail out to list of N people, where N is 100 or more, and where subscription is lightly controlled, is pointless. (In fact, cell sizes as small as 3 are infiltrated, but this is an issue I don't have the desire to get into here.)
(Picking on me is about as sporty as shooting turtles in a stock tank.) I could never match the technical skillsets or understanding of this list, please forgive me for my sins. Yea, I know not what I do..... I am aware of my shortcomings, (!!!) and I do appreciate your taking the effort to try to help me with my conceptualization. You often do so, and I note your good intentions, even when they come with a few well-placed darts.
Stop fucking apologizing you stupid twit.
Start with Chaum's 1981 paper on untraceable e-mail, read at least the first 5 or 7 pages of his 1988 paper on dining cryptographers nets, and then move on to the other list-related sources.
Perhaps I can contribute in other areas, Tim. I will try to do better. I mean that sincerely.
Stop apologizing. Instead of blithering about "conversational economics" and "value propositions" and "I'm sorry," spend ONE FUCKING HOUR reading the most basic of all papers, a paper now 20 years old. I gave you the subject, year, and author. (Hint: It was Webbed as of a few months ago. I just checked: it still is. But rather than even expect you to find it, here it is: http://world.std.com/~franl/crypto/chaum-acm-1981.html) If this paper uses terminology too distant from later Cypherpunks technology, read any of the 1992-93 articles folks like Eric Hughes, Hal Finney, and myself wrote. Or read my Cyphernomicon entries on how remailers work. (I fully expect you to announce that you _do_ understand how they work. But clearly you don't, else you wouldn't have commented that biometric IP linking will be a problem. A _real_ legal issue, one we have discussed many times, is the constitutionality of a law requiring accountability for all forwarded messages. A law requiring all chunks of text to be traceable to a true name violates the usual 1st A protections, supported by the Supremes when they have struck down laws requiring handbills to have true names attached. Not to mention the anonymous authorship of the Federalist Papers. Not to mention many related issues. This is a more plausible attack on U.S.-based remailers than is something based on IP addresses. Left as an exercise for you.)
You are a the leader of a pack of prize jackasses that pick on cripples in here. *REAL* SUBVERSIVES have a gentlemanly demeanor (at least the decency of pretense).
Are you calling yourself a cripple? Not even I have called you a cripple. You've shown no willingness to learn the most basic of things. You can't add legal advice that is useful if you don't even understand the most basic of things we talk about. In fact, your legal advice is almost certainly misleading if you don't even understand how nested remailers work, and why IP addresses aren't included in remailed messages, and why the robustness and obfuscation of a network of N remailers each pooling-and-remailing M messages goes _roughly_ as N^M. Thus, a nested hop through 10 remailers around the world, each pooling 10 incoming messages (of the same size after padding), would give an attacker _roughly_ 10 billion paths to follow. I keep saying "roughly" because there are numerous things that cut this down, not the least of which is that there aren't likely to be even tens of thousands of messages per day flowing through the world's remailers until there are a lot more of them, etc. And so an attacker cannot see a diffusivity of 10^10. But he also certainly cannot easily say which exiting message maps to which entering message. And there are the methods we so often have discussed: route messages through some remailers multiple times, send dummy messages at intervals, use your own machine as a remailer, and so on. It doesn't take long to see that the diffusivity (untraceability) can be very large very quickly and cheaply. And, no, no biometric or IP information is attached! If you have not grokked the idea of anonymous remailers, how can you comment on legal issues facing them? As for your "torching" your work because I hurt your feelings, show some fucking backbone. If you are right, you don't need the moral support of others. --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 Fri, Aug 03, 2001 at 03:26:21PM -0700, Tim May wrote:
You are blithering. I don't think you have the foggiest idea what is being talked about. And instead of learning, you just blither.
Another good reference for Aimee would be, naturally, Applied Cryptography. Also the recent MIT Press book that has essays by Tim and Duncan and others would not be terrible (forget the name, I have it out in my car). -Declan
Tim.....
Banal, actually.
Maybe to you, Tim, but I was looking at it from a different perspective.
First, in regard to dissident group bulletproofing, so as to provide the greatest First Amendment associational protections. (I suspect some of you get your legal advice from the government.) And, also in regard to dissident group surveillance. This list has been affected by recent events, and "subjectively chilled." While it is not the first time for such things, the effects on group dynamics are of interest to me.
You need to learn about the severe limitations of "security through obscurity."
I wasn't speaking of "security through obscurity," I was speaking of "security through First Amendment law suit." Nobody could argue "objective chill" in here, that's a legal concept....but clearly, you aren't interested.
(The only reason we have sometimes considered having an encrypted list is to a) weed out those unwilling to figure out how to do PGP, b) make PGP use more widespread. The notion of keeping the contents "secret" was not even debated seriously.)
Well, that figures.
Sociobabble handwaving about "effects on group dynamics" doesn't change this. So you think that just throwing in some words about "value propositions" and "conversational economics" is the way to put forward a real idea or argument? Looks like bullshitting to me. Like the output of an Internet rant generator.
YOU are calling ME an Internet rant generator?
Second, I would like to see the conversational economic theories at work in a protected list.
Sociobabble. First, an encrypted or stegoized list would not be protected. See above. Second, it has nothing to do with "conversational economic theories" (?).
Conversational economics and privacy -- what I should have said. Posed as an explanation for some surveillance law. See An Economic Theory Of Privacy, Richard A. Posner. The same Judge Posner of Torres case fame. "There is no right to be left alone while assembling bombs in safe houses." United States v. Torres, 751 F.2d 875 (7th Cir.1984). Not a theory I subscribe to.
Third, many of your concepts were harbingers of a shift where people take costly evasive maneuvers to protect what is legal, and traditionally highly-valued speech and association (being critical of the government). Your ideas are being implemented, or examined, often by ordinary people with less spectacular motives and aims. So, the more "trodden," "banal," .....[insert Tim Mayism here]...something is to you, the more interesting it is to me.
You are blithering. I don't think you have the foggiest idea what is being talked about. And instead of learning, you just blither.
......
You keep apologizing. Is this some kind of chick thang?
....
do some very _basic_ reading.
Right back atcha.
Once you grok what remailer networks are all about, you'll (maybe) have an epiphany that all the yammer about IP addresses defeating remailers is nonsense. And once you grok the idea of how sending encrypted mail out to list of N people, where N is 100 or more, and where subscription is lightly controlled, is pointless. (In fact, cell sizes as small as 3 are infiltrated, but this is an issue I don't have the desire to get into here.)
I didn't say IP addys were nonsense, Tim. I overhead some silly biometric conversation and mentioned it because Ray mentioned IPs.
Stop fucking apologizing you stupid twit.
Certainly.
Perhaps I can contribute in other areas, Tim. I will try to do better. I mean that sincerely.
Stop apologizing. Instead of blithering about "conversational economics" and "value propositions" and "I'm sorry," spend ONE FUCKING HOUR reading the most basic of all papers, a paper now 20 years old. I gave you the subject, year, and author. (Hint: It was Webbed as of a few months ago. I just checked: it still is. But rather than even expect you to find it, here it is: http://world.std.com/~franl/crypto/chaum-acm-1981.html)
Why, thank you, Tim.
If this paper uses terminology too distant from later Cypherpunks technology, read any of the 1992-93 articles folks like Eric Hughes, Hal Finney, and myself wrote. Or read my Cyphernomicon entries on how remailers work.
(I fully expect you to announce that you _do_ understand how they work. But clearly you don't, else you wouldn't have commented that biometric IP linking will be a problem.
Dammit, I didn't say that. I said: "I've seen predictions that by 2005-7, your IP will be biometrically associated. (I have nothing to back to that up, but the source was credible.)" It was a mere reference to Bear mentioning IPs and third-party intermediaries... (Hence, the cites.) I didn't say anything about remailers.
A _real_ legal issue, one we have discussed many times, is the constitutionality of a law requiring accountability for all forwarded messages. A law requiring all chunks of text to be traceable to a true name violates the usual 1st A protections, supported by the Supremes when they have struck down laws requiring handbills to have true names attached. Not to mention the anonymous authorship of the Federalist Papers. Not to mention many related issues. This is a more plausible attack on U.S.-based remailers than is something based on IP addresses. Left as an exercise for you.)
Indeed, what I was trying to get at might have been "somewhat related." I agree with you in sentiment, but direct your attention to the CMRA (commercial mail drop) requirements for domestic mail agency in the United States in the USPS Domestic Mail Manual. I know you are aware of it.
You are a the leader of a pack of prize jackasses that pick on cripples in here. *REAL* SUBVERSIVES have a gentlemanly demeanor (at least the decency of pretense).
Are you calling yourself a cripple? Not even I have called you a cripple.
.....
You've shown no willingness to learn the most basic of things. You can't add legal advice that is useful if you don't even understand the most basic of things we talk about. In fact, your legal advice is almost certainly misleading if you don't even understand how nested remailers work, and why IP addresses aren't included in remailed messages, and why the robustness and obfuscation of a network of N remailers each pooling-and-remailing M messages goes _roughly_ as N^M. Thus, a nested hop through 10 remailers around the world, each pooling 10 incoming messages (of the same size after padding), would give an attacker _roughly_ 10 billion paths to follow.
Okay, well, I did learn something there.
I keep saying "roughly" because there are numerous things that cut this down, not the least of which is that there aren't likely to be even tens of thousands of messages per day flowing through the world's remailers until there are a lot more of them, etc. And so an attacker cannot see a diffusivity of 10^10. But he also certainly cannot easily say which exiting message maps to which entering message. And there are the methods we so often have discussed: route messages through some remailers multiple times, send dummy messages at intervals, use your own machine as a remailer, and so on. It doesn't take long to see that the diffusivity (untraceability) can be very large very quickly and cheaply. And, no, no biometric or IP information is attached!
Bear just mentioned IP and I just threw out the biometric comment. I was curious, since it did not make sense to me. I made no mention of remailers.
If you have not grokked the idea of anonymous remailers, how can you comment on legal issues facing them?
*sigh* I didn't. Spoliation is a general concept. My comments were general in nature. I don't think I used the word "remailer." You frequently rant off into legal areas when you haven't briefed the law, Tim.
As for your "torching" your work because I hurt your feelings, show some fucking backbone. If you are right, you don't need the moral support of others.
Now you are extrapolating. You didn't 'hurt my feelings' - you are just gigging me. Furthermore, I wasn't looking for "moral support." And, certainly not in here. :-) ~Aimee
On Sat, Aug 04, 2001 at 01:03:59AM -0500, Aimee Farr wrote, quoting Tim.
YOU are calling ME an Internet rant generator?
Hahahahahaha.
mention the anonymous authorship of the Federalist Papers. Not to mention many related issues. This is a more plausible attack on U.S.-based remailers than is something based on IP addresses. Left as an exercise for you.)
Indeed, what I was trying to get at might have been "somewhat related."
I agree with you in sentiment, but direct your attention to the CMRA (commercial mail drop) requirements for domestic mail agency in the United States in the USPS Domestic Mail Manual. I know you are aware of it.
I'm not sure if much can be gained by comparing anonymous remailers to commercial mail drops. USPS is a strange and weird beast, and guards its territory ferociously. Activities that happen in its sphere are logically and legally distinct from those happening online. -Declan
Declan wrote:
On Sat, Aug 04, 2001 at 01:03:59AM -0500, Aimee Farr wrote, quoting Tim.
YOU are calling ME an Internet rant generator?
Hahahahahaha.
That's the damn truth, isn't it?
mention the anonymous authorship of the Federalist Papers. Not to mention many related issues. This is a more plausible attack on U.S.-based remailers than is something based on IP addresses. Left as an exercise for you.)
Indeed, what I was trying to get at might have been "somewhat related."
I agree with you in sentiment, but direct your attention to the CMRA (commercial mail drop) requirements for domestic mail agency in the United States in the USPS Domestic Mail Manual. I know you are aware of it.
I'm not sure if much can be gained by comparing anonymous remailers to commercial mail drops. USPS is a strange and weird beast, and guards its territory ferociously. Activities that happen in its sphere are logically and legally distinct from those happening online.
-Declan
Yeah, I know. I'm was just sitting here fuming over the proposed amendments to the commercial office suites. This is just silly. USPS is a giant bitch in need of a leash. (...We are speaking of the private mail agency rules requiring PMB or # address designation, IDs, record-keeping, reporting, etc.) ~Aimee
(Title changed to reflect focus.) At 10:47 AM -0400 8/4/01, Declan McCullagh wrote:
On Sat, Aug 04, 2001 at 01:03:59AM -0500, Aimee Farr wrote, quoting Tim. ...
mention the anonymous authorship of the Federalist Papers. Not to mention many related issues. This is a more plausible attack on U.S.-based remailers than is something based on IP addresses. Left as an exercise for you.)
Indeed, what I was trying to get at might have been "somewhat related."
I agree with you in sentiment, but direct your attention to the CMRA (commercial mail drop) requirements for domestic mail agency in the United States in the USPS Domestic Mail Manual. I know you are aware of it.
I'm not sure if much can be gained by comparing anonymous remailers to commercial mail drops. USPS is a strange and weird beast, and guards its territory ferociously. Activities that happen in its sphere are logically and legally distinct from those happening online.
A "remailer" uses the term "mail" in it because "e-mail" is the obvious term we have been using for about 20 years now. Obviously e-mail can consist of all sorts of messages, including "instant messaging," messages picked up at POP sites, and Web-based messaging. Their is no bright line between "e-mail" and "chat" and "voice communications" and "article posts." I am unaware of any solid legislation (tested in the courts) attempting to regulate e-mail in the same way ordinary USPS and international mail is regulated. Certainly there are no postage requirements. Some yammer a bunch of years ago about the USPS thinking it should "handle" all e-mail and collect a 29-cent fee on each message...died unceremoniously, for many good practical, technological, and constituent-anger reasons. The "anti-spam" rules are close to telephone dialing and fax machine rules than they are to USPS junk mail rules (such as they are). A mix is not just a remailer: it can be viewed quite legitimately as a _publisher_. A mix collects a bunch of submissions, pools them by its own rules, and then distributes the published set in various ways. If "e-mail" per se is ever regulated in the way Aimee thinks may be coming, a small matter to switch from a mix that "looks like mail" to one that is much more packet-based having no involvement with POP types of protocols. Freedom, from ZKS, already looks like packets, right? In fact, message pools using Usenet have been around for about 8 years now. Any attempt to declare remailers to be illegal mail drops would simply move the nexus of activity to Usenet and other Net locations. Restricting what people can post to Usenet or some other bulletin board or message site would be both tough to enforce technologically and counter to nearly every tenet of U.S. rights. (Not coincidentally did I use a graphic I made up of a "Democracy Wall" to show how messages could be left untraceably and read untraceably. This in 1990, BTW.) The point being that the U.S. tends to stay out of regulating what a publisher does, what his policies are, rather strongly. It's not just a matter of "toilet plunger" and "The Court is not amused" ("Please don't make Mr. Happy Fun Court angry!") sorts of shut-downs. No judge in the land is going to order the shut down of "Mix Publishing" just because he thinks the site is not amusing. (Note that neither Paladin Press nor Loompanics Press were ever shut down or enjoined from distributing the assassination manuals they used to sell. A civil suit and damages caused the titles to be pulled, but not a judge or regulatory body.) If "The Progressive" is free from interference in how it chooses to publish H-bomb secrets, does even Aimee think a site which collects together submissions and publishes them is going to be regulated? I hope Aimee takes a few hours to grok the essence of "digital mixes." She will then see that there is no particular binding to "e-mail" qua "mail" and no bright line between use of e-mail for the mixes and use of other channels of communication for mixes. And no lawyer would argue that Congressional regulation/ownership of some aspects of paper mail delivery then grants Congressional control of publishing, chat rooms, postings to Usenet and Web forums, and machine-to-machine connections. --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
----- Original Message ----- From: "Tim May" <tcmay@got.net> To: <cypherpunks@lne.com> Sent: Saturday, August 04, 2001 11:06 AM Subject: Regulation of Mixes under Postal Laws?
(Title changed to reflect focus.)
At 10:47 AM -0400 8/4/01, Declan McCullagh wrote:
On Sat, Aug 04, 2001 at 01:03:59AM -0500, Aimee Farr wrote:
I agree with you in sentiment, but direct your attention to the CMRA (commercial mail drop) requirements for domestic mail agency in the United States in the USPS Domestic Mail Manual. I know you are aware of it.
I'm not sure if much can be gained by comparing anonymous remailers to commercial mail drops. USPS is a strange and weird beast, and guards its territory ferociously. Activities that happen in its sphere are logically and legally distinct from those happening online.
Mr. May replies:
A "remailer" uses the term "mail" in it because "e-mail" is the obvious term we have been using for about 20 years now. Obviously e-mail can consist of all sorts of messages, including "instant messaging," messages picked up at POP sites, and Web-based messaging. Their is no bright line between "e-mail" and "chat" and "voice communications" and "article posts."
I am unaware of any solid legislation (tested in the courts) attempting to regulate e-mail in the same way ordinary USPS and international mail is regulated. Certainly there are no postage requirements.
The only thing that comes to mind is the post office's "Electronic Postmark" which, if you affix to an email, puts the same legal effects and protections (e.g. mail fraud) on tampering and handling that document as first class mail enjoys. Admittedly this is a far stretch from the Post Office having any real regulatory authority over non-EPM'd email, but it's an interesting aside.
The "anti-spam" rules are close to telephone dialing and fax machine rules than they are to USPS junk mail rules (such as they are).
Given the weekly state of my mailbox I am very pleased the USPS has nothing to do with spam control.
It's not just a matter of "toilet plunger" and "The Court is not amused" ("Please don't make Mr. Happy Fun Court angry!") sorts of
"Don't taunt happy-fun-court." I think you mean.
(Note that neither Paladin Press nor Loompanics Press were ever shut down or enjoined from distributing the assassination manuals they used to sell. A civil suit and damages caused the titles to be pulled, but not a judge or regulatory body.)
Well, true, but 1. what's the difference if the end effect is the same and 2. as I think the recent Adobe/E-Book silliness demonstrates- those kinds of cases are going to see quite a lot of exposure now. Ashcroft just hired dozens of new "cyber-prosecutors" and it's apparently going to be the Swan Song he hitches on to in order to propel his career- I suspect. (Shades of Microsoft/Bush mutual-fellatiating aside).
If "The Progressive" is free from interference in how it chooses to publish H-bomb secrets, does even Aimee think a site which collects together submissions and publishes them is going to be regulated?
Yet we see sites shut down monthly based on "cease and desist" orders and I think this is the point. The line between government enforcement and private enforcement is increasingly blurred (even gone) in a world where government has realized it can no longer afford to enforce and prosecute these things. Today Lawrence Livermore would have just hit the Progressive with a copyright suit and easily gotten an injunction. If they had put the H-bomb secrets in an E-book then they'd arrest key people at the Progressive and they might still be floating around the federal system wondering what happened. (I think it was Mr. May who cited the Xerox example- possibly quoting someone else. Same thing here). Anything from putting reporting and recordkeeping requirements and costs on financial institutions and brokerages (for later ease of investigation), the CTRs everyone has to fill out now (at their own expense) to privately originated criminal actions under DMCA, Environmental Protection Act, Antitrust and etc. etc. makes the distinction between private and public enforcement increasingly meaningless. This is concerning. What difference does it make if a controversial site is shut down by Mr. London as a prosecutor or by the Church of Scientology? Free speech is hindered the same in either case. Very worrisome. This more than any other reason is why I hope that remailer operators will exercise caution (NOT pre-emptively shut down, as some have alleged I intend them to do). I think it's pretty clear that free speech is besieged by forces under the banner of private property rights, funded by a chest of corporate gold (Adobe, MPAA, etc.) with entirely different interests- none of which have much to do with free (or $ free) speech. Copyright is dangerous today because it is near its deathbed and yet so many fat profit models depend on it. Do you think MPAA or RIAA are spending the kind of cash they are because they feel safely ensconced? Do you doubt that for every dollar spent on the Napster case there aren't 2 or 3 spent in lobbying, both overtly and in backchannel ways? (Ashcroft's announcements of late should pretty much remove any doubt that the Bush administration's ear has been bent by the Adobe's of the world). Looking at this trend: 1. Private enforcement actions with a government, not just a plaintiff, stick. 2. Increasing influence of industry groups and corporations in defining the medium and content of speech. (Microsoft XP, Adobe, MPAA, MPEG-4, ATA). 3. Criminal elements to otherwise entirely civil issues. 4. An increasing political will to enforce these elements by arresting 20somethings and threatening researchers. 5. "Credentialing" requirements, official or in effect- of which Mr. May has often mused. I think it's time to be just as defensive about resisting compelled disclosure orders (and making such orders obsolete) as it was to use IDEA instead of DES back in PGP 1.0.
And no lawyer would argue that Congressional regulation/ownership of some aspects of paper mail delivery then grants Congressional control of publishing, chat rooms, postings to Usenet and Web forums, and machine-to-machine connections.
Unless an EPM is attached. Perhaps that's the dangerous hook, no? Granted there is no EPM _requirement_ today for email, nor can I see how one might emerge, but several brokerages are in the process of implementing EPMs for statement, pay stub and trade confirmation delivery as we speak. AT&T has started floating trial balloons about sending your statement by paper only if you pay an extra fee, and doing the rest electronically. Wouldn't take much to see EPMs on all your phone bills before long (particularly if the post office gets clever and tells congress it needs some regulatory correspondence- say with the SEC as a starting point, to require EPMs in order to stay in business - or it will have to raise postage instead). Bingo, EPMs for everyone! At least, if I were USPS that's how I would start to try and build an EPM monopoly. Interesting times, if nothing else.
-- On 4 Aug 2001, at 1:03, Aimee Farr wrote:
I wasn't speaking of "security through obscurity," I was speaking of "security through First Amendment law suit." Nobody could argue "objective chill" in here, that's a legal concept....but clearly, you aren't interested.
With the DCMA and "campaign finance reform" the first amendment has gone the way of the second. Non political speech is not protected because it is non political. Political speech is not protected because it might pressure politicians. We have no precedents that routine destruction of precedents counts as spoilage, but we have ample precedent that any speech can be silenced. In the nature of things, it is far easier to enforce a law against free spech that a law against "spoilage" undertaken long before any charges, thus as we move towards totalitarianism, free speech will go first, is going right now, and broad interpretations of "spoilage" will come last. --digsig James A. Donald 6YeGpsZR+nOTh/cGwvITnSR3TdzclVpR0+pr3YYQdkG vFwRyVw26bcmnTVAmHWVa4hpohmWpeoEFQGcSvra 4KXMRn8toy5+YK/de6MG3wrAYnSnWzP5hSNtQYTzS
You may be right, James....I fear. This just in from the criminal spoliation sector (realize the important distinctions - here, the government is destroying evidence...) United States v. Wright, No 00-5010 (6th Cir. August 03, 2001) http://pacer.ca6.uscourts.gov/cgi-bin/getopn.pl?OPINION=01a0255p.06 ~Aimee
-----Original Message----- From: jamesd@echeque.com [mailto:jamesd@echeque.com] Sent: Saturday, August 04, 2001 11:31 AM To: cypherpunks@lne.com; Aimee Farr Subject: RE: About lawyers and spoliation
-- On 4 Aug 2001, at 1:03, Aimee Farr wrote:
I wasn't speaking of "security through obscurity," I was speaking of "security through First Amendment law suit." Nobody could argue "objective chill" in here, that's a legal concept....but clearly, you aren't interested.
With the DCMA and "campaign finance reform" the first amendment has gone the way of the second. Non political speech is not protected because it is non political. Political speech is not protected because it might pressure politicians.
We have no precedents that routine destruction of precedents counts as spoilage, but we have ample precedent that any speech can be silenced.
In the nature of things, it is far easier to enforce a law against free spech that a law against "spoilage" undertaken long before any charges, thus as we move towards totalitarianism, free speech will go first, is going right now, and broad interpretations of "spoilage" will come last.
--digsig James A. Donald 6YeGpsZR+nOTh/cGwvITnSR3TdzclVpR0+pr3YYQdkG vFwRyVw26bcmnTVAmHWVa4hpohmWpeoEFQGcSvra 4KXMRn8toy5+YK/de6MG3wrAYnSnWzP5hSNtQYTzS
Aimee Farr <aimee.farr@pobox.com> wrote:
I've seen predictions that by 2005-7, your IP will be biometrically associated. (I have nothing to back to that up, but the source was credible.)
I'm quite skeptical. As I see it, there would be two general ways of doing this: 1) Each person has his/her own static IP address that is inextricably linked to his/her biometric data. 2) One presents biometric credentials in order to use a particular IP address, and a system similar to DNS can be used to resolve IP addresses to biometric credentials (or perhaps, all network admins are required to keep logs of who was using what IP address at what time). (1) is clearly impossible, if only because all currently-used routing protocols would be broken. Imagine if I (18.243.0.246) went to visit a friend at CMU (128.2.11.43). How would packets to me be routed? Admittedly, there is Mobile IP, a protocol that allows me to roam with a static IP address, but it was never popularized because DHCP administration is easier and has fewer nasty, subtle problems. (2) is also not likely. It doesn't seem that the government could get away with requiring network admins to keep logs or run servers all the time any more than they could get away with running carnivore on every major ISP all the time. Perhaps in specific cases they could, with the aid of a warrant, force a certain provider to track all information pertaining to a specific IP address, but this is far from "your IP will be biometrically associated." Even if a few governments succeeded in forcing this sort of thing, there are several ways of getting around it. Perhaps the best is mixnets, but a simpler (albeit weaker) solution is to just get an offshore shell account and run an SSH tunnel to a proxy there. Hell, that's more or less the way that I get access to the internet at work, and I'm sure you'd have a hard time finding out what the IP address of the machine at which I'm currently sitting is without compromising my proxy machine. Perhaps I'm totally off-base with all of this. Are there already protocols out there for linking biometric data to IP address? A quick google search didn't turn anything up, but I might have missed something. -- Riad Wahby rsw@mit.edu MIT VI-2/A 2002 5105
On 3 Aug 2001, at 6:03, Aimee Farr wrote:
All we lawyer-types are saying is to engage the law in your problem-solving, it's in your threat model. Many of your "solutions" are 100% conflict-avoidance, or even ...conflict-ignorance. A strategic error. Where there is a corpus, there is a law to get it. You always PLAN FOR CONFLICT. Hence, we have _The Art Of War_ -- and not, _The Art Of Hiding_.
Hiding or secrecy as a total strategy has historically been limited by the Rule Of Secrets/Least Safe Principle, and the equally-important "well, doesn't this look suspicious!" -- a rule of natural law and human disposition. Crypto is not a person, object and asset invisibility machine. Until such a marvel comes to pass, stick to traditional wargaming.
THE SITUATION: ------------- Controverted spies have brought you intelligence that the enemy has a new long-range weapon. You learn that it works, but you think you lie outside the current range. However, you learn that it is undergoing rapid development and experimentation.
SOME OF YOUR RESPONSES: ----------------------- "They're dumb, I hate them, and they can't hit us."
"IF they've never hit us, THEN they can't."
"They can't hit what they can't see."
"We should insult and burn the spies at the stake for bringing us this information."
"Bitch. Bitch. Bitch."
***
Within this particular range of hypotheticals, the courts are going to see a problem and they might reach for spoliation. Arguing over the rightfulness or wrongfulness of it is a futile exercise. When you learn your adversary is using a new tactic or developing a new weapon, you examine your own tactics and adjust them accordingly in ANTICIPATION OF CONFLICT. You assume they will "get better" unless you do something about it. Given the nature of the law, there is nothing to be done other than to prepare for advancement and proliferation. The legal question is never what is - but what will be. In this light, precedent is not "a rule," it is an aid for prediction.
"To secure ourselves against defeat lies in our own hands, but the opportunity of defeating the enemy is provided by the enemy himself." -- Sun Tzu.
A most apt analogy for the law. Where it presents an obstacle, it presents an opportunity.
~Aimee
On Fri, 3 Aug 2001, Sandy Sandfort wrote:
C'punks,
So by my count it looks as though we are now up to at least THREE village idiots.
Four: You forgot to count yourself in.
Each convinced that he knows the law (not in theory, but as practiced in reality) better than the lawyers.
There's a small black part of me that REALLY would enjoy seeing these three arrogantly childish ignoramuses in the docket, pissing their pants when the macho flash wears thin.
Hey Jimbo, that LSAT "easy money" is still waiting for you to grow a pair.
S a n d y
Ease up on those testosterone tablets Sandy, you are looking more and more like a fifth grade bully wannabe every day. You are the kind of asshole I sent my kid to school with the roll of quarters for... -- Yours, J.A. Terranson sysadmin@mfn.org If Governments really want us to behave like civilized human beings, they should give serious consideration towards setting a better example: Ruling by force, rather than consensus; the unrestrained application of unjust laws (which the victim-populations were never allowed input on in the first place); the State policy of justice only for the rich and elected; the intentional abuse and occassionally destruction of entire populations merely to distract an already apathetic and numb electorate... This type of demogoguery must surely wipe out the fascist United States as surely as it wiped out the fascist Union of Soviet Socialist Republics. The views expressed here are mine, and NOT those of my employers, associates, or others. Besides, if it *were* the opinion of all of those people, I doubt there would be a problem to bitch about in the first place... --------------------------------------------------------------------
J.A. Terranson wrote:
On Fri, 3 Aug 2001, Sandy Sandfort wrote: ...
So by my count it looks as though we are now up to at least THREE village idiots.
Four: You forgot to count yourself in.
Not so, because I am not in arrogant denial of legal realities as are the three village idiots in question. At this point, I don't know your position on the underlying question so I don't know yet whether to elevate your status to that of the fourth village idiot.
Ease up on those testosterone tablets Sandy...
You are confused. I was asking Jimbo to increase his level of testicular fortitude and take the LSAT. There is nothing quite so sobering for a village idiot as to have his idiocy documented by an objective test of the skills in question.
...you are looking more and more like a fifth grade bully wannabe every day.
Some folks can only see what they want to see. My guess is that your personal animus towards me has merely caused you to "project" your own negative tendency onto me. That's fine by me; it gives me a good insight into where you're coming from.
You are the kind of asshole I sent my kid to school with the roll of quarters for...
My goodness, living out your violent fantasies vicariously through your child. Have you sought counseling? ;'D S a n d y
Whooooieee! Question authority, you *MUST* be a village idiot. Pretty strange attitude for someone on cpunks --- but pretty normal attitude for a lawyer. It's a sickness that comes from spending all that time reading such boring crap. Or maybe it's congenital --- maybe you have to be born with a predisposition to pomposity to be even able to spend all those hours absorbing all that case law. Gag! And, of course, judges are the logical extension of this. Sandy Sandfort wrote:
C'punks,
So by my count it looks as though we are now up to at least THREE village idiots. Each convinced that he knows the law (not in theory, but as practiced in reality) better than the lawyers.
There's a small black part of me that REALLY would enjoy seeing these three arrogantly childish ignoramuses in the docket, pissing their pants when the macho flash wears thin.
Hey Jimbo, that LSAT "easy money" is still waiting for you to grow a pair.
S a n d y
-- Harmon Seaver, MLIS CyberShamanix Work 920-203-9633 hseaver@cybershamanix.com Home 920-233-5820 hseaver@ameritech.net http://www.cybershamanix.com/resume.html
Harmon Seaver (VI3) offered,
Whooooieee! Question authority...
I have no idea what VI3 is talking about here. I WAS questioning authority. The "authority" of the smug arrogance that VI1, VI2 and Harmon, himself, demonstrate in uttering their UNINFORMED opinions of the law. Sputtering vague, unsupported and illogical wishful thinking is not "questioning authority" in any meaningful manner. Look, the lawyers on this list aren't ADVOCATING these stupid laws. They are trying to warn some of the slower members of our community which way the juggernaut is rolling and suggesting ways they can get out of the way and still do what they want to do. Geez, I'm astounded I have to explain this stuff to folks who are supposed to be a cut above the average. S a n d y
-- On 3 Aug 2001, at 0:09, Sandy Sandfort wrote:
C'punks,
So by my count it looks as though we are now up to at least THREE village idiots. Each convinced that he knows the law (not in theory, but as practiced in reality) better than the lawyers.
I know that for the past several hundred years everyone has been engaging in what what you call "spoilage" (failing to retain potentially incriminating records, and publishing material that might at some later time be declared a thought crime.) Zero busts so far. --digsig James A. Donald 6YeGpsZR+nOTh/cGwvITnSR3TdzclVpR0+pr3YYQdkG vISX2lmgcvBsqRWcFoH5IZsLSeBoD5kb19QGVHcr 4clSYeboF+YuOn/ZXdd/dZFyUu5c00tSeisbetvSE
James Donald (Village Idiot #2) wrote:
I know that for the past several hundred years everyone has been engaging in what what you call "spoilage"...
Pay attention James, I have never discussed "spoilage" (or spoliation, for that matter) on this list. In the future, please direct your ignorance towards the party with whom you have a dispute. S a n d y
At 1:49 AM -0500 8/3/01, Harmon Seaver wrote:
Black Unicorn wrote:
I'm not sure where you have been over the last 48 hours but clearly you've not been paying attention.
Actually, I have.
Courts _clearly_ have the ability to demand the production of all
copies and
originals of a document. They have merely to order it.
A court may "order" the production of all copies and the original(s) of "Wind Done Gone," but if copies have already been sold anonymously and untraceably to the public, as is the norm with book sales even today, the issue is moot. The situation of publishing a book is analogous to distributing on Freenet: once the copies are out there, they are not retrievable by the releasor. (The court may wish to employ tens of thousands of JBTs to visit every home in America, not to mention Europe and elsewhere, in an attempt to seize all copies, but it is clearly beyond the power of the author to retrieve these copies.) Claims that releasing something in a form which may not practically (in the strongest sense of the word!) be retrieved is some kind of "spoliation" are bizarre. The claim that distributing via Freenet or Mojo or Usenet, systems which are similar to ordinary publishing in the sense that retrieval after distribution is nearly impossible, is also bizarre. BU has said I should pay him for his research. Laughable. --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 12:11 AM 8/3/2001 -0700, Tim May wrote:
Claims that releasing something in a form which may not practically (in the strongest sense of the word!) be retrieved is some kind of "spoliation" are bizarre. The claim that distributing via Freenet or Mojo or Usenet, systems which are similar to ordinary publishing in the sense that retrieval after distribution is nearly impossible, is also bizarre.
I think this is the really interesting leap here - from the ability of a court to order production of documents, to the ability of a court to control distribution of information. The "production" or subpoena aspect has been hashed and rehashed ad nauseam on the list - but the reporter's attorney said they were asking for all originals and copies of the reporter's notes, which makes it sound like this grand jury (or the prosecutor controlling it) would like to swallow them up and never give them back - or delay public knowledge and discussion of the events involved in the case until a time more convenient for prosecutors and law enforcement. I think a response more appropriate than secrecy (with the attending arguments about offshore trusts, the relationship between crosscut shredders and cryptography, etc) would have been immediate, widespread publication - via Freenet or Cryptome, if the local paper wasn't interested. Then there's no more arguing over secret documents, and the grand jury's free to read about it in the newspaper and ask the journalist to come in and confirm that no details were altered during the editing process. Courts have relatively strong powers with respect to controlling the possession and disposition of physical things like notebooks or hard disks, but relatively weak powers with respect to limiting the dissemination of information not in the court's exclusive possession, so long as the disseminator is not a party to a case before the court, nor an attorney for a party. So don't fight the court where they're strong and you're weak - fight where you're strong and the court is weak, e.g., about prior restraint of publishing, rather than whether or not evidence was destroyed or withheld, which might be a contempt proceeding, which includes very little "due process" and no jury. The other lesson to be learned is that Texas courts don't recognize a journalistic privilege - so Texas journalists shouldn't expect to benefit from one. Also, that the protections afforded publishers in 42 USC 2000aa won't necessarily extend to abusive grand juries, since they likely don't fall within the definition of "government officers and employees", even if they're just a cat's paw for the prosecutor. I think a lot of the tension around "cypherpunks should think about law" or "cypherpunks should not waste time on law" comes from different basic assumptions - if you start out thinking that police are thugs and you have no rights except the ones you enforce yourself, then all of this legal discussion is a big distraction. If you start out thinking that you live in the high-school-civics-class version of America, and that the Bill of Rights and the 14th Amendment are alive and well on the streets and in the courtrooms, then, the legal discussion is relevant to the extent that it brings those expectations back in line with reality. Of course, sometimes people with the first view will admit that the thugs' behavior isn't totally arbitrary, but needs to be mostly orderly and appear reasonable so as to preserve the thugs' privileged position, and that it's possible to take advantage of that systemic tendency towards predictability to game the system, and thereby avoid the thugs - and sometimes people with the second view will admit that perhaps the delta between the advertised version of Reality and the implementation is so vast that it's easier to list the positive changes from the "thug" model than the negatives changes from the Jeffersonian/Madisonian ideal. -- Greg Broiles gbroiles@well.com "We have found and closed the thing you watch us with." -- New Delhi street kids
At 9:48 AM -0700 8/3/01, Greg Broiles wrote:
At 12:11 AM 8/3/2001 -0700, Tim May wrote:
Claims that releasing something in a form which may not practically (in the strongest sense of the word!) be retrieved is some kind of "spoliation" are bizarre. The claim that distributing via Freenet or Mojo or Usenet, systems which are similar to ordinary publishing in the sense that retrieval after distribution is nearly impossible, is also bizarre.
I think this is the really interesting leap here - from the ability of a court to order production of documents, to the ability of a court to control distribution of information. The "production" or subpoena aspect has been hashed and rehashed ad nauseam on the list - but the reporter's attorney said they were asking for all originals and copies of the reporter's notes, which makes it sound like this grand jury (or the prosecutor controlling it) would like to swallow them up and never give them back - or delay public knowledge and discussion of the events involved in the case until a time more convenient for prosecutors and law enforcement.
Indeed, the order to produce "and all copies" looks to be an obvious effort to quash the material. Thoughtcrime.
I think a response more appropriate than secrecy (with the attending arguments about offshore trusts, the relationship between crosscut shredders and cryptography, etc) would have been immediate, widespread publication - via Freenet or Cryptome, if the local paper wasn't interested. Then there's no more arguing over secret documents, and the grand jury's free to read about it in the newspaper and ask the journalist to come in and confirm that no details were altered during the editing process.
Some here are arguing that such publication constitutes "spoliation." I have seen no cites that support this novel interpretation. Publishing something, whether on Freenet or in Time, may trigger later damage claims (as with violating copyrights), but it can hardly be considered a kissing cousin to "destruction of evidence." And for someone not an actual party to a court case, not subject to a court's order, not even "contempt of court" could apply.
Courts have relatively strong powers with respect to controlling the possession and disposition of physical things like notebooks or hard disks, but relatively weak powers with respect to limiting the dissemination of information not in the court's exclusive possession, so long as the disseminator is not a party to a case before the court, nor an attorney for a party.
Well said. --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
Tim:
Some here are arguing that such publication constitutes "spoliation." I have seen no cites that support this novel interpretation. Publishing something, whether on Freenet or in Time, may trigger later damage claims (as with violating copyrights), but it can hardly be considered a kissing cousin to "destruction of evidence."
Well, I didn't mean to argue that. We had several hypos going. My comments were in regard to unavailability techniques, not availability techniques. ~Aimee
Greg Broiles wrote:
I think this is the really interesting leap here - from the ability of a court to order production of documents, to the ability of a court to control distribution of information.
Exactly! But even for the court to order "the original and all copies" is a bit absurd -- how could they possibly determine how many is "all"? And what the heck is the "original" in this day and age? Most of the stuff I (and surely the vast majority of writers and journalists these days) create is just bits and bytes. You want the printed "original" -- gee, I've never printed one, but I will if you want me to -- how many "originals" do you want, and how many "copies"? Frankly, even I couldn't be *really, really* sure I had given them "all copies" -- I've got zipped files floating around all over the place, on backup tapes, stored on various machines, servers around the net, floppies in boxes I'll find years later, etc. (snip)
I think a response more appropriate than secrecy (with the attending arguments about offshore trusts, the relationship between crosscut shredders and cryptography, etc) would have been immediate, widespread publication - via Freenet or Cryptome, if the local paper wasn't interested. Then there's no more arguing over secret documents, and the grand jury's free to read about it in the newspaper and ask the journalist to come in and confirm that no details were altered during the editing process.
Or even disseminate it in encrypted form that the jury can't read, so what? The info is still protected from seizure, as it's beyond anyone's reach to retrieve "all copies". In some cases it might be provident to openly publish the info, in others not. I would think that in the case in question, someone in the jailed journalist's immediate circle would have already made copies and secreted them away, out of reach of the court. Maybe someone should tip them off to freenet/mojo.
So don't fight the court where they're strong and you're weak - fight where you're strong and the court is weak, e.g., about prior restraint of publishing, rather than whether or not evidence was destroyed or withheld, which might be a contempt proceeding, which includes very little "due process" and no jury.
Careful -- I got called a village idiot for suggesting essentially the same thing.
I think a lot of the tension around "cypherpunks should think about law" or "cypherpunks should not waste time on law" comes from different basic assumptions - if you start out thinking that police are thugs and you have no rights except the ones you enforce yourself, then all of this legal discussion is a big distraction.
Well, aren't they? See "Badge + Skinhead = Psycho" on my http://www.oshkoshbygosh.org -- Harmon Seaver, MLIS CyberShamanix Work 920-203-9633 hseaver@cybershamanix.com Home 920-233-5820 hseaver@ameritech.net http://www.cybershamanix.com/resume.html
On Fri, 3 Aug 2001, Harmon Seaver wrote:
Frankly, even I couldn't be *really, really* sure I had given them "all copies" -- I've got zipped files floating around all over the place, on backup tapes, stored on various machines, servers around the net, floppies in boxes I'll find years later, etc.
And if the court doesn't believe you, issues a order directing the confiscation and search by LEA's of that material and they find something on those archives you're goose just got cooked. Those will be years later in jail. The courts generaly expect you to expend whatever resources you need providing the materials they request. -- ____________________________________________________________________ Nature and Nature's laws lay hid in night: God said, "Let Tesla be", and all was light. B.A. Behrend The Armadillo Group ,::////;::-. James Choate Austin, Tx /:'///// ``::>/|/ ravage@ssz.com www.ssz.com .', |||| `/( e\ 512-451-7087 -====~~mm-'`-```-mm --'- --------------------------------------------------------------------
<color><param>0100,0100,0100</param>On 3 Aug 2001, at 9:48, Greg Broiles wrote: <color><param>7F00,0000,0000</param>> At 12:11 AM 8/3/2001 -0700, Tim May wrote:
Claims that releasing something in a form which may not practically (in
the strongest sense of the word!) be retrieved is some kind of
"spoliation" are bizarre. The claim that distributing via Freenet or Mojo
or Usenet, systems which are similar to ordinary publishing in the sense
that retrieval after distribution is nearly impossible, is also bizarre.
I think this is the really interesting leap here - from the ability of a
court to order production of documents, to the ability of a court to
control distribution of information. The "production" or subpoena aspect
has been hashed and rehashed ad nauseam on the list - but the reporter's
attorney said they were asking for all originals and copies of the
reporter's notes, which makes it sound like this grand jury (or the
prosecutor controlling it) would like to swallow them up and never give
them back - or delay public knowledge and discussion of the events involved
in the case until a time more convenient for prosecutors and law enforcement.
</color>Right. I feel it is bizzare that one can be charged with "spoliation" merely for purging old records that one has no conceivable use for on the grounds that you somehow "should have known" that it was "likely" that the records would be subpoenaed <color><param>FF00,0000,0000</param><bigger>{HYPERLINK "/search?hl=en&safe=off&q=subpoenaed&spell=1"}<color><param>0100,0100,0100</param><FontFamily><param>Times New Roman</param> </color><FontFamily><param>Arial</param><smaller> years later, but if that's the way it happens, that's the way it happens. I consider it, as I said, monstrous that a judge can legally deprive me of all copies of my own work in order to enforce a gag order, but again, if that's the way it is, that's the way it is. But it goes well beyond the bizzare to suggest that I should anticipate the possibility of a gag order and preemptively gag myslef in case one might be issued at a later date. <color><param>7F00,0000,0000</param>> I think a response more appropriate than secrecy (with the attending
arguments about offshore trusts, the relationship between crosscut
shredders and cryptography, etc) would have been immediate, widespread
publication - via Freenet or Cryptome, if the local paper wasn't
interested. Then there's no more arguing over secret documents, and the
grand jury's free to read about it in the newspaper and ask the journalist
to come in and confirm that no details were altered during the editing
process.
</color>Yeah, well, the reason I suggested posting encrypted to freenet is, I was thinking I might not want the stuff distributed for the whole world to see, but I want to make sure I have access to the stuff, either during the trial, or later once the trial is over (if the judge makes me hand over all copies, am I sure I'll get anything back?) In the particular case of a reporter's notes, one can easily imagine how this would be the case: my notes contain information which could be used to identify confidential sources of mine, that sort of thing. I don't want to lose this information, but I can't just openly blab it to the world. <color><param>7F00,0000,0000</param>> I think a lot of the tension around "cypherpunks should think about law" or
"cypherpunks should not waste time on law" comes from different basic
assumptions - if you start out thinking that police are thugs and you have
no rights except the ones you enforce yourself, then all of this legal
discussion is a big distraction. If you start out thinking that you live in
the high-school-civics-class version of America, and that the Bill of
Rights and the 14th Amendment are alive and well on the streets and in the
courtrooms, then, the legal discussion is relevant to the extent that it
brings those expectations back in line with reality.
Of course, sometimes people with the first view will admit that the thugs'
behavior isn't totally arbitrary, but needs to be mostly orderly and appear
reasonable so as to preserve the thugs' privileged position, and that it's
possible to take advantage of that systemic tendency towards predictability
to game the system, and thereby avoid the thugs - and sometimes people with
the second view will admit that perhaps the delta between the advertised
version of Reality and the implementation is so vast that it's easier to
list the positive changes from the "thug" model than the negatives changes
from the Jeffersonian/Madisonian ideal.
</color>and so groups one and two end up more or less agreeing on the defacto state of affairs, just describing it differently. George <color><param>7F00,0000,0000</param>>
--
Greg Broiles
gbroiles@well.com
"We have found and closed the thing you watch us with." -- New Delhi street kids
<nofill>
-- On 3 Aug 2001, at 13:22, georgemw@speakeasy.net wrote:
I consider it, as I said, monstrous that a judge can legally deprive me of all copies of my own work in order to enforce a gag order, but again, if that's the way it is, that's the way it is. But it goes well beyond the bizzare to suggest that I should anticipate the possibility of a gag order and preemptively gag myslef in case one might be issued at a later date.
Judges have never attempted such crap, and if they do, lawyers will irrelevant, and will have been irrelevant for a long time before the such anyone attempts such crap. These guys (Black Unicorn and his cheer squad) are loons, and I cannot imagine why they post such nonsense. The argument they seem to be making is that judges, legislators, and bureaucrats are becoming increasingly lawless, therefore we should treat lawyers with worshipful respect. But that argument is completely back to front. As governments become more lawless, laws and lawyers become less relevant, not more relevant. As government becomes more lawless, first one hires fixers in place of lawyers, then whores in place of fixers, then gunmen in place of whores. American business in general is moving towards fixers, biotech is already largely past fixers to whores, and in Russia it is gunmen. --digsig James A. Donald 6YeGpsZR+nOTh/cGwvITnSR3TdzclVpR0+pr3YYQdkG yaXRYjQRaqKdRfYIdQ2uzBW1hnXxeNFzod0WHqd2 420eZw9m6TUyezphE2Z2tbXIvV4/9aHVQJTHAeRJE
On 4 Aug 2001, at 11:07, jamesd@echeque.com wrote:
-- On 3 Aug 2001, at 13:22, georgemw@speakeasy.net wrote:
I consider it, as I said, monstrous that a judge can legally deprive me of all copies of my own work in order to enforce a gag order, but again, if that's the way it is, that's the way it is. But it goes well beyond the bizzare to suggest that I should anticipate the possibility of a gag order and preemptively gag myslef in case one might be issued at a later date.
Judges have never attempted such crap, and if they do, lawyers will irrelevant, and will have been irrelevant for a long time before the such anyone attempts such crap.
I didn't mean to imply that BU had suggested that this would happen. My impression is that BU's response to me was based on a misundertanding of what I was saying. My suggestion "encrypt your data and post it on freenet" was based on the idea that 1) I want to be able to say with perfect truthfulness "I cannot comply with your order to turn over ALL copies" and 2) I don't want to release it to the whole world's prying inquisitive eyes. The key point is, I want to make sure I will always have access to my information. I wasn't suggesting I could delete all local copies and tell the judge, "sorry, can't give you any copies, don't have them" and mutter under my breath "but I could get them if I really wanted to". I wouldn't expect a judge to buy that line of reasoning, I wouldn't buy it myself.
These guys (Black Unicorn and his cheer squad) are loons, and I cannot imagine why they post such nonsense.
The argument they seem to be making is that judges, legislators, and bureaucrats are becoming increasingly lawless, therefore we should treat lawyers with worshipful respect.
I don't think this is right either. It's more like 1) Judges and prosecutors may interpret laws in ways that seem completely divergent from the laws as written, but at least these bizzare interpreations are internally consistent (that is, judges will follow precedent). 2) designing your systems in certain ways that take into account certain tortured interpretations of the law can potentially save you a lot of grief and 3) Lawyers will most likely know a lot more about these tortured interpretations than will non-lawyers. Really, I don't think this stuff is all that controversial. For example, the suggestion that your legal position is stronger if you can say "we've never had the logs you're asking for" than if you say "we delete those logs every 24 hours to keep the disk from filling up, so they're gone, sorry" makes perfect sense. This isn't to say your position isn't strong in the second case also, but there's more potential for grief; even a case that you win pretty quickly can cost you a lot in terms of money and inconenience.
James A. Donald
George
On 4 Aug 2001, at 13:04, georgemw@speakeasy.net wrote:
My impression is that BU's response to me was based on a misundertanding of what I was saying.
My impression is that whatever his original position, in the course of defending it, he made claims that were ever more unreasonable, ever more flagrantly wrong, and defended those ever more obviously erroneous claims by asserting the vast superiority of lawyers, and our vital need for lawyers, in an ever more condescending fashion. If judges behave as lawlessly as BU would up claiming they did, we have no need for lawyers at all. If judges are going to behave as lawlessly as Sandy now says he was predicting they will, we will have no need for lawyers at all. As for what Aimee is saying -- that was not very clear, and the more she says, the less clear it is.
----- Original Message ----- From: <jamesd@echeque.com> To: <cypherpunks@cyberpass.net>; <georgemw@speakeasy.net> Sent: Saturday, August 04, 2001 11:07 AM Subject: Re: Spoliation cites
On 3 Aug 2001, at 13:22, georgemw@speakeasy.net wrote:
I consider it, as I said, monstrous that a judge can legally deprive me of all copies of my own work in order to enforce a gag order, but again, if that's the way it is, that's the way it is. But it goes well beyond the bizzare to suggest that I should anticipate the possibility of a gag order and preemptively gag myslef in case one might be issued at a later date.
jamesd@echeque.com replies:
Judges have never attempted such crap, and if they do, lawyers will irrelevant, and will have been irrelevant for a long time before the such anyone attempts such crap.
These guys (Black Unicorn and his cheer squad) are loons, and I cannot imagine why they post such nonsense.
The only thing that is more surprising than your total willful ignorance (have you even bothered to look at the several cites I have posted that positively refute your statement above?) is the fact that you keep insisting on demonstrating it- loudly. (I have no clue where this pre-emptive self-gagging discussion came from. That does sound silly indeed). It's like being in the dark ages or something. Clearly presented evidence, ignored as heretical and the purveyors of it burned (flamed?) at the stake. It's a wonder anyone bothers to impart any knowledge of worth to the list at all. I have cited authority for the proposition that courts, and more often plaintiffs, routinely demand broad productions related to a given matter. Many here have attempted to assign sinister motives to these production orders (censorship, seizure of private property, etc.) In reality they are generally directed to the very legitimate aim, given you accept the court's authority in the first place- which is another discussion entirely better directed to your legislative representative, of preserving evidence so that the parties may reach "the truth" and resolve their dispute. (This is, incidentally, the same rationale that gave rise to "no-knock" searches- which should be a demonstration of how seriously the need to preserve evidence is taken among law enforcement and judiciary types). In my personal legal work some years ago I can think of several instances in which a copy of a record has increased or reduced the probative value of an original- and have used them to refute or support claims and allegations in cases myself. Courts defendants and plaintiffs know this also and that's why production orders are so broadly written- and enforced. I am hardly the only example. In a mere 90 minutes of work I found and I have cited at least 5 major cases (which in turn would lead even the first quartile legal researcher to dozens and dozens more) that show that the burden of these productions may- and does- fall on third parties and that malicious, or indeed even negligent, loss or destruction of these documents could result in anything from a stern lecture, to unfavorable jury instructions, to sanctions to jail time. We have had at least two remailer operators called to stand before "the man," despite the fact that they were not otherwise a party to a lawsuit of any kind. At least one who has disclosed his/her experience about it on the list. One defense "I don't keep logs and therefore don't have any to give you" was sufficient this time. Good. But those were copyright or libel issues before DMCA was the big deal it is now. The stakes are higher now, as certain anti-Adobe authors might tell you. It only takes a big drug case or a murder investigation and a third party remailer operator is probably going to be the subject of a lot more heat. Want to wait around for that hurricane before you take a few simple precautions? That's just dense. But be my guest. We might all just use DES because no cypherpunk has been arrested for an incident where DES was decrypted to obtain the evidence. (It hasn't happened yet, so what's the problem, right?) I prefer to use AES, thanks. I also don't buy land in flood prone areas without insurance. I have cited authorities. I have cited examples. I have given you the tools to find these and read them. Either demonstrate why these do not apply drawing directly from their text (it's freely available to anyone who would look) or no one here can take you seriously unless they have an ulterior motive for doing so. The fact that you don't think courts should exist in their current state, and that you proclaim so loudly and endlessly, is not going to help you when you are standing in court with U.S. Marshals or State Bailiffs at your side. (Ask Jim Bell about how well taunting a court works). The cure for your ignorance is simple. Just find any document production order at all. I can pretty much assure you the language will contain "all documents, copies, reproductions" and suchlike in it and the court will seek to enforce it. The light switch is right at your fingertips. You have but to flip it up and cease to continue living in the darkness- if you so desire. I accept that you might be beyond hope. I hope other's aren't. Do you own homework. Anything else is intellectual laziness at it's finest.
Judges have never attempted such crap, and if they do, lawyers will
Please do a search for "Negativland" and "U2" on your favorite search engine. They were ordered to return to the court or U2's reccord label or whatever, all the copies they had of their U2 album. Every single copy. Interestingly, there was a distrinction between digital and analog copies; Negativland would distributed tapes at their shows, but never CDs. Anyway, U2 got quite embarassed by this, so they may have told their lawyers to back off, after the case was all over. But the point is, yes, definitely the judge can demand every single copy of a document, and this case clearly demonstrates it in action. Negativland weren't arrested, but they did go into bankruptcy because of this, and they had to go into hiding to escape creditors. Perhaps now they would just be arrested, I don't know.
On 4 Aug 2001, Dr. Evil wrote:
But the point is, yes, definitely the judge can demand every single copy of a document, and this case clearly demonstrates it in action.
But, in this case (as I've claimed in the past) EACH AND EVERY COPY represent harm to the plaintiff. Of course it makes sense to recover all copies where each of those copies will cause harm. The purpose of the court, and law in general, is to reduce 'harm'. That is NOT the same thing as demanding that an author of a work turn over each and every copy of same. Of course if there was a defamation issue then again it would make sense to recover each and every copy. In the case of something like the Pentagon Papers it makes sense to ATTEMPT to recover said documents. Since each copy represents harm. Bottem line, if the court orders all copies siezed there must be some indication of harm if ANY SINGLE copy remains unrecovered. Otherwise it's just a violation of the 1st. -- ____________________________________________________________________ Nature and Nature's laws lay hid in night: God said, "Let Tesla be", and all was light. B.A. Behrend The Armadillo Group ,::////;::-. James Choate Austin, Tx /:'///// ``::>/|/ ravage@ssz.com www.ssz.com .', |||| `/( e\ 512-451-7087 -====~~mm-'`-```-mm --'- --------------------------------------------------------------------
--
Judges have never attempted such crap,
On 4 Aug 2001, at 23:03, Dr. Evil wrote:
Please do a search for "Negativland" and "U2" on your favorite search engine. They were ordered to return to the court or U2's reccord label or whatever, all the copies they had of their U2 album. Every single copy.
And had they previously dispersed these so as to ensure that they could not deprive themselves of every last copy, no matter how hard they cooperated with the judge, they would be in good shape. Sure, judges can issue any order they like. But if, before that inconvenient order is issued, you have rendered it moot, the judge is stuffed. And existing precedent is that if you rendered it moot, not by actions taken in anticipation of that specific lawsuit, but by routine and regularly scheduled actions, they are stuffed AND they cannot punish you for stuffing them -- or if they can punish you, no one has been punished yet. --digsig James A. Donald 6YeGpsZR+nOTh/cGwvITnSR3TdzclVpR0+pr3YYQdkG m9RWKkXvfzI/hw40BtTsPah8X9MqTBN7CZv9z9G1 4Bz7xZ/Sjs6Gfh6UG4ctXwEhe3Q2TMyj59+7+rT3w
-- georgemw@speakeasy.net wrote:
I consider it, as I said, monstrous that a judge can legally deprive me of all copies of my own work in order to enforce a gag order, but again, if that's the way it is, that's the way it is. But it goes well beyond the bizzare to suggest that I should anticipate the possibility of a gag order and preemptively gag myself in case one might be issued at a later date.
James A. Donald:
Judges have never attempted such crap, and if they do, lawyers will be irrelevant, and will have been irrelevant for a long time before the such anyone attempts such crap.
These guys (Black Unicorn and his cheer squad) are loons, and I cannot imagine why they post such nonsense.
Black Unicorn
The only thing that is more surprising than your total willful ignorance (have you even bothered to look at the several cites I have posted that positively refute your statement above?
A few posts back one of your loudest supporters suddenly reversed course and proclaimed that neither he nor yourself ever took such an extreme position, (his typically polite method of issuing a retraction) yet here you are taking an extreme position once again. The only cite that could possibly refute my words above would be to cite someone being busted, since the behavior you claim is illegal, the behavior that George announces his intention to engage in, is routine in most well run companies.
I have cited authority for the proposition that courts, and more often plaintiffs, routinely demand broad productions related to a given matter.
To be relevant to the case I and George speak of above, you need to cite an actual bust of someone whose work is deemed a thought crime, and was punished for ensuring that it was distributed out of his control before it was declared a thought crime. No one doubts that courts have broad authority to demand pie in the sky. What people doubt is that courts have broad authority to punish those who have rendered pie in the sky unobtainable, well before the case began, to punish those that have rendered the demand for pie in the sky moot. As I posted earlier in response to your claim of broad authority: Glendower: "I can call spirits from the vasty deep." Hotspur: "Why, so can I, or so can any man; But will they come when you do call for them?"
I have cited authorities. I have cited examples.
You have not cited relevant examples. We have actual legal precedents where a remailer operator was summoned before a court and said "Sorry, I do not keep logs." end of discussion. They cannot suddenly turn around and punish one for doing what one has legal precedent to believe is legal, and if we ever get to that point, you will have been unemployed for some considerable time. --digsig James A. Donald 6YeGpsZR+nOTh/cGwvITnSR3TdzclVpR0+pr3YYQdkG lZd4vAi2TTpp5GRW15mn1q+cyAFO0PJtAiYPT7GK 4aBAZQL08uKxJdCdzB6Qq5wZagEOir8ecDvv5GFYB
On 4 Aug 2001, at 20:40, jamesd@echeque.com wrote:
The only cite that could possibly refute my words above would be to cite someone being busted, since the behavior you claim is illegal, the behavior that George announces his intention to engage in, is routine in most well run companies.
Hey, wait a second, I never announced my intention to behave in any sort of behavior, I think maybe I suggested that certain actions might be appropriate in certain hypothetical contexts, but I was always at least that vague. As I said before, I'm on nobody's side here. If a lawyer type (BU or anyone else) wishes to post a list of specific recommended policies which he feels can minimize the risk of unpleasant contact with the judicial system, without compromising our own goals, I think it's wise to give such recommendations due consideration. In the specific case of remailer operators, keeping logs which could be used to identify the original senders of messages is clearly incompatible with the function of remailers, and any node keeping such logs should be considered cancerous. George
--digsig James A. Donald 6YeGpsZR+nOTh/cGwvITnSR3TdzclVpR0+pr3YYQdkG lZd4vAi2TTpp5GRW15mn1q+cyAFO0PJtAiYPT7GK 4aBAZQL08uKxJdCdzB6Qq5wZagEOir8ecDvv5GFYB
-- On 3 Aug 2001, at 9:48, Greg Broiles wrote:
Courts have relatively strong powers with respect to controlling the possession and disposition of physical things like notebooks or hard disks, but relatively weak powers with respect to limiting the dissemination of information not in the court's exclusive possession, so long as the disseminator is not a party to a case before the court, nor an attorney for a party.
This, folks, accurately summarizes the state of the law, as illustrated by numerous recent high profile cases, and any pompous pontificating fool who claims to be a lawyer and says something different, is full of shit. --digsig James A. Donald 6YeGpsZR+nOTh/cGwvITnSR3TdzclVpR0+pr3YYQdkG dSV6sI6yQ2/jieC4fpBN7te3dg/Ah5VH2uFW0sKW 4BMa39ojsj5zW2GHC0CbxCCaUmgmRViBZ3F2MHnvP
-- On 2 Aug 2001, at 19:22, Black Unicorn wrote:
I'm not sure where you have been over the last 48 hours but clearly you've not been paying attention.
Courts _clearly_ have the ability to demand the production of all copies and originals of a document. They have merely to order it. They _clearly_ have the ability to smack a gag order on also. The rest of us settled that question some time ago.
Glendower: "I can call spirits from the vasty deep." Hotspur: "Why, so can I, or so can any man; But will they come when you do call for them?" --digsig James A. Donald 6YeGpsZR+nOTh/cGwvITnSR3TdzclVpR0+pr3YYQdkG Ywjj3CtTk6RG7TphPed4xvIXTirRoD963mVFppiD 4TMWUCKCfJEEAWFbqK8FpPS6l0wcp2jR1FTlka85H
At 7:22 PM -0700 8/2/01, Black Unicorn wrote:
-----Original Message----- From: owner-cypherpunks@lne.com [mailto:owner-cypherpunks@lne.com]On Behalf Of Harmon Seaver
As others have stated, if you don't keep logs, or throw away all your reciepts, there's not jack they can do about it.
Uh, no. And if you had been reading the many, many posts on this point you'd see that about every one of the 10-15 cases cited here say exactly the opposite of what you claim above. (I didn't see a legal background on your resume either but perhaps you have any cites that I don't know about?)
I think Seaver meant that if if you don't have the stuff, you don't have the stuff and all the fines and jail time in the world won't produce the stuff, especially if it was never there to begin with.
Although really, the most serious question everyone should be asking is why the court wants "all" copies.
Asked and answered.
Was it? I missed it in the other discussions.
-- Harmon Seaver
As others have stated, if you don't keep logs, or throw away all your reciepts, there's not jack they can do about it.
At 7:22 PM -0700 8/2/01, Black Unicorn wrote:
Uh, no. And if you had been reading the many, many posts on this point you'd see that about every one of the 10-15 cases cited here say exactly the opposite of what you claim above.
A couple of posts ago Aimee confidently declared that none of the people presenting themselves as lawyers on this list had made the claim that you just made again. She is backpeddling, because it has become obvious your claim is nonsense, and the fact that you made it, (and perhaps she made it also before denying that she or anyone else had made it) shows you do not know shit from beans. So, unicorn, when are they going to bust microsoft for suddenly enforcing a policy of purging old email? --digsig James A. Donald 6YeGpsZR+nOTh/cGwvITnSR3TdzclVpR0+pr3YYQdkG Au38iVX2zXvYvErjQyRaAVHpCKctxga5f/ey5tKo 4Kinm5mjm7cxjymJi84l4gZy3LNr3OG8A4zERWWaF
James wrote:
Harmon Seaver
As others have stated, if you don't keep logs, or throw away all your reciepts, there's not jack they can do about it.
At 7:22 PM -0700 8/2/01, Black Unicorn wrote:
Uh, no. And if you had been reading the many, many posts on this point you'd see that about every one of the 10-15 cases cited here say exactly the opposite of what you claim above.
A couple of posts ago Aimee confidently declared that none of the people presenting themselves as lawyers on this list had made the claim that you just made again.
Read the definition of ordinary course of business - it implies good faith by nature. You seem to think ordinary course of business means "shred away!" Bzzt. Read Lewy. Lewy says you can't hide behind a policy and destroy documents you KNEW OR SHOULD HAVE KNOWN might be relevant in future litigation - before you are served with suit or a preservation order. Yes, courts are likely to differ in their application based on the unique facts. However, if your ordinary course of business is to destroy or make unavailable of records in specific anticipation of a law suit or criminal complaint, you are probably not going to meet the good faith requirement. The court has some room to reach here, and they increasingly have the authority to do so. Whether they will be successful or not, I cannot say.
She is backpeddling, because it has become obvious your claim is nonsense, and the fact that you made it, (and perhaps she made it also before denying that she or anyone else had made it) shows you do not know shit from beans.
No, Sandfort, Unicorn and I are in agreement.
So, unicorn, when are they going to bust microsoft for suddenly enforcing a policy of purging old email?
No, nobody has said that. It is pursuant to a written good faith retention policy. Looking behind the veil the courts will likely see bona-fide good faith. You see an all-or-none proposition, when we are looking at the finer points within a range of hypotheticals. Stop putting words in our mouths. ~Aimee
On Sat, 4 Aug 2001, Aimee Farr wrote:
Read the definition of ordinary course of business - it implies good faith by nature. You seem to think ordinary course of business means "shred away!" Bzzt. Read Lewy. Lewy says you can't hide behind a policy and destroy documents you KNEW OR SHOULD HAVE KNOWN might be relevant in future litigation - before you are served with suit or a preservation order. Yes, courts are likely to differ in their application based on the unique facts. However, if your ordinary course of business is to destroy or make unavailable of records in specific anticipation of a law suit or criminal complaint, you are probably not going to meet the good faith requirement.
You fail to see the distinction. Lewy speaks to SPECIFIC documents, not a general business process. One can have a general business process of shredding all documents, unless you believe they will be needed at some future time. That is a SUBJECTIVE call. It's that 'intent' in the cites that were so graciously provided. If you destroy all your documents (eg IBM puts a 90 archive period on ALL email, if it's needed for business purposes that is left up to the individual employee to make that call) as a matter of course and in the process documents are destroyed that are relevant to future litigation then the courts must demonstrate that you had some REASON TO SUSPECT they would be needed. In the case of both examples before neither party habitually got rid of documents (a doctor which destroys patient records isn't much of a doctor). Usually you draw a false distinction, in this case you are failing to make the distinction at all. -- ____________________________________________________________________ Nature and Nature's laws lay hid in night: God said, "Let Tesla be", and all was light. B.A. Behrend The Armadillo Group ,::////;::-. James Choate Austin, Tx /:'///// ``::>/|/ ravage@ssz.com www.ssz.com .', |||| `/( e\ 512-451-7087 -====~~mm-'`-```-mm --'- --------------------------------------------------------------------
-- Harmon Seaver
As others have stated, if you don't keep logs, or throw away all your reciepts, there's not jack they can do about it.
At 7:22 PM -0700 8/2/01, Black Unicorn wrote:
Uh, no. And if you had been reading the many, many posts on this point you'd see that about every one of the 10-15 cases cited here say exactly the opposite of what you claim above.
James A. Donald:
A couple of posts ago Aimee confidently declared that none of the people presenting themselves as lawyers on this list had made the claim that you just made again.
On 4 Aug 2001, at 17:53, Aimee Farr wrote:
Read the definition of ordinary course of business - it implies good faith by nature. You seem to think ordinary course of business means "shred away!"
That is the ordinary course of business at Microsoft, and most other well run companies. If the chances are we do not need this record, get rid of it, for fear it may cause trouble in future, as Microsoft was so recently painfully reminded about email. If one keeps records, and suddenly someone sues one, and THEN one starts shredding, yes, then one can get into trouble. If however, one shreds away indiscriminately, on a routine and regular schedule, one is in the clear. As a remailer operator said to the courts "Sorry, I do not keep records". Now if he had kept records, and then erased them on being summoned to the court, he would have had a problem. But because he erased them routinely, no problem. This is well known existing practice and existing precedent. Everyone does it, the courts run into it every day, no one gets punished. If you do not know that, you do not know shit from beans. If you deny what I say, where is that executive who is doing time for routine regularly scheduled destruction of potentially inconvenient records? Where is that remailer operator who is in trouble for not keeping logs?
Read Lewy. Lewy says you can't hide behind a policy and destroy documents you KNEW OR SHOULD HAVE KNOWN might be relevant in future litigation - before you are served with suit or a preservation order.
All documents and any documents might be relevant in future litigation, no document can be proven innocent, yet out here in the real world they all hit the shredder just the same. Most people do it. Most lawsuits are obstructed by it. Where are the executives in jail? Is Bill Gates going to jail in the current case because he now has his old email purged? You guys keep telling us we are not allowed to routinely purge records, yet everyone is purging records, everyone has been purging records, no one is in trouble for it. Where is the executive who is doing time for the routine regularly scheduled destruction of records and purging of email?
Yes, courts are likely to differ in their application based on the unique facts. However, if your ordinary course of business is to destroy or make unavailable of records in specific anticipation of a law suit or criminal complaint,
But if you routinely destroy records on the basis that all records of type Y more than X days old shall be destroyed, unless there is some specific reason for keeping them, routine, regularly scheduled erasure of logs, then you are not destroying them in specific anticipation of a lawsuit. You may well be destroying them in general anticipation of the general possibility of lawsuits, as Microsoft quite obviously is, as most companies quite obviously are, but Microsoft is not destroying them in specific anticipation of a specific lawsuit, so they are in the clear. Shred away routine and indiscriminately, chuck everything into the shredder on a regular schedule, as part of a general policy aimed at getting rid of potentially dangerous records, no problem. Shred specific records as part of a specific policy of defense against a specific lawsuit, that is a problem. "Sorry, we do not keep such records" is a defense that is continually used and continually works. One only gets into trouble if one destroyed certain particular records in response to a particular legal threat, if one chucked out certain problem records and not others, or one chucked out records in response to particular litigation. James A. Donald:
She is backpeddling, because it has become obvious your claim is nonsense, and the fact that you made it, (and perhaps she made it also before denying that she or anyone else had made it) shows you do not know shit from beans.
Aimee:
No, Sandfort, Unicorn and I are in agreement.
Then you are ignorant twits. Most people do it, courts continually run up against it, no one is in jail for it. --digsig James A. Donald 6YeGpsZR+nOTh/cGwvITnSR3TdzclVpR0+pr3YYQdkG H1ELh4ScJ8JdRjZbb43YNfqofrnco4bT2i0LWLSu 4ezPB9qtJbDbxuD6ubuHEJvs+/pj9F5CfawpStrg5
At 9:02 PM -0500 8/2/01, Harmon Seaver wrote:
I think you're getting a little off-track here --- the original discussion was about whether the court could make the journalist turn over *all copies* of a document. She wasn't trying to destroy them to hide anything, As others have stated, if you don't keep logs, or throw away all your reciepts, there's not jack they can do about it --- the interesting question is whether or not they can somehow expect you to turn over *all* copies of a document you've published on freenet or mojo. And whether they are encrypted or not is irrelevant. Although really, the most serious question everyone should be asking is why the court wants "all" copies.
Because thoughtcrime has occurred. --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, Aug 02, 2001 at 09:02:22PM -0500, Harmon Seaver wrote:
I think you're getting a little off-track here --- the original discussion was about whether the court could make the journalist turn over *all copies* of a document. She wasn't trying to destroy them to hide anything, As others have stated, if you don't keep logs, or throw away all your reciepts, there's not jack they can do about it --- the interesting question is whether or not they can somehow expect you to turn over *all* copies of a document you've published on freenet or mojo. And whether they are encrypted or not is irrelevant. Although really, the most serious question everyone should be asking is why the court wants "all" copies.
yeah. After going through this myself, such a situation strikes me as highly unusual. -Declan
On Thu, 2 Aug 2001, Black Unicorn wrote:
This is the nexus of spoliation theory that bother me. Consider:
Retention policy is ok under Gumbs (but only in its limited scope discussed below) only when (under 29 Am. Jur. 2d) "the spoliation or destruction [of evidence] was intentional... it does not arise where the destruction was a matter of routine with no fraudulent intent." The only problem is that the standard for intent is overly broad in my view. Consider again 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)." Well, the other problem is that none of the judges seem to be reading or relying on the American Jurisprudence discussion, because that "desire to suppress the truth" language never seems to make into these cases.
This is a problem with the defence lawyers, not (just) the judges. 'willfully' and 'substantialy certain' are the bail-out phrases. Unless there is some proof that you intended to destroy the documents, not as a matter of policy, but as a matter of obfuscation then you're goose is cooked. If you're policy is 'never keep the records' or 'destroy all records in a timely fashion' (exempting legaly required documentation) then the charge is going to be a lot harder to make stick all by itself.
records if they are destroyed (under the second part of the Lopez test where consequences are "known to be substantially certain to result (regardless of desire)." You'd have to be of IQ < 70 to fail to make that conclusion.
The 'conclusion' actualy begs the question. 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.
A jury instruction that the destruction of evidence could be considered fraudulent is bad. An actual charge of spoliation or obstruction is worse.
Maybe not. At least with the charge real evidence must be presented. With the simple jury instruction a inference, without chance of rebut mind you, is made. This in effect pre-disposes the jury to consider you guilty. -- ____________________________________________________________________ Nature and Nature's laws lay hid in night: God said, "Let Tesla be", and all was light. B.A. Behrend The Armadillo Group ,::////;::-. James Choate Austin, Tx /:'///// ``::>/|/ ravage@ssz.com www.ssz.com .', |||| `/( e\ 512-451-7087 -====~~mm-'`-```-mm --'- --------------------------------------------------------------------
On Thu, 2 Aug 2001, Aimee Farr wrote:
business records may be sufficient to raise an unfavorable inference."). ...[note business records]...
In cases where a document retention policy is instituted in order to limit damaging evidence available to potential plaintiffs, it may be proper to give an instruction similar to the one requested by the Lewys. Similarly, even if the court finds the policy to be reasonable given the nature of the documents subject to the policy, the court may find that under the particular circumstances certain documents should have been retained notwithstanding the policy.
Bullshit. 'policy' is not 'required by law'. The only documents the court can reasonably expect any business to retain, irrespective of (future) reason or possible motive, are those specifically required by law. These laws in most states are very limited in this respect. For example here in Texas, a business must keep records according to purchases and sales for tax purposes, but they are not required to keep identifying info for the parties making those sales/purchases (there are some specific laws that extend this, eg chemical sales). But the light store, for example, dumps the actual receipts after 30 days. Now if a court comes back and says that such a policy is spoliating because the oinkdroids happen to want to know if somebody purchased a grow light on a particular date and the policy prevents that, then it's too damn bad for the court and the cops. The law does not allow the courts to make up arbitrary 'should have's' whenever it wants to simply because it's convenient for the court. (It's also worth mentioning that the reporter who is in jail in Houston currently faces a maximum 18 months incarceration, after that they get popped irrespective of what the judge may want, even judges face habeas corpus on contempt citations eventually) If courts are not held to account to the same law they execute then the law is worthless. -- ____________________________________________________________________ Nature and Nature's laws lay hid in night: God said, "Let Tesla be", and all was light. B.A. Behrend The Armadillo Group ,::////;::-. James Choate Austin, Tx /:'///// ``::>/|/ ravage@ssz.com www.ssz.com .', |||| `/( e\ 512-451-7087 -====~~mm-'`-```-mm --'- --------------------------------------------------------------------
On 2 -- On 2 Aug 2001, at 19:01, Aimee Farr wrote: [...] (under ' 1503, documents destroyed do not have to
be under subpoena; it is sufficient if the defendant is aware that the grand jury will likely seek the documents in its investigation);
\All these citations obviously refer to situations where the case is already under way, and are thus irrelevant to the claims made by Black Unicorn. --digsig James A. Donald 6YeGpsZR+nOTh/cGwvITnSR3TdzclVpR0+pr3YYQdkG kd0oj5fW/o0EwOuuRzu0rlgeZRTBEVnHnrOlq6Ym 4GYnFP1LaTnH+jnHwsBZ1Ad41opi6PXN0S+xhyaK8
James A. Donald:
be under subpoena; it is sufficient if the defendant is aware
On 2 Aug 2001, at 19:01, Aimee Farr wrote: [...] (under ' 1503, documents destroyed do not have to that the grand
jury will likely seek the documents in its investigation);
\All these citations obviously refer to situations where the case is already under way, and are thus irrelevant to the claims made by Black Unicorn.
The cases were offered for general background, nothing more. Actually, I don't think all of them referred to a situation where the case was "underway." Google up spoliation and see that I brought this up earlier. The fact that Uni also instinctively reached for the concept, should tell you something: spoliation is what the courts will reach for both in crypto and in datahavening situations. I don't think either of us is saying that the theory is without limitations. Where the courts will draw the lines is a big question. It will depend on the circumstances the court is presented with. Spoliation in a digital context is evolving and volatile. Some of you seem to suggest we are saying this is a big, black line -- we aren't saying that. Just because something is distinguishable, doesn't mean it won't be extrapolated. The judicial acceptance of spoliation has been rapid. Did you read the cases? Did you shep them? Did you look at the adoption of corporate electronic retention policies? Just making a point that there is a definite trend of judicial acceptance and extrapolation. The history here is revealing, and it isn't in the case law. An important point is that the courts have validated electronic destruction. They see it as a legitimate exercise to limit discovery fishing. That's a positive utilitarian undercurrent that many of you aren't seeing, even though you can't hide behind a policy. The courts are placing a good faith burden on the person with the evidence. To what extent this will be applied in a "personal papers" context - who knows? As for your comments regarding Nixon, that was before spoliation was "revived" by the courts in a digital context. The erosion of personal paper protection and game theory also comes into play here. (I threw out a SSRN link to a paper earlier in this thread, which covered this a little, if you are interested in commenting on it.) ~Aimee
-- On 3 Aug 2001, at 6:05, Aimee Farr wrote:
The fact that Uni also instinctively reached for the concept, should tell you something: spoliation is what the courts will reach for both in crypto and in datahavening situations
As I mentioned earlier, we have already had both crypto and data havening situations, in the DVD case we had data havening while the case was actually under way, which certainly was defiance of the court. Lots of people, among them various companies I worked for, have been doing equivalent things with shredders, selective backup, and so on and so forth, routinely destroying records, in part because excessive record keeping could become a disaster in any court case. Everyone is doing it, no one has been charged. There is no law against it, no legal precedents against it, merely a claim that judges will "look with disfavor" upon it. When the first thousand executives who have been overactive with routine use of their shredders go to jail for their routine weekly, monthly, and yearly destruction of records, then it will be time for remailer operators to worry.
Just because something is distinguishable, doesn't mean it won't be extrapolated. The judicial acceptance of spoliation has been rapid. Did you read the cases? Did you shep them? Did you look at the adoption of corporate electronic retention policies? Just making a point that there is a definite trend of judicial acceptance and extrapolation. The history here is revealing, and it isn't in the case law.
I am still waiting for some executives to be jailed for their policies of routine, regularly scheduled destruction of records. It seems extraordinarily rare for people to be punished even for non routine destruction of records, unless seizures of records were already under way. Certainly the people who data havened the DVD ripping code before the court order were not punished, even though those people had the intention of defying and ridiculing the courts. Punishing people for routine record destruction is almost unimaginable, as is punishment for routine publication of thought crimes into irrecoverable media. --digsig James A. Donald 6YeGpsZR+nOTh/cGwvITnSR3TdzclVpR0+pr3YYQdkG lytsv2300DnKSYH7cWTlq2XaKE9gu05aVNbsNxZ2 4sAcIMWho5pwW6b+mToJnf5hK8/ODWYMCd/uaP5Jx
At 09:50 AM 8/3/01 -0700, jamesd@echeque.com wrote:
Lots of people, among them various companies I worked for, have been doing
equivalent things with shredders, selective backup, and so on and so forth, routinely destroying records, in part because excessive record keeping could become a disaster in any court case.
Everyone is doing it, no one has been charged.
After MS was busted, it was widely publicized that it was thereafter official policy to destroy email after N days. As if Ollie et al. wasn't enough.
At 09:50 AM 8/3/01 -0700, jamesd@echeque.com wrote:
Lots of people, among them various companies I worked for, have
been doing equivalent things with shredders, selective backup, and so on and so forth, routinely destroying records, in part because excessive record keeping could become a disaster in any court case.
Everyone is doing it, no one has been charged.
After MS was busted, it was widely publicized that it was thereafter official policy to destroy email after N days. As if Ollie et al. wasn't enough.
EXACTLY. *SIGH* Neither Uni nor I suggested that routine document destruction is inappropriate in the ordinary course of business. Again, the flipside of these cases is that court's recognized the legitimate aims (and self-protective nature) of destruction when done as part of a consistent, good faith practice. Read Lewy. ~Aimee
-- On 3 Aug 2001, at 22:43, Aimee Farr wrote:
Neither Uni nor I suggested that routine document destruction is inappropriate in the ordinary course of business.
I understood black unicorn, and Sandy, to be claiming it was inappropriate, and quite dangerous. You, while more cautious than they, seemed to endorse their position, without being very clear as to what it was you were endorsing. Black Unicorn's argument seemed to be "Everything is forbidden, therefore you need to hire a lawyer who will issue the magic incantations to make it legal. This is nonsense on two counts: 1. Not everything is forbidden. 2. If everything is forbidden, then lawyers have no magic incantations. --digsig James A. Donald 6YeGpsZR+nOTh/cGwvITnSR3TdzclVpR0+pr3YYQdkG KVURnDrFjBLaIMUnrQF4jJ/6XGm6Fe56w0c6HDmO 4jkT6RK0+blfBnsJVbGhAe97M4AxK14w+URbO5ubE
James Donald (VI2) can't seem to keep his people, arguments or facts straight. He wrote:
I understood black unicorn, and Sandy, to be claiming it [routine document destruction in the ordinary course of business] was inappropriate, and quite dangerous.
Time to take that remedial reading course you've been putting off, Jim. (a) You will find zero posts from me regarding this subject. (b) You will find zero posts from Black Unicorn taking the extreme position you ascribe to him (and me). This is called a "straw man" argument. Look it up.
Black Unicorn's argument seemed to be "Everything is forbidden, therefore you need to hire a lawyer who will issue the magic incantations to make it legal.
There's that straw man again. Jim, it's easy to defeat the arguments you dishonestly put into other peoples' mouths. Dealing with what they ACTUALLY said is a tougher row to hoe, isn't it? PLEASE keep me on your "loon list." It is a badge honor tantamount to being on Nixon's "enemies list." S a n d y
-- On 4 Aug 2001, at 12:34, Sandy Sandfort wrote:
James Donald (VI2) can't seem to keep his people, arguments or facts straight. He wrote:
I understood black unicorn, and Sandy, to be claiming it [routine document destruction in the ordinary course of business] was inappropriate, and quite dangerous.
Sandy Sandfort
Time to take that remedial reading course you've been putting off, Jim.
(a) You will find zero posts from me regarding this subject.
(b) You will find zero posts from Black Unicorn taking the extreme position you ascribe to him (and me).
I just responded to a post by him where he took that extreme position -- you probably read that response just before this response. You, and Black Unicorn, have taken that extreme position. You were full of shit. You are now backing away from it, denying that you said what you so plainly said, demonstrating that you now realize you were full of shit, demonstrating you do not know shit from beans in that area of the law. Here is a fragment from the post that I just responded to: : : Harmon Seaver : : > As others have stated, if you don't keep logs, or : : > throw away all your reciepts, there's not jack they : : > can do about it. : : : : At 7:22 PM -0700 8/2/01, Black Unicorn wrote: : : Uh, no. And if you had been reading the many, many : : posts on this point you'd see that about every one of : : the 10-15 cases cited here say exactly the opposite of : : what you claim above. So Harmon Seaver says routine document destruction in the ordinary course of business is quite safe. Black Unicorn confidently, and quite untruthfully, claims the material he cited shows it to be unsafe. --digsig James A. Donald 6YeGpsZR+nOTh/cGwvITnSR3TdzclVpR0+pr3YYQdkG HvNOpCMeOLv0jpkCAbSlewClypASXflgllLCvOJF 4+tWcB5EBxQn+5gFKcz/qQgLnLReYcZknJGec2oqs
James wrote: --
Black Unicorn's argument seemed to be "Everything is forbidden, therefore you need to hire a lawyer who will issue the magic incantations to make it legal.
Sadly, that is A DAMN FACT.
This is nonsense on two counts:
1. Not everything is forbidden.
While everything is not forbidden, there is always a way to work the forbidden into what is not forbidden, and clients usually find it.
2. If everything is forbidden, then lawyers have no magic incantations.
That is a DAMN LIE. The Federal Rules of Civil Procedure and all our other sources are nothing more than state-endorsed books of shadows. Furthermore, we have magic wands. It doesn't work unless you believe, you know.... ~Aimee
On 3 Aug 2001, at 13:53, David Honig wrote:
After MS was busted, it was widely publicized that it was thereafter official policy to destroy email after N days. As if Ollie et al. wasn't enough.
If Microsoft gets busted for "spoilation" in their current lawsuit, then I will take Sandy and Black Unicorn off my loon list. :-)
VI2 wrote:
If Microsoft gets busted for "spoilation" in their current lawsuit, then I will take Sandy and Black Unicorn off my loon list. :-)
If Microsoft gets busted for "spoilation" I'll buy James a new house. But if they get busted for spoliation I don't want to be taken off your loon list (and, I'm sure neither would Black Unicorn), it's too much of a good recommendation. By the by, who else is on your "loon list"? If Inchoate is there, I might want to rethink wanting to be there. :'D S a n d y
----- Original Message ----- From: <jamesd@echeque.com> To: <cypherpunks@lne.com> Sent: Saturday, August 04, 2001 12:05 PM Subject: RE: Spoliation cites
On 3 Aug 2001, at 13:53, David Honig wrote:
After MS was busted, it was widely publicized that it was thereafter official policy to destroy email after N days. As if Ollie et al. wasn't enough.
If Microsoft gets busted for "spoilation" in their current lawsuit, then I will take Sandy and Black Unicorn off my loon list. :-)
In keeping with my new theory about "Perfect Anti-Credibility" I prefer to stay on your loon list, thanks.
-- On 3 Aug 2001, at 6:05, Aimee Farr wrote:
The cases were offered for general background, nothing more.
The claim has been made these cases are cites, demonstrating the correctness of of Black Unicorn's claims. They are not. To demonstrate his claims, he would have to produce an example of someone who was punished for failure to keep records, or for routinely destroying records, not someone who was punished for destroying records relevant to a particular case after the case against him got under way. He has presented no such punishment, therefore no such case exists. Therefore remailer operators and the rest of us can in perfect comfort fail to keep logs, we can circulate thought crimes into irrecoverable systems, and so on and so forth. In the recent case about DVD ripping, the court was outraged by efforts to distribute the ripping code in anticipation of the court order, and before the court order could be issued. Yet in the end, no one was punished of actions taken in anticipation of a court order, actions taken to make that order unenforceable, actions taken while the case was under way. Therefore we can certainly take actions to protect thoughtcrimes while cases are not under way. --digsig James A. Donald 6YeGpsZR+nOTh/cGwvITnSR3TdzclVpR0+pr3YYQdkG zMUEULH2lmNLFMp7l5upkDIeBisXseixACrMwOTw 4IJCI9T+Reyc+OvTC1asm9TVF84n1z5ndR/46gWcm
James A. Donald wrote:
He has presented no such punishment, therefore no such case exists.
Therefore remailer operators and the rest of us can in perfect comfort fail to keep logs, we can circulate thought crimes into irrecoverable systems, and so on and so forth.
Apparently, James did not understand the thrust of Aimee's post at all. The important thing to understand about legal precedents is that they may show a TREND in the law. The common law evolves over time. To say that no precedent DIRECTLY ON POINT exists means that you can operate "in perfect comfort" is asinine. The question is, what will a court say NEXT? S a n d y
Sandy, I so appreciate your attempts to span the gap, here, but I feel like I am watching you hurt yourself. Repeatedly. To no end. ~Aimee
-----Original Message----- From: owner-cypherpunks@lne.com [mailto:owner-cypherpunks@lne.com]On Behalf Of Sandy Sandfort Sent: Friday, August 03, 2001 12:07 PM To: cypherpunks@lne.com Subject: RE: Spoliation cites
James A. Donald wrote:
He has presented no such punishment, therefore no such case exists.
Therefore remailer operators and the rest of us can in perfect comfort fail to keep logs, we can circulate thought crimes into irrecoverable systems, and so on and so forth.
Apparently, James did not understand the thrust of Aimee's post at all. The important thing to understand about legal precedents is that they may show a TREND in the law. The common law evolves over time. To say that no precedent DIRECTLY ON POINT exists means that you can operate "in perfect comfort" is asinine. The question is, what will a court say NEXT?
S a n d y
Aimee wrote:
Sandy, I so appreciate your attempts to span the gap, here, but I feel like I am watching you hurt yourself. Repeatedly. To no end.
This be the night of the dull Sandy. I can see you are apparently heartfelt in your post, but I have no idea what you are talking about. Could you be more specific? S a n d y
At 10:07 AM -0700 8/3/01, Sandy Sandfort wrote:
James A. Donald wrote:
He has presented no such punishment, therefore no such case exists.
Therefore remailer operators and the rest of us can in perfect comfort fail to keep logs, we can circulate thought crimes into irrecoverable systems, and so on and so forth.
Apparently, James did not understand the thrust of Aimee's post at all. The
That would be a first.
-- On 3 Aug 2001, at 10:07, Sandy Sandfort wrote:
Apparently, James did not understand the thrust of Aimee's post at all. The important thing to understand about legal precedents is that they may show a TREND in the law. ]
There is a trend to making everything illegal. Your qualifications to read tea leaves are no better than my own. By the time "spoilation" reaches the condition that you anticipate, we will not be hiring lawyers for their knowledge of the law, but for their knowledge of connections. As everything becomes illegal laws to cease to be laws. Increasingly legislation is not a rule, but merely a desire, rendering lawyers irrelevant. For example biotech companies usually do not hire lawyers to deal with the FDA, instead they provide FDA bureaucrats with girlfriends, "consultancy payments", and the like, because the FDA does not obey any fixed set of rules or principles in dealing with biotech companies. At the company I work for we have a big problem with a piece of legislation whose meaning is far from clear. Every few lines of this legislation there is reference to "children", or "the children". My interpretation of this legislation is "We care very much about children, and we feel so deeply we are going to bust some internet company for not caring as deeply as we do." Our company lawyer has no clear interpretation of this legislation, and suspect we would be a lot safer if we opened direct communications with the bureaucrats charged with intepreting and applying this legislation, rather than communicating through someone whose speciality and training is in finding and making trouble. We need someone whose speciality is being nice, making friends, and trading favors. Even better would be to do like the biotech companies, and open communication through a compliant woman, and throw in a few consultancy fees. In Mexico, lawyers are fixers, matchmakers that guide your bribes into the right pockets. The time is coming for American lawyers to stop pontificating about the law and make the same transition. --digsig James A. Donald 6YeGpsZR+nOTh/cGwvITnSR3TdzclVpR0+pr3YYQdkG 6sCz2aeqtaUMwXK7XL2AZ9J8ZO0CqLdFbEfs0F3L 4qFdvH5dA/nEnrUvk+rZ5TD0tGcOO4gUjo8LTFTlE
VI2 wrote:
There is a trend to making everything illegal. Your qualifications to read tea leaves are no better than my own.
Well James, you got it right once. My qualifications for reading tea leaves are no better than your own. However, my qualifications for reading and understanding laws and court precedents are vastly superior to yours. (For what it's worth, I'm sure there must be something you are more qualified to do; I just don't know what it is.)
By the time "spoilation" reaches the condition that you anticipate, we will not be hiring lawyers for their knowledge of the law, but for their knowledge of connections.
(a) Since I have not discussed the topic of "spoilation" (or even spoliation) on this list, you are obviously reaching. You have no idea what I anticipate. (b) You have just given a very good additional reason to hire lawyers in addition to their obvious superiority in understanding legal trends. With regard to (b), not a lot of mainstream lawyers are going to be sympathetic or versed in the sorts of things you and other people on this list are likely to run afoul of. It's interesting to me that you and the other two village idiots seem hell bent on antagonizing your most likely legal allies. But then, you are village idiots. S a n d y
-- James A. Donald:
There is a trend to making everything illegal. Your qualifications to read tea leaves are no better than my own.
Sandy Sandfort
Well James, you got it right once. My qualifications for reading tea leaves are no better than your own. However, my qualifications for reading and understanding laws and court precedents are vastly superior to yours.
If the claims you are making are claims about existing law, your qualifications for reading and undestanding laws and court precedents are not what you claim them to be. If you are making claims about what the law might become in future, your qualifications for undestanding laws and court precedents are irrelevant. --digsig James A. Donald 6YeGpsZR+nOTh/cGwvITnSR3TdzclVpR0+pr3YYQdkG /JUhfzDVQCF/7NKP7QU1UGB738ENkVXkkgb3MUho 4r8gCfjL6dZ1G4PYIxS3LTIlIQ6LnjaS7n8qr81Lr
Poor stupid James wrote:
If you are making claims about what the law might become in future, your qualifications for undestanding laws and court precedents are irrelevant.
No James, as any first year law student could tell you, they way one makes educated assessments about how laws may be interpreted in the future are NECESSARILY based on understanding laws and court precedents. You cannot identify a trend without examining history. This is not a touch concept; there is an almost exact analogy in studying mutations in diseases. (Insert Santayana quote here.) Are you just dull or simply afraid to back down when you are wrong? S a n d y
-- On 4 Aug 2001, at 12:46, Sandy Sandfort wrote:
No James, as any first year law student could tell you, they way one makes educated assessments about how laws may be interpreted in the future are NECESSARILY based on understanding laws and court precedents.
And as any one can tell you predictions of how the interpretation of laws will CHANGE cannot be based on existing laws and court precedents. In any case, you are backpeddling like mad. Having dug yourself into a hole with improbable claims on mandatory record keeping, you are now disowning with great confidence claims you previously made with equal confidence, indicating your understanding of existing laws and courts precedents is none too hot. What was previously a claim about existing law, has mysteriously mutated into a mere prophecy that future law might change into something like your original claim. How about simply saying "I was wrong", instead of proclaiming omnicience twice as loudly when you are caught with your head up your ass? --digsig James A. Donald 6YeGpsZR+nOTh/cGwvITnSR3TdzclVpR0+pr3YYQdkG oYQwaBShfigTeer8NiMlXddKCdSOWTS4O8e02M+i 4E5drtnvUZpAn4ZvzKDgEPqKkBdbdXNEe/BBlTF86
Jimbo II has really gone off the deep end. I've asked him repeatedly to quote me directly where I have said the things he alleges that I have said. His cowardice in failing to reproduce those requested passages (or even my requests for the requested passages) is manifest. Give his intellectual dishonesty and cowardice (next, I suppose, he'll be sending his son--rolls of quarters clenched tightly in his little fists--to do his dirty work), I see nothing to be gained from trying to teach this particular swine to learn how to sing. I graciously cede the last word (which he will undoubtedly squander) to my second-most favorite canarypunk. Rock on, dud. S a n d y
-----Original Message----- From: jamesd@echeque.com [mailto:jamesd@echeque.com] Sent: 04 August, 2001 17:33 To: jamesd@echeque.com; cypherpunks@lne.com; Sandy Sandfort Subject: RE: Spoliation cites
-- On 4 Aug 2001, at 12:46, Sandy Sandfort wrote:
No James, as any first year law student could tell you, they way one makes educated assessments about how laws may be interpreted in the future are NECESSARILY based on understanding laws and court precedents.
And as any one can tell you predictions of how the interpretation of laws will CHANGE cannot be based on existing laws and court precedents.
In any case, you are backpeddling like mad. Having dug yourself into a hole with improbable claims on mandatory record keeping, you are now disowning with great confidence claims you previously made with equal confidence, indicating your understanding of existing laws and courts precedents is none too hot.
What was previously a claim about existing law, has mysteriously mutated into a mere prophecy that future law might change into something like your original claim.
How about simply saying "I was wrong", instead of proclaiming omnicience twice as loudly when you are caught with your head up your ass?
--digsig James A. Donald 6YeGpsZR+nOTh/cGwvITnSR3TdzclVpR0+pr3YYQdkG oYQwaBShfigTeer8NiMlXddKCdSOWTS4O8e02M+i 4E5drtnvUZpAn4ZvzKDgEPqKkBdbdXNEe/BBlTF86
On Sat, 4 Aug 2001, Sandy Sandfort wrote:
dishonesty and cowardice (next, I suppose, he'll be sending his son--rolls of quarters clenched tightly in his little fists--to do his dirty work), I
That's me you're referring to you moron. If you are going to resort to ad hominem, at least get your references straight...
S a n d y
-- Yours, J.A. Terranson sysadmin@mfn.org If Governments really want us to behave like civilized human beings, they should give serious consideration towards setting a better example: Ruling by force, rather than consensus; the unrestrained application of unjust laws (which the victim-populations were never allowed input on in the first place); the State policy of justice only for the rich and elected; the intentional abuse and occassionally destruction of entire populations merely to distract an already apathetic and numb electorate... This type of demogoguery must surely wipe out the fascist United States as surely as it wiped out the fascist Union of Soviet Socialist Republics. The views expressed here are mine, and NOT those of my employers, associates, or others. Besides, if it *were* the opinion of all of those people, I doubt there would be a problem to bitch about in the first place... --------------------------------------------------------------------
Good point J.A., I got my cowards mixed up. I stand corrected. It's you that sends his son to beat of folks for expressing opinions you don't like.
-----Original Message----- From: owner-cypherpunks@lne.com [mailto:owner-cypherpunks@lne.com]On Behalf Of measl@mfn.org Sent: 04 August, 2001 18:47 To: cypherpunks@ssz.com Cc: jamesd@echeque.com; cypherpunks@lne.com Subject: Sandfort is still an idiot (Was: Re: CDR: JIM DONALD IS A CANARYPUNK, was: Spoliation cites)
On Sat, 4 Aug 2001, Sandy Sandfort wrote:
dishonesty and cowardice (next, I suppose, he'll be sending his son--rolls of quarters clenched tightly in his little fists--to do his dirty work), I
That's me you're referring to you moron. If you are going to resort to ad hominem, at least get your references straight...
S a n d y
-- Yours, J.A. Terranson sysadmin@mfn.org
If Governments really want us to behave like civilized human beings, they should give serious consideration towards setting a better example: Ruling by force, rather than consensus; the unrestrained application of unjust laws (which the victim-populations were never allowed input on in the first place); the State policy of justice only for the rich and elected; the intentional abuse and occassionally destruction of entire populations merely to distract an already apathetic and numb electorate... This type of demogoguery must surely wipe out the fascist United States as surely as it wiped out the fascist Union of Soviet Socialist Republics.
The views expressed here are mine, and NOT those of my employers, associates, or others. Besides, if it *were* the opinion of all of those people, I doubt there would be a problem to bitch about in the first place... --------------------------------------------------------------------
On 4 Aug 2001, at 18:29, Sandy Sandfort wrote:
Jimbo II has really gone off the deep end. I've asked him repeatedly to quote me directly where I have said the things he alleges that have said.'
You have asked me once, off list. I replied, off list. Now I will repost that reply on the list. -- On 4 Aug 2001, at 14:26, Sandy Sandfort wrote:
Show me where I took that position.
A few posts back when I pointed out that most businesses engage in routine, regularly scheduled deletion of potentially inconvenient records, and none of them have got in trouble for it yet, you replied that a business that engages in that practice is like a man who has jumped from a tall building and boasts that he has not hit anything hard yet. Now, however, you deny ever taking that position, indicating that your previous position (the position that you proclaimed so pompously and patronizingly) was a load of old bananas, which in turn indicates that in this area of the law, you do not know shit from beans Whenever I ask our company lawyer a legal question, he usually answers "That is not my area of expertise". You should try that answer. It will keep you out of lots of trouble. --digsig James A. Donald 6YeGpsZR+nOTh/cGwvITnSR3TdzclVpR0+pr3YYQdkG L/TcMqBOExR0C26MZiO0EljjnWkcbyv8XYNyS2V1 4btCzzwGyuR3bJ/aMmwN9+Dycb01OHuOM4E4oXHm+
His cowardice in failing to reproduce those requested passages (or even my requests for the requested passages) is manifest. Give his intellectual dishonesty and cowardice (next, I suppose, he'll be sending his son--rolls of quarters clenched tightly in his little fists--to do his dirty work), I see nothing to be gained from trying to teach this particular swine to learn how to sing.
I graciously cede the last word (which he will undoubtedly squander) to my second-most favorite canarypunk. Rock on, dud.
S a n d y
-----Original Message----- From: jamesd@echeque.com [mailto:jamesd@echeque.com] Sent: 04 August, 2001 17:33 To: jamesd@echeque.com; cypherpunks@lne.com; Sandy Sandfort Subject: RE: Spoliation cites
-- On 4 Aug 2001, at 12:46, Sandy Sandfort wrote:
No James, as any first year law student could tell you, they way one makes educated assessments about how laws may be interpreted in the future are NECESSARILY based on understanding laws and court precedents.
And as any one can tell you predictions of how the interpretation of laws will CHANGE cannot be based on existing laws and court precedents.
In any case, you are backpeddling like mad. Having dug yourself into a hole with improbable claims on mandatory record keeping, you are now disowning with great confidence claims you previously made with equal confidence, indicating your understanding of existing laws and courts precedents is none too hot.
What was previously a claim about existing law, has mysteriously mutated into a mere prophecy that future law might change into something like your original claim.
How about simply saying "I was wrong", instead of proclaiming omnicience twice as loudly when you are caught with your head up your ass?
--digsig James A. Donald 6YeGpsZR+nOTh/cGwvITnSR3TdzclVpR0+pr3YYQdkG oYQwaBShfigTeer8NiMlXddKCdSOWTS4O8e02M+i 4E5drtnvUZpAn4ZvzKDgEPqKkBdbdXNEe/BBlTF86
participants (18)
-
Aimee Farr -
Black Unicorn -
David Honig -
Declan McCullagh -
Dr. Evil -
Eugene Leitl -
georgemw＠speakeasy.net -
Greg Broiles -
Harmon Seaver -
jamesd＠echeque.com -
Jim Choate -
Jim Choate -
measl＠mfn.org -
Petro -
Ray Dillinger -
Riad S. Wahby -
Sandy Sandfort -
Tim May