Spoilation, escrows, courts, pigs.

[Tim May]

At 1:31 AM -0700 8/1/01, Petro wrote:
>This is truely humorous.
>
>As BU said earlier "You overestimate the average contextual 
>awareness level of the typical cypherpunk reader I think."
>
>He's right.

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


>	A book store owner has no expectation of being investigated 
>for a selling a perfectly legal book, and no obligation to track the 
>purchasers of it.

Even if a book store _expects_ to be investigated (or worse), there 
are simply no laws requiring tracking purchasers. Drug dealers and 
hookers are charged, for example, for specific alleged violations, 
not for failing to keep records of their past transactions so as to 
help their prosecution.

A bookie who keeps his records in his head is not "spoliating" 
because he failed to keep records in a prosecutor-friendly form.


>	However, if that conversation was between the "State Board of 
>Equalization" (for those outside California this is the department 
>that deals with state sales tax apparently):
>
>SBOE: We'd like to see your sales records for 1997-1999.
>STORE: "Sorry, can't do that, see there was this *really* weird fire 
>on my desk last night, and wouldn't you know, all those records are 
>gone".
>
>You're going to be talking to a judge about this, and no, they won't be happy.

Only because there are SPECIFIC STATUTES that require the keeping of 
certain tax and financial records, and thus it is up to a judge to 
decide whether that "really weird fire" was in fact deliberate 
destruction of required records.

There is no such requirement that people tape their phone calls, log 
their contacts, keep diaries, or store copies of cryptographic keys 
in places prosecutors can later obtain them. (This last point being 
the gist of the key escrow debate, of course).

Purging old files and old papers is part of regular housecleaning. 
Whether one _thinks_ some prosecutor would be happy to find such 
papers is irrelevant.


>>I say this is bullshit. By your vague (no plausible cites, just 
>>some 1L literatlisms), whispering is spoliation. Failure to archive 
>>tape recordings of conversations is spoliation. Use of encryption 
>>is spoliation. Drawing the curtains is spoliation.
>
>	No, but destroying audio tapes, or blanking over bits of them *is*.

Cites? Many people get rid of old tapes. Recording over answering 
machine tapes is not a crime.

If Gary Condit expected he would be questioned by the police, was he 
under some actual legal obligation to "lock down his office" (and 
apartment) so as to preserve it for investigators a couple of months 
down the road? Of course not. "You snooze, you lose."


>>
>>They didn't get John Gotti for whispering, so I doubt "spoliation" 
>>is nearly the tool you and Aimee Farr seem to think it is.
>
>	There is a singnificant difference between Gotti and your 
>bog-standard CP. Gotti could afford *really* good lawyers, and was 
>making *real* money doing what he did.
>

You might be surprised how much money some of us make compared even 
to mafiosos. And the point above just as easily could have been that 
bookies are charged with spoliation for having kept their records in 
their heads instead of in some subpoena- or warrant-friendly form. 
Ditto for hookers not charged for having failed to keep records on 
their clients.

The point is that spoliation is used only in narrow situations. 
Findlaw and Google have numbingly boring articles on its limitations.

Black Unicorn seems to be trying to scare remailer operators out of 
business by claiming that they are likely facilitating such 
spoliations. This seems to be the business of lawyers, to warn that 
nearly everything is illegal.


--Tim May


-- 
Timothy C. May         tcmay at 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