Spoliation, escrows, courts, pigs. Was: Re: DOJ jails reporter, Ashcroft allows more journalist subpoenas

[Aimee Farr]

Apologies if this is a repeat, I never received it.

> -----Original Message-----
> From: Aimee Farr [mailto:aimee.farr at pobox.com]
> Sent: Tuesday, July 31, 2001 9:35 PM
> To: Black Unicorn
> Cc: cypherpunks at lne.com
> Subject: RE: Spoliation, escrows, courts, pigs. Was: Re: DOJ jails
> reporter, Ashcroft allows more journalist subpoenas
> 
> 
> Unicorn wrote:
> 
> > Not being intimately familiar with the spec of freenet I can't 
> > really comment
> > on that aspect or what a court will consider "impossible."  
> What will not
> > amuse a court is the appearance of an ex ante concealment or 
> disclosure in
> > anticipation of court action.  If it looks like you knew it was 
> > going to be a
> > court issue and you put it on freenet for that purpose, you're 
> in trouble.
> > Not only that but if you encrypt the stuff and it doesn't appear to be
> > recoverable it almost sounds tantamount to destruction of evidence or
> > spoliation (much more serious).  ("The intentional destruction of 
> > evidence...
> > The destruction, or the significant and meaningful alteration of 
> > a document or
> > instrument...")  I've never seen a case play out like that but I would
> > certainly make the argument as a prosecutor.  
> 
> I think the courts will reach for spoliation, too. (Sanctions, 
> penalties, legal presumptions -- all the way to a default 
> judgment.) I brought this up in another thread, either the one 
> dealing with timed-key memoirs (Tim called this a "beacon") or 
> logs, but the conversation was soon whittled to dribble.
> 
> > There are legitimate purposes for escrowing it on the Isle of 
> Man over and
> > above keeping it out of a court's hands.  The key is to have 
> _some_ leg to
> > stand on when asked "if not trying to thwart the authority of 
> > this court, why
> > did you do that."  Good answers might sound like: "I wanted the 
> > proceeds of
> > the manuscripts sale protected in trust for my grandchildren."  
> 
> *gaf* :-) 
> 
> In another digital datahaven (not Freenet), security and 
> anonymity are legitimate purposes standing by themselves. As you 
> noted, the one-time involvement of offshore counsel suggests 
> sophistication.
> 
> Do any of the IAALs think the courts would recognize a written, 
> good faith "datahavening" policy (for business), or a consistent 
> personal practice (for individuals), and engage in the legal 
> fiction of permissible destruction by unavailability? Seems like 
> that is the rationale underlying the spoliation cases - 
> consistency and good faith (legitimacy). 
> 
> D: "I datahaven (however you do it) with X all my [data] weekly 
> as a matter of regular practice." 
> 
> D: "I did so prior to having any knowledge of the relevance of 
> this data or the likelihood of litigation." (nor should I have)
> 
> X: "X is a digital information privacy trust, managed by Y, 
> allowing individuals to datahaven their personal papers for 
> posterity and WorldGood -- for the benefit of future researchers, 
> and their blood descendants. Clients include members of the 
> United States Congress, world political figures, members of the 
> intelligence community, journalists, human rights activists, and 
> everyday individual diary-keepers." 
> 
> X: "X uses timed encryption and biometric identification." 
> (Sorry, no passwords.)
> 
> Which is the idea expressed the following paper, but "Tim May 
> said..." (Mr. May inferred this was an old idea, and that it was 
> better to use traditional means.) 
> 
> @ http://papers.ssrn.com/sol3/papers.cfm?abstract_id=266153
> (some discussion of the erosion of the 4th and 5th Amendments in 
> regard to the protection of personal papers, as well as 
> contemporary commentary on the chilling effects of keeping 
> personal diaries, "flammable materials," etc.)
> 
> I am also reminded of those e-death comz (if they aren't dead 
> themselves by now). You compose your goodbye email, and when your 
> nominee notifies the company of death --- everybody finds out 
> what you really thought of them. 
> 
> The hard part is coming up with "good faith" arguments. (I know 
> Mr. Unicorn was speaking off the cuff -- and still came up with 
> some really good ones. No doubt he could do better.) Still, 
> posterity would seem to be a weighty argument, and a sincere one.
> 
> ~Aimee