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

[jamesd at echeque.com]

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On 31 Jul 2001, at 12:22, Black Unicorn wrote:
> Not being intimately familiar with the spec of freenet I can't
> really comment on that aspect or what a court will consider
> "impossible."  What will not amuse a court is the appearance of
> an ex ante concealment or disclosure in anticipation of court
> action.  If it looks like you knew it was going to be a court
> issue and you put it on freenet for that purpose, you're in
> trouble. Not only that but if you encrypt the stuff and it
> doesn't appear to be recoverable it almost sounds tantamount to
> destruction of evidence or spoliation (much more serious).
> ("The intentional destruction of evidence... The destruction,
> or the significant and meaningful alteration of a document or 
> instrument...")  I've never seen a case play out like that but
> I would certainly make the argument as a prosecutor.
> Encrypting the stuff sure _looks_ like spoliation, particularly
> if it seemed likely that the evidence would be the subject of a
> judicial action.
>
> [...]
>
> There are legitimate purposes for escrowing it on the Isle of
> Man over and above keeping it out of a court's hands.

And there are legitimate purposes for encrypting it and "forgetting" the key.

The big difference is "I forgot the key" is pretty much immune to cross examination, whereas your "
legitimate" purposes for escrowing it on the isle of man requires a complicated cover story which w
ill undoubtedly fall apart.

    --digsig
         James A. Donald
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