Spoliation cites

[mmotyka at lsil.com]

Decent thread. I still think there is plenty of opportunity for the laws
of mathematics to make other laws moot  but this is interesting.

I have a few, hopefully not useless or inflammatory, comments.

1) The piece of useful information most easily extracted from this
thread is that the best defense is that the "evidence" never existed and
the device lacks the capability of creating it. Is it possible that the
courts could decide that using or designing a device lacking logging
features or that compiling a device from source with logging
capabilities but with those capabilities selectively disabled is in
itself an act of spoliation? These are acts done without any specific
knowledge of people, places, things or events likely to be of interest
to a court. General knowledge of the effects of designing, compiling or
using such a device might be shown.

1a) Isn't there a PA statute prohibiting altering the headers on a
communication?

1b) Could a remailer be declared to be a common carrier and subject to
CALEA?

1c) Could a remailer operator be compelled to add or enable logging
features without notifying users?

2) Most of the cites seem to describe cases involving corporations. Is
it reasonable to think that while in theory corporations and individuals
could be treated identically that in practice there are more
documentation requirements on the part of a corporation, especially in
the case of one that produces a product that is sold to the public?
Would the expectations be different for individuals not engaged in
commercial activities?

> 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.
> 
3) The same technology that is providing all this super eavesdropping
and logging capability is also making it easier to fabricate or plant
evidence. Electronic evidence may seem wonderful to a prosecutor but
aren't we going to have to deal with its vulnerability at some point?
Maybe only after someone with deep pockets gets hurt.

Mike