Spoliation cites

[Jim Choate]

On Thu, 2 Aug 2001 mmotyka at lsil.com wrote:

> 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.

No, they demonstrate that Black Unicorn drops the 'intent' requirement in
his cites when he find it convenient.

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

No, as far as I'm aware there is nothing that prevents the operator of a
system from munging the packets that hit his NIC as they see fit.

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

Not without a significant change in the laws for 'common carrier'.

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

No, they can't even be compelled to continue operation of the remailer.
Though it could be 'confiscated' and operated by the LEA's and courts.
 
> 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?

All the cite's require 'intent' in one definition or another to be
specific toward obfuscating the future case. You know you fucked up, now
hide it fast before anybody finds out about it. Oops, didn't hide it fast
enough.


 --
    ____________________________________________________________________

                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 at ssz.com
       www.ssz.com            .',  ||||    `/( e\      512-451-7087
                           -====~~mm-'`-```-mm --'-
    --------------------------------------------------------------------