The Curious Propsenity of Some Cypherpunks for (loud) Willful Ignorance. Was: Re: Spoliation cites

[Black Unicorn]

----- Original Message -----
From: <jamesd at echeque.com>
To: <cypherpunks at cyberpass.net>; <georgemw at speakeasy.net>
Sent: Saturday, August 04, 2001 11:07 AM
Subject: Re: Spoliation cites

> On 3 Aug 2001, at 13:22, georgemw at speakeasy.net wrote:
>
> > I consider it,  as I said,  monstrous that a judge
> > can legally deprive me of all copies of my own work in order
> > to enforce a gag order,  but again,  if that's the way it is,
> > that's the way it is.  But it goes well beyond the bizzare to
> > suggest that I should anticipate the possibility of a gag
> > order and preemptively gag myslef in case one might be issued
> > at a later date.

jamesd at echeque.com replies:

> Judges have never attempted such crap, and if they do, lawyers will
irrelevant, and will have been irrelevant for a long time before the such
anyone attempts such crap.
>
> These guys (Black Unicorn and his cheer squad) are loons, and I cannot
imagine why they post such nonsense.

The only thing that is more surprising than your total willful ignorance (have
you even bothered to look at the several cites I have posted that positively
refute your statement above?) is the fact that you keep insisting on
demonstrating it- loudly.  (I have no clue where this pre-emptive self-gagging
discussion came from.  That does sound silly indeed).

It's like being in the dark ages or something.  Clearly presented evidence,
ignored as heretical and the purveyors of it burned (flamed?) at the stake.
It's a wonder anyone bothers to impart any knowledge of worth to the list at
all.

I have cited authority for the proposition that courts, and more often
plaintiffs, routinely demand broad productions related to a given matter.
Many here have attempted to assign sinister motives to these production orders
(censorship, seizure of private property, etc.)  In reality they are generally
directed to the very legitimate aim, given you accept the court's authority in
the first place- which is another discussion entirely better directed to your
legislative representative, of preserving evidence so that the parties may
reach "the truth" and resolve their dispute.  (This is, incidentally, the same
rationale that gave rise to "no-knock" searches- which should be a
demonstration of how seriously the need to preserve evidence is taken among
law enforcement and judiciary types).

In my personal legal work some years ago I can think of several instances in
which a copy of a record has increased or reduced the probative value of an
original- and have used them to refute or support claims and allegations in
cases myself.  Courts defendants and plaintiffs know this also and that's why
production orders are so broadly written- and enforced.  I am hardly the only
example.

In a mere 90 minutes of work I found and I have cited at least 5 major cases
(which in turn would lead even the first quartile legal researcher to dozens
and dozens more) that show that the burden of these productions may- and does-
fall on third parties and that malicious, or indeed even negligent, loss or
destruction of these documents could result in anything from a stern lecture,
to unfavorable jury instructions, to sanctions to jail time.

We have had at least two remailer operators called to stand before "the man,"
despite the fact that they were not otherwise a party to a lawsuit of any
kind.  At least one who has disclosed his/her experience about it on the list.
One defense "I don't keep logs and therefore don't have any to give you" was
sufficient this time.  Good.  But those were copyright or libel issues before
DMCA was the big deal it is now.  The stakes are higher now, as certain
anti-Adobe authors might tell you.  It only takes a big drug case or a murder
investigation and a third party remailer operator is probably going to be the
subject of a lot more heat.  Want to wait around for that hurricane before you
take a few simple precautions?  That's just dense.  But be my guest.  We might
all just use DES because no cypherpunk has been arrested for an incident where
DES was decrypted to obtain the evidence.  (It hasn't happened yet, so what's
the problem, right?)  I prefer to use AES, thanks.  I also don't buy land in
flood prone areas without insurance.

I have cited authorities.  I have cited examples.  I have given you the tools
to find these and read them.  Either demonstrate why these do not apply
drawing directly from their text (it's freely available to anyone who would
look) or no one here can take you seriously unless they have an ulterior
motive for doing so.

The fact that you don't think courts should exist in their current state, and
that you proclaim so loudly and endlessly, is not going to help you when you
are standing in court with U.S. Marshals or State Bailiffs at your side.  (Ask
Jim Bell about how well taunting a court works).

The cure for your ignorance is simple.  Just find any document production
order at all.  I can pretty much assure you the language will contain "all
documents, copies, reproductions" and suchlike in it and the court will seek
to enforce it.  The light switch is right at your fingertips.  You have but to
flip it up and cease to continue living in the darkness- if you so desire.  I
accept that you might be beyond hope.  I hope other's aren't.

Do you own homework.

Anything else is intellectual laziness at it's finest.