Tim's Tips on Avoiding Prosecution

[Tim May]

On Friday, August 31, 2001, at 07:10 AM, Fisher Mark wrote:

>> Look at how AP was used.
>
> Mike, the main reason the Jim Bell prosecution started was his actions, 
> not
> his words.  Some of us on the list (myself included) would be majorly 
> upset
> if a stink bomb strong enough to make us vomit was used on us (upset 
> enough
> to want someone to take action against Jim Bell).  Had Jim Bell 
> restrained
> himself to speech, prosecution would have been much more difficult to 
> start.
> Not impossible, but much more difficult.

Bell's cases and Parker's case(s) have been thrashed-over many times 
here. Clueful folks like Duncan Frissell have outlined some of the 
obvious errors (acted as his own lawyer, admitted tampering with mail, 
the infamous "Say goodnight, Joshua" item, etc.).

I believe 10 years in prison is out of proportion. I have direct 
knowledge of far more serious crimes, including arson, which resulted in 
no prison time at all. Bell made various mistakes, but I'm not saying he 
deserves 10 years in a federal prison. And the handling of the case was 
strange. Others have written about it in a lot of detail.

Both the Bell and Parker cases involved identifiable actions that were 
not just "speech actions."

(To JA Terrenson/Measle, there _is_ a difference between speech and 
action. Planting a stink bomb is not "political speech." Tampering with 
mail is not speech. Threatening harm, directly and specifically, is not 
speech.)

I'll give you Tim's Tips on Avoiding Prosecution (worked so far...):

1. Never know the specific names of any judges or prosecutors. This cuts 
way down on the chance that one will slip up and make a comment which 
might be construed as a specific threat. Keep things general.

(I _do_ know the names of Jeff Gordon, Robb London, and Judge Tanner, 
but only because there have been so many articles and items about them.)

2. Never, ever, make physical contact with Feds. Don't go to their 
buildings unless required to, don't go near the homes or offices of 
their employees, just avoid them completely. This makes "stalking" 
charges mighty hard to press.

3. Don't attend "People's Tribunals" where specific agents, officers, 
judges, etc. are to be "tried" for their crimes. We see that many/most 
of these are infiltrated, and that, in fact, the chief rabble-rousers 
are likely to be government agents or stool pigeons. (Some may be acting 
to reduce other charges against them, as the Feds wanted Randy Weaver to 
do--they set Weaver up with that quarter inch taken off a shotgun and 
then wanted him to infiltrate the Northwest militias and narc them out.)

4. If whackos send you e-mail, don't respond. (I routinely discarded 
e-mail from Vulis, Detweiler, Toto, Bell, and others I won't name for 
reasons of politeness. Some of them sent me what I thought were "side 
channel" communications which looked to be efforts to rope me into their 
plans. Perhaps the lack of correspondence with Parker and Bell is what 
saved me from being dragged in front of a grand jury.)

5. At physical Cypherpunks meetings, by all means talk about politics, 
uses of technology, even "anarchic" things. But avoid being drawn into 
debates about what to do to specific politicians, judges, etc.. 
(Attendees at Bay Area meetings will know that for 9 years now we have 
had occasional heated discussions of these things, but we have avoided 
the kind of "people's tribunal" crap that helped get Bell into trouble.)

6. Don't actually build bombs or modify weapons to fire in illegal ways. 
These are "actions," not speech. And neither are very useful. Perfectly 
OK to talk about either thing (maybe not on the Cypherpunks list, for 
reasons of relevancy), but may well be illegal to actually build.  (It 
is not necessarily illegal to build bombs, but the specifics matter. One 
of the "pyrotechnics" newsgroups has discussions of this.)

7. Pay your taxes. Stay away from nutty schemes to not file tax returns, 
etc. (Part of what got Bell charged the first time was failure to file, 
fraudulent use of Social Security numbers, etc.) Arguing that taxes are 
wrong, unfair, etc. is not the same thing as tax evasion. Even promoting 
schemes to avoid taxes is probably not prosecutable (note that the book 
writers usually only spend time at Terminal Island when they themselves 
have used their ideas to evade taxes.).

8. Speech in purely electronic or written form is safer than speech in 
physical forums. More time to redact words, more ability to modify 
speech which might be interpreted as direct threats to a person. Less 
chance to be entrapped by a provocateur.

See Rule 1: Never bother to learn the names of agents or judges. This 
makes it much harder to slip up and say something foolish like "We 
should use AP to eliminate Judge Foobar!" OK to say "I won't weep if 
Washington, D.C. is nerve-gassed by Osama bin Laden," as this is an 
expression of opinion. Ditto for "Shoot all politicians" (a general 
comment, overbroad, not specific, not credible, protected American 
anti-politician threat...probably even uttered by guys like Jeff Gordon 
in moments of frustration.

Even legally OK to say "Someone should nerve gas Washington, D.C.," as 
this is not a call for action that is in way plausibly influenced by the 
call. Note: I'm not saying that such a call won't get your name put on a 
list...what I'm saying is that the Feds are unlikely to launch a 
prosecution over something so nebulous and obviously speech-like as 
"Defendant said someone should nerve gas  Washington, D.C."  First 
Amendment lawyers would jump on a case like this.

However, a leader of Aryan Nation, for example, calling for his 
followers to kill Jews might cross the line ("incitement"). Their have 
been a few civil actions where the organization or its leaders were held 
liable for damages caused by followers who were incited to _specific_ 
actions.

(An interesting question is whether any of the more vocal Cypherpunks 
could be held liable, civilly or criminally, for actions by "followers." 
I doubt it, given the situation. And the fact that there are no formal 
leaders, no structure, no real organization, helps. The export of crypto 
was maybe where there was most exposure.)

Anyway, these are some general tips. I don't claim to be either morally 
pure or to be beyond the scrutiny of prosecutors. Who knows, maybe 
they're just waiting for me to slip up so they can present charges to a 
grand jury.

But I think my tips are just common sense ways to avoid the situations 
Parker and Bell fell into.

AN ANECDOTE:

The closest I think I have come (think, because I don't know about times 
I never learned about) to being charged with this sort of a crime was 
when I had the encounter with the Secret Service at Stanford University 
just as Bill, Hillary, and Chelsea were arriving in the area I was in.

The SS and Stanford Sheriff's converged on me from four sides, 
literally, and were on all sides of me. They demanded to look inside my 
bag...I refused (had a piece of crypto gear in it they might have 
thought looked suspicious, and there's the general point about their 
lack of probable cause). They one of them accused me of planting a bomb 
in the basement of Meyer Library with the intent of killing President 
Clinton.

Did I plant a bomb in the basement of Meyer Library with the intent of 
assassinating President Clinton? Of course not. They were bluffing, 
hoping, I guess, I would freak out and say "I'm innocent. Search my bag 
if you don't believe me!"

After about 10 minutes of staring me down, they told me to walk to the 
closest point that was off campus and not to return. I asked about my 
car. "If you are seen on campus, you will be arrested. You can get your 
car tomorrow." (Great, since I lived 60 miles away.)

By the way, the SS also demanded that I give them my name and show them 
my driver's license. I refused, so at least they never got my name 
entered into the Master Data Bank of Presidential Threateners.

As to why I was on the Stanford campus at precisely the time the 
Clintons were arriving, I have a pretty damned good reason. (Aside from 
the point that no reason at all was or is "needed.") I had been invited 
months before--and long before the Presidential visit was scheduled--to 
give a talk to Professor Margaret Radin's cyberlaw class. The class 
began at 4. I brought along my COMSEC (later, Starian) 3DES phone unit, 
to illustrate to the class some hardware.

My encounter with the SS was around 3:30. I looped back around to the 
west side of the campus and  walked back on campus and thence to the law 
school. I told Prof. Rader about the detainment by the SS and their 
demand that I open my bag and identify myself and my reason for being on 
campus. And about the threat to have me arrested if I was seen on the 
campus again. She said that students and faculty had all been dealing 
with the effects of Chelsea's arrival as a student and that the law 
school would be quite happy to handle my case if the SS or Stanford 
Sheriff's Dept. nabbed me.


--Tim May