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

[Black Unicorn]

----- Original Message -----
From: <georgemw at speakeasy.net>
To: <cypherpunks at cyberpass.net>
Sent: Tuesday, July 31, 2001 9:55 AM
Subject: Re: DOJ jails reporter, Ashcroft allows more journalist subpoenas


> On 30 Jul 2001, at 14:38, Black Unicorn wrote:
>
> > Prosecutor:  You retained copies of this document?
> > Witness: Yes.
> > Prosecutor:  You were aware that all copies and original were subpoened by
the
> > court?
> > Witness: Yes.
> > Prosecutor:  Where are these documents located?
> > [Witness:  I placed blocks of data on a safe site so they would be
> > accessible.]
> > [Witness:  I split a cryptographic key and spread it among my friends and
> > encrypted the document to it.]
> > [Witness:  I (insert clever but legally naive cypherpunk solution here)
the
> > document.]
> >
> > (Oops)
> >
>
> Forgive me for being naive wrt the law,  but as I interpret what you
> have written,  the critical distinction is,  if you refuse to comply
> with a judge's orders (for whatever reason) you'll get cited for
> contempt,  but if you cannot comply with his orders you're ok.
> Correct me if I'm misinterpreting you.

Pretty close I think.

> So it seems to me that if you, say, publish documents to freenet
> (encrypted or not) then you're ok;  it's right there in the spec,
> documents cannot be removed,  even by the original author.  If your
> life depends on removing the document,  then you die.
> How is this wrong?

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.  "Knew or should have known" will
likely be the standard with respect to the stuff being the subject of judicial
action and they can use actions to demonstrate intent.  In this light freenet
might be the _worst_ place to put it because its only purpose is (I believe)
to avoid censorship or seizure of the data.  Why would you have used this
relatively obscure and very specialized service if not in anticipation of
court action which would later prevent the distribution of the data?  Who else
was threatening the manuscript, document, etc. to such a degree to require you
to use freenet?  (Not only that but spoliation carries with it the permissible
inference that the data was detrimental to you and the jury gets to hear
that).

> If it's a crime to take actions specifically for the purpose of later
> rendering you unable to comply with a judge's order (is it?),
> how is escrowing it on the isle of man any different?

There are legitimate purposes for escrowing it on the Isle of Man over and
above keeping it out of a court's hands.  The key is to have _some_ leg to
stand on when asked "if not trying to thwart the authority of this court, why
did you do that."  Good answers might sound like: "I wanted the proceeds of
the manuscripts sale protected in trust for my grandchildren."  "I wanted the
negotiations to be handled by the same attorney that manages my spendthrift
trust"  (You do have one, right?)  "I wanted to publish it anonymously, and
needed a good attorney in a jurisdiction with strong confidentiality statutes
to accomplish that end.  I had no idea that the irrevocable trust was so far
reaching that it would deny access to a legitimate judicial proceeding, your
honor..."  I'm not sure there are many arguments for using freenet other than
"I knew you pigs were going to try and grab it so I sent it far, far away."

> Thanks,
> George

Sure.