Spoilation, escrows, courts, pigs.

[georgemw at speakeasy.net]

On 31 Jul 2001, at 12:22, Black Unicorn wrote:


> > 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.

OK,  but is there a legal distinction between ex ante disclosure
in anticipation of a specific court action vs.   anticipation of
court action in general?  I mean,  if I had spent a lot of time
on a particular piece of code,  and the potential existed that a 
judge might order me to turn over all copies,  I might want to
take precautions against this,  even if there were no particular case
pending where this was likely,  and the possibility itself seemed 
rather remote.


> 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). 

Just to clarify,  I suggested possibly encrypting it just because
I might not want it leaking without my consent.  I wouldn't expect a 
judge to be dumb enough to buy the argument that "I just can't 
remember that damn key,  but I probably will once this trial is
over".  


> "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?

It's not THAT obscure.  If i were in the habit of putting all my source 
code on freenet,  the argument that I must have put a particular 
piece of it on freenet to avoid complying with a legitimate judicial 
order seems to me to be pretty weak.

What I'm concerned with here is the possibility (which I consider 
monstrous) that a judge might be able to force me to surrender
ALL copies of my work,  leaving me incapable of accessing it.
I fully understand that there's no way I can get a judge to accept the
claim that I can't give him A copy of my work,  even though I can 
still access it myself.

>  (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).
> 

Thanks, I'll remember that,  it could come in handy some day.

>  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."
>

"Knew" is too strong a word in this case,  "suspected" or "feared"
would be more accurate.  And even I know better than to refer to
a judge as a "pig" in his own courtroom.  In the immortal words of
Mae West, "No your honor, I'm doing my best to conceal it."  
 
George