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

[Aimee Farr]

Unicorn wrote:

> 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.

I think the courts will reach for spoliation, too. (Sanctions, penalties,
legal presumptions -- all the way to a default judgment.) I brought this up
in another thread, either the one dealing with timed-key memoirs (Tim called
this a "beacon") or logs, but the conversation was soon whittled to dribble.

> 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."

*gaf* :-)

In another digital datahaven (not Freenet), security and anonymity are
legitimate purposes standing by themselves. As you noted, the one-time
involvement of offshore counsel suggests sophistication.

Do any of the IAALs think the courts would recognize a written, good faith
"datahavening" policy (for business), or a consistent personal practice (for
individuals), and engage in the legal fiction of permissible destruction by
unavailability? Seems like that is the rationale underlying the spoliation
cases - consistency and good faith (legitimacy).

D: "I datahaven (however you do it) with X all my [data] weekly as a matter
of regular practice."

D: "I did so prior to having any knowledge of the relevance of this data or
the likelihood of litigation." (nor should I have)

X: "X is a digital information privacy trust, managed by Y, allowing
individuals to datahaven their personal papers for posterity and
WorldGood -- for the benefit of future researchers, and their blood
descendants. Clients include members of the United States Congress, world
political figures, members of the intelligence community, journalists, human
rights activists, and everyday individual diary-keepers."

X: "X uses timed encryption and biometric identification." (Sorry, no
passwords.)

Which is the idea expressed the following paper, but "Tim May said..." (Mr.
May inferred this was an old idea, and that it was better to use traditional
means.)

@ http://papers.ssrn.com/sol3/papers.cfm?abstract_id=266153
(some discussion of the erosion of the 4th and 5th Amendments in regard to
the protection of personal papers, as well as contemporary commentary on the
chilling effects of keeping personal diaries, "flammable materials," etc.)

I am also reminded of those e-death comz (if they aren't dead themselves by
now). You compose your goodbye email, and when your nominee notifies the
company of death --- everybody finds out what you really thought of them.

The hard part is coming up with "good faith" arguments. (I know Mr. Unicorn
was speaking off the cuff -- and still came up with some really good ones.
No doubt he could do better.) Still, posterity would seem to be a weighty
argument, and a sincere one.

~Aimee