Spoilation, escrows, courts, pigs.

[Black Unicorn]

----- Original Message -----
From: "Tim May" <tcmay at got.net>
To: <cypherpunks at lne.com>
Sent: Tuesday, July 31, 2001 7:15 PM
Subject: Re: Spoilation, escrows, courts, pigs.


> At 12:22 PM -0700 7/31/01, Black 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.
>
> I think the cops will _someday_ come to rip my place apart. So?

Hardly "knew or should have known" unless... well Mr. May you'll know better
than I will how naughty you've been.

> Show me exactly which law I am breaking by placing some of my
> documents or files in a place even I cannot "turn over all copies
> from."
>
> I have never heard of such a law.

If you know you've committed some kind of weapons violations or some such and
you have reason to believe you have come to the attention of the authorities,
burning the record of those bulk AK-74 purchases might be a bad idea- if you
got caught.

I've seen more of this in the white collar world, where billing records,
transaction records and such were destroyed but the principal holds.

Still, based on what you seem to have read me as saying we probably lost a
good deal of the context of the discussion.  The original question, as I
understood it, was what an individual who was faced with a clearly pending
court action (or an existing court order) could to do frustrate that order and
prevent certain materials from being distributed- _without consequences_.
My discussion was limited to that context, though I did not probably clarify
that sufficiently.

I also made some speculative suggestions about what encrypting such data might
look like in a test case extending the facts to be a bit more edgy just to see
where the limits were.  Such a test case (of which there are none to my
knowledge) would easily present a close issue to argue if a savvy prosecutor
were around.  I'm not sure anyone could tell how it would come out.  Consider
it a cautionary note for cypherpunks designing evidence destroying
(concealing, whatever) systems.  I never asserted a the kind of law you
describe above existed.  A careful re-reading of my post will reflect that.

> You talk a lot about "courts not being amused" but I can find no
> evidence that such laws exist. Nor can I find any case where a Mafia
> don was prosecuted for "spoliation" a future prosecution by
> whispering.

Spoliation is usually used in specific reference to evidence, not a case or
prosecution.  Again, I think the context got lost after my fifth post on the
subject or so.

> Do you have such examples? And an appeals court assessment of the examples?

I could cite any number of obstruction and contempt examples, two from
personal experience.  One in which the defendant wished to prevent the
disclosure of certain financial documents and other information to the court,
all of which were secreted away before any proceedings began, but when it was
clear the improprieties were going to come to light.  One in which the
defendant wished to disclose certain information (for not in my view the most
kosher reasons) to the public which was the subject of a case and also the
subject of a judicial gag order.  Both efforts landed both defendants in
confinement for a period of time- both times on contempt rulings.

I can cite some case law if you really want or if there is some legitimate
need for more clarification, but we are a bit far afield of the original
discussion now, and that was not intended to allege anything close to the kind
of prohibition you seem to be talking about.

> >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).
>
> Cites?

I don't have any.  This was my theory.  Hence my language: "It almost sounds
tantamount..."  Hence my cite of the definition of spoliation below, for
comparison.  Hence my discussion of a prosecutor's likely tactic in making the
argument.  Encrypting to an "irrecoverable" key certainly comes close to if
not outright meets the technical definition of spoliation in Black's Law
Dictionary.  What "irrecoverable" means will depend on the judge probably.

> Remember, the hypo involves placing material in irrecoverable forms
> prior to any actual court case.

Well, that's not the hypo I remember but in any event the case doesn't need to
have been called, the defendant merely needed to "know or should have known"
that the material in question was likely to be the subject of a legal
proceeding or material evidence to same.  (Given that some states might have
different standards- this is pretty close to what you can expect generally).
The burden of proving that aside, that's the standard.

Burning the offshore account statements on the morn before your indictment for
bank fraud is going to get you a spoliation/destruction of evidence charge.
Encrypting the statements to some (unrecoverable?) key looks very much like
the same thing, doesn't it?  The effect to the court is certainly the same.
Again, if I were a prosecutor I would at least make this argument.  Its
success would probably be 100% dependent on how much cotton the judge has in
his ears at that particular moment, how badly he wanted to get out of court
and meet the call girl he just reserved (ever wonder why Friday's are always
"motion days"?) and how "unamused" he is with the defendant.  I talk a lot
about how "not amused" a court is because, frankly, that has a substantial
impact on the way rulings go.  At least in my experience judges are very
unlikely to be receptive to motions by a defendant that has pissed them off.

>   ("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.
>
> And I think you're way off-base. "Known or should have known" that I,
> for example, will eventually be raided by the TP means that it is a
> crime for me to place files beyond the reach of those same TP?

(Sorry- TP?)  Absolutely.  If you know that something is or will be evidence
to a crime and you destroy it knowing full well that a judicial proceeding is
imminent, or knowing that an investigation is being considered, you've
committed a felony in most states.  It wouldn't take much effort for you to
look up the California statute on destruction of evidence or spoliation.

> I know you believe yourself to be a Real Lawyer. I cheerfully admit that
IANAL.

Depends on your definition of "real lawyer."  I hold the degree.  I'm licensed
to practice somewhere or another.  I've probably made 15 or more motions
before courts in various proceedings in various jurisdictions.  I don't
practice anymore so perhaps that disqualifies me.  Still, all of this is
academic- just as this discussion is.  My qualifications are irrelevant.  You
got my opinion for free.  I think I can fairly say you got more than you paid
for.   Look up the statutes for yourself.

> But I say you are full of it.

Keeping to the contextual caveats above- I reassert my position.  You can't
simply knowingly deny a court access to evidence or testimony and not expect
to get bit.  Hard.

> --Tim May