Spoilation, escrows, courts, pigs.

[Tim May]

At 10:19 PM -0700 7/31/01, Black Unicorn wrote:


>>  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.

Show me the cites. I commit felonies on a weekly, even daily, basis.

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

IBM instructed employees to destroy records. At Intel, we destroyed 
records--I did so as part of the "Crush" program (to drive several 
competitors out of business). So long as we were not being ordered to 
turn over evidence, not any kind of crime.

A bookstore is not "spoliating" for failing to keep records of who 
bought which books.

Cop: "We have a court order requiring you to turn over all records 
concerning who bought the book "Applied Cryptography.""

Store: "We don't keep records."

Cop: "Why not?"

Store: "None of your business."

(Interjection by Black Unicorn: "The court is not amused.")

Cop: "We could charge you with spoliation!"

Store: "Go right ahead."

(Interjection by Black Unicorn: "It's not nice to fool with Mr. Happy 
Fun Court.")


>
>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.

The discussion included claims that those who use remailers, or who 
run remailers, may be guilty of spoliation. And it included comments 
that using offshore/unreachable methods if one ever expects to be 
charged is spoliation.

I say this is bullshit. By your vague (no plausible cites, just some 
1L literatlisms), whispering is spoliation. Failure to archive tape 
recordings of conversations is spoliation. Use of encryption is 
spoliation. Drawing the curtains is spoliation.



>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.

But you said, more than once,

"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."

And why would it be a crime for John Gotti to make his communications 
inaccessible or irretrievable or unrecallable?

How aboutL "If it looks like you knew it was going to be a
court issue and you whispered so that the FBI could not understand 
your words , you're in trouble."?

Isn't this spoliation by your broad standards?


>>  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.

But, Black Unicorn, you're the one who chose to lecture all the children here.

I have asked for a cite that shows that higher courts, up to the 
Supreme Court, have held that using Freenet or encryption would 
constitute spoliation, which you brought into the discussion as a 
reason why Cypherpunks had better not count on using encryption, or 
offshore storage, or any other means that might cause the court to 
"not be amused."

They didn't get John Gotti for whispering, so I doubt "spoliation" is 
nearly the tool you and Aimee Farr seem to think it is.

>>  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.

John Gotti "knew or should have known" that prosecutors would have 
loved to have had his tape-recorded conversations. Was he then 
obligated by "spoliation" standards to have neatly archived them or 
could he re-use his answering machine tapes the way everyone else 
does/

(Again, he is not in Marion for spoliation.)

And so on. I could give a dozen examples off-hand of cases where 
records were not kept, where whispering or coded messages were used. 
No prosecutions on spoliation that I know of. Cites from you?


>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.

I'm asking for some cites that your broad interpretation, which you 
have even extended to saying that remailer operators may be running 
afoul of the spoliation law merely for not keeping records of who 
used their services, is at all in the ballpark of plausibility.

A person under indictment or called as a witness who throws a gun 
into a river, or who burns diaries, may be said to be tampering with 
or destroying evidence. Maybe "spoliation" is the Black's Law term. 
Who cares?

But this is a far cry from saying that anyone "who knows or has 
reason to expect" that he will someday be charged with some crime is 
committing spoliation by using remailers, offshore 
accounts,whispering, using secure phone lines,  etc.

Saying I should "look up the statute" is a cop-out. In fact, I did 
some Findlaw searches and found nothing to support your broad claim 
that using a remailer or an offshore storage site exposes one to 
spoliation charges. In the real world, that is, not the 1L 
simplicities of reading statutes overly literally.

If you're going to try to scare remailer operators with the claim 
that they may already be violating the spoliation laws, at least 
provide some strong evidence.


--Tim May

-- 
Timothy C. May         tcmay at got.net        Corralitos, California
Political: Co-founder Cypherpunks/crypto anarchy/Cyphernomicon
Technical: physics/soft errors/Smalltalk/Squeak/agents/games/Go
Personal: b.1951/UCSB/Intel '74-'86/retired/investor/motorcycles/guns