RE: [spam score 5.00/10.0 -pobox] RE: Spoliation cites
-- On 7 Aug 2001, at 0:36, Aimee Farr wrote: You guys are acting like Uni said, THOU SHALT NOT WRITE CODE. That is what he did say: This thread started when someone proposed publishing thought crimes into an irretrievable medium such as freenet in order to render moot any future court orders to hand over all copies of some item of forbidden knowledge. Unicorn condescendingly explained that would be illegal, but with suitable mystic legal incantation it would be legal to escrow the forbidden information with some offshore lawyer. Which is of course total bunkum -- for the court can be as unamused by one act as the other, but the act that requires more explanations and legal documents gives them more handles to undo it and more reasons to put one in prison, and more inconvenient knowledge about one's affairs and activities, generates more legal costs, and puts one in front of the unamused judge for longer, giving one more opportunities to get into deeper trouble. --digsig James A. Donald 6YeGpsZR+nOTh/cGwvITnSR3TdzclVpR0+pr3YYQdkG 4yvbwk+eYBStv1fohR52VeVtDMsVDz8BuOccrL60 4JnCvupJX0Zpf+njUZbnjhE65hs9Lj9mDDDSGk4UN
Re: Spoliation cites
-- Trei, Peter: I'll concur that BU is overreaching himself. Eric Murray I read him as suggesting that some ambitious prosecutors might possibly try to extend spoliation to that point, not that they're doing so now. I read him as saying the prospect of prosecutors extending spoilation to include any act that we do not carefully record for the benefit of those who wish to harm us, is so overwhelmingly likely that we should right now carefully keep all records of our sins so that we can hand them over to prosecutors in future -- that these methods, tactics, and technologies are foolish RIGHT NOW, and RIGHT NOW using such technologies and tactics displays a foolish ignorance of the law, and a pig headed refusal to take sage legal advice. Sandy compared the practice of purging old email (routine in most big pockets companies) to someone who jumps from a ten story building, and boasts he has not hit ground yet. That is obviously a reference to the situation NOW, not future repression. Similarly one of them, I think Aimee, advised TC May that he should faithfully keep records of his PAST ammo purchases, in case that ammo becomes illegal in future, or someone commits some bad act with that class of ammo. --digsig James A. Donald 6YeGpsZR+nOTh/cGwvITnSR3TdzclVpR0+pr3YYQdkG VQzYv2UAqEb0o/wyCLdBrr7hAREwB113VOspuhU/ 4AZ7R8tXI7ibEvCwONehy2PzP8/J1FWtAaIeJZUPR
RE: Spoliation cites
-- James A. Donald: Black Unicorn's recent post, where he denounces almost the entire cypherpunk program as illegal by current legal standards and a manifestation of foolish ignorance of the law and obstinate refusal to take his wise advice, Aimee Farr: No, he didn't. Every time you say no he did not say that:, he promptly says it again in an even more extreme form, and you promptly announce you agree with him. That business about the judge not being amused is just the same old argument If you use crypto that shows you have something to hide -- therefore you dare not use crypto. Lawyers have no special qualifications and authority to make such an argument, and when they make it should be met with the same ridicule as any other ignorant doofus who makes it. Most big companies, companies with pockets so deep that they attract lawsuits like flies, have decided it is better that the judge suspects they have something to hide, than that the judge knows full well that they have something they damn well should have hidden, and those deep pocketed companies routinely, on a regularly scheduled basis, in accordance with widely circulated company policy, do all the things that Black Unicorn has been telling us we must not do. No doubt it is true that one can be sued for shredding records that an enemy lawyer would have preferred one to keep, and such a lawsuit might well succeed, but a jew can be sued for discarding a ham sandwich, and such a lawsuit might well succeed also. Companies with deep pockets, continually besieged by hostile lawyers subpoenaing all sorts of information, do not seem as impressed by the fearful terror of failure to amuse judges as Black Unicorn tells us we should be. --digsig James A. Donald 6YeGpsZR+nOTh/cGwvITnSR3TdzclVpR0+pr3YYQdkG qmqbBFh1cJXpXWWSgMDC1f/66EGe34m2h/FZ8PkK 4WyQu6INj4rCPdEIuSJx4RNcQIVL6ovZsuoo63Dee
RE: Spoliation cites
George, quoting me: Bingo. Remember what Uni said about not amused judges? We should have just left it at that. Maybe. Just so I'll know for sure, are you agreeing with me or ridiculing me? I don't remember what was said at this point. :) My comments were good-natured, George. They always are. I went looking for the hottest chick I can find who is legally qualified to practice law in this district, in hopes that you'll drool over her and find in my favor. I'm not stupid enough to SAY it, but I just might be stupid enough to TRY it, if I felt that that was my best chance of reaching a favorable verdict. So, when you go to battle in the round, you want a good-looking gladiator to distract the lions. Maybe they won't eat her because she's pretty? Maybe they figure she's just more tasty, and they will play with her a little...and bat her around before they pounce on her and gobble her up for being a stupid twit. When lawyers go into chambers, it's not for a damn lap dance. If I could, I would file my teeth into sharp little pygmy points and graft Doberman pincher ears to my head. As for unamused judges, if I were to tell a judge that a judge is just a law student who gets to grade his own papers, do you think he'd say that's 1) not funny at all 2) maybe funny the first time, but this is like the 200th or 3) a real knee slapper? Oh, their papers get graded... ~Aimee
RE: Spoliation cites
[EMAIL PROTECTED][SMTP:[EMAIL PROTECTED]] wrote: I am unable to reconcile Black Unicorn's recent post, where he denounces almost the entire cypherpunk program as illegal by current legal standards and a manifestation of foolish ignorance of the law and obstinate refusal to take his wise advice, with the conjecture that Black Unicorn is aware of current recommended best practice in record keeping. I've mostly been staying out of this stormy little teacup, but I'll concur that BU is overreaching himself. When he starts to claim that writing security software to best industry practices - erasing sensitive data as soon as it's need has passed, clearing disks and buffers, etc - all practices mandated for meeting certain government FIPS levels, and widely documented as standard - when he claims that writing programs correctly could get me in trouble - then it's time to downgrade my estimates of his knowledge and expertise. Peter Trei
Re: Spoliation cites
On Mon, Aug 06, 2001 at 11:51:46AM -0400, Trei, Peter wrote: [EMAIL PROTECTED][SMTP:[EMAIL PROTECTED]] wrote: I am unable to reconcile Black Unicorn's recent post, where he denounces almost the entire cypherpunk program as illegal by current legal standards and a manifestation of foolish ignorance of the law and obstinate refusal to take his wise advice, with the conjecture that Black Unicorn is aware of current recommended best practice in record keeping. I've mostly been staying out of this stormy little teacup, but I'll concur that BU is overreaching himself. When he starts to claim that writing security software to best industry practices - erasing sensitive data as soon as it's need has passed, clearing disks and buffers, etc - all practices mandated for meeting certain government FIPS levels, and widely documented as standard - when he claims that writing programs correctly could get me in trouble - then it's time to downgrade my estimates of his knowledge and expertise. Peter Trei I read him as suggesting that some ambitious prosecutors might possibly try to extend spoliation to that point, not that they're doing so now. A bit of Googling finds a good definition of spoliation (in California): Plaintiff possessed a potential defense to a claim for damages against a defendant. Defendant knew or reasonably should have known of this claim for damages by plaintiff. Defendant knew or reasonably should have known of the existence of the physical evidence and knew or reasonably should have known that it might constitute evidence in pending litigation involving plaintiff. Defendant knew or reasonably should have known that if he did not act with reasonable care to preserve the physical evidence, the potential evidence could be destroyed, damaged, lost or concealed. Defendant failed to act with reasonable care. Defendant's failure to act with reasonable care caused the destruction of, damage to, or loss or concealment of such evidence. As a result, plaintiff sustained damage, namely plaintiff s opportunity to prove its claim was interfered with substantially. As BU points out, if reasonably should have known can be defined in court as you were running a service that allowed drug dealers and pedophiles to send anonymous email, talking about FIPS 140 etc. won't help much in front of a jury of Oprah-watching peers, even if it's factually and technically correct. Are things this bad already? I don't know, but it wouldn't suprise me. A murder case in silicon valley recently finished. The jurors were interviewed by the local paper. When asked why they convicted the defendant on circumstantial evidence, the answer was he felt guilty. Eric
Re: The Curious Propsenity of Some Cypherpunks for (loud) Willful Ignorance. Was: Re: Spoliation cites
-- Judges have never attempted such crap, On 4 Aug 2001, at 23:03, Dr. Evil wrote: Please do a search for Negativland and U2 on your favorite search engine. They were ordered to return to the court or U2's reccord label or whatever, all the copies they had of their U2 album. Every single copy. And had they previously dispersed these so as to ensure that they could not deprive themselves of every last copy, no matter how hard they cooperated with the judge, they would be in good shape. Sure, judges can issue any order they like. But if, before that inconvenient order is issued, you have rendered it moot, the judge is stuffed. And existing precedent is that if you rendered it moot, not by actions taken in anticipation of that specific lawsuit, but by routine and regularly scheduled actions, they are stuffed AND they cannot punish you for stuffing them -- or if they can punish you, no one has been punished yet. --digsig James A. Donald 6YeGpsZR+nOTh/cGwvITnSR3TdzclVpR0+pr3YYQdkG m9RWKkXvfzI/hw40BtTsPah8X9MqTBN7CZv9z9G1 4Bz7xZ/Sjs6Gfh6UG4ctXwEhe3Q2TMyj59+7+rT3w
RE: Spoliation cites
George: Look, we are just trying to envision what opponents are likely to try. The outcome will depend on the facts. Are you sure it isn't more likely to depend on things that should be completely irrelevant, say, what you look like? There was a hot chick I used to work with who would tell me about all the times she got pulled over and usually let off with a warning. She really was a menace to the road, great body though. As I said, I'm on nobody's side, I'm not recommending any particular course of action, but the idea that you can help keep out of trouble with a reasonable retention policy requires you to anticipate what policy a judge considers to be reasonable, which in turn Bingo. Remember what Uni said about not amused judges? We should have just left it at that. ~Aimee
RE: Spoliation cites
-- James A. Donald: If one keeps records, and suddenly someone sues one, and THEN one starts shredding, yes, then one can get into trouble. If however, one shreds away indiscriminately, on a routine and regular schedule, one is in the clear. As a remailer operator said to the courts Sorry, I do not keep records. Now if he had kept records, and then erased them on being summoned to the court, he would have had a problem. But because he erased them routinely, no problem. On 5 Aug 2001, at 5:03, Aimee Farr wrote: If you read any of those cites and shep'd them, you will see there are circumstances where defendants didn't know the documents were relevant to a specific lawsuit. There is support for the words SHOULD HAVE KNOWN might NOT equivocate to: a lawsuit has been filed. Might equivocate to a big cloud of complicated fog. Probably will. In fact it already has. However there is a large and glaring gap between the legal advice that Black Unicorn is giving: telling us that routine regularly scheduled erasure and shredding is dreadfully unwise, and the practices of many leading CEOs, that routine regularly scheduled erasure and shredding without checking what it is that one is shredding (other than date, and broad category) is good practice and required. In particular it is common good practice to routinely erase all internal emails. This is a major obstacle to lawsuits, and is intended to be a major obstacle to lawsuits, and yet no one has been busted for it. If businesses can erase their email, then remailers can erase their logs, and I can publish thought crimes on freenet and alt.anonymous.messages, and you lot do not know shit from beans. Care to explain the obvious difference between good practice as explained by you lot, and the actual practice of good businesses? If a bunch of people claimed to be highly qualified astrophysicists, and explained that for all sorts of very complicated astrophysical reasons the sun actually rose in the north and set in the south, I would be more inclined to believe that they were not highly qualified astrophysicists, than to believe that the sun rose in the North. If shredding, erasure, and just plain not keeping logs is legal, then the cypherpunk program is legal, and remailers are legal. And it is as obvious that the cypherpunk program is, as yet, so far, still legal, as it is obvious that the sun rises in the East. Yet Black Unicorn has been telling us in no uncertain terms that it is illegal. The most recent post of his to which I replied rejected the entire cypherpunk program and standard business practice as foolish and unwise. They are going to bust Bill Gates for erasing email before they bust me. Why is Black Unicorn telling me I should be so terrified of the courts that I must abandon the cypherpunk program, for a threat that has as yet not been made, let alone carried out even against high profile targets? o email = most say a few weeks, unless it is a complaint, etc. And what most are saying, is glaringly inconsistent with what black unicorn is saying. It's not so simple as many think. It's document specific. But if it is document specific, and the remailer does not read the documents, and could not be expected to know their relevance if he did, then Dark Unicorn's most recent post on remailers is obviously full of shit. The remailers cannot possibly be document specific, nor can Freenet. Aimee's favorite citation, repeated yet again. ...First, the court should determine whether Remington's record retention policy is reasonable considering the facts and circumstances surrounding the relevant documents. These cites are all on the one hand this, on the other hand that. No one has been busted specifically for a policy of routine document erasure. When Bill Gates is in jail being sodomized, then we will worry. This alleged law is not a law, or an existing court practice -- it is an opinion held by some people that has never been given real substantial effect. If it is ever given real effect, they are not going to start with us. They are going to start with the deep pockets. Aimees favorite citation continued Finally, the court should determine whether the document retention policy was instituted in bad faith. Gumbs v. International Harvester, Inc., 718 F.2d 88, 96 (3rd Cir. 1983) (no unfavorable inference arises when the circumstances indicate that the document or article in question has been lost or accidentally destroyed, or where the failure to produce it is otherwise properly accounted for.); Boyd v. Ozark Air Lines, Inc., 568 F.2d 50, 53 (8th Cir. 1977) (We recognize, however, that the destruction of business records may be sufficient to raise an unfavorable inference.). More on the one hand this, on the other hand that fog. Everyone knows why Microsoft's email destruction policy was implemented. If that is not bad faith, what is? Show us
RE: Spoliation cites
-- On 5 Aug 2001, at 5:07, Aimee Farr wrote: If you read any of those cites and shep'd them, you will see there are circumstances where defendants didn't know the documents were relevant to a specific lawsuit. That summary of those cases seems misleading to me. You yourself have acknowledged that standard best practice legal advice is to routinely purge all internal email after a few weeks. That does not sound not compatible with your summary above of those citations, and it is incompatible with the positions taken by Sandy and Black Unicorn. Most of the postings issued by you three, particularly those issued by Black Unicorn, sound to me as if they were issued in ignorance of the standard and legally recommended practice, that you were unaware of standard best practice on the topic on which you were posting. To repeat: If it is legal to routinely purge all internal email, it is legal to publish thoughtcrimes on freenet, legal for remailer operators to keep no logs. If it ever becomes illegal, the lawyers will go looking for records of deep pockets first, and go after the remailer operators later. We do not have to worry about mandatory remailer logs, until after the lawyers have successfully enforced mandatory recording of all indications of deep pockets. --digsig James A. Donald 6YeGpsZR+nOTh/cGwvITnSR3TdzclVpR0+pr3YYQdkG rz25ERk2AhUYlyVa+bptsmwFk4GPnsFcuOKIu4CG 4FGjwWSSPJFC3LQUmXNIITgeThxTqDx73aiC1gwaT
RE: Spoliation cites
James wrote: -- On 5 Aug 2001, at 5:07, Aimee Farr wrote: If you read any of those cites and shep'd them, you will see there are circumstances where defendants didn't know the documents were relevant to a specific lawsuit. That summary of those cases seems misleading to me. Obviously. James, you are like a snappin' turtle. You just won't let go. I could move you with a stick. You yourself have acknowledged that standard best practice legal advice is to routinely purge all internal email after a few weeks. Yes. Unless it is of special relevance. For example: Dear company: I just wanted to write you and tell you that the microwave that I bought from you exploded. Thought you should know. Nobody was hurt, thank goodness! Maybe something is wrong with it? Thanks, Mrs. Smith The above wouldn't just be any old email now would it? That does not sound not compatible with your summary above of those citations, and it is incompatible with the positions taken by Sandy and Black Unicorn. No. Most of the postings issued by you three, particularly those issued by Black Unicorn, sound to me as if they were issued in ignorance of the standard and legally recommended practice, that you were unaware of standard best practice on the topic on which you were posting. No. To repeat: If it is legal to routinely purge all internal email, it is legal to publish thoughtcrimes on freenet, legal for remailer operators to keep no logs. If A is L, than B and C are L? If it ever becomes illegal, the lawyers will go looking for records of deep pockets first, and go after the remailer operators later. We do not have to worry about mandatory remailer logs, until after the lawyers have successfully enforced mandatory recording of all indications of deep pockets. Somebody give me a stick! James, truly, I see the point you are trying to make and the logic you are trying to apply. We will see what the courts do. ~Aimee
Re: The Curious Propsenity of Some Cypherpunks for (loud) Willful Ignorance. Was: Re: Spoliation cites
On 4 Aug 2001, at 20:40, [EMAIL PROTECTED] wrote: The only cite that could possibly refute my words above would be to cite someone being busted, since the behavior you claim is illegal, the behavior that George announces his intention to engage in, is routine in most well run companies. Hey, wait a second, I never announced my intention to behave in any sort of behavior, I think maybe I suggested that certain actions might be appropriate in certain hypothetical contexts, but I was always at least that vague. As I said before, I'm on nobody's side here. If a lawyer type (BU or anyone else) wishes to post a list of specific recommended policies which he feels can minimize the risk of unpleasant contact with the judicial system, without compromising our own goals, I think it's wise to give such recommendations due consideration. In the specific case of remailer operators, keeping logs which could be used to identify the original senders of messages is clearly incompatible with the function of remailers, and any node keeping such logs should be considered cancerous. George --digsig James A. Donald 6YeGpsZR+nOTh/cGwvITnSR3TdzclVpR0+pr3YYQdkG lZd4vAi2TTpp5GRW15mn1q+cyAFO0PJtAiYPT7GK 4aBAZQL08uKxJdCdzB6Qq5wZagEOir8ecDvv5GFYB
RE: Spoliation cites
Sandy, I so appreciate your attempts to span the gap, here, but I feel like I am watching you hurt yourself. Repeatedly. To no end. ~Aimee -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]]On Behalf Of Sandy Sandfort Sent: Friday, August 03, 2001 12:07 PM To: [EMAIL PROTECTED] Subject: RE: Spoliation cites James A. Donald wrote: He has presented no such punishment, therefore no such case exists. Therefore remailer operators and the rest of us can in perfect comfort fail to keep logs, we can circulate thought crimes into irrecoverable systems, and so on and so forth. Apparently, James did not understand the thrust of Aimee's post at all. The important thing to understand about legal precedents is that they may show a TREND in the law. The common law evolves over time. To say that no precedent DIRECTLY ON POINT exists means that you can operate in perfect comfort is asinine. The question is, what will a court say NEXT? S a n d y
RE: Spoliation cites
At 7:22 PM -0700 8/2/01, Black Unicorn wrote: -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]]On Behalf Of Harmon Seaver As others have stated, if you don't keep logs, or throw away all your reciepts, there's not jack they can do about it. Uh, no. And if you had been reading the many, many posts on this point you'd see that about every one of the 10-15 cases cited here say exactly the opposite of what you claim above. (I didn't see a legal background on your resume either but perhaps you have any cites that I don't know about?) I think Seaver meant that if if you don't have the stuff, you don't have the stuff and all the fines and jail time in the world won't produce the stuff, especially if it was never there to begin with. Although really, the most serious question everyone should be asking is why the court wants all copies. Asked and answered. Was it? I missed it in the other discussions.
RE: Spoliation cites
VI2 wrote: There is a trend to making everything illegal. Your qualifications to read tea leaves are no better than my own. Well James, you got it right once. My qualifications for reading tea leaves are no better than your own. However, my qualifications for reading and understanding laws and court precedents are vastly superior to yours. (For what it's worth, I'm sure there must be something you are more qualified to do; I just don't know what it is.) By the time spoilation reaches the condition that you anticipate, we will not be hiring lawyers for their knowledge of the law, but for their knowledge of connections. (a) Since I have not discussed the topic of spoilation (or even spoliation) on this list, you are obviously reaching. You have no idea what I anticipate. (b) You have just given a very good additional reason to hire lawyers in addition to their obvious superiority in understanding legal trends. With regard to (b), not a lot of mainstream lawyers are going to be sympathetic or versed in the sorts of things you and other people on this list are likely to run afoul of. It's interesting to me that you and the other two village idiots seem hell bent on antagonizing your most likely legal allies. But then, you are village idiots. S a n d y
Re: Spoliation cites
-- On 3 Aug 2001, at 13:22, [EMAIL PROTECTED] wrote: I consider it, as I said, monstrous that a judge can legally deprive me of all copies of my own work in order to enforce a gag order, but again, if that's the way it is, that's the way it is. But it goes well beyond the bizzare to suggest that I should anticipate the possibility of a gag order and preemptively gag myslef in case one might be issued at a later date. Judges have never attempted such crap, and if they do, lawyers will irrelevant, and will have been irrelevant for a long time before the such anyone attempts such crap. These guys (Black Unicorn and his cheer squad) are loons, and I cannot imagine why they post such nonsense. The argument they seem to be making is that judges, legislators, and bureaucrats are becoming increasingly lawless, therefore we should treat lawyers with worshipful respect. But that argument is completely back to front. As governments become more lawless, laws and lawyers become less relevant, not more relevant. As government becomes more lawless, first one hires fixers in place of lawyers, then whores in place of fixers, then gunmen in place of whores. American business in general is moving towards fixers, biotech is already largely past fixers to whores, and in Russia it is gunmen. --digsig James A. Donald 6YeGpsZR+nOTh/cGwvITnSR3TdzclVpR0+pr3YYQdkG yaXRYjQRaqKdRfYIdQ2uzBW1hnXxeNFzod0WHqd2 420eZw9m6TUyezphE2Z2tbXIvV4/9aHVQJTHAeRJE
Re: Spoliation cites
-- On 3 Aug 2001, at 9:48, Greg Broiles wrote: Courts have relatively strong powers with respect to controlling the possession and disposition of physical things like notebooks or hard disks, but relatively weak powers with respect to limiting the dissemination of information not in the court's exclusive possession, so long as the disseminator is not a party to a case before the court, nor an attorney for a party. This, folks, accurately summarizes the state of the law, as illustrated by numerous recent high profile cases, and any pompous pontificating fool who claims to be a lawyer and says something different, is full of shit. --digsig James A. Donald 6YeGpsZR+nOTh/cGwvITnSR3TdzclVpR0+pr3YYQdkG dSV6sI6yQ2/jieC4fpBN7te3dg/Ah5VH2uFW0sKW 4BMa39ojsj5zW2GHC0CbxCCaUmgmRViBZ3F2MHnvP
RE: Spoliation cites
-- On 3 Aug 2001, at 10:07, Sandy Sandfort wrote: Apparently, James did not understand the thrust of Aimee's post at all. The important thing to understand about legal precedents is that they may show a TREND in the law. ] There is a trend to making everything illegal. Your qualifications to read tea leaves are no better than my own. By the time spoilation reaches the condition that you anticipate, we will not be hiring lawyers for their knowledge of the law, but for their knowledge of connections. As everything becomes illegal laws to cease to be laws. Increasingly legislation is not a rule, but merely a desire, rendering lawyers irrelevant. For example biotech companies usually do not hire lawyers to deal with the FDA, instead they provide FDA bureaucrats with girlfriends, consultancy payments, and the like, because the FDA does not obey any fixed set of rules or principles in dealing with biotech companies. At the company I work for we have a big problem with a piece of legislation whose meaning is far from clear. Every few lines of this legislation there is reference to children, or the children.My interpretation of this legislation is We care very much about children, and we feel so deeply we are going to bust some internet company for not caring as deeply as we do. Our company lawyer has no clear interpretation of this legislation, and suspect we would be a lot safer if we opened direct communications with the bureaucrats charged with intepreting and applying this legislation, rather than communicating through someone whose speciality and training is in finding and making trouble. We need someone whose speciality is being nice, making friends, and trading favors. Even better would be to do like the biotech companies, and open communication through a compliant woman, and throw in a few consultancy fees. In Mexico, lawyers are fixers, matchmakers that guide your bribes into the right pockets. The time is coming for American lawyers to stop pontificating about the law and make the same transition. --digsig James A. Donald 6YeGpsZR+nOTh/cGwvITnSR3TdzclVpR0+pr3YYQdkG 6sCz2aeqtaUMwXK7XL2AZ9J8ZO0CqLdFbEfs0F3L 4qFdvH5dA/nEnrUvk+rZ5TD0tGcOO4gUjo8LTFTlE
RE: Spoliation cites
On 3 Aug 2001, at 13:53, David Honig wrote: After MS was busted, it was widely publicized that it was thereafter official policy to destroy email after N days. As if Ollie et al. wasn't enough. If Microsoft gets busted for spoilation in their current lawsuit, then I will take Sandy and Black Unicorn off my loon list. :-)
RE: Spoliation cites
-- On 3 Aug 2001, at 22:43, Aimee Farr wrote: Neither Uni nor I suggested that routine document destruction is inappropriate in the ordinary course of business. I understood black unicorn, and Sandy, to be claiming it was inappropriate, and quite dangerous. You, while more cautious than they, seemed to endorse their position, without being very clear as to what it was you were endorsing. Black Unicorn's argument seemed to be Everything is forbidden, therefore you need to hire a lawyer who will issue the magic incantations to make it legal. This is nonsense on two counts: 1. Not everything is forbidden. 2. If everything is forbidden, then lawyers have no magic incantations. --digsig James A. Donald 6YeGpsZR+nOTh/cGwvITnSR3TdzclVpR0+pr3YYQdkG KVURnDrFjBLaIMUnrQF4jJ/6XGm6Fe56w0c6HDmO 4jkT6RK0+blfBnsJVbGhAe97M4AxK14w+URbO5ubE
RE: Spoliation cites
Poor stupid James wrote: If you are making claims about what the law might become in future, your qualifications for undestanding laws and court precedents are irrelevant. No James, as any first year law student could tell you, they way one makes educated assessments about how laws may be interpreted in the future are NECESSARILY based on understanding laws and court precedents. You cannot identify a trend without examining history. This is not a touch concept; there is an almost exact analogy in studying mutations in diseases. (Insert Santayana quote here.) Are you just dull or simply afraid to back down when you are wrong? S a n d y
RE: Spoliation cites
-- Harmon Seaver As others have stated, if you don't keep logs, or throw away all your reciepts, there's not jack they can do about it. At 7:22 PM -0700 8/2/01, Black Unicorn wrote: Uh, no. And if you had been reading the many, many posts on this point you'd see that about every one of the 10-15 cases cited here say exactly the opposite of what you claim above. A couple of posts ago Aimee confidently declared that none of the people presenting themselves as lawyers on this list had made the claim that you just made again. She is backpeddling, because it has become obvious your claim is nonsense, and the fact that you made it, (and perhaps she made it also before denying that she or anyone else had made it) shows you do not know shit from beans. So, unicorn, when are they going to bust microsoft for suddenly enforcing a policy of purging old email? --digsig James A. Donald 6YeGpsZR+nOTh/cGwvITnSR3TdzclVpR0+pr3YYQdkG Au38iVX2zXvYvErjQyRaAVHpCKctxga5f/ey5tKo 4Kinm5mjm7cxjymJi84l4gZy3LNr3OG8A4zERWWaF
RE: Spoliation cites
VI2 wrote: If Microsoft gets busted for spoilation in their current lawsuit, then I will take Sandy and Black Unicorn off my loon list. :-) If Microsoft gets busted for spoilation I'll buy James a new house. But if they get busted for spoliation I don't want to be taken off your loon list (and, I'm sure neither would Black Unicorn), it's too much of a good recommendation. By the by, who else is on your loon list? If Inchoate is there, I might want to rethink wanting to be there. :'D S a n d y
RE: Spoliation cites
-- James A. Donald: There is a trend to making everything illegal. Your qualifications to read tea leaves are no better than my own. Sandy Sandfort Well James, you got it right once. My qualifications for reading tea leaves are no better than your own. However, my qualifications for reading and understanding laws and court precedents are vastly superior to yours. If the claims you are making are claims about existing law, your qualifications for reading and undestanding laws and court precedents are not what you claim them to be. If you are making claims about what the law might become in future, your qualifications for undestanding laws and court precedents are irrelevant. --digsig James A. Donald 6YeGpsZR+nOTh/cGwvITnSR3TdzclVpR0+pr3YYQdkG /JUhfzDVQCF/7NKP7QU1UGB738ENkVXkkgb3MUho 4r8gCfjL6dZ1G4PYIxS3LTIlIQ6LnjaS7n8qr81Lr
The Curious Propsenity of Some Cypherpunks for (loud) Willful Ignorance. Was: Re: Spoliation cites
- Original Message - From: [EMAIL PROTECTED] To: [EMAIL PROTECTED]; [EMAIL PROTECTED] Sent: Saturday, August 04, 2001 11:07 AM Subject: Re: Spoliation cites On 3 Aug 2001, at 13:22, [EMAIL PROTECTED] wrote: I consider it, as I said, monstrous that a judge can legally deprive me of all copies of my own work in order to enforce a gag order, but again, if that's the way it is, that's the way it is. But it goes well beyond the bizzare to suggest that I should anticipate the possibility of a gag order and preemptively gag myslef in case one might be issued at a later date. [EMAIL PROTECTED] replies: Judges have never attempted such crap, and if they do, lawyers will irrelevant, and will have been irrelevant for a long time before the such anyone attempts such crap. These guys (Black Unicorn and his cheer squad) are loons, and I cannot imagine why they post such nonsense. The only thing that is more surprising than your total willful ignorance (have you even bothered to look at the several cites I have posted that positively refute your statement above?) is the fact that you keep insisting on demonstrating it- loudly. (I have no clue where this pre-emptive self-gagging discussion came from. That does sound silly indeed). It's like being in the dark ages or something. Clearly presented evidence, ignored as heretical and the purveyors of it burned (flamed?) at the stake. It's a wonder anyone bothers to impart any knowledge of worth to the list at all. I have cited authority for the proposition that courts, and more often plaintiffs, routinely demand broad productions related to a given matter. Many here have attempted to assign sinister motives to these production orders (censorship, seizure of private property, etc.) In reality they are generally directed to the very legitimate aim, given you accept the court's authority in the first place- which is another discussion entirely better directed to your legislative representative, of preserving evidence so that the parties may reach the truth and resolve their dispute. (This is, incidentally, the same rationale that gave rise to no-knock searches- which should be a demonstration of how seriously the need to preserve evidence is taken among law enforcement and judiciary types). In my personal legal work some years ago I can think of several instances in which a copy of a record has increased or reduced the probative value of an original- and have used them to refute or support claims and allegations in cases myself. Courts defendants and plaintiffs know this also and that's why production orders are so broadly written- and enforced. I am hardly the only example. In a mere 90 minutes of work I found and I have cited at least 5 major cases (which in turn would lead even the first quartile legal researcher to dozens and dozens more) that show that the burden of these productions may- and does- fall on third parties and that malicious, or indeed even negligent, loss or destruction of these documents could result in anything from a stern lecture, to unfavorable jury instructions, to sanctions to jail time. We have had at least two remailer operators called to stand before the man, despite the fact that they were not otherwise a party to a lawsuit of any kind. At least one who has disclosed his/her experience about it on the list. One defense I don't keep logs and therefore don't have any to give you was sufficient this time. Good. But those were copyright or libel issues before DMCA was the big deal it is now. The stakes are higher now, as certain anti-Adobe authors might tell you. It only takes a big drug case or a murder investigation and a third party remailer operator is probably going to be the subject of a lot more heat. Want to wait around for that hurricane before you take a few simple precautions? That's just dense. But be my guest. We might all just use DES because no cypherpunk has been arrested for an incident where DES was decrypted to obtain the evidence. (It hasn't happened yet, so what's the problem, right?) I prefer to use AES, thanks. I also don't buy land in flood prone areas without insurance. I have cited authorities. I have cited examples. I have given you the tools to find these and read them. Either demonstrate why these do not apply drawing directly from their text (it's freely available to anyone who would look) or no one here can take you seriously unless they have an ulterior motive for doing so. The fact that you don't think courts should exist in their current state, and that you proclaim so loudly and endlessly, is not going to help you when you are standing in court with U.S. Marshals or State Bailiffs at your side. (Ask Jim Bell about how well taunting a court works). The cure for your ignorance is simple. Just find any document production order at all. I can pretty much assure you the language will contain all documents, copies, reproductions and suchlike
Re: The Curious Propsenity of Some Cypherpunks for (loud) Willful Ignorance. Was: Re: Spoliation cites
Judges have never attempted such crap, and if they do, lawyers will Please do a search for Negativland and U2 on your favorite search engine. They were ordered to return to the court or U2's reccord label or whatever, all the copies they had of their U2 album. Every single copy. Interestingly, there was a distrinction between digital and analog copies; Negativland would distributed tapes at their shows, but never CDs. Anyway, U2 got quite embarassed by this, so they may have told their lawyers to back off, after the case was all over. But the point is, yes, definitely the judge can demand every single copy of a document, and this case clearly demonstrates it in action. Negativland weren't arrested, but they did go into bankruptcy because of this, and they had to go into hiding to escape creditors. Perhaps now they would just be arrested, I don't know.
RE: Spoliation cites
James wrote:-- Black Unicorn's argument seemed to be Everything is forbidden, therefore you need to hire a lawyer who will issue the magic incantations to make it legal. Sadly, that is A DAMN FACT. This is nonsense on two counts: 1. Not everything is forbidden. While everything is not forbidden, there is always a way to work the forbidden into what is not forbidden, and clients usually find it. 2. If everything is forbidden, then lawyers have no magic incantations. That is a DAMN LIE. The Federal Rules of Civil Procedure and all our other sources are nothing more than state-endorsed books of shadows. Furthermore, we have magic wands. It doesn't work unless you believe, you know ~Aimee
Re: Spoliation cites
- Original Message - From: [EMAIL PROTECTED] To: [EMAIL PROTECTED] Sent: Saturday, August 04, 2001 12:05 PM Subject: RE: Spoliation cites On 3 Aug 2001, at 13:53, David Honig wrote: After MS was busted, it was widely publicized that it was thereafter official policy to destroy email after N days. As if Ollie et al. wasn't enough. If Microsoft gets busted for spoilation in their current lawsuit, then I will take Sandy and Black Unicorn off my loon list. :-) In keeping with my new theory about Perfect Anti-Credibility I prefer to stay on your loon list, thanks.
RE: Spoliation cites
James wrote: Harmon Seaver As others have stated, if you don't keep logs, or throw away all your reciepts, there's not jack they can do about it. At 7:22 PM -0700 8/2/01, Black Unicorn wrote: Uh, no. And if you had been reading the many, many posts on this point you'd see that about every one of the 10-15 cases cited here say exactly the opposite of what you claim above. A couple of posts ago Aimee confidently declared that none of the people presenting themselves as lawyers on this list had made the claim that you just made again. Read the definition of ordinary course of business - it implies good faith by nature. You seem to think ordinary course of business means shred away! Bzzt. Read Lewy. Lewy says you can't hide behind a policy and destroy documents you KNEW OR SHOULD HAVE KNOWN might be relevant in future litigation - before you are served with suit or a preservation order. Yes, courts are likely to differ in their application based on the unique facts. However, if your ordinary course of business is to destroy or make unavailable of records in specific anticipation of a law suit or criminal complaint, you are probably not going to meet the good faith requirement. The court has some room to reach here, and they increasingly have the authority to do so. Whether they will be successful or not, I cannot say. She is backpeddling, because it has become obvious your claim is nonsense, and the fact that you made it, (and perhaps she made it also before denying that she or anyone else had made it) shows you do not know shit from beans. No, Sandfort, Unicorn and I are in agreement. So, unicorn, when are they going to bust microsoft for suddenly enforcing a policy of purging old email? No, nobody has said that. It is pursuant to a written good faith retention policy. Looking behind the veil the courts will likely see bona-fide good faith. You see an all-or-none proposition, when we are looking at the finer points within a range of hypotheticals. Stop putting words in our mouths. ~Aimee
RE: Spoliation cites
On Sat, 4 Aug 2001, Aimee Farr wrote: Read the definition of ordinary course of business - it implies good faith by nature. You seem to think ordinary course of business means shred away! Bzzt. Read Lewy. Lewy says you can't hide behind a policy and destroy documents you KNEW OR SHOULD HAVE KNOWN might be relevant in future litigation - before you are served with suit or a preservation order. Yes, courts are likely to differ in their application based on the unique facts. However, if your ordinary course of business is to destroy or make unavailable of records in specific anticipation of a law suit or criminal complaint, you are probably not going to meet the good faith requirement. You fail to see the distinction. Lewy speaks to SPECIFIC documents, not a general business process. One can have a general business process of shredding all documents, unless you believe they will be needed at some future time. That is a SUBJECTIVE call. It's that 'intent' in the cites that were so graciously provided. If you destroy all your documents (eg IBM puts a 90 archive period on ALL email, if it's needed for business purposes that is left up to the individual employee to make that call) as a matter of course and in the process documents are destroyed that are relevant to future litigation then the courts must demonstrate that you had some REASON TO SUSPECT they would be needed. In the case of both examples before neither party habitually got rid of documents (a doctor which destroys patient records isn't much of a doctor). Usually you draw a false distinction, in this case you are failing to make the distinction at all. -- Nature and Nature's laws lay hid in night: God said, Let Tesla be, and all was light. B.A. Behrend The Armadillo Group ,::;::-. James Choate Austin, Tx /:'/ ``::/|/ [EMAIL PROTECTED] www.ssz.com.', `/( e\ 512-451-7087 -~~mm-'`-```-mm --'-
Re: The Curious Propsenity of Some Cypherpunks for (loud) Willful Ignorance. Was: Re: Spoliation cites
On 4 Aug 2001, Dr. Evil wrote: But the point is, yes, definitely the judge can demand every single copy of a document, and this case clearly demonstrates it in action. But, in this case (as I've claimed in the past) EACH AND EVERY COPY represent harm to the plaintiff. Of course it makes sense to recover all copies where each of those copies will cause harm. The purpose of the court, and law in general, is to reduce 'harm'. That is NOT the same thing as demanding that an author of a work turn over each and every copy of same. Of course if there was a defamation issue then again it would make sense to recover each and every copy. In the case of something like the Pentagon Papers it makes sense to ATTEMPT to recover said documents. Since each copy represents harm. Bottem line, if the court orders all copies siezed there must be some indication of harm if ANY SINGLE copy remains unrecovered. Otherwise it's just a violation of the 1st. -- Nature and Nature's laws lay hid in night: God said, Let Tesla be, and all was light. B.A. Behrend The Armadillo Group ,::;::-. James Choate Austin, Tx /:'/ ``::/|/ [EMAIL PROTECTED] www.ssz.com.', `/( e\ 512-451-7087 -~~mm-'`-```-mm --'-
Re: Spoliation cites
On 4 Aug 2001, at 13:04, [EMAIL PROTECTED] wrote: My impression is that BU's response to me was based on a misundertanding of what I was saying. My impression is that whatever his original position, in the course of defending it, he made claims that were ever more unreasonable, ever more flagrantly wrong, and defended those ever more obviously erroneous claims by asserting the vast superiority of lawyers, and our vital need for lawyers, in an ever more condescending fashion. If judges behave as lawlessly as BU would up claiming they did, we have no need for lawyers at all. If judges are going to behave as lawlessly as Sandy now says he was predicting they will, we will have no need for lawyers at all. As for what Aimee is saying -- that was not very clear, and the more she says, the less clear it is.
RE: Spoliation cites
-- On 4 Aug 2001, at 12:46, Sandy Sandfort wrote: No James, as any first year law student could tell you, they way one makes educated assessments about how laws may be interpreted in the future are NECESSARILY based on understanding laws and court precedents. And as any one can tell you predictions of how the interpretation of laws will CHANGE cannot be based on existing laws and court precedents. In any case, you are backpeddling like mad. Having dug yourself into a hole with improbable claims on mandatory record keeping, you are now disowning with great confidence claims you previously made with equal confidence, indicating your understanding of existing laws and courts precedents is none too hot. What was previously a claim about existing law, has mysteriously mutated into a mere prophecy that future law might change into something like your original claim. How about simply saying I was wrong, instead of proclaiming omnicience twice as loudly when you are caught with your head up your ass? --digsig James A. Donald 6YeGpsZR+nOTh/cGwvITnSR3TdzclVpR0+pr3YYQdkG oYQwaBShfigTeer8NiMlXddKCdSOWTS4O8e02M+i 4E5drtnvUZpAn4ZvzKDgEPqKkBdbdXNEe/BBlTF86
RE: Spoliation cites
-- On 4 Aug 2001, at 14:54, Sandy Sandfort wrote: Jimbo II wrote: You, and Black Unicorn, have taken that extreme position. You were full of shit. Show me where I took that position. Put up or shut up, Jimbo II. A few posts back when I pointed out that most businesses engage in routine, regularly scheduled deletion of potentially inconvenient records, and none of them have got in trouble for it yet, you replied that a business that engages in that practice is like a man who has jumped from a tall building and boasts that he has not hit anything hard yet. Now, however, you deny ever taking that position, indicating that your previous position (the position that you proclaimed so pompously and patronizingly) was a load of old bananas, which in turn indicates that in this area of the law, you do not know shit from beans Whenever I ask our company lawyer a legal question, he usually answers That is not my area of expertise. You should try that answer. It will keep you out of lots of trouble. --digsig James A. Donald 6YeGpsZR+nOTh/cGwvITnSR3TdzclVpR0+pr3YYQdkG mKrxv4usZ5hBIK0d2YohwCLJQIoHzWOPfiPEN/jd 4ey4eUt9h8r7iMn8KRlC29ieqEb7/l4Smn0KoyTx2
Re: The Curious Propsenity of Some Cypherpunks for (loud) Willful Ignorance. Was: Re: Spoliation cites
-- [EMAIL PROTECTED] wrote: I consider it, as I said, monstrous that a judge can legally deprive me of all copies of my own work in order to enforce a gag order, but again, if that's the way it is, that's the way it is. But it goes well beyond the bizzare to suggest that I should anticipate the possibility of a gag order and preemptively gag myself in case one might be issued at a later date. James A. Donald: Judges have never attempted such crap, and if they do, lawyers will be irrelevant, and will have been irrelevant for a long time before the such anyone attempts such crap. These guys (Black Unicorn and his cheer squad) are loons, and I cannot imagine why they post such nonsense. Black Unicorn The only thing that is more surprising than your total willful ignorance (have you even bothered to look at the several cites I have posted that positively refute your statement above? A few posts back one of your loudest supporters suddenly reversed course and proclaimed that neither he nor yourself ever took such an extreme position, (his typically polite method of issuing a retraction) yet here you are taking an extreme position once again. The only cite that could possibly refute my words above would be to cite someone being busted, since the behavior you claim is illegal, the behavior that George announces his intention to engage in, is routine in most well run companies. I have cited authority for the proposition that courts, and more often plaintiffs, routinely demand broad productions related to a given matter. To be relevant to the case I and George speak of above, you need to cite an actual bust of someone whose work is deemed a thought crime, and was punished for ensuring that it was distributed out of his control before it was declared a thought crime. No one doubts that courts have broad authority to demand pie in the sky. What people doubt is that courts have broad authority to punish those who have rendered pie in the sky unobtainable, well before the case began, to punish those that have rendered the demand for pie in the sky moot. As I posted earlier in response to your claim of broad authority: Glendower: I can call spirits from the vasty deep. Hotspur: Why, so can I, or so can any man; But will they come when you do call for them? I have cited authorities. I have cited examples. You have not cited relevant examples. We have actual legal precedents where a remailer operator was summoned before a court and said Sorry, I do not keep logs. end of discussion. They cannot suddenly turn around and punish one for doing what one has legal precedent to believe is legal, and if we ever get to that point, you will have been unemployed for some considerable time. --digsig James A. Donald 6YeGpsZR+nOTh/cGwvITnSR3TdzclVpR0+pr3YYQdkG lZd4vAi2TTpp5GRW15mn1q+cyAFO0PJtAiYPT7GK 4aBAZQL08uKxJdCdzB6Qq5wZagEOir8ecDvv5GFYB
Re: Spoliation cites
On 2 -- On 2 Aug 2001, at 19:01, Aimee Farr wrote: [...] (under ' 1503, documents destroyed do not have to be under subpoena; it is sufficient if the defendant is aware that the grand jury will likely seek the documents in its investigation); \All these citations obviously refer to situations where the case is already under way, and are thus irrelevant to the claims made by Black Unicorn. --digsig James A. Donald 6YeGpsZR+nOTh/cGwvITnSR3TdzclVpR0+pr3YYQdkG kd0oj5fW/o0EwOuuRzu0rlgeZRTBEVnHnrOlq6Ym 4GYnFP1LaTnH+jnHwsBZ1Ad41opi6PXN0S+xhyaK8
RE: Spoliation cites
-Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]]On Behalf Of Harmon Seaver Sent: Thursday, August 02, 2001 7:02 PM To: [EMAIL PROTECTED] Subject: Re: Spoliation cites I think you're getting a little off-track here --- the original discussion was about whether the court could make the journalist turn over *all copies* of a document. She wasn't trying to destroy them to hide anything, I'm not sure where you have been over the last 48 hours but clearly you've not been paying attention. Courts _clearly_ have the ability to demand the production of all copies and originals of a document. They have merely to order it. They _clearly_ have the ability to smack a gag order on also. The rest of us settled that question some time ago. As others have stated, if you don't keep logs, or throw away all your reciepts, there's not jack they can do about it. Uh, no. And if you had been reading the many, many posts on this point you'd see that about every one of the 10-15 cases cited here say exactly the opposite of what you claim above. (I didn't see a legal background on your resume either but perhaps you have any cites that I don't know about?) --- the interesting question is whether or not they can somehow expect you to turn over *all* copies of a document you've published on freenet or mojo. And whether they are encrypted or not is irrelevant. Now I'm beginning to regret responding to this post at all because it's painfully clear that you just haven't got a good grip on this issue. Had you been reading you'd have known the answer to this, and why encryption or non-encryption was important about 40 posts ago. Although really, the most serious question everyone should be asking is why the court wants all copies. Asked and answered. Summarizing: You assert that the topic of electronic evidence spoliation is off topic for cypherpunks. You restate a question answered some 48 hours ago. You boldly assert, incorrectly, what the law is with respect to compelled production and court powers in the discovery process. You restate the question which followed the original query, as if it had never been asked and answered (which it had and was). You reintroduce the encryption and destruction issue, which I'm pretty sure I brought up and speculated on in the first place- and which you have earlier claimed was irrelevant. You return to ask again the original (answered) question which was the nexus of the discussion. Fine piece of work.
RE: Spoliation cites
James A. Donald wrote: He has presented no such punishment, therefore no such case exists. Therefore remailer operators and the rest of us can in perfect comfort fail to keep logs, we can circulate thought crimes into irrecoverable systems, and so on and so forth. Apparently, James did not understand the thrust of Aimee's post at all. The important thing to understand about legal precedents is that they may show a TREND in the law. The common law evolves over time. To say that no precedent DIRECTLY ON POINT exists means that you can operate in perfect comfort is asinine. The question is, what will a court say NEXT? S a n d y
Re: Spoliation cites
On Fri, 3 Aug 2001, Harmon Seaver wrote: Frankly, even I couldn't be *really, really* sure I had given them all copies -- I've got zipped files floating around all over the place, on backup tapes, stored on various machines, servers around the net, floppies in boxes I'll find years later, etc. And if the court doesn't believe you, issues a order directing the confiscation and search by LEA's of that material and they find something on those archives you're goose just got cooked. Those will be years later in jail. The courts generaly expect you to expend whatever resources you need providing the materials they request. -- Nature and Nature's laws lay hid in night: God said, Let Tesla be, and all was light. B.A. Behrend The Armadillo Group ,::;::-. James Choate Austin, Tx /:'/ ``::/|/ [EMAIL PROTECTED] www.ssz.com.', `/( e\ 512-451-7087 -~~mm-'`-```-mm --'-
