Apologies if this is a repeat, I never received it. > -----Original Message----- > From: Aimee Farr [mailto:[EMAIL PROTECTED]] > Sent: Tuesday, July 31, 2001 9:35 PM > To: Black Unicorn > Cc: [EMAIL PROTECTED] > Subject: RE: Spoliation, escrows, courts, pigs. Was: Re: DOJ jails > reporter, Ashcroft allows more journalist subpoenas > > > 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
