--
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 some busts. Opinions are worth two cents a bale, but only after they have
been baled. You can find an opinion for anything.
Nothing is going to stop big business, small business, and individuals from destroying
records except some busts -- quite a lot of busts with quite drastic penalties,
penalties specifically imposed for routine record destruction, penalties explicitly
intended to put an end to the routine and
widespread practice of routine record destruction.
No such busts so far -- therefore you are full of shit.
More from the cite:
> "Such a presumption or inference arises,
> however, only when the spoliation or destruction [of evidence] was
> intentional, and indicates fraud and ...
This is, more or less, the guilty mind criterion. Routine destruction of remailer
logs, publication on irretrievable media, and the like, really are not evidence of the
guilty mind. Your cites are just rambles, each paragraph contradicts the next.
As I said, no busts, therefore it is legal.
> In some high-risk endeavors, opponents may argue that destruction or
> purposeful non-retention = fraudulent intent. I don't think Remington REALLY
> wanted to keep those complaints 3 years, James. Ask yourself why they did
> even that.
I rather think they did want to keep them three years. Compared to the typical reach
of a lawsuit three years is quite short. If they had made it three hours instead of
three years, it would not make a large difference to lawsuits, but it would have made
a large difference to customer
satisfaction. Throwing away complaint letters while they are still hot would indeed
be obvious evidence of a guilty mind, obvious evidence of the validity of the
complaints. However throwing them away after three years still sticks a big spoke in
the wheels of class action lawsuits. Therefore
it is legal to purge documents in ways that stick a big spoke in the wheels of
forthcoming lawsuits, even when they are complaints, even when such lawsuits are
obviously coming down the road, as they were in the Remington case.
> Look, we are just trying to envision what opponents are likely to try.
No. You are spreading fear, uncertainty, and doubt.
This battle, if it is ever fought, will be fought by people with big pockets. The
courts will go after them first. If they lose, then AFTER that loss, remailers will
feel a cold breeze on their testicles.
Remailers and freenet and the like do not need to think about this until the battle is
ending. The battle has not yet even begun, and I rather doubt that it will.
> > You guys keep telling us we are not allowed to routinely purge
> > records,
> You keep speaking in absolutes. It's more complicated.
No it is not complicated.
If I search through my records and destroy certain specific records for certain
complicated specific reasons, then those specific reasons can make life really
complicated, depending on what those reasons are. If I say "That heap looks pretty
dusty -- I guess I am not likely to need it", and
chuck it in the bin because it is old, then because I throw it away for uncomplicated
reasons, life does not get complicated.
The question is simple: Do we have to keep all records the state might someday decide
it wants to look at, or don't we?
The answer is, we certainly do not. If we did, Remington would have been busted for
their three year policy on complaints. Your citations just do not say what you claim
they say.
If someone sends me a letter threatening a to sue me, that is complicated. If my
remailer processes a letter carrying a threat, a letter whose context and relevance I
do not know or care about, a letter I do not read, and cannot be expected to read,
that is quite uncomplicated.
--digsig
James A. Donald
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