Re: So, what crypto legislation (if any) is necessary?

[Black Unicorn <unicorn@schloss.li>]

On Fri, 29 Mar 1996, jim bell wrote:

> At 04:54 PM 3/29/96 -0500, Black Unicorn wrote:
> >On Fri, 29 Mar 1996, jim bell wrote:

> >
> >(Snore)  How many cases do you want me to cite that hold that the 
> >disclosure of an inquiry with the intent of evasion is conspiracy and 
> >entails criminal charges?
> 
> You _do_ have an odd way with words.  "entails" criminal charges?  Hey, they 
> can charge ANYBODY with ANYTHING, but that doesn't mean that a crime has 
> actually been committed.  Further, it isn't clear that anybody is obligated 
> to respond to a subpoena without the possibility of a court challenge, and 
> your fantasy about the cops showing up and trying to strongarm the ISP is 
> laughable at best.  

Ok, forget "entails" try "is a crime."

As for strong arming, ever see a search warrant served at a law firm or a 
trust company, or a bank?

> 
> >Do you honestly think you can evade prosecution for suborning the 
> >destruction of material evidence in a criminal trial?
> 
> Who said anything about "destruction of material evidence"?  Refusing to 
> hand over information until AFTER a court has properly responded to a 
> challenge to a subpoena is old hat to newspapers, TV stations, and other 
> media-organizations who are occasioinally served with a subpoena.  The ISP 
> need merely say, I'm challenging this subpoena in court, go away 
> motherfuckers!  ISP prepares a challenge, "CC's" ALL the affected 
> individuals, (including the person whose information is desired!),  and the 
> validity of the subpoena is tested.

What you miss are provisions for the preservation of evidence called for 
in the order during the hearing process.  The fact that you can fight a 
subpoena has no bearing what-so-ever on the fact that its a crime to 
destroy the evidence until the court rules that its non-material or 
otherwise quashes the subpoena.

I grow tired of being the source of your continuing legal education.

> My feelings exactly.  Please stop acting like a government suck-up all the 
> time.  Maybe you're paid to do it, but unless you're a plant, you're on your 
> free time now.

Anyone who knows me knows I spend all my days end arounding the 
U.S. government.  The reason you can't see that is because I don't 
threaten to murder officials, but choose the intellectual detour around 
the myopic laws instead.  I realize that, lacking the facilities to 
pursue the latter, you must resort to the former.

> >Unfortunately, by the time (in the case of domestic investigations, and 
> >foreign investigations in more compliant jurisdictions) it gets to the 
> >point where authorities are checking about, they will have walked into 
> >the ISP and personally requested the information with subpoena in hand.  
> 
> Again, you blindly assume that the subpoena can't be challenged in court.  
> It can be.  

See above.  Has no bearing on the willful destruction of evidence.

> 
> >Perhaps the ISP with the nerve to destroy material evidence in the 
> >presence of law enforcement exists,
> 
> You keep inventing these phony scenarios, building up these straw men and 
> knocking them down.  Clearly, your underlying argument is quite weak.  I 
> said nothing about "destroying evidence."

What is the function of your elusive super-secret "rosebud" warning 
then?  To tell the account holder to get a cup of coffee and call the 
prosecutor to arrange for the delivery of the sought information?

> In fact, the ISP could simply 
> encrypt everything with the target's public key, and keep it.  That's not 
> "destroying evidence," that's locking it away in such a way so that nobody 
> except the target can unlock it.

Subjecting the target to compelled discovery orders $50,000+/day 
fines, contempt charges, and incarceration for non-compliance.  This, by 
the way, regardless of the "incriminating" nature of the evidence.  Fines 
are not going to be refunded if the data/evidence is later proved immaterial.

> Ideally, this would be done automatically 
> every time a person calls his ISP, although the software to do this probably 
> doesn't exist yet.  The result would be that whenever the target was NOT 
> connected to the ISP, there would be no information on the ISP's system that 
> could be decrypted by the ISP operator.

Again, this still subjects the account holder to fines etc.  God help him 
if he can't produce the desired information.  He's likely to spend quite 
a long time in jail until the judge is convinced that he's telling the 
truth when he says "I threw away the key."
 
> This would be one of those inventive future uses of encryption, well beyond 
> plain vanilla PGP, which we must assure ourselves will be developed.  The 
> kind of thing you dread, obviously.

I don't dread it at all.  I simply recognize the limited protection it 
affords the evidence concealer.

> 
> >but I sincerely doubt this ISP will 
> >escape serious prosecution for doing it.
> 
> I sincerely doubt Unicorn will ever stop being a government suck-up.

I certainly won't endorse moronic schemes that are so out of touch with 
practical and legal reality so as to be laughable.  I will certainly not 
keep quiet when I see, yet another, misleading out-of-rectum-pulled plan 
to evade all liability in the most pervasive and coercive jurisdiction in 
the world.

Word to the wise reader:  If you're considering asset / informational 
protection from discovery or attachement, by all means consult a 
professional.  Mr. Bell's disinformation and illusions are dangerous in 
the extreme.

> > At the very least the employees 
> >of the ISP will have knowledge of this practice.  Unless it's a single 
> >person run ISP, I doubt you're going to be able to keep everyone from 
> >testifying.  What you propose is a crime in the United States, and in 
> >many foreign jurisdictions.
> 
> If an ISP's system automatically encrypts all received message's with the 
> destination's public key when received, and doesn't keep an unencrypted copy 
> around, showing up at that ISP's location with a warrant will result in ZERO 
> (ZIP, ZILCH, NEGATORI, etc) information that can be  delivered, unencrypted, 
> to the cops.

The what's the purpose of your secret-super-duper "rosebud" warning?  In 
the absence of evidence/information availability to law enforcement at 
the ISP, the account holder will be directly accountable.  Is this a 
better solution?

You've now changed the structure of your "protection" scheme four times 
to duck my criticisms.  This was the same with your inventive but 
impractical nuclear detonation scheme, and your kill-the-pigs "dead pool" 
scheme.

> >> The end result is that your foolish opinion of what the law allows will 
> >> simply become irrelevant: The government cannot mandate what it cannot 
> >> enforce, and it cannot enforce what it cannot detect.
> >
> >I have often noted that the best defense is the lack of detection in the 
> >first place. 
> 
> No, an even better defense is to make it absolutely impossible, as a matter 
> of business practice, to assist the police with any kind of an 
> investigation.

On the part of the ISP, this is possible.  A secret "rosebud" tipoff is 
not the way to do it.  Your constant encryption option is a bit better, 
but still subjects the account holder to an investigation where the ISP 
is compelled to cooperate with the authorities in secret and intercept or 
record the computing session in real time.  Your fourth scheme is thus 
reliant on the trust-worthiness of the ISP, which I have indicated, and 
you have acknowledged by your constant ranting about the abuses of the 
justice system, is dubious at best.

> Before you go off and shoot your mouth off about how evil 
> and bad that is, you need to remember that regular destruction of records is 
> an acceptable practice in any company today.

Unfortunately, records can only be completely destroyed in a pre-emptive 
way when they are of no use any longer.  This, again, ignores the 
possibility of real-time investigation or informers.

  While courts will look askance 
> at it when it does not appear to be a regular business practice (say, the 
> company gets sued today and they have a mass shredding tomorrow) there is 
> nothing wrong about regularly making past records unavailable by shredding, 
> burning, erasing, or by any other method. 

Once suit is filed there is.

> Making those records SELECTIVELY unavailable by encrypting them with 
> somebody else's public key and keeping them has probably never been tested 
> in court, but if the business contracts this ISP regularly signs have this 
> as a provision of doing business, the court can't squawk after the fact.  

No, instead, knowing of this provision, any plaintiff or prosecutor will 
apply for a TRO to preserve evidence before ever filing for a warrant.  
Review: Fines and contempt that can be leveled for non compliance on 
third parties.

> After all, the ISP might have simply erased the files, keeping them from 
> being accessed by ANYBODY, including their "owner."

This argument will go over real well in court.

> > Unfortunately this is the oft denounced "security through 
> >obscurity."  Look, I know it's fun to imagine you can thwart the 
> >authorities with impunity within the United States. 
> 
> Hey, you can FREQUENTLY "thwart the authorities."  If I have evidence of a 
> crime in my house, the cops can't come in unless they have a warrant.

Uh, not precisely so.  Lots of circumstances exist where your home can be 
searched without a search warrant.  Search of premises incident to a 
lawful arrest is just one of them.

> If I 
> know they're coming, and can destroy it untraceably, I WIN!  See, that's how 
> freedom works!  It's  nearly the exact opposite of "the government can do 
> anything it wants, any time it wants, and anybody who frustrates them is a 
> criminal!"

Yadda yadda yadda.
 
> Naturally, you won't like this.

I don't like it because it's not a solution, because it's not novel, and 
because courts, law enforcement, prosecutors and private litigants have 
thought of it already and created provisions to prevent it.

> >Unfortunately it is 
> >a fantasy.  The system you propose requires someone to be present in the 
> >ISP 24 hours a day.

[description of problems with Mr. Bell's scheme removed]

> Yet another one of your multiple problems is that you have no imagination 
> when it comes to "thwarting the authorities."  I do.  Don't try to tell me 
> what can't be done, because I'll turn around and tell you how it CAN be 
> done!  I just did.  The actual implementation waits for some slick coder to 
> do it, but I give you 5 years, tops, before it's in regular usage.  And 
> that's assuming they're all a bunch of lazy bastards.

You told me nothing.  You hedged, changed your scheme, altered the 
portions I attacked and revered to a previous scheme I had already decimated.

And you made several legal analysis errors, as usual, in the process.

> >Your last resort in all of your arguments seems to be murder, extortion, 
> >the threat of bodily harm, arson or assault, or destruction of private 
> >property.
> 
> A list which seems to be the current modus operandi of most levels of 
> government in America, today.

So you might as well murder a few people.  Why not?

> In any case, I think it's fair to hold an ISP to his word and contract.

Contracts are void to the extent they are illegal.  Obstruction is 
illegal.  Destruction of material evidence to a crime is illegal.  
Conspiracy to obstruct justice is illegal.

> If 
> the "normal" referee to such contracts (the court system) becomes biased 
> because it begins to be an interested party to the en-  "CUT!"

Yadda yadda yadda.

> >No.  I speak from experience when I say that "proof" of complicity is 
> >rarely a requirement.  The judge need only suspect wrong doing.  It's 
> >easy to levy contempt fines, and very hard to overturn them.  
> 
> It's easy to kill, and hard to resurrect the dead.
> 
> >The 
> >standard in most jurisdictions is "clearly erronious."  Tough stuff.
> 
> Yes, I'd say you're "clearly erronious."  
> 
> If you can repeatedly describe, in nominally accurate terms, how abusive the 
> government has become and NOT oppose its actions with every fiber in your 
> being, then YOU have made yourself part of the problem.

Who said I didn't oppose it?  I just don't kill people, or call for their 
death (other than by suicide) to accomplish my goals.

> >Unfortunately, fines and penalities are imposed every day based on 
> >assumptions by the trier of fact.  Go watch a major court case some time.
> 
> You still haven't given me specific examples.

My note contains many.  Consider a pair:

Unites States v. Bank of Nova Scotia, 740  F.2d 817, 832 (11th Cir. 
1984), cert. denied, 469 U.S. 1106 (1985)(upholding $25,000/day fine 
totaling $1,750,000 for failing produce documents located in the Cayman 
Islands under grand jury subpoena duces tecum; Marc Rich & Co., A.G. v. 
United States, 707 F.2d 663, 670 (2d Cir.), cert. denied, 463 U.S. 1215 
(1983)($50,000/day against Swiss corporation for noncompliance with 
subpoena duces tecum demanding documents located in Switzerland).

In both cases the documents were not shown to be material evidence when 
the fines were imposed and the judge was merely assuming they would be 
incriminating.

I don't name specific cases I have been involved in without client 
waiver, but I have myself seen larger fines for less in white collar 
crime cases.

> >> Bullets could easily fly. 
> >
> >And will.  I've seen this happen.  Trustee refuses to produce documents, 
> >court imposes compelled discovery, documents burn or are lost or have been 
> >stolen, trustee (who can be assigned no direct evidence of complicity) is 
> >fined heftily.  A case I was not personally involved in saw the judge 
> >jail the trustee for 4 months.
> 
> That's not what I'm referring to.  Judges are mortal.

Yadda yadda yadda.

> Remember that prosecutor who died in Boston a few months ago?  You 
> know, the one who made the national news?  I'm still waiting to see how 
> that one came out, but I suspect they will never be able to prove who 
> did it, and may not even be able to find out.

Parties who believe Mr. Bell might have been responsible are invited to 
call the Boston Police and provide an anonymous tip.

> >> >With Mr. Bell as a defense attorney, who needs prosecutors?
> >> 
> >> If I intended to limit myself to the tools of the court room (that's the 
> >> enemy's playpen, BTW) I would probably be just as ineffective as the next 
> >> defense attorney.
> >
> >So again, we see Mr. Bell in his basic form.  Violent offender.  He will 
> >obtain by force that which he cannot argue into his hands.
> 
> Except that in a court room, the decision maker is PAID by a party to the 
> case, the government.  That sounds like a classic conflict of interest 
> to me.

Yadda yadda yadda.

> Jim Bell
> jimbell@pacifier.com

---
My preferred and soon to be permanent e-mail address:unicorn@schloss.li
"In fact, had Bancroft not existed,       potestas scientiae in usu est
Franklin might have had to invent him."    in nihilum nil posse reverti
00B9289C28DC0E55  E16D5378B81E1C96 - Finger for Current Key Information