From: Black Unicorn <unicorn@access.digex.net>
Date: Tue, 20 Sep 94 07:39:04 PDT
To: nobody@kaiwan.com (Anonymous)
Subject: Re: On the crime bill and remailers
In-Reply-To: <199409200329.UAA07612@kaiwan.kaiwan.com>
Message-ID: <199409201438.AA18252@access1.digex.net>
MIME-Version: 1.0
Content-Type: text/plain


Anonymous scripsit
> 
> Mr. Unicorn is rude and uninformed.  He will go far.

Anonymous must be a Baker & Botts associate.

> 
> 1) The act does not make it a per se offense to have a remailer.
>
> 2) The act makes it an offense to aid a terrorist.
> 
> 3) Query: is there a scienter requirement in (2)?

  4) Query: and if so how will it be diluted by the investigation 
requirements in the act?

> 
> [for the sake of simplicity, we will ignore the fact that there are
> scienter requirements in a related part of the bill already, and use Mr.
> Unicorn's hypothetical of no explicit requirement of scienter]

1>  Please point these out.
2>  Please show the connection between related parts of the bill and the 
offense definition.  (I was at a loss to make such a connection, have I 
missed something?)

> 3a) There must be a scienter requirement to avoid turning the
> proscription in (2) into either (i) a per se offense, excluded by
> (1), or (ii) a violation of due process.

By refering back to (1) here you are assuming that which is to be 
proven:  It is not a per se offense to run a remailer because that would 
violate your premise that is it not a per se offense to run a remailer.  
Or is your premise based on some other reference?

Instead you might ask how the statute will be read in the context of the 
differing language between the investigation threshold requirement and 
the definition of offense.  Why would one mention intent so explicitly 
and the other ignore it?  Did congress anticipate the difficulty of 
showing intent in this type of prosecution and structure the act 
accordingly?  This would be my argument as a prosecuter.

> 3b) Query: why would it be a violation of due process to
> have a ban on unknowingly aiding terrorists in the manner Mr. Unicorn 
> wishes to read the satute?

Ah, but the counter to this arguement (obviously structured well into the 
statute) is that there will never be any investigation into the offense 
without resonable facts to suggest intent.  (This is the killjoy to the 
due process arguement.)

> An analogy will make the point.  Suppose the act concerned restaurant
> regulation, and made it an offence to "feed" a terrorist.  Carlos walks
> into your joint in disguise, orders and duly consumes ham on rye.  What
> verdict?  Courts will do what it takes to say not guilty, whether via due
> process, the rule of leniency, or statutory construction. 

You rely on the construction tending to constitutionality here, but it is 
equally valid to construct the statute as meeting the due process 
requirement via the investagatory intent requirement.  This was my entire 
point.  Given the difference in the requirements between allowing 
investigation and definition of offense, there is a basic imbalance in 
the act.  Why?  Accident, poor drafting? Intent?

> N.B. these problems could be cured, and due process observed, by finding a
> duty to make enquiry or imputing a negligence standard of some sort, but
> we do not see any hint of this in the statute. 

Exactly.  So why are they not?  Why is this never mentioned.  I can only 
believe that the structure of the statute is intended to provide this 
arguement as a loophole.  I'm not paranoid enough to want to claim that 
this is to peg remailer operators specifically, (duh) but what are the 
implications for a very soft offense definition in a federal crime bill?

> 4) Aha! you say, but terrorism is different from nice law abiding
> restaurants, and we brave c'punkers that we are, are on the Edge,
> not like the honest sandwitchman.  The courts will not give us
> any breaks.  Alas, there is the case of Ratzlaf v. United States,
> 114 S.Ct. 655 (1994) [summary quoted below], in which the Supreme
> Court imputed a scienter requirement into a money laundering
> statute which on its face required no such scienter at all.  

I have not had time to look at 31 USC 5324(3) in detail with reference to 
this problem.  Nor have I looked at the case.  At first glance it looks 
promising, but I remain a skeptic.  It is too tempting to use the 
language in the investigatory intent requirement to dismiss the 
arguements you make.

I must admit to being impressed at this reference however.  I may be 
eating crow soon.

> 5) QED.
> (As for others who are as quick to damn as to praise...watch your 
> cholestorol!)

I eat Sausage McMuffins with egg every morning.

> //QUOTING--
> SYLLABUS:  

> time it is called into play. Because currency structuring is not
> inevitably nefarious, this Court is unpersuaded by the United
> States' argument that structuring is so obviously "evil" or
> inherently "bad" that the "willfulness" requirement is satisfied
> irrespective of the defendant's knowledge of the illegality of
> structuring.

In any event, this is the real key here.  What do you think a judge will 
find encrypted remailing rates on the "nefarious" scale?  In context I 
think it will be quite harsh.  Especially given the very nature of the 
act, (to avoid detection of one thing or another).  I believe anonymous 
remailers have some use.  But they are so targeted to prevent GOVERNMENT 
observation and intercepts, that they just plain look bad.  This would be 
the key distinction in such a case from Raztlaf.  All a judge has to do 
to throw out this entire argument is find that encrypted, traffic 
analysis foiling, anonymous remailers are more nefarious than currency 
structuring.  Given the (lack of) public exposure to the technology, what 
do YOU think this ruling will turn out to be, especially if the only real 
legitimate argument for why remailers are legitimate rests on more 
libertarian grounds.

> 
> SOLONg
> 

Impressed with your research skills, not quite convinced with your argument.

-uni- (Dark)


-- 
073BB885A786F666 nemo repente fuit turpissimus - potestas scientiae in usu est
6E6D4506F6EDBC17 quaere verum ad infinitum, loquitur sub rosa    -    wichtig!